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Fairness Letter Of Medica Inadmissibility

owoblow

Member
Dec 26, 2010
12
0
I applied for PR for myself and my family in may and by June we have done the medicals but they wrote requesting further test on my youngest son has hearing impairment and is hearing with cochlear implant. On 22 Dec, we received a fairness letter that my son may be inadmissible because of the hearing impairment and that he may cause excessive demand on the health or social services in Canada.

I also noticed that the Procedural fairness letter i received is a little different from the few others i have seen online and also from the fairness letter template on the CIC website. And it did not come with the Declaration of intent like the others i have seen. Could this mean anything?

Can someone please suggest how to go about responding to this letter or someone should please share a similar experience. Your comments and suggestions are welcome please.

Thanks


Please find below a copy of the letter:

I am now completing the assessment of your application for a permanent residence visa. It appears that you may not meet the requirement for immigration to Canada.

I have determined that your family member, ....... is person whose health condition might reasonably be expected to cause excessive demand on health or social services.
Pursuant to section 38(1) (c) of the immigration and refugee protection act it appears that he may be inadmissible on health grounds. The regulatory definitions of these terms are attached.

Section 42 of the act states that;"A foreigner, other than a protected person, is inadmissible on grounds of an inadmissible family member if (a) their accompanying family member or, in prescribed circumstances, their non accompanying member, is inadmissible"

Your minor son, has the following, medical condition or diagnosis; impaired hearing or Deafness, diagnosis; deafness (389).

Before I make my final decision, you may submit additional information relating to this medical condition or diagnosis. You may also submit any information addressing the issue of excessive demand if it applies to your case.
 

Naija Pikin

Hero Member
Sep 18, 2010
623
27
Category........
Visa Office......
Accra
NOC Code......
2121
Job Offer........
Pre-Assessed..
App. Filed.......
30-8-2010
VISA ISSUED...
2-4-2012
owoblow said:
I applied for PR for myself and my family in may and by June we have done the medicals but they wrote requesting further test on my youngest son has hearing impairment and is hearing with cochlear implant. On 22 Dec, we received a fairness letter that my son may be inadmissible because of the hearing impairment and that he may cause excessive demand on the health or social services in Canada.

I also noticed that the Procedural fairness letter i received is a little different from the few others i have seen online and also from the fairness letter template on the CIC website. And it did not come with the Declaration of intent like the others i have seen. Could this mean anything?

Can someone please suggest how to go about responding to this letter or someone should please share a similar experience. Your comments and suggestions are welcome please.

Thanks


Please find below a copy of the letter:

I am now completing the assessment of your application for a permanent residence visa. It appears that you may not meet the requirement for immigration to Canada.

I have determined that your family member, ....... is person whose health condition might reasonably be expected to cause excessive demand on health or social services.
Pursuant to section 38(1) (c) of the immigration and refugee protection act it appears that he may be inadmissible on health grounds. The regulatory definitions of these terms are attached.

Section 42 of the act states that;"A foreigner, other than a protected person, is inadmissible on grounds of an inadmissible family member if (a) their accompanying family member or, in prescribed circumstances, their non accompanying member, is inadmissible"

Your minor son, has the following, medical condition or diagnosis; impaired hearing or Deafness, diagnosis; deafness (389).

Before I make my final decision, you may submit additional information relating to this medical condition or diagnosis. You may also submit any information addressing the issue of excessive demand if it applies to your case.
Owoblow, First I sympathize with you on this, but I am not sure they have completely shut the door on you.
Looking at the last paragraph of the letter they wrote, you still have the opportunity to prove them otherwise. I am not a medical person so, I cannot comment on the diagnosis, but on the issue of ''excessive demand'', you can prove that you have personal resources to put your son in a special school in Canada, and you can demonstrate this by providing proof of strong financial standing to cater for your son, at little or no cost to their health or social services.
This is my little contribution, hope our seniors can comment on this.
Good luck, and my love to you little boy.
 

Emcool00

Star Member
Apr 23, 2010
57
6
Category........
Visa Office......
Accra, Ghana.
NOC Code......
3112
Job Offer........
Pre-Assessed..
App. Filed.......
14-12-09
Doc's Request.
09-02-10
AOR Received.
09-02-10
File Transfer...
09-04-10
Med's Request
29-04-10
Med's Done....
25-05-10
Passport Req..
11-01-2011
VISA ISSUED...
17-01-2011
LANDED..........
13-04-2011
Really sorry about your present situation.Though I am not aanexpert here neither do I have a personal experience but I feel what the VO wants is for you to convince him beyond resonable doubt that the condition as it is now will 'not cause excessive demand on health and social services.'
I think you go about thus:
1.Since your son is already on an inplant you may need to submit an evidence probably inthe form of a report that will state that he is doing well on the current intervention method that does not reqiure regular/reccurent expences.
2.Give Evidence of financial capability and possibly an undertaking to take care of unforseen issues that may arise as a result of this condition in future.

Still waiting for seniors and all with experiences in this regard to make an input.

BTW what is your visa office?
 

Ario

Hero Member
Nov 12, 2010
250
11
Owoblow
Sympathy & compassion to your son.I agree with NAIJA that the door is not closed on your case . I think CHC is giving you an opportunity to make representations ,a compelling case that will make them decide in your favour. For example you could write that:
1)This is an impairment that can easily be corrected by the hearing aid in the same manner short-sightedness is corrected by glasses or contact lenses
2)You can demonstrate financial means enabling you to replace the hearing aid when needed,as well as the ability to place him in a special school if need be.
3) You could also draw the VO officer onto a personal level by pointing to them some famous people who succeeded in their careers with a hearing impairment. you may need to do some research on this. Thomas Edison , Ludwig van Beethoven ,Foxy Brown(rapper) etc... Even Nelson Mandela used a hearing in his Presidency.
The above are compelling examples that your son can lead a successful life without causing any excessive demands on Canada social services.

God bless
 

owoblow

Member
Dec 26, 2010
12
0
Thanks for your comments.

