A-771-86
Pal Singh Uppal (Appellant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: UPPAL v. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION)
Court of Appeal, Pratte, Heald and Mahoney
JJ.—Vancouver, June 11; Ottawa, June 25, 1987.
Immigration Refusal of landing application for medical
reasons — Admissibility of medical evidence adduced before
Board to contradict diagnosis — Relevance of evidence of
applicant's current medical condition — Immigration Act,
1976, S.C. 1976-77, c. 52, ss. 2(1), 19(1)(a), 59(1), 65(2)(c),
79(1)(b),(2) (as am. by S.C. 1986, c. 13, s. 6) (a),(b), 84.
Practice Judgments and orders Consent judgment —
Nature of No precedential value.
The appellant sponsored applications for landing of five
members of his family. The applications were refused by a visa
officer on the basis of the opinion of two medical officers that
two of the applicants, the father and a sister of the appellant,
had pulmonary tuberculosis, possibly active, a condition likely
to endanger public health. The Immigration Appeal Board's
dismissal of the appeal from that decision was essentially a
consequence of the view that medical evidence adduced to
contradict the medical officers' diagnosis need not be con
sidered. This is an appeal from that decision.
Held (Pratte J. dissenting in part), the appeal should be
allowed.
Per Mahoney J. (Heald J. concurring): While opinion is
neither law nor fact, it is, however, evidence. Subsection 65(2)
of the Act required the Board to receive "additional evidence",
making it clear that it is not limited to that on which the
decision under appeal was based. That provision also makes
clear that the Board is the judge of the credibility and relevance
of the evidence, but it cannot decline to receive it, nor to
consider it if it is relevant. In the instant case, there is no doubt
that it was relevant.
Although, as held recently by this Court in Mohamed, the
time as of which the applicant's condition is to be determined is
not that of the hearing of the appeal by the Board but that of
the medical officers' opinion and the visa officer's decision, it
did not follow that evidence as to an applicant's current condi
tion might not be relevant to a paragraph 79(2)(b) decision.
The Board erred in that the diagnosis and the conclusions as
to the danger for the public health are questions of facts upon
which parties before the Board may lead evidence in respect of
which the Board is required to determine credibility and rele-
vance. This also applied to the question as to whether the
diagnosis in issue required personal examination of the appli
cants, which was not done.
In a consent judgment of this Court in Gandham, a matter
was referred back to the Board on the basis that, as a matter of
law, a refusal pursuant to subsection 79(1) and subparagraph
19(1)(a)(i) of the Act may not be made on the basis that the
applicant has possibly active pulmonary tuberculosis. Since it is
said that some panels of the Board have considered this judg
ment as a precedent, it had to be emphasized that a consent
judgment has no precedential value. A consent judgment
reflects neither findings of fact nor a considered application of
the law to the facts by the court.
The Board must exercise its jurisdiction to grant special
relief on compassionate or humanitarian grounds in light of all
the circumstances at the time the application for special relief
is made, including the applicant's current medical condition.
Per Pratte J. (dissenting in part): The Board was right in
refusing to consider the medical evidence tendered to contradict
the medical officers' opinion upon which the visa officer's
decision was based.
The only question to be answered was whether two medical
officers had expressed the opinion, on which the visa officer
based his decision, that the appellant's father and sister were
likely to be a danger to public health. Other expert medical
opinions were not pertinent. The Board was in the same posi
tion as the visa officer: it could not substitute its opinion for
those of the two medical officers.
When visa officers and the Board are submitted medical
officers' certificates attesting that an applicant is inadmissible,
they must check whether the certificates really disclose that the
medical officers have formed the necessary opinion. But they
can go no further. The appeal should otherwise be allowed for
the reasons given by Mahoney J.
CASES JUDICIALLY CONSIDERED
APPLIED:
Cheryl! Anne Nandee v. M.E./., decision dated December
24, 1985, Immigration Appeal Board, I.A.B. 84-4095;
Mohamed v. Canada (Minister of Employment and
Immigration), [1986] 3 F.C. 90 (C.A.).
NOT FOLLOWED:
Sat Paul Sharma v. M.E.!., decision dated July 17, 1985,
Immigration Appeal Board, I.A.B. 83-6710.
CONSIDERED:
Gandham v. Canada (Minister of Employment and
Immigration), judgment dated May 29, 1986, Federal
Court, Appeal Division, A-713-85, not reported.
REFERRED TO:
Ahir v. Minister of Employment and Immigration,
[1984] 1 F.C. 1098 (C.A.); Hiramen v. Minister of
Employment and Immigration (1986), 65 N.R. 67
(F.C.A.).
