A-228-85
Nargisbanu Mohammad Ali Mohamed (Appel-
lant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: MOHAMED V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION)
Court of Appeal, Thurlow C.J., Hugessen J. and
McQuaid D.J.—Toronto, May 6; Ottawa, May
21, 1986.
Immigration — Appeal from Immigration Appeal Board's
dismissal of appeal from refusal of application for sponsored
landing — Visa officer finding appellant's mother inadmiss
ible under s. 19(1)(a)(ii) based on opinion of "medical officer"
— Medical evidence before Board mother no longer suffering
from condition giving rise to inadmissibility — Although other
factors supporting relief on compassionate grounds, Board
dismissing appeal as not in interests of 'family unification" —
Appeal allowed — Board correctly rejecting medical evidence
of mother's present condition — Appeal from visa officer's
decision, not medical officers' opinion — Provided medical
opinion reasonable at time given and relied upon, refusal of
application well founded — Consideration of 'family unifica
tion" irrelevant to decision on special relief under s. 79(2)(6)
— Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 2,
19(1)(a)(ii),(b),(d),(e),(f),(g), 59(1), 60(5), 65, 79(2) — Immi
gration Appeal Board Act, R.S.C. 1970, c. 1-3, s. 17.
This is an appeal from a decision of the Immigration Appeal
Board dismissing an appeal from a refusal to approve a spon
sored application for landing. The appellant's mother was
found to be inadmissible for medical reasons pursuant to
subparagraph 19(l)(a)(ii), based on the opinion of a "medical
officer". At the hearing before the Board, the appellant pro
duced evidence from doctors who were not "medical officers"
showing that by that time the appellant's mother was no longer
suffering from the condition which had given rise to her
inadmissibility.
Held, the appeal should be allowed.
Per Hugessen J. (McQuaid D.J. concurring): The Board
correctly rejected the new medical evidence. The appeal to the
Board was taken under subsection 79(2). While the refusal was
based on the opinion of the medical officers, the appeal is not
from that opinion, but from the refusal. The medical officers'
opinion is not, however, wholly insulated from any attack as it
"is subject to the constraint of being reasonable". Evidence
which simply shows that the person no longer suffers from the
medical condition which formed the basis of the medical offic
ers' opinion is not enough. So long as the person was suffering
from the medical condition, and their opinion as to its conse
quences was reasonable at the time it was given and relied upon
by the visa officer, the latter's refusal of the sponsored applica
tion was well founded.
As the appellant relied upon both paragraphs 79(2)(a) and
(b), it was the Board's duty to consider the granting of relief on
compassionate or humanitarian grounds. A number of other
factors militated in favour of relief but the Board refused the
appeal after stating that "Allowing the appeal would not
achieve family unification". This is an irrelevant consideration.
While the Act seeks to facilitate the reunion in Canada of
Canadian citizens with their close relatives from abroad, the
fact that any particular grant of entry will not "achieve family
unification" is not a condition for finding that compassionate or
humanitarian considerations warrant relief.
As a general rule, under paragraph 52(c) of the Federal
Court Act, when an appeal is allowed, the Court is to give the
decision that should have been given. But for the irrelevant
consideration of "family unification", the Board would have
granted relief. Accordingly, it is directed that the sponsored
application not be refused.
Per Thurlow C.J. (concurring in the result): In dismissing
the appeal, the Board addressed and decided the wrong issue.
The issue to be decided was whether, when the appeal was
being heard, the person was one of the prohibited class. An
examination of sections 59, 60(5), 65 and 79 reveals that the
intent of Parliament was to establish and continue as a court of
record a board empowered to decide judicially the facts on
which the admissibility of a person depends and not merely to
pass on the procedural or substantive supportability of the
administrative position on such statutory requirements taken by
a visa officer.
In any event, as noted by Hugessen J., the Board erred in
reaching its conclusion under paragraph 79(2)(b) as it took into
account an irrelevant consideration.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Ahir v. Minister of Employment and Immigration,
[1984] 1 F.C. 1098; (1983), 49 N.R. 185 (C.A.).
REFERRED TO:
Gana v. Minister of Manpower and Immigration, [1970]
S.C.R. 699; Srivastava v. Minister of Manpower &
Immigration, [1973] F.C. 138 (C.A.).
COUNSEL:
Brent S. Knazan for appellant.
Marilyn Doering-Steffen for respondent.
