Sharpe–fair consideration of the evidence in medical inadmissibility, unusual remedy

Sharpe v. Canada (Citizenship and Immigration), 2011 FC 21  (CanLII)

Judge: Justice Phelan

Date heard: December 15, 2010

Date decided: January 11, 2011

Counsel for Becerra Vazquez: Mr. Michael Greene

Counsel for Minister: Mr. Rick Garvin

Place of Hearing: Calgary, Alberta

This was the second judicial review of the decision that the Applicant’s dependant son was medically inadmissible. The Applicant was the principle applicant in a Federal Skilled Worker application to immigrate from the UK (paras. 1, 3).

The Applicant’s application was commenced in January 2004. The Applicant was requested to, and did, provide medical reports on his son’s condition. In July, 2006, the medical officer (MO) provided the London visa post with an opinion that the son’s condition “might reasonably be expected to cause an ‘excessive demand on Canadian social services’” (paras. 3-5).

In about August 2006, the Applicant received a fairness letter warning them of the excessive demand opinion and inviting them to make further submissions. Therefore in October 2006, the Applicants submitted updated reports from various professionals; “All of the letters and reports were to the same effect; that Conor’s needs were such that he no longer required the health and social services earlier reports suggested he did” (paras. 6-7).

The application was refused on May 9, 2007 on the grounds of excessive demand (para. 8). The Applicant wrote to the London visa office expressing concern that the newer information had not been properly reviewed and undertaking to pay for any special schooling or social services. On May 25, 2007, the London visa office responded that the new information had been taken into consideration in the refusal (paras. 9-10).

Justice Phelan characterized the response of May 25, 2007 thusly: “This response was a barefaced falsehood” (para. 11).

The MO’s opinion, on which the refusal was based, was made in July 2006, before the receipts of various relevant documents (para. 11). The Applicant’s filed an application for judicial review which was discontinued when the Minister offered to reconsider the matter (paras. 12-13).

In October 2008, a second MO forwarded an opinion which was nearly identical to the first (para. 14). In March 2009, a second visa officer (VO) sent a second fairness letter maintaining the contention that the son was medically inadmissible (para. 15). In response, the Applicant submitted further new information on his son’s current educational placement, conditional acceptance to a private school in Alberta, and assessments of how the Alberta education system characterized his disability, e.g. as “mild” (para. 16). The 2nd MO reconsidered in view of the new evidence and forwarded an opinion that the son was not likely to be an excessive demand (para. 17).

However, the 2nd VO challenged the 2nd MO’s decision, the result of which was the 2nd MO changing opinions again, this time finding that the son was severely disabled. (paras. 18-19). The application was again refused (para. 20).

Justice Phelan stated: “There are several problems with the Respondent’s conclusion as to the nature and severity of Conor’s disability quite independent of the shabby treatment the Applicant has experienced at the London Visa Office” (para. 26).

In reviewing the decision, Justice Phelan found that the main consideration was whether the son’s disability was assessed as “severe” or “mild” under Alberta policy (para. 27). The only evidence on that particular point was a report stating explicitly that his disabilities would be considered mild; the 2nd MO could not reject this conclusion without reason (paras. 28-31). The 2nd MO had relied on another report describing the son’s disability as “significant”, but no evidence that “significant” meant “severe” in the context (para. 32). The 2nd MO’s other comments on the expense of educating the son were not relevant (paras. 33-34).

This decision is particularly interesting in that Justice Phelan notes that he is considering retaining jurisdiction to ensure that the reconsideration of the Applicant’s file “is completed as expeditiously and as fairly as possible” (para. 39). Justice Phelan further suggested “may be possible to have one person, acceptable to the parties, conduct the necessary assessment and whose report would bind both parties. The Court’s mediation role could be utilized to assist if the parties so request” (para. 40).

JUDICIAL REVIEW ALLOWED