A-1094-82
Sunita Devi Ahir (Appellant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald, Urie and Mahoney JJ.—
Vancouver, September 28 and October 4, 1983.
Immigration — Appeal from Immigration Appeal Board
decision that appellant member of inadmissible class specified
in s. 19(1)(a)(ii) and directing removal — Indian visitor reject
ed at port of entry because of medical opinions admission
would cause excessive demands on health or social services —
S. 19(1)(a) providing at least two medical officers required to
certify applicant's admission would cause or "might reason
ably be expected to cause excessive demands on health or
social services" — Appeal allowed — Board erred in treating
as conclusive opinions of medical officers who failed to con
sider circumstances of each case — Assistance not requested
and no evidence would be — Necessary to distinguish criteria
for assessment of prospective immigrant from visitor —
Admissibility tests must be relevant to purpose and duration
for which admission sought — Adjudicator having power to
inquire into reasonableness of expectations expressed by medi
cal officers having regard to circumstances of each case —
Visa Officer in India improperly advising applicant she should
not proceed to Canada without his prior authorization since
India listed in Schedule II to Regulations thus enabling citi
zens to seek permission from Canadian immigration officer at
port of entry to enter Canada as visitor — Immigration Act,
1976, S.C. 1976-77, c. 52, s. 19(1)(a)(ii) — Immigration
Regulations, 1978, SOR/78-172, s. 22(e).
COUNSEL:
J. R. Aldridge for appellant.
A. Louie for respondent.
SOLICITORS:
Rosenbloom, McCrea & Aldridge, Vancou-
ver, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALS J.: As indicated at the conclusion of the
hearing, we are all of the view that this appeal
should succeed. The appellant is a citizen of India
who sought to enter Canada to visit her father.
She was required to undergo a medical examina
tion after her arrival at a Canadian port of entry.
Thereafter a report was prepared stating that in
the opinion of one medical officer, concurred in by
another medical officer, the appellant's "...
admission to Canada would/might cause excessive
demands on health or social services (19(1)(a)(ii)
Immigration Act, 1976)". Based on this opinion, a
special inquiry was held wherein it was alleged
that the appellant was a member of the inadmis
sible class described in subparagraph 19(1)(a)(ii)
of the Immigration Act, 1976 [S.C. 1976-77, c.
52].'
At the conclusion of the inquiry on November 9,
1981, the Adjudicator found that the appellant
was such a person and, accordingly, issued an
exclusion order against the appellant. However,
the inquiry was subsequently reopened and, after
hearings conducted by the Adjudicator at which
further documentary evidence was adduced and
further representations were made by the case
presenting officer and counsel for the appellant,
the Adjudicator, by decision dated December 22,
1981, reversed her previous decision and granted
the appellant admission to Canada as a visitor for
a period of two months on condition that she not
attend any school in Canada and that she not
engage in employment in Canada. The respondent
in this appeal appealed that decision by the
Adjudicator to the Immigration Appeal Board.
The Board set aside the Adjudicator's decision of
' Paragraph 19(1)(a) 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, or
(ii) their admission would cause or might reasonably be
expected to cause excessive demands on health or social
services;
December 22, 1981, declared that this appellant is
a member of the inadmissible class of persons
specified in subparagraph 19(1)(a)(ii) of the Act
and directed the removal of the appellant from
Canada. This appeal is from that decision of the
Board.
In my view, the Board erred in appearing to
treat as conclusive the opinions of the two medical
officers provided for in paragraph 19(1)(a) supra.
I would observe initially that, pursuant to that
paragraph, the medical officers are required to
certify that an applicant's admission would cause
or "might reasonably be expected to cause exces
sive demands on health or social services".
(Emphasis added.) Immigration Regulation 22(e)
[Immigration Regulations, 1978, SOR/78-172] is
also pertinent and reads as follows:
22. For the purpose of determining whether any person is or
is likely to be a danger to public health or to public safety or
whether the admission of any person would cause or might
reasonably be expected to cause excessive demands on health or
social services, the following factors shall be considered by a
medical officer in relation to the nature, severity or probable
duration of any disease, disorder, disability or other health
impairment from which the person is suffering, namely,
(e) whether the supply of health or social services that the
person may require in Canada is limited to such an extent
that
(i) the use of such services by the person might reasonably
be expected to prevent or delay provision of those services
to Canadian citizens or permanent residents, or
(ii) the use of such services may not be available or
accessible to the person;
When this regulatory provision is read along
with subparagraph 19(1)(a)(ii) of the Act (supra),
it seems evident that the medical officers when
giving their opinion must, in forming that opinion,
have regard to the individual circumstances of
each case. It seems equally clear that the medical
officers did not take into consideration the particu
lar circumstances of this case since in a letter to
the Canada Immigration Centre, dated December
16, 1981, Dr. Purser, the medical officer who gave
the opinion relied on by the Commission stated:
"The wording of the Immigration Act does not
differentiate between visitors and immigrants or
any other group and the medical examinations and
assessments are for the most part done equally
without regard to the prospective status of the
individual." (Volume 1, Appeal Book page 45).
