By Attorney Henry Moyal
TACKLING MEDICAL INADMISSIBILITY
We all hope that applicants to Canada are healthy and free of any ailment or disease. However, applicants (and their dependants) are often faced with medical issues that may render them inadmissible to Canada. The question therefore is what constitutes medical inadmissibility? What kind of medical condition will result in a refusal of the application for an applicant and their dependants? Further, if one is indeed found to be medically inadmissible how does one appeal the medical decision in order to overturn the negative decision?
TYPES OF MEDICAL INADMISSIBILITY
There are basically two types of medical scenarios that can lead to a finding of inadmissibility and refusal of an application. The first is a medical finding that the applicant has a medical condition that is a danger to the public (for example Tuberculosis). The other more common ground is a medical finding that the applicant’s medical condition is so severe that it will cause an excessive demand on Canada’s heath/social services. In other words, the person has a disease or medical condition that requires hospitalization, doctor’s visits, surgeries etc… that exceeds what a “normal” Canadian charges to the health system. That amount is called the Canadian Cost Per Capita and is currently $5143 per year. It should be noted that the Federal Court in recent cases has stated that the notion of excessive demand automatically means that there is a certain amount of demand that is acceptable. The question is whether the applicant requires it excessively.
As such, medical officers are now becoming more accustomed nowadays in providing details and specific costs that support their conclusion of how the applicant’s condition exceeds the $5143 per year. That is, more often than not, medical officers are now providing a cost analysis and details of what it costs for prescription drugs, surgeries to support medical refusals.
HOW TO APPEAL
So how does one appeal or overcome a medical refusal? There are generally three ways to tackle a medical inadmissibility finding.
(i) On Medical Grounds – Immigration Canada will always provide a fairness letter to applicants before rendering a refusal. In other words, after the medical evidence is in, the visa officer will communicate with the applicant before rendering a final decision and will offer the applicant a last opportunity to provide submissions or evidence. The time frame is usually sixty days. It is at this time the applicant has the opportunity to rebut and counter the medical finding of the immigration doctor. Applicant’s can seek other medical letters and evidence from other medical doctors and specialists.
(ii) The courts have recently held that visa officers now must consider the applicant’s financial status in order to determine if the application should be refused. That is, if the applicant has the ability and intent to pay for the medical costs, that must be considered by the officer and at times can avert a refusal. For example, if the main applicant has a young autistic child, the application may be refused on the basis that the child will require special education and social services by the province. If the applicant can show that they have the funds to pay for the school, such factors will be considered.
(iii) Humanitarian and compassionate factors can always be raised when dealing with a potential medical refusal. Especially with family class refusals (where sponsors have an automatic right to an appeal), the appeal board will consider humanitarian and compassionate reasons. For example, the applicant has no ties to their home country, medical attention is not available in the home country and ties to the sponsor in Canada.
MEDICAL EXEMPTION
Under new regulations, an applicant who is the spouse of a Canadian Citizen/PR and who is being sponsored for permanent residence under the family class cannot be refused for medical inadmissibility on excessive demand grounds.
Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by phone 416 733 3193 or email www.moyal.com
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