Gill v. Canada ( Minister of Citizenship and Immigration )
IMM-3082-98
Evans J.
16/7/99
12 pp.
Judicial review of Immigration and Refugee Board's dismissal of appeal from visa officer's refusal of Mr. Gill's permanent resident application as medically inadmissible-Mr. Gill, 66-year-old citizen of India, originally entered Canada with wife in 1993 as permanent resident-Returned to India 10 months later because mother ill-Wife returning before expiry of returning resident permit, but Mr. Gill did not-Mrs. Gill, husband's sponsor, appealed visa officer's decision on grounds finding of medical inadmissibility wrong in fact or law, and compassionate or humanitarian considerations-Appeal dismissed by IRB on ground medical officers' decision not unreasonable, little evidence of resulting hardship if refused entry on medical grounds-Applicant alleging not having reasonable opportunity to put case before Board as presiding member rejecting documentary evidence pertaining to seriousness of Mr. Gill's medical condition; precluding Mrs. Gill, son from making oral submissions to support humanitarian, compassionate claim; erred in law in upholding visa officer's determination admission of Mr. Gill might reasonably be expected to impose excessive demand on health services-Application allowed-Mrs. Gill seeking to adduce medical reports, photographs of Mr. Gill exercising as evidence osteoarthritic knee not requiring immediate replacement-Whether erred in law, denied applicant procedural fairness, by excluding documents depending on whether, in light of all circumstances, excluded material would so have advanced applicant's claim that no tribunal, acting fairly, reasonably, would have refused to admit it, even if not properly filed, disclosed to opposing party-Documents other than photographs cannot be so characterized as precise content not established, probably added little to cogency of medical opinions-Photographs not of such probative value that exclusion error of law justifying judicial intervention-Presiding member cut off counsel's questions intended to demonstrate circumstances surrounding Mr. Gill's departure for, stay in India supported argument compassionate, humanitarian circumstances warranting special relief-Intervention by questioning relevance of question not amounting to outright refusal to permit counsel to put his questions; simply asked for explanation of relevance-While not lawyer, applicant's counsel formerly member of Immigration and Refugee Board, familiar with hearing process-Counsel's failure to stand his ground, show presiding member questions not going over old ground, but to make new, relevant point, not amounting to denial of procedural fairness by tribunal, or to unlawful refusal to admit relevant evidence-Any error of judgment made by counsel in not persisting with questions intended to ask, attributed to principal under adversarial process-Presiding member committed error of law in refusing to allow applicant's request to speak-Parties to administrative proceeding entitled to be present throughout, cannot be excluded because going to be called as witness-For this reason, appellant before Appeal Division normally testifying first-Not happening in this case because counsel telling presiding member Mrs. Gill would not be called as witness-Regardless, when Mrs. Gill later wanted to speak, open to member to give less weight to anything might say because of presence in room when other witnesses testified-Erred in refusing to permit her to testify because remained in hearing room, as entitled to do-Applicant not having adequate opportunity to present to Board all material relevant to humanitarian, compassionate ground of appeal, particularly in respect of circumstances under which Mr. Gill absent from Canada after original admission as permanent resident-That many Canadians Mr. Gill's age require particular operation (eg. knee replacement), and that sometimes long waiting periods, or necessary to go to hospital in United States, not justifying in law finding admission of person who also needs this operation will impose excessive demands on health service-Any "excessive demand" caused by devotion of resources inadequate to meet demand from present population, not by admission of otherwise qualified applicant for visa.