My Visa Office is Rome.

We hope to present them with as many documents as possible showing that our son will be attending a private school and will be seeing a private speech therapy.

I need your comments on how to present the response to the letter and also anyone that has been through this situation to please share their experience and how they wrote the response letter.

Thanks once again and God bless.
 
Jan 20, 2010
13
1
kuwait
Visa Office......
CHC LONDON
Job Offer........
Pre-Assessed..
pls, read this article from medical procedure cic web.
it may help you to understand the rejection rules of family members.
this what i have read.
seniors please share your valuable opinion.
best of luck.


5.6. Procedural fairness
If it is determined that an applicant is inadmissible on health grounds as described in A38(1),
applicants must be permitted to respond to the medical information that resulted in the decision.
Procedural fairness (see also, OP 1, Section 8) requires that officers give applicants an
opportunity to respond to concerns about their admissibility (see Section 13 below for
procedures).
5.7. Exemptions from inadmissibility on grounds of excessive demand
As per R24 and R139(4), excessive demand determinations under A38(1)(c) do not apply to:
• individuals who are members of the family class: spouse, common-law partner or a
dependent child of the sponsor;
• Convention refugees;
• protected persons.
Such individuals must undertake medical examinations for reasons of public health and public
safety only. If the status of an applicant changes, a new medical assessment, including a review
of excessive demand considerations, is required.
 

jadwig

Star Member
Mar 12, 2010
129
17
Calgary, Alberta
Category........
Visa Office......
London
Job Offer........
Pre-Assessed..
Hi owoblow,

First my sympathies on the current twist in your case.

Now to how this can be addressed. I'll advise you proceed really carefully in preparing your response. You need to be clear that what you're addressing is the condition of your child and how much this is expected to cost the public services in Canada. Every resident is expected to access public services, the issue of excessive comes up only if the cost of providing such services to a particular individual exceeds a value. There is a method for determining this value stated somewhere on CIC website but I've not been able to locate it. However, I have accessed some Federal Courts Canada Decisions which explains more what is needed to scale this medical admissibility requirement. In particular, there is a distinction between social and health services. Health services is deemed a compulsory responsibility of the Federal Govermnent while the administration of social services vary by provinces. It was successfully argued in that case that the provincial laws of the specified destination of an intended immigrant may allow flexibility in the provision of social services to the extent that it does not become an issue for admissibility consideration. I am of the view that your child's condition will fall in the category of social, and not health services. Although it is a fine line to walk, I believe you do have a good chance to scale through this and wish you the best. You may access these court decisions via:

decisions.fct-cf.gc.ca/en/2002/2002fct844/2002fct844.html

and

decisions.fct-cf.gc.ca/en/1998/imm-3366-96_2077/imm-3366-96.html

For your convenience, I have pasted the record of the first case below. I wish you the best.

Federal Court Reports
Hilewitz v. Canada (Minister of Citizenship and Immigration) (T.D.) [2003] 2 F.C. 3

Date: 20020808

Docket: IMM-5340-00

Neutral citation: 2002 FCT 844

BETWEEN:

DAVID HILEWITZ

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

GIBSON J.

Introduction

[1] These reasons arise out of an application for judicial review of a decision of a Designated Immigration Officer (the "Officer") at the Canadian Consulate General in Seattle, Washington, whereby the Officer rejected the applicant's application for permanent residence in Canada on the ground that one of the applicant's dependant sons, Gavin Martin Hilewitz ("Gavin"):

... comes within the inadmissible class of persons described in paragraph 19(1)(a) of the Immigration Act, 1976, in that he is suffering from developmental delay as a result of which, in the opinion of a medical officer concurred in by at least one other medical officer, his admission would cause or might reasonably be expected to cause an excessive demand on Canadian social services.

The decision under review is dated the 15th of September, 2000.

Background

[2] The applicant, a citizen of South Africa, applied for permanent residence in Canada in the "Investor" category. He included within his application, as dependants, his wife and two sons, the younger of whom is Gavin. Gavin's date of birth is the 19th of August, 1982.

[3] The applicant was interviewed by the Officer on the 9th of December, 1999. The Officer's CAIPs notes of the interview read in part as follows:

There is an anticipated medical problem here. PI s [Person Interested's] youngest son was born with a brain damage apparently incurred during the birth process. He is attending a special school started by PI. He does not require around the clock care. PI has looked into a private day school in the Toronto area which has space for the boy and where he would fit in very well. I have warned them that the son is likely to be found medically inadmissible, explained the opportunity to provide further medical documentation, and the possibility of making a recommendation for MP s [Minster's Permits] which then may or may not be concurred in by the province. It seems that there would be financial benefits accruing to the province if PI were allowed entry as he would try to attract foreign investments in Canada. Have also told him that he would have to be the one providing me with the salient facts for an MP submission.

[4] A Medical Notification signed by Medical Officer Dr. J. Lazarus on the 7th of December, 1999 and concurred in by another medical officer, Dr. J. Saint-Germain, issued. The relevant portion of the narrative in the Medical Notification reads as follows:

DEVELOPMENTAL DELAY

This 17 year old dependant applicant has developmental delay and is functioning at the level of a child aged 8 years. He has delayed comprehension and reading skills as well as difficulty problem solving. He is easily distracted and impulsive. He is currently attending a special school for pupils with delayed scholastic ability.


If admitted to Canada, he and his supporting family, where applicable, will be eligible for, and will likely require, a variety of social services such as further special education, continuous training to enhance his ability to carry out the activities of daily living and attain his full potential, respite care for parents, and ultimately vocational training. These requirements are far in excess of those of an average Canadian and will place an excessive demand on Canadian social services.

Inadmissible under section 19(1)(a)(ii) of the Immigration Act.

[5] The relevant portions of subsection 19(1) of the Immigration Act[1] read as follows:

19. (1) No person shall be granted admission who 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;[2]


19. (1) Les personnes suivantes appartiennent à une

catégorie non admissible :

a) celles qui souffrent d'une maladie ou d'une invalidité

don't la nature, la gravité ou la durée probable sont

telles qu'un médecin agréé, don't l'avis est confirmé par

au moins un autre médecin agréé, conclut :

...

