Family sponsorship - Mom and Down Syndrome Brother age 31

[SKK18]

Hi,

I came to Canada as a grad student finished my MEng. have a good job and got married to a Canadian. Now, I'm trying to get my mom and older brother sponsored under family sponsorship program which might start in Jan.2015 again. My brother(Down Syndrome) is dependent on my mother(age 52 widowed) and both of them don't have any major disease (Heart problems, Blood pressure, high cholesterol). But my brother has IQ of 40, he does his stuff on its own but may need assistance if he needs to go out or travel. He has no other physical disease. Do you think i have chance here if I can assure them that I can take care of them financially. I have another brother he is 23 Eng. Student in India. I don't think I can apply for him but I really want my mom and older brother to come to Canada.

On a side note I'm also trying to get a Visit visa for both of them ? Do you think DS would be a problem to get Visit Visa for canada?

I'm really hopeful that I will get some positive opinion on the above matter.

Thanks,
Skk18

 

[Rob_TO]

Regarding applying for PR for your brother, the only question is if he will be rejected based on excessive demand to Canada's health system.
The rule CIC uses is, if he is projected to cost more than $6,327 per year in health/social services over his first 5-10 years in Canada, then he could be declared inadmissible due to excessive demand. Even though he has no diseases or anything like that, Canada offers many social services that will assist people with his condition, which will be available to him after getting PR. So most likely all those possible costs will be included in the calculation.

I would research other cases of excessive demand with down syndrome applicants, and see what the results were.

For your other brother, there is a rule change to dependents coming into force in August that would eliminate the clause for older dependents in school, so most likely he can't be sponsored under your mom.

 

[screech339]

On top of what Rob said above, you cannot declare or make a statement that you will look after your brother thus have no impact on "medical excessive". It will not work, the moment your brother lands as PR, he will have access to all the social benefits that everyone, Canadian and PR, have to offer.

Screech339

 

[Avadava]

This is a quote from a case I found on Canlii.org (https://www.canlii.org/en/ca/fca/doc/2001/2001fca345/2001fca345.html?searchUrlHash=AAAAAQAYZG93biBzeW5kcm9tIGltbWlncmF0aW9uAAAAAAE):

A. INTRODUCTION

[1]Shahid Hasan Khan, a citizen of Pakistan residing in the United Arab Emirates, applied for a visa as an independent immigrant to enable himself, his wife and two children to become permanent residents of Canada. The application was refused because one of the children, Abdullah, was found to be medically inadmissible.

[2]Medical officers with Immigration and Health Services concluded that, although Abdullah was suffering from only a relatively mild form of Down syndrome, he would require a variety of social services and was inadmissible under subparagraph 19(1)(a)(ii) of the Immigration Act, R.S.C., 1985, c. I-2, because he was likely to place excessive demands on Canadian social services. As a family member accompanying an inadmissible dependant, Mr. Khan was himself inadmissible under subsection 19(2) [as am. by S.C. 1992, c. 49, s. 11; 1995, c. 15, s. 2] and his visa application was therefore refused.

[3]The Motions Judge [(2002), 6 Imm. L.R. (3d) 277] allowed the application for judicial review and set aside the decision of the visa officer, on the ground that it was made in breach of the duty of fairness. Specifically, she held that Mr. Khan had been denied a reasonable opportunity to make representations before the visa officer refused to issue a visa to him, because the letter advising him that the officer proposed to refuse the visa neither specifically invited him to submit additional material on the issue of excessive demands, nor explained in sufficient detail the basis of the concern on this issue.

 

[Avadava]

Then, there is this case where the judge granted a judicial review: https://www.canlii.org/en/ca/fct/doc/2008/2008fc57/2008fc57.html?searchUrlHash=AAAAAQAYZG93biBzeW5kcm9tIGltbWlncmF0aW9uAAAAAAE

 

[screech339]

AvaDava,

As per links you provided, it only went to Judicial Review stage. What were the results of the review is what matters most? Did the judicial review come back saying that the applicant can get PR for his/her down syndrome child?

Screech339

 

[Avadava]

AvaDava,

As per links you provided, it only went to Judicial Review stage. What were the results of the review that matters most? Did the judicial review come back saying that the applicant can get PR for his/her down syndrome child?

Screech339

Unfortunately, I can't find any case that shows the outcome of a judicial review. Only thing that I found is that a person with Down Syndrome is in most cases denied based on medical inadmissibility.

There is info on those cases from Canlii.org, that can help prepare an appeal case though.

 

[screech339]

Unfortunately, I can't find any case that shows the outcome of a judicial review. Only thing that I found is that a person with Down Syndrome is in most cases denied based on medical inadmissibility.

There is info on those cases from Canlii.org, that can help prepare an appeal case though.

It would be nice to show results of Judicial Reviews so that those who falls under the same situation would know if their effort of an appeal will be successful or not. If the results of the Judicial Review came back negative, then it would save the applicant's money and time in a futile attempt to appeal.

 

[Rob_TO]

Here is a detailed explanation of how the procedural fairness system works: http://www.cic.gc.ca/english/resources/tools/medic/admiss/excessive.asp

I don't think this system was in play at the time those previous 2 cases were appealed. The fairness system addresses lots of the issues in excessive demand cases so they can possibly be resolved during the regular application process and don't need to go to appeal.