COUNSEL:
J. R. Aldridge (for D. G. McCrea) for
appellant.
William C. Funnell for respondent.
SOLICITORS:
McCrea, Paul & Long, Vancouver, for
appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J. (dissenting in part): As stated by my
brother Mahoney in his reasons for judgment,
there are five issues to be decided on this appeal.
As to the last four of those issues, I agree with
what he says. I differ from him on the first issue.
In my opinion, the Board was right in refusing to
consider the medical evidence tendered to con
tradict the opinion given by two medical officers
pursuant to paragraph 19(1)(a) of the Immigra
tion Act, 1976 [S.C. 1976-77, c. 52].
The evidence that the Board is authorized to
receive must be relevant to an issue before it; it
may not relate to an issue that the Board has no
power to resolve. In this case, the appeal before the
Board raised two questions, namely:
(1) Was the decision of the visa officer rejecting
the application for landing correct in fact and
in law?
(2) Did compassionate or humanitarian consider
ations exist warranting the granting of special
relief?
The state of health of the appellant's sister and
father was clearly relevant to the second question
and, for that reason, the Board, as stated by my
brother Mahoney, should have considered the evi
dence bearing on that subject before denying spe
cial relief. What is not so clear is whether the
medical evidence tendered was relevant to the first
issue.
The visa officer rejected the application for
landing because, in his view, the appellant's father
and sister were members of the class of inad
missible persons described in subparagraph
19(1)(a)(î).' The visa officer did not and could not
have based his rejection of the application on his
own opinion that the appellant's sister and father
were so seriously ill that they were likely to be a
danger to public health. What makes an applicant
inadmissible under paragraph 19(1)(a) is the opin
ion of the medical officers. 2 Under paragraph
19(1) (a), the opinion a visa officer may have as to
the health of an applicant is entirely irrelevant: it
cannot make an applicant inadmissible and it
cannot make admissible an applicant that is other
wise inadmissible.
The issue before the Board was whether the visa
officer had correctly held that the appellant's
father and sister were inadmissible under para
graph 19(1)(a). The only question to be answered,
therefore, was whether two medical officers had
formed and expressed the opinion, on which the
visa officer had based his decision, that the appel
lant's father and sister were likely to be a danger
to public health. The opinions of other medical
experts on the same subject were not pertinent to
that issue. The Board was in the same position as
the visa officer: it could not substitute its opinion
for those of the two medical officers so as to render
1 That provision reads as follows:
19. (1) No person shall be granted admission if he is a
member of any of the following classes:
(a) persons who are suffering from any disease, disorder,
disability or other health impairment as a result of the
nature, severity or probable duration of which, in the
opinion of a medical officer concurred in by at least one
other medical officer,
(i) they are or are likely to be a danger to public health
or to public safety,..
2 The expression "medical officer" is defined as follows in
subsection 2(1) of the Act:
2. (1) ...
"medical officer" means a qualified medical practitioner
authorized or recognized by order of the Minister of
National Health and Welfare as a medical officer for the
purposes of this Act;
admissible persons who were clearly inadmissible
under the Act.
This is not to say that visa officers and the
Board must give effect blindly to written certifi
cates delivered by medical officers attesting that
an applicant is inadmissible under paragraph
19(1)(a). They must first check carefully whether
the certificate really discloses that the medical
officers have formed the necessary opinion; if the
certificate is deficient in that respect, they must
ignore it.' Even if the certificate appears, on its
face, to meet the requirements of the statute, they
must also ignore it if the evidence discloses that
the two medical officers have not, in fact, formed
the necessary opinion; that was the situation
in Ahir v. Minister of Employment and
Immigration 4 where the evidence disclosed that
the two medical officers, who in that instance had
signed a certificate to the effect that the admission
of a young girl who was seeking entry as a visitor
for two months might reasonably be expected to
cause excessive demands on health or social ser
vices, were actually of opinion that the admission
of that child might reasonably be expected to have
that effect only if she were to receive her education
in Canada.
I would, therefore, allow the appeal, set aside
the decision of the Board and refer the matter
back for decision on the basis that the Board must,
before ruling on the existence of compassionate or
humanitarian considerations that warrant the
granting of a special relief, consider the medical
evidence relating to the state of health of the
appellant's father and sister.
* * *
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The appellant, a Canadian citi
zen, sponsored applications for landing of mem
bers of the family class, his father, mother, two
sisters and a brother. The applications for landing
were refused by a visa officer who determined that
the father and one of the sisters were inadmissible.