SOLICITORS:
Knazan, Goodman, Toronto, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
THURLOW C.J. (concurring in the result): This
appeal is from a decision of the Immigration
Appeal Board which dismissed the appellant's
appeal from the refusal by a visa officer of the
sponsored application of her father for permanent
residence for himself, his wife, Ayesha Asmal, and
two children. The ground given by the visa officer
for refusing the application was that Ayesha
Asmal was inadmissible under subparagraph
19(1)(a)(ii) of the Immigration Act, 1976 [S.C.
1976-77, c. 521 because she was suffering from
uncontrolled hypertension with tachycardia, a con
dition which, in the opinion of the medical officer,
concurred in by at least one other medical officer,
would cause or might reasonably be expected to
cause excessive demands on health or social
services.
Subparagraph 19(1)(a)(ii) provides that:
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;
The expression "medical officer" in this para
graph does not include all qualified medical practi
tioners. It is defined in section 2 as meaning:
2....
... 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;
In Ahir v. Minister of Employment and
Immigration' this Court held that the Immigra
tion Appeal Board, and this Court on appeal, had
jurisdiction to review the reasonableness, in the
circumstances of the particular case, of the opinion
expressed by the medical officer for the purposes
of subparagraph 19(1)(a)(ii) and, in an appropri
ate case, to overrule or disregard it.
The first issue raised by this appeal is that of the
jurisdiction of the Board in a situation where a
medical officer's opinion under this subparagraph,
the correctness of which at the time it was given is
not in issue, was expressed following an examina
tion shortly before the visa officer's refusal of the
application, but where the Board also had before it
other medical evidence on which it was open to it
to conclude that by the time the appeal was heard,
that is to say some eighteen months after the
medical officer's opinion was given, there had been
an improvement in the person's condition suffi
cient to affect the continued validity of the medical
officer's opinion of its probable demands on the
health and social services. It may be noted that the
opinion as expressed by the medical officer did not
preclude the possibility of improvement in the
condition and was expressed only as relating to the
condition of the person at that particular time.
In its reasons for dismissing the appeal the
Board appears to have confined its consideration to
the question of the validity of the medical officer's
opinion at the time it was expressed. The Board,
after summarizing the medical evidence adduced
by the appellant said:
In the opinion of one medical officer concurred in by another
medical officer, Mrs. Asmal's admission "would cause or might
reasonably be expected to cause excessive demands on health or
social services." Whereas the appellant has introduced some
medical evidence, there is insufficient evidence to conclude
"that the opinions of the medical officers herein were formu
lated on an improper basis," that is that they operated on an
"erroneous basis and used improper criteria" and were there
fore "not reasonable". The Board finds the refusal is valid in
law.
' [1984] 1 F.C. 1098; (1983), 49 N.R. 185 (C.A.).
With respect, I am of the opinion that the Board
has addressed and decided the wrong issue and has
failed to decide the issue that ought to have been
decided.
It may be noted that nothing in subparagraph
19(1)(a)(ii) makes the opinion of the medical
officer sacrosanct or unchallengeable by cross-
examination or not subject to rebuttal by the
opinion of some other medical officer. Nothing in
the paragraph would exclude the giving of the
opinion on oath before the Board. Nothing in the
statute requires that it be in writing. The provision
may be contrasted with that of subsection 83(2)
which provides for a conclusive certificate in the
situation to which it applies. Moreover, in the
cases of persons described in paragraphs 19(1)(b),
(d),(e),(f), and (g) it seems clear from reading the
provisions that the function of the Board is to
determine whether "there are reasonable grounds
to believe" at the time of the hearing of an appeal
rather than at some earlier time.
In my opinion the issue to be decided by the
Board on an appeal under section 79 of the Act is
not whether the administrative decision taken by a
visa officer to refuse an application because the
information before him indicated that a person
seeking admission to Canada was of a prohibited
class was correctly taken but the whole question
whether, when the appeal is being heard, the
person is in fact one of the prohibited class.
The Board is established by subsection 59(1) of
the Act and is given in respect of inter alia an
appeal under section 79 "sole and exclusive juris
diction to hear and determine all questions of law
and fact, including questions of jurisdiction, that
may arise in relation to ... the refusal to approve
an application for landing made by a member of
the family class". Under subsection 60(5) the
members of the former Board are to continue in
office as members of the Board so established.
Section 65 declares the Board to be a court of
record and gives it wide powers to summon wit
nesses, compel the production of documents,
administer oaths and examine persons on oath and
to receive evidence that it considers credible or
trustworthy.
