Medical refusals require individualized assessment, courts rule

Medical refusals require individualized assessment, courts rule

CANADIAN IMMIGRATION NEWS AND VIEWS

And the question is (drum roll please), “Does the reasoning of the Supreme Court of Canada decision of Hilewitz and de Jong apply to individuals applying to immigrate to Canada as skilled workers?” Yes it does, says the Federal Court of Appeal in CIC v Colaco.

So, what does that mean and how does it affect me? Each of us may know of someone who has been refused admission to Canada because they have some health problem. The Supreme Court in Hilewitz ruled that before officers can refuse a person because of health concerns they must take into account the individual circumstances of the applicant to determine nature and extent of the demand on health or social services and the applicant’s willingness an ability to offset those costs. Hilewitz, it was argued, should only apply to Business Class applicants. With this recent ruling, the categories under which officers must perform and individualized assessment has grown and offers hope for expansion.

For clarification, we are discussing applicants for permanent residence under classes other than the Family Class. Many may know that Canadian sponsors have a right to appeal where a family member they have sponsored has been refused because of a medical problem (a parent for example). It has been this right that has offered hope for refused family members being reunited in Canada despite having a medical problem.

But for people applying to Canada under other categories such as Investor, Entreprenuer, Self-employed and Skilled Worker, the law clearly excludes them if they had a medical problem.The law says, “foreign national is inadmissible on health grounds if their health condition · might reasonably be expected to cause excessive demand on health or social services.” The clarity of these terms is exactly what was tested.What does “reasonably” in this context mean? What does “excessive” mean?

As noted by one of the judges, using the term “excessive” means that the law-makers must have envisioned that some level of demand might be acceptable. Further, this term excessive has become more and more defined. However, the definition of what might “reasonably” mean is specifically being tested. Specifically, the question asks whether it is reasonable to consider the individual circumstances of an applicant in answering this question.

For example, applicants in the Investor category are in part selected because of substantial assets and personal net-worth. If that applicant or one of their children had a condition that might cause demand on Canada health or social services, would it not be reasonable to assess the applicantâs ability and willingness to pay for the services? The Supreme Court of Canada in Hilewitz thought so.

Citizenship and Immigration Canada was very concerned when this decision was rendered because the door that could allow countless applicants who might then become a burden on Canada was opening.The government argued that the decision should be confined to Investors and not to other classes. Of course the government would argue to restrict the application of this decision. Of course it is Canada’s right to determine who gets in and who cannot. However, when they wrote the law, they left room and now that room is expanding.

In Colaco, a Justice of the Federal Court decided that the same reasoning ought to apply to Skilled Workers. The argument was that if a Skilled Worker could establish that they would not reasonably create excessive demand, then their application should be allowed. The Justice then certified the question posed at the beginning of this article to which a Justice of the Federal Court of Appeal replied. Reinforcing the reasoning and spreading it to the Skilled Worker category.

With the answer from the Federal Court of Appeal, that leaves only the Supreme Court of Canada. If the government wants to further attempt to restrict the spread of the “individualized assessment” argument, then they will appeal to the Supreme Court. It is likely that they will. Either that or change the law to make it even more restrictive and clear so that they can, as they see it, stem the tide and risk allowing the sick and burdensome into Canada where they will be a drain on the public purse and cause longer waiting times for health and social services.

It is indeed a serious and problematic question. While we do not want to seem like we are discriminating on the grounds of a person’s medical condition that is in fact what we must do. Once an applicant becomes a Canadian there is no effective way to enforce the good intentions of their demonstrated ability and willingness made during their application.

The argument for now is contained to Investors and Skilled Workers, but if allowed to progress, should reasonably apply to Provincial Nominee and then all classes. Furthermore, the argument now seems restricted to social services, but could reasonably be argued that it should apply to medical services. These services are typically expensive and there are waiting lists for many procedures and conditions that would normally cause an applicant to be excluded.

Can a promise to pay for these services be enough to secure Canada’s health and social services for Canadians? Or, is it time to abandon our attachment to these services as a publicly funded and universal program? Or, do we provide sufficient funding to the health and social services no matter how many users, Canadian or prospective Canadian?

Have a question? Send them to Berto Volpentesta or to the editor.

You can reach him at: (416) 398 8882 or (416) 787 0612 or by email at berto@canneximmigration.com and on the web at www.canneximmigration.com