3 Hiramen v. Minister of Employment and Immigration
(1986), 65 N.R. 67 (F.C.A.).
4 [1984] 1 F.C. 1098 (C.A.).
The basis for that determination was medical
notifications that, in the opinion of a medical
officer concurred in by a second medical officer,
each had "Pulmonary Tuberculosis, possibly
active, a condition which is likely to endanger
public health to such an extent that [he/she] is at
present inadmissible" under subparagraph
19(1) (a) (i) of the Immigration Act, 1976. The
appellant appealed the refusal to the Immigration
Appeal Board pursuant to both paragraphs 79(2)
[as am. by S.C. 1986, c. 13, s. 6] (a) and (b) of the
Act. He says that, at the hearing of the appeal, he
"provided medical evidence to the effect that his
father and sister were not, in fact, suffering from
Pulmonary Tuberculosis, and that any Tuberculo
sis that they may have had in the past was no
longer active" and had also led evidence that the
medical officers, upon whose opinions the visa
officer had relied, had never examined his father
and sister personally. The Board dismissed the
appeal. This appeal, by leave pursuant to section
84, is restricted to questions of law and
jurisdiction.
The nature of the Board's reasons for its deci
sion and the appellant's attack on the decision
make necessary reference to statutory provisions
which I propose to set out in narrative, rather than
numerical, order. The appellant's father and sister
were found inadmissible under subparagraph
19(1)(a)(î).
19. (1) No person shall be granted admission if he is a
member of any of the following classes:
(a) persons who are suffering from any disease, disorder,
disability or other health impairment as a result of the
nature, severity or probable duration of which, in the opinion
of a medical officer concurred in by at least one other
medical officer,
(i) they are or are likely to be a danger to public health or
to public safety, or
(ii) their admission would cause or might reasonably be
expected to cause excessive demands on health or social
services;
"Medical officer" is defined by section 2 of the
Act as:
2. (1) ...
"medical officer" a qualified medical practitioner authorized or
recognized by order of the Minister of National Health and
Welfare as a medical officer for the purposes of this Act;
The refusal of the application was mandated by
paragraph 79(1)(b) of the Act and the appellant's
right to appeal to the Board arose under subsection
79(2).
79. (1) Where a person has sponsored an application for
landing made by a member of the family class, an immigration
officer or visa officer, as the case may be, may refuse to
approve the application on the grounds that
(b) the member of the family class does not meet the
requirements of this Act or the regulations,
and the person who sponsored the application shall be informed
of the reasons for the refusal.
(2) A Canadian citizen or permanent resident who has
sponsored an application for landing that is refused pursuant to
subsection (1) may appeal to the Board on either or both of the
following grounds, namely,
(a) on any ground of appeal that involves a question of law
or fact, or mixed law and fact; and
(b) on the ground that there exist compassionate or humani
tarian considerations that warrant the granting of special
relief.
The Board is constituted and its jurisdiction to
hear the appeal is defined by subsection 59(1).
59. (1) There is hereby established a board, to be called the
Immigration Appeal Board, that shall, in respect of appeals
made pursuant to sections 72, 73 and 79 and in respect of
applications for redetermination made pursuant to section 70,
have sole and exclusive jurisdiction to hear and determine all
questions of law and fact, including questions of jurisdiction,
that may arise in relation to the making of a removal order or
the refusal to approve an application for landing made by a
member of the family class.
Paragraph 65(2)(c) provides for the receipt of
evidence by the Board.
65....
(2) The Board has, as regards the attendance, swearing and
examination of witnesses, the production and inspection of
documents, the enforcement of its orders and other matters
necessary or proper for the due exercise of its jurisdiction, all
such powers, rights and privileges as are vested in a superior
court of record and, without limiting the generality of the
foregoing, may
(c) during a hearing, receive such additional evidence as it
may consider credible or trustworthy and necessary for deal
ing with the subject-matter before it.
THE ISSUES
The appellant submits that the Board erred in
law and jurisdiction in:
I. refusing to consider the medical evidence he tendered con
tradicting the diagnosis by the medical officers; and
2. refusing to consider the proceeding before it as a hearing de
novo.
He also submits that it erred in law in:
3. concluding that the diagnosis "Pulmonary Tuberculosis,
possibly active" could reasonably support the opinion of the
medical officers that his father and sister "are likely to be a
danger to public health or public safety in Canada"; and
4. failing to hold the visa officer's refusal invalid when it was
based on the opinions of medical officers who had, in fact, not
examined his father and sistet personally.