(ii) soit que leur admission entraînerait ou risquerait

d'entraîner un fardeau excessif pour les services

sociaux ou de santé;

The Officer sent a "fairness letter" to the applicant, dated the 22nd of March 2000, providing the applicant with an opportunity to respond to the Medical Notification. The substance of the "fairness letter" reads as follows:

I have received a medical notification stating your son, Gavin Martin Hilewitz, is suffering from developmental delay. The opinion of a medical officer regarding his medical condition, concurred in by at least one other medical officer, is stated as follows:

[As quoted earlier in these reasons.]

This information leads me to conclude that your dependant can be expected to cause excessive demands on health or social services in Canada. For this reason, I could refuse your application for permanent residence.

Before I make a decision whether Gavin is inadmissible, you may respond to the description of his medical conditions with new medical information of your own.

The applicant was provided a reasonable period of time to respond with new medical information. He was directed to provide any response to the medical officer who initiated the Medical Notification.

[6] The applicant did respond to the "fairness letter". In his own letter, covering additional materials, the applicant wrote:

We cannot deny that Gavin does not function as a 17 year old in all facets of his behaviour and ability. At the same time, whilst he was born with minimal brain damage, many of his functional abilities are normal and way beyond the maturity of an 8 year old.

Under the heading "Physical Medical Health", the applicant wrote:

His general medical health has been that of a healthy normal person that very rarely requires medical attention as born [sic] out in the enclosed letter from our General Practitioner, Dr M. Blumberg.

Under the heading "Schooling", the applicant wrote in part:

He has required specialized education for the past nine years during which period we have never resorted to any institutional assistance or social services available in South Africa.

...

As demonstrated we have never been a drain on any institutional or social service structure to support our son and cannot conceivably ever contemplate any change to this ethos in the future.

The applicant continued under the heading "Scholastic Skills":

...

Gavin excels in subject matters that interest him. Throughout the majority of his lifetime he has had a passion for natural history and has an amazing retentive memory for the names and habits of the various species of dinosaurs, sharks and other reptiles beyond the knowledge of most adults.

With the advent of the Internet, we have installed a computer at home for his personal use. He has been able in a short space of time to independently access the Internet, to browse websites of interest to himself, to print the contents thereof, save information and open and close files without the requirement of our assistance.

We believe that constant encouragement from ourselves, coupled with his acumen in operating a computer, will be major tools in expanding his education and general knowledge.

Under the headings "Social Skills", "Future Prognosis" and "Vocational Training", the applicant continues:

We have enclosed a letter from a psychologist whom we asked to meet and assess Gavin. To expand on this we would like you to know the following. Gavin is a delightful person who draws people to himself through his friendliness and sincerity of spirit. For many years he has been dropped by us at our local shopping mall where he does his own shopping, goes to movies, restaurants, internet cafes and video arcades, with or without a friend from his school. In the process he manages his money well, enjoys himself and telephones us when he is ready to be collected. Similarly, he goes to ten pin bowling, to the zoo and the war museum (in which he has a passionate interest).

...

Furtherance of his education is vitally important. This will manifest itself through a combination of private schooling and continuous training on the computer where the cyberworld library is so vast that it can only widen his general knowledge, reading skills and make use of the wide range of educational tools available.

With regard to schooling, we have on our previous trips to Toronto, identified potential schooling, the costs thereof and most importantly whether Gavin would fit their criteria. We even had an interview with Gavin present at the Shore Institute of Learning at which we had a very positive response with regard to them educating Gavin. If granted a visa, we would explore the many other options available in private schooling without requesting or needing any financial assistance.

...


There is no doubt that Gavin will have to have sheltered employment. As my background is that of a person who has been involved in many businesses and industries over my working life of 30 years, it is my intention to establish or purchase as one of my business interests a business to accommodate Gavin's future. For example, I would seriously consider purchasing a Video Game/Toy Franchise employing experienced management and to include Gavin in that operation where he could demonstrate home video games at which he is far above the average user of such products.

Finally, after commenting on the commitment of three other children of he and his wife, all older than Gavin, the applicant concludes:

In conclusion we wish to point out that we are very proud and independent people who have endured hard times and enjoyed very successful times. Throughout these times we have always been independent and focused on Gavin's well being, security and happiness. We assure you that this will never change.

[7] The applicant's responsive letter covered brief letters from a clinical psychologist and a medical doctor who had known Gavin as a patient for ten years. Extensive material relating to Gavin's school and his schooling was also enclosed.

[8] In a communication dated the 23rd of May, 2000, Dr. Saint-Germain, the medical officer who concurred in the original Medical Notification in respect of Gavin, advised that he had reviewed the new information reflected in the response to the "fairness letter"as well as the full medical file on Gavin and had concluded that the new material "... does not modify the current assessment of medical inadmissibility." That opinion was concurred in by Dr. Walter G. Waddell, a medical officer who was not a party to the original assessment. Apparently Dr. Lazarus, the medical officer who formulated the original Medical Notification took no part in the review of the new material.

[9] The decision letter that is here under review followed.

[10] Both the Officer and Dr. Waddell filed affidavits on this application for judicial review. Both were cross examined. References to certain of their responses on cross-examination will follow in the portion of these reasons under the heading "Analysis".


The Issues

[11] The issues arising on this application for judicial review are set out in the Application Record filed on behalf of the applicant, in the following terms:

A. Whether the medically inadmissible class of persons described in subparagraph 19(1)(a)(ii) of the Immigration Act includes mentally disadvantaged applicants or their dependents?

B. In the alternative, whether the admission of this particular applicant taken in his uniqueness would cause excessive demands on health or social services in Canada?

C. Whether the visa officer ignored relevant evidence, misconstrued the evidence before her and made findings that were patently unreasonable as to constitute reviewable error?