The right of appeal to the Board given by
subsection 79(2) to a Canadian citizen from the
refusal of a visa officer to approve an application
on the ground that the member of the family class
does not meet the requirements of the Act or the
regulations is to appeal "on either or both of the
following grounds, namely,"
79. (2) ...
(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 powers exercisable by the Board on such an
appeal are simply to allow it or dismiss it. See
subsection 79(3). Subsection 79(4) is also note
worthy. It refers to "the requirements of this Act
and the regulations, other than those requirements
upon which the decision of the Board has been
given".
The language of the applicable statutory provi
sions has been changed somewhat since the deci
sion of the Supreme Court in Gana v. Minister of
Manpower and Immigration' and of this Court in
Srivastava v. Minister of Manpower &
Immigration 3 were pronounced but I think the
intent of Parliament is still what it was under the
former legislation, that is to say, to establish and
continue as a court of record a board empowered
to decide judicially the facts on which the admissi
bility of a person depends and not merely to pass
on the procedural or substantive supportability of
the administrative position on such statutory
requirements taken by a visa officer. 4
2 [1970] S.C.R. 699.
3 [1973] F.C. 138 (C.A.).
° The language of section 17 of the Immigration Appeal
Board Act (R.S.C. 1970, c. I-3, now repealed) was:
17. A person who has made application for the admission
into Canada of a relative ... may appeal to the Board from a
refusal to approve the application, and if the Board decides
that the person whose admission is being sponsored and the
sponsor of that person meet all the requirements of the
Immigration Act ... .
In my view it was the duty of the Board, on the
hearing of the appellant's appeal, to determine
whether at the time of the hearing before it the
condition of Ayesha Asmal was such that in the
opinion of a medical officer, concurred in by at
least one other medical officer, her admission
would cause or might reasonably be expected to
cause excessive demands on health or social ser
vices and for that purpose to require, at the
instance of either party to the appeal, the attend
ance of and to take the evidence of any witnesses
that might be necessary to afford the basis for a
finding. If to do so would require the presence of
one or more medical officers to give an opinion the
Board had all the authority necessary to require
their presence and obtain their evidence. Accord
ingly, on the first point raised by the appellant I do
not think the decision should be allowed to stand.
It is unnecessary, however, for the purposes of
this appeal, and it would serve no purpose to
pursue the point further because I am in agree
ment with the reasons and conclusion of Mr. Jus
tice Hugessen on the other point raised by the
appellant, that is to say, that the Board in reaching
its conclusion on the question which arises on
paragraph 79(2)(b) of the Act took into account
an irrelevant consideration. I am further of the
opinion that on the other considerations related by
the Board the case is one that warrants the grant
of special relief and that the Court should give the
judgment that the Board should have given.
I would allow the appeal and dispose of the
matter as proposed by Mr. Justice Hugessen.
* * *
The following are the reasons for judgment
rendered in English by
HUGESSEN J.: This is an appeal from a decision
of the Immigration Appeal Board dated 27
November, 1984 by which the Board dismissed an
appeal from a refusal to approve a sponsored
application for landing made by the appellant's
father, mother, brother and sister. The ground for
that refusal was that the appellant's mother,
Ayesha Asmal, was inadmissible for medical rea-
sons pursuant to subparagraph 19(1)(a)(ii) of the
Immigration Act, 1976. 5
That refusal was, in its turn based on the opin
ion of a "medical officer" (as that term is defined
in section 2) to the effect that the appellant's
mother "has uncontrolled hypertension with tachy-
cardia a condition which is likely to cause demand
on health services to such an extent that she is
inadmissible under Section 19(1)(a)(ii)". That
opinion was dated May 11, 1983 and was con
curred in by a second "medical officer" on May
30, 1983.
On the hearing of the appeal before the Board
the appellant produced evidence from doctors who
were not "medical officers" within the meaning of
the Act. As I understand it, that evidence was not
designed to and did not impugn the reasonableness
of the original medical officers' opinion of May
1983; rather it was directed to showing that by the
time of the appeal hearing before the Board, in
November 1984, the situation of the appellant's
mother had changed and she was no longer suffer
ing from the condition which had given rise to her
inadmissibility. In my view the Board was right to
reject such evidence.