Finally, as to its refusal to exercise its discretion,
under paragraph 79(2)(b) to grant special relief,
by reason of the existence of compassionate or
humanitarian considerations, the appellant says
the Board erred in law in:
5. refusing to consider the evidence tendered as to the state of
health of his father and sister as at the date of the Board's
hearing.
I propose to deal with those issues in order.
REFUSAL TO CONSIDER MEDICAL EVIDENCE
The Board's reason for refusing to consider
medical evidence adduced by the appellant to con
tradict the medical officers' diagnosis of "Pulmo-
nary Tuberculosis, possibly active" was compre
hensively stated in the following passage from
another Board decision, Sat Paul Sharma v.
M.E.I. (I.A.B. 83-6710, July 17, 1985), which it
quoted:
It is also outside the competence of the Board to comment on
the accuracy of the medical diagnosis. The medical officers
commissioned by Health and Welfare Canada occupy a special
place in the process of immigration, a special place which the
Act reserves entirely for them. The Act does not permit the
testimony of other medical practitioners, no matter how emi
nent, being permitted to overrule diagnoses of the medical
officers. Specifically, the Act does not permit the Board, on the
basis of other evidence, to determine that the medical officers
have made an error in diagnosis. The basis for this conclusion
on the scope of the Board's jurisdiction is that section 79 of the
Act gives the Board appellate jurisdiction only on matters of
fact or law, or mixed law and fact. Diagnoses of medical
officers are professional opinions, on which the views of profes
sionals can be expected to differ. Such opinions are not law,
and not facts in the accepted meaning of the word. Two fully
qualified and eminently capable doctors may agree about
symptoms, but come to entirely different opinions as to the
disease from which a person is suffering. Members of the Board
have not had the years of academic training and professional
medical practice to enable them to sort out such conflicting
opinions. No doubt for this reason the Act is written to leave
such questions for such doctors as are commissioned by Health
and Welfare Canada as Medical Officers.
The Board acknowledged that its view of its
responsibilities was not shared by all members. It
referred to another decision, Cheryll Anne Nandee
v. M.E.I., (I.A.B. 84-4095, December 24, 1985),
which, it noted somewhat gratuitously, had been
decided on Christmas Eve, 1985. The panel that
decided that appeal held:
Medical refusals may be appealed to the Board under sections
79(2)(a) and (b) of the Immigration Act, 1976. The Board can
and must consider the validity of a medical refusal and not
shirk its responsibility by claiming that it is not medically
qualified to handle such appeals. It must examine the probative
value of the evidence presented at the hearing and if it finds
good and sufficient evidence to question the reasons for refusal,
then it must find the refusal not to be valid in law and not just
allow the appeal under section 79(2)(b) when it is sympathetic
to the appellant due to an improper or questionable medical
refusal.
Whether inspired by the spirit of Christmas or not,
the panel which dealt with the Nandee appeal had
an understanding of its responsibilities not shared
by the panel in the present appeal.
This panel seems to have totally confused the
nature of the decision it is required to make with
the nature of the hearing it must accord the parties
before it decides. It is quite true that, jurisdiction
aside, what subsection 59(1) authorizes the Board
to determine and what subsection 79(2) permits to
be grounds of appeal in the present circumstances
are questions of law or fact or mixed law and fact.
It is also true that opinion is neither law nor fact.
It is, however, evidence. Subsection 65(2), taken
with the requirements of natural justice, requires
that the Board receive "additional evidence as it
may consider credible or trustworthy and neces-
sary for dealing with the subject-matter before it."
The word "additional" makes clear that the evi
dence to be received need not be limited to that
before the authority who made this decision under
appeal, in this case a visa officer. The provision
also makes clear that the Board is the judge of its
credibility and relevance but it cannot decline to
receive it, nor to consider it if it is found to be
relevant. There can be no question of the relevance
of the evidence in issue here.
HEARING DE NOVO
The Board did not really refuse to consider its
hearing to be a hearing de novo. It did, however,
define a hearing de novo as one that "must be
limited to the facts and law as they existed at the
time of that earlier hearing". Since the law had
not changed in the interval, it is unnecessary to
deal with that debatable aspect of the Board's
definition.
As to the facts, the question is the time as of
which the applicant's medical condition is to be
determined. Is it to be determined as of the time of
the visa officer's decision from which the appeal to
the Board was taken or is it to be determined as of
the time of the hearing of the appeal? In this
instance the time lag, mainly due to the Board's
backlog of work, was some 17 months.