D. Ought due deference be given to a decision of an officer who was both unfamiliar with and inexperienced in the question that she had to decide and thus, is the test to be applied to her decision, correctness?

E. Whether the visa officer failed to observe a principle of natural justice, procedural and administrative fairness that she was required by law to observe.

[12] Shortly before the date set for hearing of this application for judicial review, counsel for the applicant advised the Court and counsel for the respondent that he would not be pursuing the first of the foregoing issues.

Analysis

1) Recent Case Law

[13] In Wong v. Canada (Minister of Citizenship and Immigration)[3], my colleague Mr. Justice McKeown had before him an application for judicial review of a decision of a visa officer whereby the visa officer rejected, for the third time, the applicant's application for permanent residence in Canada on the ground that the applicant's daughter suffered from mild to moderate "mental retardation" (now referred to as "developmental delay" or "cognitive impairment") and Down's Syndrome thus leading two medical officers to the opinion that her admission would or might reasonably be expected to cause excessive demands on social services in Canada. Justice McKeown notes that one of the issues raised before him was whether or not the visa officer had erred in failing to consider the applicant's daughter in her "uniqueness" with respect to social services. At paragraph 5 of his reasons, Mr. Justice McKeown noted an earlier decision of Madam Justice Reed arising out of the rejection of the applicant's second application for permanent residence in Canada. He wrote:

On the application for judicial review of the August 1996 decision, Reed J. allowed the application finding that there was a breach of procedural fairness as a result of the applicant not being given answers to the questions he had posed about the doctor's opinion that his daughter's admission to Canada would place "excessive demands" on Canadian social services. Reed J. stated at paragraph 26:

Most significant is the non-disclosure to the applicant of information concerning the basis on which the opinion was rendered. The applicant and his counsel wished to respond to the conclusion that admission of the daughter to Canada would as a result of her medical condition, cause excessive demands on social services. In order to do this in an intelligent way they needed to know what factors were considered relevant. In my view, the non-disclosure of the requested information constituted a breach of natural justice [and] is a breach of the rules of fairness.

Reed J. also noted that under Ontario's Developmental Services Act, Canadian residents who are able to do so are required to pay for the social services that are in question. She also commented in obiter on the need to consider an individual's particular circumstances. At paragraph 31 she states:

Having come to this conclusion, it is not, strictly speaking, necessary to consider the other issues that counsel raised. I do note, however, that under subparagraph 19(1)(a)(ii), it is the admission of the individual that is to be assessed in determining whether excessive demands would be or might reasonably be expected to arise. I read that provision as requiring a consideration of the individual's particular circumstances, including in this case the applicant's offer to set up a trust fund. Counsel for the respondent argues that individual circumstances (particularly above average financial resources) should not be taken into account when assessing medical inadmissibility because our medical and social services are predicated on the principle that all individuals are equally entitled, and that advantages should not accrue in these areas to some individuals simply because they are wealthier than others. The force of that argument is strong. However, the category under which the applicant has been approved for permanent residence [sic] status is the self-employed category, that is, he has been approved because of his financial resources and entrepreneurial experience. There does seem to be an incongruity between admitting someone as a permanent resident because he has significant financial resources bur refusing to take into account those same resources when assessing the admissibility of a dependent. This is particularly true if Canadian residents themselves must pay for the social services if they can afford to do so. [Emphasis added.]

[14] After quoting subparagraph 19(1)(a)(ii) of the Immigration Act, as reproduced earlier in these reasons, Mr. Justice McKeown continued at paragraphs 18 to 22 and 26 of his reasons:

In Deol v. MEI [1992] 18 Imm. L.R. (2d) 1 (F.C.A.), MacGuigan J. held that the fact of mental retardation alone is not the relevant factor but the degree and probable consequences of that degree of retardation for excessive demands on government services. Also, in Ismaili v. MCI [1995] 29 Imm. L.R. (2d) 1, Cullen J. considered the social services in the particular region of Canada where the applicant wished to settle. Cullen J. in that case also stated that:

The visa officer - wholly apart from the decision of the medical officers - is obliged to consider whether the applicant's medical condition would place excessive demands on health or social services. The visa officer, without second guessing the medical, diagnostic opinion, must consider all of the available evidence.

Furthermore, in Poste v. MCI [1995] F.C.A. No. 1805 (TD) Cullen J. held that each and every applicant should be looked at in their "uniqueness".

The applicant submits that family support ought to be considered, but that it was not considered in this case. Allegedly the medical officers based their opinion on eligibility for services alone and there is wording in the medical notification and refusal letter such as "eligible for ... services" and "likely to require ... services". The applicant submits that without a reasonably direct inquiry as to family support and the intentions of the applicant vis-à-vis his dependents, no intelligent answer can be made to the statement "likely to require". In this case, the applicant made it very clear that there would be no community involvement in the care of his daughter.

In my view the respondent did not err in failing to consider family support. Dr. Giovinazzo specifically explains in his December 31, 1998 letter that they were aware of the family support for the daughter in this case. Notwithstanding this support, however, the officers were of the opinion that social services outside the home would be required to assist the individual to be more independent and learn to interact with others. The letter also clearly indicates that the daughter's specific circumstances were taken into account.

The health services that the daughter may require is not at issue in the case before me. With respect to social services, one has to be considered eligible, and such application entails consideration of "whether the applicant is able to contribute to all or any part of the cost thereof" (Developmental Services Act R.S.O. 1990, c. E2). Thus, the applicant will likely be required to pay for any services used because he has the means to do so. Thus no demands will be caused by the admission of the applicant with respect to social services.

The jurisprudence is split on the question of whether the wealth of the applicant should be taken into account in assessing excessive demands on social services. While in Ching Ho Poon v. MCI [2000] F.C.J. No 1993 (TD) Pelletier J. found that wealth was not relevant, in my view the better approach was that taken by Reed J. in the earlier Wong decision when she found that it would be incongruous to admit somebody as a permanent resident because he has significant financial resources but then refuse to take into account these same resources when assessing the admissibility of the dependant. This approach would not be applicable in the case of medical services but it is applicable with respect to social services.

