The Instructions for Procedural Fairness

Last Updated on August 29, 2016

The Guidelines for Recording the Decision and Document Retention

Officers would need to document all steps in the decision-making process in the applicable electronic system. In many cases, this system would usually be the Global Case Management System (GCMS). Officers would need to document all communications involving the applicant’s representative and the medical section as well.

Officers would also need to send certain documents to the medical officer. These documents would typically include:

• Copies of the applicant’s declaration about their ability and intent to mitigate excessive demand in response to the procedural fairness letter and,

• Other supporting documents and information

It is worth highlighting that officers would need to place all the original documents in the immigration file.

Visa or immigration officers would need to review the medical opinion at all times. In addition, they would need to review the material received from the applicant as well. The authorities require officers to do this in all cases before entering a medical admissibility decision. After reviewing all the material, the officers would need to record the review process in the Global Case Management System (GCMS) as applicable. Officers could view a flowchart describing the assessment process given on the website of Citizenship and Immigration Canada (CIC).

The Instructions for Medical Officers

As mentioned earlier, medical officers would need to determine that a health condition involves excessive demand on social services or outpatient medication. On determining this, the medical officer would need to:

• Write a medical narrative on the Medical Notification form i.e. IMM 5365B

• Code the medical file as:

  • M5 (i.e. excessive demand) with one of the following sub-codes:

    • T9 for excessive demand on social services

    • H9 for excessive demand on health services

    • E9 for the displacement of Canadians who are on a waiting list or,

    • M45 or M56 if the foreign national has a health condition that might reasonably cause an excessive demand in addition to a condition that is likely to be a danger to public health or safety

      • In M45 or M56 cases, it is worth highlighting that the applicant’s ability and intent to mitigate excessive demand does not apply to medical conditions that are likely to cause a danger to public health or safety

• Write down a list of the required social services and outpatient medication along with the overall anticipated costs

  • Officers could come across applicants who need special education services

  • In this scenario, the officers would need to write down a list of the required special education services

  • Thereafter, they would need to support these services required with diagnostic and behavioural indicators compared to the baseline education needs of other students

  • On occasions, the officers might decide to include quantitative cost assessments if available

  • However, these cost assessments are typically not required for special education cases

  • It is worth highlighting that the officers would need to base their list of social services and outpatient medication on:

    • A detailed assessment

    • Recommendations provided by a recognised specialist in the field and,

    • The experience and knowledge of the medical officer

  • The medical officer has the ability to consult colleagues or Canadian experts as the officer deems necessary

• Provide a statement about the probable costs of anticipated health services (i.e. outpatient medication) and social services

  • This statement would usually not include the probable costs associated with the special education services

  • The statement would specify the probable costs of anticipated health services and social services (including outpatient medication) that would likely exceed the average Canadian per capita health and social services costs over a span of time and,

• State the period considered by the medical officer to the visa or immigration officers

Medical officers would also be responsible for reviewing the information submitted in response to the procedural fairness letter. While doing this, the medical officer would need to:

• Acknowledge the receipt of the applicant’s response

• Keep a confirmation of the receipt in the medical file

• Review the entire medical file along with the newly submitted material prior to providing an opinion and thereafter, document the details in the record

• Consider any supporting documentation that the applicant has provided, as medical officers would need to take into account a diverse range of factors including:

  • The availability of the planned alternative

  • The feasibility and the quality of the service delivery method and,

  • The funding of the organisation that is delivering the service (wherever applicable)

    • While considering this aspect, the medical officers would need to take into account the fact as to whether the organisation delivering the service receives its funds from federal, provincial or territorial governments to such an extent that the organisation ends up falling within the regulatory definition of ‘social services’

• Determine whether the affected individuals would still cause excessive levels of demand on anticipated health services (such as outpatient medication) or social services if the officers maintained the list of required services and if the individuals were to follow the plan as outlined and,

  • In this scenario, the medical officers would typically be using their medical expertise and their knowledge of the Canadian health and social services sector to make this determination

