Resonance


Canadian Court StructureSapru v Canada

Canadian Court Structure

I’ve been reading case law again.  This time I read a recent decision (one year old, in fact) called Sapru v Canada [2011 FCA 35] once again (another thing I’ve found – I often notice interesting bits when re-reading cases.)  It was eerie as I was reading the text of the decision, because it mirrored my own experience.

At any rate, the first thing the court did was attempt to “frame the issue” to make it clear to the reader the question that was being considered by the court.  Keep in mind that appellate courts are generally only interested in issues of law (or procedural fairness).  Thus framing the question is an important part of motivating the decision.  Here is the court’s opening remark in the decision:

[2] The questions arise on an appeal from a decision of the Federal Court: 2010 FC 240. The Judge of the Federal Court certified as serious questions of general importance the following two questions:

a. When considering whether a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, is a Medical Officer obligated to actively seek information about the applicants’ ability and intent to mitigate excessive demand on social services from the outset of the inquiry, or is it sufficient for the Medical Officer to provide a Fairness
Letter and rely on the applicants’ response to that letter?

b. Is a Medical Officer under a duty to provide adequate reasons for finding that a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, which is independent from the Visa Officer’s duty to provide reasons and which is therefore not satisfied by the Visa Officer providing reasons that are clearly adequate?

The Court quoted directly from the tribunal record (also known as the “CAIPS” notes) to describe how the medical officer made her decision:

In the Procedural Fairness assessment the medical officer listed the additional documents she had reviewed in the Fairness Response. She then wrote:
I have reviewed our medical file for the above-named Foreign National along with the additional material listed above and it is my opinion that no information has been provided which would indicate that the original immigration medical assessment was incorrect. Therefore there is insufficient evidence to support a change or reevaluation of this Foreign National’s medical assessment at this time. Hence remains M5.
[13] The tribunal record contains no letter, note, e-mail or other writing that explains how the medical officer analysed the information provided in the Fairness Response or her basis for concluding that the Fairness Response contained no information that would lead the medical officer to the view that her original assessment was incorrect.

It struck me that this is very similar to the contents of the notes in my own file (which we received at the beginning of the week).  It provided an enumerated list of the items that we sent along and then concludes:

I reviewed the new information submitted as well as the entire medical file on this applicant and I am of the opinion that the new material does not modify the current assessment of medical inadmissibility.
This applicant’s medical condition is likely to require treatment that is expensive and publicly funded in B.C. Although he has private insurance, antiretroviral medications are covered 100% by the provincial drug plan in the Province of British Columbia with no payment from private insurance.

In other words, “sure, you have insurance to cover these costs, but since the government also makes these drugs available, I assume you are a liar when you say that you won’t use them.”

Under this reasoning, nobody who is HIV positive could immigrate (outside the exempt class) to British Columbia – because British Columbia makes antiretroviral medications available to everyone who is HIV positive.

If that’s the case, why did they waste my time in providing a fairness letter?

At any rate, this language mirrors the language in Sapru – and there are no other notes as to how the medical officer interpreted any of the other information.  I’m frustrated that my own document (providing my basis for avoiding using these “free” medications in any case) was entirely ignored in this decision process.

Of course, I suspect some of the similarity is because these are all based upon standardized forms.

In this case, the Court decided that the medical officer did not provide sufficient rationale to demonstrate that she had met the requirements of Hilewitz:

[51] As the Judge recognized, the medical officer’s statement in her reasons to the effect that she had read the Fairness Response was insufficient to render her reasons adequate. Little weight can be given to such a generic statement that is silent about what the medical officer did, and whether the principles articulated in Hilewitz were applied.

At that point, everything else comes unraveled.  Bottom line is that is what it appears the medical officer did in my case: said “yup, I looked at all this stuff and I wasn’t convinced because BC gives these meds away.”

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One thought on “Resonance

  1. Pingback: Ovalle v MCI | Canadian Immigration and Medical Inadmissibility

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