...

In the case before me the officers identified the medical condition and then identified a broad range of social services which normally would be made available and would benefit her. The officers held such service to be more than the normal services utilized and therefore excessive. However, the response of Dr. Giovinazzo and the decision letter of the officer do not indicate that there was any consideration of which specific services would be available in the particular community in which the applicant chose to settle. In my view it is important to note that we are talking about the social services here and not medical services. In Canada one is not permitted to obtain medical services on a private basis. However, there is no such restriction in the social services and as was shown by Ontario's Development Services Act, persons who can afford to pay for social services must pay for them. Accordingly, since there is no evidence before me that the medical officers or the visa officer considered the specific services available in the particular community where the applicant chose to reside, this constitutes a reviewable error. [Emphasis added.]

[15] I note in particular the following points from the foregoing quotation:

· the reference to Mr. Justice MacGuigan's finding in Deol that the fact of mental retardation or developmental delay alone is not the relevant factor but the degree and probable consequences of that degree of retardation or delay for excessive demands on government services;

· from Ismaili, the importance of considering the social services available in the particular region of Canada where an applicant wishes to settle;

· once again from Ismaili, the obligation of the visa officer, without second guessing the medical, diagnostic opinion of the medical officers, to consider all of the available evidence in reaching his or her own conclusion regarding "excessive demands";

· from Poste, the obligation to consider each applicant in his or her "uniqueness", including the wealth of the applicant; and

· the particular significance of the wealth of the applicant where the issue is demand on social services as opposed to medical services, because of the differences between the social services and medical services regimes in Canada.

[16] More recently, Mr. Justice Evans, on behalf of a unanimous panel of the Court of Appeal, provided reasons in Deol v. Canada (Minister of Citizenship and Immigration)[4]. The Court had before it an appeal from the Trial Division on a judicial review of a denial of visas to sponsored relatives of the applicant on the ground that the applicant's father, one of those seeking a visa, was found to be medically inadmissible by reason of demands on medical services rather than social services.

[17] At paragraphs 22 to 24 of his reasons, Mr. Justice Evans focussed on the issue of "excessive demands" and wrote as follows:

In my opinion, cost alone can constitute "excessive demands" under subparagraph 19(1)(a)(ii). In Poon ... Pelletier J. agreed that, even though not mentioned in the Act or the Regulations, cost is a relevant consideration. The "excessive demands" limb of medical inadmissibility expresses a legislative concern to protect from unusually high demands the public resources devoted to health care.

In addition, I would note that the statutory phrase is "excessive demands" not "excessive demand". The singular, "excessive demand", might well have been regarded as the correlative of "inadequate supply". However, it requires no linguistic stretch to interpret the plural, "excessive demands", as including both the cost and the availability of health services that a visa applicant is likely to require if admitted to Canada.

Moreover, it is unrealistic to regard cost and availability as unconnected. If enough people need expensive but low demand health services, resources may have to be diverted from other services for which demand is higher, thereby creating or lengthening waiting lists for those services. Alternatively, an increased demand for a particular service may prevent the reallocation of funds to services that are in short supply. [Citation omitted, emphasis added.]

[18] At paragraphs 38 and 46, Mr. Justice Evans wrote:

In determining what health services Mr. Singh would likely consume if admitted to Canada, the Board seems to have regarded as a relevant consideration whether he had elected to forego surgery. I agree that this is a relevant consideration. However, I also agree with the Board that evidence that an applicant may not elect to have surgery cannot be determinative of the demands that the individual's admission might reasonably be expected to cause on health services. No one can waive the right of access in the future to whatever publicly funded health services they need.

...


... As has been held in several previous cases, it is not possible to enforce a personal undertaking to pay for health services that may be required after a person has been admitted to Canada as a permanent resident, if the services are available without payment. The Minister has no power to admit a person as a permanent resident on the condition that the person either does not make a claim on the health insurance plans in the provinces, or promises to reimburse the costs of any services required. See, for example, Choi v. Canada (Minister of Citizenship and Immigration) (1995), 98 F.T.R. 308 at para. 30; Cabaldon v. Canada (Minister of Citizenship and Immigration) (1998), 140 F.T.R. 296 at para. 8; Poon, [(2000), 198 F.T.R. 56.] [Emphasis added, citation added.]

[19] Counsel for the respondent urged that I should read Deol as speaking equally to excessive demands on social services that might reasonably be expected to be caused by the admission of an individual. I decline to do so. I am satisfied that the distinction in the delivery systems in Canada for medical services and social services that are highlighted by Mr. Justice McKeown in the Wong decision from which I have quoted extensively, when read together with references in the reasons of Mr. Justice Evans in Deol to the legislative concern to protect from "excessive demands" or "unusually high demands" the public resources devoted to health care, to "publicly funded health services" and to claims on "... the health insurance plans in the provinces ..." is a sufficient distinction to warrant a different analysis.

2 ) The Officer's Role in Considering Whether Gavin's Developmental Delay Would Place Excessive Demands on Social Services

[20] I return to the brief quotation from the reasons of Mr. Justice Cullen in Ismaili v. Canada (Minister of Citizenship and Immigration)[5] cited by Mr. Justice McKeown in Wong, supra, and quoted earlier in these reasons in the context of quotations from Mr. Justice McKeown's reasons. I repeat the brief passage from Ismaili here for ease of reference:

The visa officer - wholly apart from the decision of the medical officers - is obliged to consider whether the applicant's medical condition would place excessive demands on health or social services. The visa officer, without second guessing the medical, diagnostic opinion, must consider all of the available evidence.

[21] The social services here at issue were identified as special education and training, sheltered employment and respite care. The officer acknowledged on cross examination that respite care would probably not be needed.[6] Further, the officer acknowledged that she did not see the response provided by the applicant to her "fairness letter"[7]. At the same time, the officer acknowledged that she had an obligation to assure herself that the medical notification that was before her was reasonable, on the basis of the material[8], and I am satisfied that the reference to "the material" extends to all relevant material which, on the facts of this matter, certainly extends to the response to the "fairness letter".