• Provide a medical opinion to the visa or immigration officers, who will, in turn, need to review the opinion and record the process in the Global Case Management System (GCMS)

Note:

• It is worth highlighting that medical officers would typically not be addressing any issues of financial ability and intent

• However, they might need to direct questions to the visa or immigration officers on occasions

• They would especially do this if they come across issues that could affect their own assessments

• It is worth highlighting that the onus is always on the applicant to provide the information necessary for overcoming a decision of inadmissibility

• As such, the information provided by the applicant would need to be of a quality and standard that permits the officers to conduct an appropriate assessment

• Situations could arise where the information provided by the applicant within the stipulated period of time is not satisfactory

• Similarly, situations could arise where the applicants do not provide any information at all

• In both these situations, the medical officers have the ability to provide opinions that the applicants or family members are inadmissible by virtue of their medical conditions

The Instructions for Visa or Immigration Officers

Visa or immigration officers would typically receive medical opinions from the medical officers. These medical opinions would usually come along with the relevant narrative reports, the list of social services, the outpatient medication and overall expected costs. On receiving these documents from the medical officers, the visa or immigration officers would need to:

• Send the:

  • Procedural fairness letters (i.e. excessive demand)

  • Relevant sections of the Immigration and Refugee Protection Regulations (IRPR) [refer to Appendix B] and,

  • Declaration of Ability and Willingness to the Applicant

    • It is worth highlighting that this letter will invite the applicants to provide additional information needed for overcoming the finding of inadmissibility

• Ensure that the procedural fairness letter explicitly informs the applicants of the required care, social services and outpatient medication that are critical to the individual the officers are assessing as medically inadmissible i.e. M5 and,

• Ensure that the procedural fairness letter clearly explains that the applicant has the ability to challenge the diagnosis and list of required services

• Ensure that the procedural fairness letter clearly explains that the applicant has the ability to demonstrate that the applicant has a plan to obtain all the services and manage the costs associated with the services as specified in the letter

  • Alternatively, the applicant would need to provide an alternate detailed plan that specifies the costs as well

Note:

• The applicant would subsequently need to decide to:

  • Accept the medical opinion and not respond to the procedural fairness letter

  • Challenge the medical opinion and / or assessment of excessive demand or,

  • Accept the medical opinion and submit a proposed plan that details:

    • The place where the applicant plans to secure the essential services from

    • The cost of these services and outpatient medication and,

    • The manner in which the applicant plans to pay for these services

In addition, the visa or immigration officers would need to:

• Review the requests given by the applicant and consider granting an extension to the applicants

  • This would typically be the case in situations where the applicants contact the office prior to the end of the given time frame, indicating that they intend to make the relevant submissions but require additional time for gathering the required information

• Carry out the following activities on receiving the applicant’s response to the procedural fairness letter:

  • Review the response to the procedural fairness letter

  • Verify (as needed) the:

    • Authenticity of the plan

    • Validity of the associated costs and,

    • The cost mitigation strategy proposed by the applicant

      • In many cases, this might mean that the immigration or visa officers would need to contact social services agencies or provincial health or educational authorities, as identified in the applicant’s plan

  • Feel satisfied that the applicant has the ability and the intent to mitigate the cost of the required health (i.e. outpatient medication) and social services

  • Send a follow-up request to the applicant in case the applicant has not provided complete and detailed information in response to the list of required health (i.e. outpatient medication) and social services and the overall expected cost

    • In this scenario, the follow-up request would need to specify a time frame for the applicant to respond to the request

    • In addition, the follow-up request would need to inform the applicant that if the officers receive no further information from the applicant, then the officers would make a decision based on the information present in the file

  • Request the opinion of the medical officers in case the applicant challenges the diagnosis or the required treatment and whether the services proposed by the applicant are acceptable within the Canadian context

    • In this scenario, the officers would need to be mindful of the medical condition of the applicant

  • Retain a confirmation of the medical officer’s receipt of the applicant’s response in the immigration file (if applicable)