IMMIGRATION: CIC skirts medical ruling by Supreme Court

IMMIGRATION: CIC skirts medical ruling by Supreme Court

It’s taken almost two years for Citizenship and Immigration Canada (CIC) to finally respond to one of its greatest defeats in the Supreme Court of Canada.

In October, 2005 the court made a landmark ruling involving two medical refusal cases.

David and Susan Hilewitz tried to immigrate here with their two boys. Their younger son Gavin suffered from “developmental delay” and functioned at the level of an 8-year-old.

Dirk de Jong, a Dutch farmer, also tried to bring his family to Canada including his 9-year-old daughter, Dirkje, who was diagnosed as “intellectually disabled”.

Both businessmen applied under Canada’s business immigration category. Hilewitz applied as an “investor” while de Jong applied as a “self-employed” person.

Both applicants were asked to respond to the allegation that they might be inadmissible to Canada for having a dependent whose “admission…might reasonably be expected to cause excessive demands on health or social services” in Canada.

Both families tried to persuade immigration authorities that they had never previously used government assistance in their own countries and were each willing and financially able to look after their children without our government assistance. Nonetheless, both applications were refused on the grounds that these considerations were irrelevant.

On appeal, the Supreme Court of Canada sided with the families and rejected CIC’s “cookie cutter” approach which “impedes entry for all persons who are intellectually disabled, regardless of family support or assistance.”

One would think that all prospective immigrants would thereafter be entitled to make the case to CIC that they have the means and intent to prevent their disabled child from becoming a burden on the state.

Well, not so.

On Friday, CIC released Operational Bulletin 037 outlining new procedures that it was adopting in order to comply with the courts 2-year old ruling.

In its usual “never-give-an-inch” fashion, the department outlined a more individualized procedure but limited it “only to applications made under the business class”. In other words, all applicants who are in similar circumstances and who are applying in other immigration classes are out of luck regardless of their net worth or intent.

How can the department justify this position?

Probably from a single sentence contained in Madame Justice Abella’s ruling where she observed that “It seems to me somewhat 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.”

This language appears to have been used to explain the absence of logic in the governments’ position and not to limit the application of the Court’s decision to business class cases. However, it appears that CIC is interpreting it that way in order to limit the extent of its loss in court.

The moral of the story?

If you have a child in such circumstances and want fairness, apply under the business class if you can because the department is still wielding its “cookie cutter” on children with disabilities in all other classes.

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Guidy Mamann practices law in Toronto at Mamann & Associates and is certified by the Law Society of Upper Canada as an immigration specialist. Reach him confidentially at 416-862-0000 or at reporter@migrationlaw.com