[22] The following exchange took place between counsel for the applicant and the officer on her cross examination:

Q. That's right, he would be eligible for whatever these services. But the question is: Would he likely require them?

A. You see, I don't ...

Q. That's the issue; isn't it?

A. What about the future? I mean, I can't predict that. Would he likely require it? Is the lack of probability, a lack of possibility of his requiring this? No in my opinion. Right now Mr. Hilewitz is a very-well-to-do ... man who cares very much about his son and has hereforeto defrayed the costs of Gavin's needs, and I'm sure that it is his intention to do so in the future too, but you see, I don't know what will happen in the future. It's very hard to predict about the future.

For example, if something happens to the ability to pay, then would Gavin not need the social services and avail himself of his eligibility? I mean, to my knowledge, there are no legal provisions to limit Gavin's eligibility to social services based on his ability to pay if he were to be admitted as a permanent resident. And although eligibility may not constitute probability [of] use, it does constitute possibility, and that is what I think I have to look at, you see. I think that is entirely reasonable.[9] [Emphasis added.]

[23] The officer continued:

... I'm not aware that the lack of evidence of probability of future use, therefore an applicant's financial circumstances, gives me the right to disregard a medical finding. As a matter of fact, it does not. It is not within my statutory authority as a visa officer to treat people differently depending on their personal wealth.[10] [Emphasis added.]

[24] The officer acknowledged on cross examination that the applicant had advised her that Gavin would be placed in a private school. She found the applicant credible in this regard. At the same time, she apparently was unaware that the applicant was planning towards providing, without resort to publicly funded programs, sheltered employment for his son.

[25] Against the obligations of a visa officer as stated by Mr. Justice Cullen in the quotation from Ismaili that appears above, I am satisfied that the officer misunderstood her obligation to consider whether Gavin's medical condition would place excessive demands on social services and simply failed to take into account all of the material provided by the applicant and available to her, albeit on her admission, not before her, that was relevant to the fulfilment of her obligation. I reach this conclusion in particular in reliance on Mr. Justice McKeown's decision in Wong, supra, and on the points that I draw from that decision that are set out earlier in these reasons.

[26] On this basis and on this basis alone, I am satisfied that the officer erred in a reviewable manner in her failure to consider all of the material available to her and in her failure to fully comprehend, and therefore to fulfill, her obligation in review of the medical notification on which she based her rejection of the applicant's application for permanent residence in Canada.

[27] In the result, this application for judicial review will be allowed.


3) Other Issues

[28] I acknowledge that I have not directly addressed the four live issue questions placed before the Court on behalf of the applicant. I am satisfied that my analysis to this point addresses the first two of those questions. The third question is based upon an assumption that, on the evidence before me, I reject. I am not satisfied that the evidence discloses that the officer "... was both unfamiliar with and inexperienced in the question that she had to decide ...". In brief response to the fourth issue question, that being whether the officer failed to observe a principle of natural justice or of procedural and administrative fairness that she was required by law to observe, I am satisfied that it should be answered in the negative.


Reliefs Requested

[29] In the memorandum of fact and law filed on behalf of the applicant, under the heading "ORDER SOUGHT", the substance of the final paragraph reads as follows:

a) An order for a writ of certiorari quashing the decision of visa officer Virginia Hughes, dated September 15, 2000;

b) An order for a writ of mandamus directing the Respondent to process the Applicant's application for permanent residence to Canada in accordance with the Immigration Act (the "Act") and any other applicable law;

c) A Declaratory Order that the Applicant's application for permanent residence in Canada be processed within 90 days of the Order and by a different visa officer and without further regard to the issue of excessive demand for the Applicant's son Gavin;

d) Costs for this procedure;

e) And for such other relief as this Honourable Court may deem just.

[30] During the course of the hearing, counsel for the applicant indicated that he wished to expand the reliefs sought and to modify the claim for costs to costs on a solicitor and client basis. At the request of the Court, counsel confirmed the modification of the reliefs sought in a letter addressed to the Court and copied to counsel for the respondent. The substance of the communication to the Court is in the following terms:

The applicant wishes to have the prayer for leave [relief] amended so that in the event of success, not only should certiorari be granted, quashing the decision of Virginia Hughes, but a mandamus issued to send the matter back for re-processing in accordance with the Immigration Act and Regulations upon the following terms:

a. That there be no need for further medical examination of the defendant, Gavin Hilewitz, in respect to his health condition of being developmentally delayed or mentally retarded.

b. That any medical opinion issued concerning developmental delay or mental retardation of the dependant, Gavin Hilewitz, if any, be based upon the following criteria:

i. That Gavin be assessed as a dependant and not an independent applicant;

ii. That the demand for services, if any, should relate to the place of destination;

iii. That the suggested use of social services, if any, be based on the probability that such services will be used by the Hilewitz family;

iv. That the social services so specified shall be of a compulsory nature, that is to say that the dependant shall require the services and have no option but to utilize those services;

v. That the services alleged to be probably utilized will be specified in both a cost evaluation and scarcity evaluation based upon the location of destination, i.e., Toronto.

c. That the findings of this court, including those facts in the affidavit of the applicant, upon which there was no cross-examination, form the factual framework in which the opinion is to be granted.

d. That the opinion by the medical department, if any, be delivered within thirty days of the date of the order of this court and in the above terms. Thereafter, the applicant be permitted a further thirty days to provide any answer rebutting or negativing the said opinion, if any, and in turn, that the Respondent shall take such rebuttal evidence into account and demonstrate in writing why it does not apply, again within thirty days.

e. In the event the report from the medical doctors, in respect to probable use of social services, is not delivered tot he applicant's solicitor as aforesaid within thirty days, then the matter shall proceed towards the issue of the visa, as if no such opinion were forthcoming.

