The issue of medical inadmissibilty underwent an important clarification in a recent decision rendered by the Supreme Court of Canada. In the decision of Hilewitz v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, the court in defining the obligation of the Immigration authorities when assessing medical inadmissibilities, ruled that the Minister of Immigration, before refusing an application for residence, is required to consider all of the individual's particular circumstances as well as the personal circumstances of the Applicant and his or her family in evaluating the "excessive demands" standard which could lead to the inadmissility of an applicant. Non medical factors such as the availability, scarcity or cost of publicly funded services along with the willingness and ability of an Applicant or his or her family to pay for the cost of private support, must also be taken into consideration by a visa officer.
The case involves two families Hilewitz and de Jong who had applied as business immigrants to Canada, one as an Immigrant Investor and the other as a Self Employed. The visa officers in both cases refused the applications for residence on the basis that the medical officer's opinions concluded that their intellectually disabled children's admission to Canada would likely cause excessive demands on Canada's health or social services. Both families had provided compelling evidence of their intention and ability to provide private social care for their intellectually disabled children. The Court relied on evidence to the effect the the visa officers had not taken into consideration the individual circumstances of each family but instead had merely confirmed the medical officers' negative findings. The refusals were based more on conjecture, speculation and remote possibilities of excessive demands rather than on reasonable probabilities. The court opined that such an approach disregarded a family's actual circumstances, replacing the purpose of the legislation with a "cookie-cutter" methodology. The court found that it is incongruous to interpret the legislation in such a way that the very assets that qualify investors and self-employed individuals for admission to Canada can simultaneously be ignored in determining the admissibilty of their disabled children.
The case centred around the excessive demand provisions of the former Immigration Act, which have been replaced by s. 38(1)(c) of the Immigration and Refugee Protection Act, which provides that a foreign national is inadmissible on health grounds if their health condition might reasonably be expected to cause excessive demand on health or social services.
This decision which overturned the Federal Court of Apeal sets a ground breaking precedent that will allow prospective applicants applying for permanent residence to Canada or being sponsored by a member of the Family Class with disabling or perhaps other serious medical deficiencies, the opportunity to demonstrate to immigration authorities a willingness and an ability to lesson the impact of their children’s disabilities on Canada’s social services.