This precise issue was addressed by this Court in
Mohamed v. Canada (Minister of Employment
and Immigration), [1986] 3 F.C. 90, a decision
rendered subsequent to that of the Board subject
of the present appeal. In a judgment that con
curred in the result, Thurlow C.J., agreed with the
present appellant's position, however, the majority,
per Hugessen J., at page 98, held:
It is therefore open to an appellant to show that the medical
officers' opinion was unreasonable and this may be done by the
production of evidence from medical witnesses other than
"medical officers". However, evidence that simply tends to
show that the person concerned is no longer suffering from the
medical condition which formed the basis of the medical offic
ers' opinion is clearly not enough; the medical officers may well
have been wrong in their prognosis but so long as the person
concerned was suffering from the medical condition and their
opinion as to its consequences was reasonable at the time it was
given and relied on by the visa officer, the latter's refusal of the
sponsored application was well founded. In my view, therefore,
the Board's ruling to this effect was right.
Insofar as the Board's determination under para
graph 79(2)(a) is concerned, the critical time is
when the medical officers gave their opinion and
the visa officer relied on it.
That is not, however, to say that evidence as to
an applicant's current condition may not be rele
vant to a decision under paragraph 79(2)(b). I will
return to that.
DIAGNOSIS NOT REASONABLY
SUPPORTIVE OF OPINIONS
Some considerable confusion appears to have
arisen out of a consent judgment by this Court in
Gandham v. Canada (Minister of Employment
and Immigration), Court no. A-713-85, dated
May 29, 1986, whereby the Board's decision was
set aside and the matter referred back on the basis,
inter alia,
... that as a matter of law a refusal pursuant to section 79(1)
and 19(1)(a)(i) of the Immigration Act, 1976, may not be
made on the basis that Avtar Singh Johal has possibly active
pulmonary tuberculosis.
It is said that some panels of the Board have taken
that as authority for allowing appeals from visa
officer's refusals based on the medical diagnosis in
issue here.
A consent judgment has no precedential value.
Generally speaking, a court granting a consent
judgment is concerned with only two things: the
capacity of the parties to agree and its jurisdiction
to make the order they have agreed to ask it to
make. A consent judgment reflects neither findings
of fact nor a considered application of the law to
the facts by the court. It is an exercise in a
different fashion of the court's basic function to
resolve disputes: by giving effect to a settlement
agreed to by legally competent persons rather than
by reaching a concluded opinion itself.
I see no present need to speculate whether there
is any significance to the order in which the words
"possibly active pulmonary tuberculosis" or "pul-
monary tuberculosis, possible active" appear in the
medical officers' notification. Suffice it to say,
there is no arguably fatal vagueness in the latter
presentation. Whether such a diagnosis is correct
and whether it reasonably supports the medical
officers' opinions as to the matters prescribed by
subparagraphs 19(1)(a)(î) or (ii) are questions of
fact, not of law. They are questions upon which
parties before the Board are entitled, if they wish,
to lead evidence in respect of which the Board is
obliged, by paragraph 65(2)(c), to determine cred
ibility and relevance.
NO PERSONAL MEDICAL EXAMINATION
While it is largely a matter of speculation on my
part, I can well envisage that there are diseases
whose reliable diagnosis demands personal exami
nation by the diagnosing medical practitioner and
others which may be reliably diagnosed by the
inspection of the results of procedures, tests or
examinations conducted by others such as, for
example, x-ray plates. Whether the diagnoses in
issue are such as to require personal examination is
likewise a question of fact upon which the Board
must receive and assess evidence if tendered. It is
certainly not a question of law to be pronounced
upon in an evidentiary vacuum.
REFUSAL TO RECEIVE CURRENT MEDICAL
EVIDENCE
As previously stated, in respect of an appeal
under paragraph 79(2)(a) Mohamed v. Canada
(Minister of Employment and Immigration) is
determinative of the time frame to which evidence
as to an applicant's condition must be directed. It
is otherwise in respect of an appeal under para
graph 79(2)(b).
The jurisdiction to grant special relief on com
passionate or humanitarian grounds is exclusively
the Board's. It is to be exercised in light of the
circumstances extant when the Board is called
upon to make its decision. There is no basis in law
for excluding evidence as to an applicant's current
medical condition. It may or may not be relevant
but it is certainly not inadmissible.
CONCLUSION
I would allow the appeal, set aside the decision
of the Immigration Appeal Board made May 21,
1986, and refer the matter back for rehearing by a
panel of the Board, not necessarily constituted as
before, in a manner not inconsistent with these
reasons. I see no special reason to award costs.
HEALD J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.