[31] The Immigration and Refugee Protection Regulations[11] which came into force on the 28th of June, 2002, commencing with section 350, provide a comprehensive scheme for disposition of decisions or acts of the respondent or an immigration officer made under the Immigration Act and referred back to the respondent by this Court for redetermination where the redetermination was not made before the 28th of June, 2002. I am satisfied that an order of this Court referring this matter back for redetermination in accordance with the Immigration Act and Regulations would in effect be inconsistent with law. I am not prepared to so order. Further, I am not prepared to dictate terms on which a redetermination of the applicant's application for permanent residence in Canada should be redetermined.


Reliefs Granted

[32] An order will go setting aside the decision that is under review and referring the applicant's application for permanent residence in Canada back to the respondent for redetermination by a different officer, in accordance with law.

[33] I find no basis whatsoever on the materials before me that would justify an order for costs in favour of the applicant, on a solicitor and client basis. An order for costs in favour of the applicant, on the ordinary scale, will go.

Certification of a Question

[34] At the close of the hearing of this matter, I indicated that I would prepare and issue reasons and thereafter provide counsel an opportunity to make submissions on whether or not this matter raised a serious question of general importance warranting certification of a question that would provide a basis for appeal from my decision. Counsel will have 14 days from the date of these reasons to serve and file any submissions they might wish to make on certification of a question. Any submissions proposing certification should be served and filed early enough within the 14 day period to allow for reply submissions if such are considered appropriate.


"Frederick E. Gibson"

line

J.F.C.C.


Toronto, Ontario

August 8, 2002
 
S

shibuya

Guest
Brother Read this and do not give up.

Immigration & Medical Admissibility --------------------------------------------------------------------------------
The issue
The Canada Immigration Act requires this country to reject applications for immigration from persons with any “disease, disorder, disability or other health impairment” which may cause them to be “a danger to public health or public safety” or which may reasonably be expected to place “excessive demands on health or social services.”

CAD's position
The provisions of the Canada Immigration Act discriminate against Deaf and disabled people and should be removed.

Deaf people in other countries who apply to immigrate to Canada are often rejected because of their deafness. But deafness is not a “disease, disorder, disability or other health impairment”, it is a cultural identity.

Deafness is not “a danger to public health or public safety”. It is not infectious. Studies have shown Deaf people have a better safety and health record than hearing people in the workplace and while driving.

Deaf people do not wish to come to Canada to exploit our health and social services. Deafness does not require constant attendant care, subsidized medicine, lengthy hospitalization, or similar treatment.

Most Deaf people wish to come here because they have no rights or privileges in their own countries. Many developing countries ban Deaf people from owning property, holding a job, marrying, and attending school. The result is that they have little or no education, poor or no employment, and no financial resources. These facts are often used as excuses to reject their application to immigrate to Canada.

The decision to accept or reject an application is often made by immigration officers who have no awareness of deafness and no ability to communicate effectively with Deaf people. The Deaf person's application is therefore often assessed unfairly solely on the basis of his/her deafness. This is unacceptable.

In February of 2005, the Supreme Court of Canada issued a joint ruling in Hilewitz v. Minister of Citizenship and Immigration and de Jong v. Minister of Citizenship and Immigration that essentially upheld the “disability clause” that allows Canada to reject immigration applicants on the grounds that their disability will cause “excessive demands on social services”. This is the same clause that is used to reject Deaf applicants.

Despite the Court’s decision, their argument exposes the self-contradiction and bogus assumptions of the “disability clause”. The dissenting report of Justice Deschamps states, “The question is whether the demands on those services are excessive in relation to the demands generated by other members of Canadian society.” But “other members of Canadian society”, by which they clearly mean non-disabled people, do not use disability services! How can the usage of disability services by non-disabled persons possibly be used as a valid measurement by which to determine “excessive” demand on those services?

If the argument is that “other members of Canadian society” means other disabled Canadians, then again the demand cannot possibly be excessive, because the immigrants would be using the exact same services that are being used by Canadians that have the same disability. There is no difference in the amount of “demand” placed on Deaf services by Deaf Canadians and by Deaf immigrants to Canada. There is absolutely zero data proving otherwise.

This is not even to mention the fact that none of the judges, none of the Canada Immigration personnel, and none of the medical personnel hired to evaluate the immigration applicant’s disability are themselves disabled or Deaf and therefore qualified to pass judgment on the applicant.

Thousands of non-disabled applicants are approved for immigration into Canada even when they openly boast that their sole reason for coming to this country is to exploit our social support system; the infamous Khadr family is an example. In contrast, we have yet to come across a single Deaf applicant whose motive for coming to Canada is to exploit our social services. All of them want to come here for the purpose of furthering their education, finding employment, and/or learning the Sign language that is forbidden in their native country. We do not know of even one exception to this rule.

Canada Immigration and the disability clause are both indisputably discriminatory and prejudiced against Deaf and disabled persons.

APPROVED: 26 MAY 2007

FOR FURTHER INFORMATION CONTACT:
The Canadian Association of the Deaf
203 - 251 Bank Street
Ottawa, Ontario
K2P 1X3
(613)565-8882 TTY
(613)565-2882 Voice
(613)565-1207 Fax
www.cad.ca
 

jadwig

Star Member
Mar 12, 2010
129
17
Calgary, Alberta
Category........
Visa Office......
London
Job Offer........
Pre-Assessed..
shibuya said:
Brother Read this and do not give up.

Immigration & Medical Admissibility --------------------------------------------------------------------------------
The issue
The Canada Immigration Act requires this country to reject applications for immigration from persons with any “disease, disorder, disability or other health impairment” which may cause them to be “a danger to public health or public safety” or which may reasonably be expected to place “excessive demands on health or social services.”

CAD's position
The provisions of the Canada Immigration Act discriminate against Deaf and disabled people and should be removed.

Deaf people in other countries who apply to immigrate to Canada are often rejected because of their deafness. But deafness is not a “disease, disorder, disability or other health impairment”, it is a cultural identity.

Deafness is not “a danger to public health or public safety”. It is not infectious. Studies have shown Deaf people have a better safety and health record than hearing people in the workplace and while driving.