The appellant's appeal to the Board was taken
under subsection 79(2) of the Act and was from a
visa officer's refusal of a sponsored application for
landing. While that refusal was based on the opin
ion of the medical officers, the appeal is not from
the opinion but from the refusal. This does not
mean, as was suggested by counsel for the Minis
ter, that the medical officers' opinion is wholly
insulated from any attack: as this Court held in
5 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,
(ii) their admission would cause or might reasonably be
expected to cause excessive demands on health or social
services;
Ahir 6 [at page 1102 F.C.; at page 188 N.R.] the
medical officer's authority "is subject to the con
straint of being reasonable".
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 offic
ers". 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 officers' 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 condi
tion 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.
Subsection 79(2) of the Act reads:
79....
(2) A Canadian citizen 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.
Since the appellant relied on both paragraph (a)
and paragraph (b) it was the Board's duty, after
finding that the sponsored application had been
properly refused, to consider the granting of relief
on compassionate or humanitarian grounds.
Although the Board did not specifically say so, it is
clear that the medical evidence was of some rele
vance to this question since it tended to show that
the appellant's mother's condition was not now as
serious as it was originally thought it might be.
There were also a number of other factors militat
ing in favour of relief and most of these were
summarized by the Board in a long paragraph of
6 Ahir v. Minister of Employment and Immigration, [1984]
1 F.C. 1098; (1983), 49 N.R. 185 (C.A.).
its reasons. Immediately following that paragraph
the Board says:
Mrs. Mohamed's family in India run an 18 acre farm, hiring 15
to 18 workers and as Mr. Mohamed testified earn a good living
by Indian standards. In addition to one brother and one sister
included in the sponsorhip application, there is another married
brother who lives in his own quarters in the same house as his
parents. Allowing the appeal would not achieve family
unification.
Try as I might, I cannot see the relevance of this
paragraph and in particular of the underlined
words. Clearly the Board feels that it is setting out
a negative consideration which serves in some way
to balance the positive factors which it has just
enumerated, for in the following paragraph it con
cludes that it does not find grounds to warrant the
granting of relief.
While one of the express objectives of the Act is
to facilitate the reunion in Canada of Canadian
citizens with their close relatives from abroad, the
fact that any particular grant of entry or landing
will not "achieve family unification" is surely not a
condition for finding that compassionate or hu
manitarian considerations warrant relief. Achiev
ing "family unification" is a very different thing
from facilitating the reunion in Canada of Canadi-
an citizens with their close relatives from abroad,
and is not one of the objectives of the Immigration
Act, 1976. The fact that a relative who is abroad
does not wish or is ineligible to be reunited with a
Canadian citizen here is simply not relevant to the
granting of compassionate or humanitarian relief
to that Canadian citizen so as to permit the latter
to be reunited in Canada with another close rela
tive from abroad. Put in the concrete terms of this
case, the fact that the appellant's brother has
remained in India has nothing to do with whether
or not her mother should be allowed to join her
here.
In my view the Board's decision on the granting
of relief on compassionate or humanitarian
grounds is based upon an irrelevant consideration
and must be set aside.
There remains for consideration the proper dis
position of this matter. The powers and duties of
this Court on an appeal of this sort are set out in
paragraph 52(c) of the Federal Court Act [R.S.C.
1970 (2nd Supp.), c. 101:
52. The Court of Appeal may
(e) in the case of an appeal other than an appeal from the
Trial Division,
(i) dismiss the appeal or give the decision that should have
been given, or
(ii) in its discretion, refer the matter back for determina
tion in accordance with such directions as it considers to be
appropriate.....
As a general rule, therefore, when an appeal is
allowed, the Court is to give the decision that
should have been given; it is only if there is some
reason for doing so that the Court should exercise
its discretion to refer the matter back. Referring
the matter back would involve a great expenditure
of time and money and the holding of a new
hearing before a differently constituted panel of
the Board. The record in this case satisfies me that
if it had not taken the irrelevant consideration of
"family unification" into account the Board would
have considered this to be an appropriate case for
relief under paragraph 79(2)(b). That being so,
there is no reason why we should not give the
decision that the Board should have given.
I would allow the appeal, set aside the decision
of the Immigration Appeal Board dated 27
November, 1984 and substitute for it a decision
allowing the appeal and directing that the spon
sored application of the appellant's father, mother,
brother and sister should not be refused on the
ground that Ayesha Asmal is inadmissible under
subparagraph 19(1)(a)(ii).
MCQUAID D.J. concurred.
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.