Further explanation of the opinion formed by the
two medical officers therein is to be found at page
44 of Volume 1 of the Appeal Book where they
state: "Applicant has a medical condition as a
result of which she will require special schooling
and vocational assistance. The availability of these
services is already limited. Even with this assist
ance there is a strong probability she will not be
trainable to the extent of being self-supporting and
will need continuous family or social service sup
port. She will therefore cause an excessive demand
on social services."
As pointed out by the Adjudicator, the evidence
adduced before her indicated that no such assist
ance was requested or would be requested during
the applicant's visit to Canada. Accordingly, I
agree with the Adjudicator that the criteria appro
priate for the assessment of a prospective immi
grant under subparagraph 19(1)(a)(ii) are not
necessarily synonymous with suitable criteria for
assessment of a prospective visitor who seeks to
visit Canada for a few months. I agree with the
Adjudicator's view that: "Tests of admissibility
must be relevant to the purpose and duration for
which admission is sought." Having concluded
that the opinions of the medical officers herein
were formulated on an improper basis, did the
Adjudicator have the power to inquire into the
validity of those opinions? I am satisfied that an
Adjudicator has that power when conducting an
inquiry, the purpose of which is to determine
whether or not the person concerned is a member
of the inadmissible class described in subpara-
graph 19(1)(a)(ii). That subparagraph requires
the Adjudicator to inquire, inter alia, into the
reasonableness of the expectation expressed by the
medical officers that the subject will cause exces
sive demands to be made on health or social
services. In this case, because the medical officers
operated on an erroneous basis and used improper
criteria, the Adjudicator was certainly entitled to
conclude, as she did, that the expectation herein
expressed by them was not reasonable. The Board,
in holding that the Adjudicator is not entitled to
question the opinions of the medical officers,
expressed the view that to permit an Adjudicator
to decide as this Adjudicator did would produce an
unsatisfactory situation in that adjudicators and
the Board would be empowered to rule on conflict
ing medical evidence.
I do not agree that the statutory scheme should
be so construed. The Act clearly defines a "medi-
cal officer" as "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". That defini
tion thus excludes the opinions of doctors not
appointed under the Act. In my view, paragraph
19(1)(a) establishes the authority of two medical
officers as defined by the Act. However, I think
that authority is subject to the constraint of being
reasonable. The statutory scheme requires the
Adjudicator initially, and, in cases where an
appeal lies to the Board, subsequently the Board,
to decide whether the "expectation" expressed by
the medical officers is "reasonable" having regard
to the circumstances of each individual case.
In the instant case, the Board has interpreted
subparagraph 19(1)(a)(ii) as though the subpara-
graph did not contain the word "reasonably". In so
doing, I think the Board erred in law and that this
error is sufficient of itself to vitiate the decision of
the Board.
Counsel for the appellant raised an additional
ground of appeal in his memorandum upon which
he relied at the hearing of the appeal. Respond
ent's counsel, while joining issue with the appellant
on this ground in his written memorandum, made
no submissions in respect thereof at the hearing.
The appellant's complaint was that the Board
erred in expressing the view that the Visa Officer
in India acted properly and within the authority
conferred upon him when, in a letter to the appli
cant advising her that her application for perma
nent residence had been refused on medical
grounds, advised the applicant further that she
should not proceed to Canada without his prior
authorization. In my view, this submission is well
founded. At all relevant times India was a country
listed in Schedule II to the Regulations thus en
abling citizens of India to seek permission from a
Canadian immigration officer at a port of entry to
enter Canada as a visitor. The jurisdiction of the
Visa Officer in India was confined to the matter of
dealing with the appellant's application for perma
nent residence. Appellant's counsel said that this
error in law by the Board was sufficient, of itself,
to require that the Board's order be set aside.
Since I have concluded earlier herein that the
Board's decision must be set aside because of its
failure to properly interpret and apply the provi
sions of subparagraph 19(1)(a)(ii) of the Act, it is
not necessary to determine whether this additional
error could, of itself, form the basis for setting
aside the Board's order. I thought it proper, how
ever, since the matter was raised, to express the
view that the Visa Officer in India erred in pur
porting to refuse the applicant's admission to
Canada as a visitor.
In his memorandum counsel for the appellant
also submitted that the Board erred in ruling that
section 73 of the Immigration Act, 1976 does not
offend the Canadian Bill of Rights [R.S.C. 1970,
Appendix III]. Counsel for the respondent joined
issue with the appellant on this ground of appeal.
At the hearing of the appeal, counsel were advised
that since the Court had concluded that the appeal
should be allowed on the basis of the Board's error
in interpreting and applying subparagraph
19(1)(a)(ii), no useful purpose would be served by
hearing argument on the Bill of Rights issue.
For all of the above reasons, I would allow the
appeal and set aside the decision and order of the
Immigration Appeal Board herein pronounced
September 22, 1982 and amended September 28,
1982. I would restore the decision of Adjudicator
L. Leckie, dated December 22, 1981 wherein,
pursuant to subsection 35(1) of the Act, she grant
ed the appellant admission to Canada as a visitor
for a period of two months (until February 22,
1982) on condition that she not attend any school
in Canada and that she not engage in employment
in Canada.
URIE J.: I agree.
MAHONEY 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.