Deaf people do not wish to come to Canada to exploit our health and social services. Deafness does not require constant attendant care, subsidized medicine, lengthy hospitalization, or similar treatment.

Most Deaf people wish to come here because they have no rights or privileges in their own countries. Many developing countries ban Deaf people from owning property, holding a job, marrying, and attending school. The result is that they have little or no education, poor or no employment, and no financial resources. These facts are often used as excuses to reject their application to immigrate to Canada.

The decision to accept or reject an application is often made by immigration officers who have no awareness of deafness and no ability to communicate effectively with Deaf people. The Deaf person's application is therefore often assessed unfairly solely on the basis of his/her deafness. This is unacceptable.

In February of 2005, the Supreme Court of Canada issued a joint ruling in Hilewitz v. Minister of Citizenship and Immigration and de Jong v. Minister of Citizenship and Immigration that essentially upheld the “disability clause” that allows Canada to reject immigration applicants on the grounds that their disability will cause “excessive demands on social services”. This is the same clause that is used to reject Deaf applicants.

Despite the Court's decision, their argument exposes the self-contradiction and bogus assumptions of the “disability clause”. The dissenting report of Justice Deschamps states, “The question is whether the demands on those services are excessive in relation to the demands generated by other members of Canadian society.” But “other members of Canadian society”, by which they clearly mean non-disabled people, do not use disability services! How can the usage of disability services by non-disabled persons possibly be used as a valid measurement by which to determine “excessive” demand on those services?

If the argument is that “other members of Canadian society” means other disabled Canadians, then again the demand cannot possibly be excessive, because the immigrants would be using the exact same services that are being used by Canadians that have the same disability. There is no difference in the amount of “demand” placed on Deaf services by Deaf Canadians and by Deaf immigrants to Canada. There is absolutely zero data proving otherwise.

This is not even to mention the fact that none of the judges, none of the Canada Immigration personnel, and none of the medical personnel hired to evaluate the immigration applicant's disability are themselves disabled or Deaf and therefore qualified to pass judgment on the applicant.

Thousands of non-disabled applicants are approved for immigration into Canada even when they openly boast that their sole reason for coming to this country is to exploit our social support system; the infamous Khadr family is an example. In contrast, we have yet to come across a single Deaf applicant whose motive for coming to Canada is to exploit our social services. All of them want to come here for the purpose of furthering their education, finding employment, and/or learning the Sign language that is forbidden in their native country. We do not know of even one exception to this rule.

Canada Immigration and the disability clause are both indisputably discriminatory and prejudiced against Deaf and disabled persons.

APPROVED: 26 MAY 2007

FOR FURTHER INFORMATION CONTACT:
The Canadian Association of the Deaf
203 - 251 Bank Street
Ottawa, Ontario
K2P 1X3
(613)565-8882 TTY
(613)565-2882 Voice
(613)565-1207 Fax
www.cad.ca
Great post shibuya!
 

fariza

Champion Member
Apr 7, 2010
1,707
74
Australia
Category........
Job Offer........
Pre-Assessed..
Great supportive post Shubuya and Jadwig....
All the best wishes OWOBLOW... Pl don't loose hope... I am sure GOD will bless you with a ways and means to find you through!!
 

owoblow

Member
Dec 26, 2010
12
0
Thanks guys for this great posts. I believe they are of help. We are working on the response already. Happy New year in Advance and God bless you.
 

owoblow

Member
Dec 26, 2010
12
0
Hello my people,

Its been great weeks of serious search and work on responding to the fairness letter of inadmissibility sent to us by CIC. We are at the verge of sending the response now. But I need you advise on certain concerns before i send it.

I intend to show CIC that the organisation i work with currently , pay education/special education grant. So my son will be attending a private school. This is part of the proof that we will not be relying on the publicly funded social services in Canada for my son.
Do you think CIC will think that I am suppose to go to Canada so I will no more be working with this Organisation? Even though i don't intend to quit this organisation now.

Please send in your comments.

Thanks. I am waiting!!!!
 

khebra

Hero Member
Dec 27, 2010
265
5
Category........
Job Offer........
Pre-Assessed..
I think he has only two option :

1- Not to accompanying his family .
2- To prove to the medical that you he can be treated or you will pay for his medical during your residence
 

jadwig

Star Member
Mar 12, 2010
129
17
Calgary, Alberta
Category........
Visa Office......
London
Job Offer........
Pre-Assessed..
owoblow said:
Hello my people,

Its been great weeks of serious search and work on responding to the fairness letter of inadmissibility sent to us by CIC. We are at the verge of sending the response now. But I need you advise on certain concerns before i send it.

I intend to show CIC that the organisation i work with currently , pay education/special education grant. So my son will be attending a private school. This is part of the proof that we will not be relying on the publicly funded social services in Canada for my son.
Do you think CIC will think that I am suppose to go to Canada so I will no more be working with this Organisation? Even though i don't intend to quit this organisation now.

Please send in your comments.

Thanks. I am waiting!!!!
The objective of the Skilled Worked Immigration Process is to become economically established in Canada. As such, permanent residents are expected to comply with certain requirements including the 2-out-of-every-5 years residency in order to continue to qualify for PR status. There are some exceptions to this rule however but I'm not sure how this applies to you. If the organisation you work with now is not a registered Canadian Company or an organ of international bodies like the UN, then it implies that you will be telling CIC upfront that you will not meet the residency requirement.

If your employer does not fall into the exceptions for residency requirement, one option would be to show that you have enough funds to take care of your dependant without relying on the social system in Canada. This will be a very difficult option and you will have to show a substantial deposit to do this. On the other hand, your best option might be to proceed with the line of argument that your dependant's disability does not fall into the class considered to place excessive demands on the social welfare system and CIC's treatment of the issue in this manner might be considered discrimanatory. Read the post by shibuya again and if possible, contact the Deaf Association in Canada for assistance. shibuya's post was taken from this link:

http://www.cad.ca/immigration_&_medical_admissibility.php


Wish you best of luck.