Thursday, July 28, 2011

Sökmen–misapprehending medical evidence and failing to consider ability and willingness to pay for treatment

Sökmen v. Canada (Citizenship and Immigration), 2011 FC 47 (CanLII)

Judge: Justice Martineau

Date heard: December 6, 2010

Date decided: January 17, 2011

Counsel for Sökmen: Nicole Goulet

Counsel for Minister: Agnieszka Zagorska

Place of Hearing: Ottawa, Ontario

The Applicant was a Turkish national whose family’s application for permanent residence had been rejected by the visa officer in Ankara under sections 38(1)(c) and 42 of IRPA (para. 1). The VO had decided that the Applicant’s son, Bariş, had a health condition that would reasonably be expected to cause excessive demand (para. 2).

Bariş has a congenital heart disease, for which he has been treated in France (para. 6). The family plans to have him continued to be treated by his physician there, and they have the funds to support this course of treatment. His condition is currently stable and controlled by inexpensive and common medication (paras. 7-8).

Why then did the medical officer recommend, and the VO find, that excessive demand was an issue? The initial immigration medical in Turkey placed the son in category B, to wit: “Findings that require periodic specialist following care but which normally can be handled without resorting to repeated hospitalizations or the provision of social services” (paras. 11-12). That report was forwarded to the Paris Embassy, where a medical officer requested reports from the French specialist; these reports noted that the boy’s condition was controlled, and that some surgical or other medical intervention might be necessary in the future, but not the next five years (paras. 13-17).

In making his assessment, the medical officer Dr. Hindle exaggerated the boy’s condition and the expected future requirements (para. 18-19). This was compounded by the VO’s further errors, for instance in believing that Bariş would require excessive intervention within the next five to ten years (para. 19-20).

The regulations specifically refer to excessive demand as occurring within the first five years, unless there is evidence that they will occur later, in which case the maximum period is 10 years (para. 21).

Justice Martineau was critical of Dr. Hindle’s report as well, noting that it failed to deal with the Applicant’s proposed plan to arrange and fund their son’s care privately; he further concluded that “Dr. Hindle’s analysis is biased and incomplete. Dr. Hindle goes so far as to state that the prognosis is negative and that Bariş’ condition will deteriorate, which directly contradicts the medical evidence in the record.” (paras. 24-25) Dr. Hindle’s report is flawed in that it introduces future problems not raised by the expert physician most familiar with the boy’s case, and outright contradicts that physician’s reports while claiming to be based on them (paras. 25-29). It was open to the medical officer to disagree with the specialist, but only by doing so explicitly and with stated reasons (para. 29).

Even aside from the impugned medical report, the VO’s decision “is not supported by the evidence in the record and is speculative” (para. 33). There is no analysis of the Applicant’s proposal to alleviate an “excessive demand” his son’s condition might cause; the existence of such a proposal is not determinative but it must be considered (paras. 34-37).


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