The "social services" section seems to be the one that would lead to an excessive demand claim from a visa officer in this case.
Excessive demand on social services
Section R1 defines “social services” as any social services, such as home care, specialized residence and residential services, special education services, social and vocational rehabilitation services, personal support services and the provision of devices related to those services,
a) that are intended to assist a person in functioning physically, emotionally, socially, psychologically or vocationally; and
b) for which the majority of the funding, including funding that provides direct or indirect financial support to an assisted person, is contributed by governments, either directly or through publicly-funded agencies

 

[screech339]

Here is a detailed explanation of how the procedural fairness system works: http://www.cic.gc.ca/english/resources/tools/medic/admiss/excessive.asp

I don't think this system was in play at the time those previous 2 cases were appealed. The fairness system addresses lots of the issues in excessive demand cases so they can possibly be resolved during the regular application process and don't need to go to appeal.

The "social services" section seems to be the one that would lead to an excessive demand claim from a visa officer in this case.
Excessive demand on social services
Section R1 defines “social services” as any social services, such as home care, specialized residence and residential services, special education services, social and vocational rehabilitation services, personal support services and the provision of devices related to those services,
a) that are intended to assist a person in functioning physically, emotionally, socially, psychologically or vocationally; and
b) for which the majority of the funding, including funding that provides direct or indirect financial support to an assisted person, is contributed by governments, either directly or through publicly-funded agencies

Even with the fairness system in placed now, what are the chances of a down syndrome dependent child have a successful PR proceedings. Is it still very low or is it on the ability of a rich sponsor to provide coverage but a poor applicant cannot? The difference is other than the rich, everyone else cannot get their down syndrome child PR status.

 

[mikeymyke]

http://bc.ctvnews.ca/outrage-as-sister-with-down-syndrome-barred-from-canada-1.789770

I can't find it, but I swear I read this story before and the government ended up reversing the decision.

 

[SKK18]

I'm overwhelmed by the response, thank you guys. Although, all his schooling, training and workshops has been done in India. I don't think he will need any more training or workshops which can cause any excessive burden on health care system. The biggest fear for me is that Mom's immigration will be denied because of my brother. And when you talk about Rich sponsor ...how rich they are talking about?

Also, I will be applying for a Visit Visa for them before JAN.2015...Any one knows what kind of documents I should be providing in terms of DS for my brother. In India they have given a gov. document saying he is mentally re-tarted (which is an insult to kids like him) with a severe case of DS.

 

[screech339]

When I was referring to rich sponsor, I was reference to Rob's post that fairness clause has come into effect since the two cases listed in earlier post. He didn't specific how the fairness clause come into play.

So I was wondering if the fairness clause look at fairness of sponsor being able to cover health expenses of down syndrome dependent reducing the taxpayer's burden relationship or is the fairness is based on that if the sponsor cannot afford the expenses of services required then in principle the sponsor who can cover the services, shouldn't be able to sponsor down syndrome dependent. I really don't know that it entails. I was only speculating on how fairness clause that Rob mentioned come into play.

As to your concern about your qualification for your mother. Yes, if the dependent is disqualified to be sponsored as PR, it would also disqualify your mother's PR sponsorship at same time. The application submitted is based on the 2 people together as one case.

Screech339

 

[Rob_TO]

I'm overwhelmed by the response, thank you guys. Although, all his schooling, training and workshops has been done in India. I don't think he will need any more training or workshops which can cause any excessive burden on health care system. The biggest fear for me is that Mom's immigration will be denied because of my brother. And when you talk about Rich sponsor ...how rich they are talking about?

Basically what will happen in your case, is upon initial review of the application the visa officer will express concern that your brother is inadmissible based on excessive demand to social services. They will simply see what social services are offered to people with down syndrome, assume your brother will use lots of those services, and calculate the maximum possible cost. In the past this has led to an automatic rejection in which case the applicants would need to go through (long) appeals process. But now with procedural fairness, the visa officer will allow you to review their concerns, and put together a detailed response to alleviate those concerns and convince them he won't be a burden on social services. If the visa/medical officer still is not convinced, only then is the entire app rejected, and would need to then go through appeals process.

One way to challenge excessive demand, is to show that you will not be using social services. So for wealthy families, they can state they will opt for completely private care for the applicant and show it will be affordable for them. This is plausible since private care is much better then publicly funded care, and you can show a history of how you cared for him in home country. I imagine excessive demand is more difficult to overcome when there are serious medical issues involved requiring hospital/health care, where in Canada there are no private alternatives. Note that it could be worthwhile to pay for an experienced lawyer/consultant that has experience in these kind of fairness cases for excessive demand. There are also other posts on this forum if you do a search for procedural fairness, where you can see other people that challenged excessive demand claims and were successful.

The biggest fear for me is that Mom's immigration will be denied because of my brother

Even if your brother didn't need to be listed as a dependent, would your mom really want to immigrate and leave him behind?

 

[SKK18]

No, She won't .....that's the thing she cannot leave him with anyone but me..we don't have anyone in India besides my mom to take care of him. I think there is a chance ....I can show that he has minor fever cold problems and have never been hospitalized because of any physical or mental illness in past 30 years. Our Family doctor can give a letter showing how he has used very minimal support for his DS condition. And mom being a home maker has always taken care of him...which requires some directions like eat your food and go change, i mean directions you would give to your 10 years old...etc. nothing major in that sense.