Last Updated on January 24, 2019
A tenured York University professor from Costa Rica is garnering media attention after his pending immigration application risks being refused when immigration authorities concluded the family’s son who has Down’s Syndrome, poses too much of a burden on taxpayers. The professor, Felipe Montoya, applied for permanent residency with his family including his wife and two teenage children after having lived in Canada for three years. He called the ruling against his 13-year-old son medieval and barbaric. Montoya has until early May to answer a “procedural fairness letter” issued by the government which must establish to the satisfaction of the assessing officer that either the family member is not inadmissible to Canada, or that they have an individualized plan to demonstrate that no excessive demand will be imposed on Canadian social services due to the medical inadmissibility.
The Immigration and Refugee Protection Act states “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.”
Canada’s long standing medical inadmissibility rules prevent sick and disabled people with serious illnesses, from settling here and are strictly enforced. The rules require Immigration officials to first evaluate whether the medical finding of a designated medical doctor that the health care requirements of an applicant with a serious illness, is reasonable. Second, an assessment is made on the cost of treatment of the affected person that it will likely cost Canada’s health-care system and other social services. If the anticipated cost exceeds the average Canadian per capita health and social services costs each year, (about $6,500 each), the applicant is then given a chance to provide a “credible plan” and explain how that individual will offset the costs to Canada’s health-care system, if admitted to Canada. In addition to the anticipated health and social costs, consideration must also be given to the future prognosis of the medical condition and its impact on waiting lists.
It helps if the applicant has a high net worth and a large extended family already living in Canada that will likely help out. Once a decision is rendered, a negative decision can be challenged in Federal Court a process which can take about 2 years to conclude. Unfortunately, those suffering from certain high cost illnesses, such as advanced diabetes or Down’s syndrome, face low chances of approval. Applicants with family members having serious medical conditions need to be aware of the long and often insurmountable obstacles they face before immigrating to Canada.
The rules in this area have been developed by Ottawa as a result of many years of court challenges culminating in decisions rendered by the Supreme Court of Canada which have tempered former immigration policy.
One of the more important findings occurred in the 2005 Supreme Court of Canada decision of Hilewitz v. Canada (Minister of Citizenship and Immigration). In that decision, the court defined the obligation of Canadian Immigration authorities when assessing medical inadmissibility’s and 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 inadmissibility finding 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 involved 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 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 admissibility of their disabled children.
The case centred around the excessive demand provisions of the former Immigration Act, which have since been replaced by s. 38(1)(c) of the Immigration and Refugee Protection Act. These rules provide 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.
The decision set a ground breaking precedent that has since allowed prospective applicants applying for permanent residence to Canada or being sponsored by a member of the Family Class with disabling or other serious medical deficiencies, the opportunity to demonstrate to immigration authorities a willingness and an ability to lessen the impact of their children’s disabilities on Canada’s social services.
Serious medical conditions are always heart wrenching for families and their legal counsel. But although our immigration system may be labelled “harsh, and perhaps to those affected, “cold-hearted”, the standards applied are not unfair, or unlawful. Applicants affected by similar circumstances need to be prepared for a long, arduous and depending on the medical condition, often unsuccessful experience with Canada’s immigration rules.
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