What can you do if you received a Canadian permanent resident visa refusal for medical inadmissibility?
These days, our office has been receiving a lot of calls regarding family members who are medically inadmissible to Canada. This can be due to a number of issues but lately has been because of chronic renal failure, or various types of cancers. While having these significant medical issues are already very stressful, facing a procedural fairness letter or final decision notifying you that this family member can not enter Canada as a permanent resident is devastating. Common areas for this kind of issue are in parent and grandparent sponsorships, family class sponsorships, or express entry / provincial nominee program applications where the dependent is facing this issue.
What does medical inadmissibility mean?
Firstly, understanding the legislative provision defining medical inadmissibility is essential before plunging into the grounds challenging the same. The factors determining a foreign national inadmissible on medical grounds are set out under Section 38 of the Immigration and Refugee Protection Act (I.R.P.A.). Prior to section 38, I.R.P.A., Section 19(1) of the Immigration Act, which now stands repealed, was the sole provision dealing with medical inadmissibility. As per section 38, I.R.P.A., a foreign national is inadmissible on medical grounds if their health condition:
(a) is likely to be a danger to public health;
(b) is likely to be a danger to public safety; or
(c) might reasonably be expected to cause excessive demand on health or social services.
Additionally, “excessive demand” is defined as a demand on health or social services, the anticipated cost in respect of which would likely exceed the average Canadian per capita health and social services cost over a period of five consecutive years immediately following the most recent medical examination. As of 2022, the excessive demand cost threshold is $120,285 over five years (or $24,057 per annum).
What are some ways to overcome medical inadmissibility?
Several grounds may determine a foreign national as inadmissible to enter Canada. Getting a permanent resident visa refusal due to health issues is one such aspect of inadmissibility. As we know, every applicant for a Canadian immigration visa is required to undergo an Immigration Medical Examination (IME). Often, this statutory requirement of medical examination results in the unfortunate incidence of being denied a permanent resident visa to enter Canada on medical grounds. Such refusals can be overwhelming for visa applicants and their families. This blog will help you understand the grounds for challenging medical inadmissibility findings if you’re prejudiced by one.
Medical inadmissibility cases are among the most challenging for any immigration lawyer. Therefore, we recommend taking appropriate legal help when tackling visa refusals involving medical inadmissibility. In such a scenario, the most obvious question is how to challenge such a decision. Are there any grounds to appeal? Well, yes, there are many ways to challenge medical inadmissibility findings. Some common grounds for appeal are listed below for a better understanding.
1. Challenging legal validity on technical Grounds:
The Federal Court’s decision in the Hiramen is an excellent example of challenging a refusal on technical grounds wherein it was held that the entries in the Medical Notification form were inconsistent to the point of incoherence. It was further held that the information contained therein was couched on “possibility” rather than “probability”. Therefore, any deficiency in the refusal letter or the Medical Notification form may render the decision invalid on technical grounds and hence appealable.
2. Failure to inform reasons for refusal:
Under Section 77(1) of the Immigration Act, failure on the part of the visa officer to inform the sponsor of the reasons for refusing the sponsored application for permanent residence is sufficient to render the refusal letter defective and appealable.
3. Reasonableness of Medical Officer’s Opinion:
Every immigration application cannot be assessed on the same length and breadth. Furthermore, the medical examination for each applicant differs in the outcome. Therefore, medical officers are required by law to act reasonably. The Federal Court’s decision in Mohamed, is an excellent example of challenging the reasonableness of the Medical Officer’s opinion. It was held that it is open to an appellant to prove a medical officer’s opinion as unreasonable by producing evidence from medical witnesses other than “medical officers/panel physicians.” However, the burden of proof to establish an evidentiary foundation of such a challenge is incumbent on the appellant.
4. Excessive Demands: Post-Hilewitz Position:
A paradigm shift has been observed in the legal landscape since the Supreme Court of Canada’s decision in Hilewitz for medical inadmissibility based on excessive demands. While deciding the inadmissibility of the appellant’s son on account of intellectual disability, it was held that the visa officer must take into account both medical and non-medical factors. Accordingly, the appellant’s financial ability to contribute substantially to availing social services for his son was given due importance. The Federal Court and IAD have relied upon this landmark judgement several times.
5. Ask for humanitarian and compassionate relief:
Many times, you must accept that the medical inadmissibility exists. However, that is not the end of the road, and it is very possible to request humanitarian and compassionate relief in such circumstances. This is often the most common way to request that a permanent residency application continues towards final processing.
Therefore, financial capacity and willingness to pay for social and health services are valid grounds for consideration when challenging medical inadmissibility.
Moreover, claiming exemption is another way to challenge medical inadmissibility. Pursuant to section 38 (2) I.R.P.A., certain classes of people are exempted from the excessive demand clause to seek entry into Canada. Exempted categories of people are as follows:
(a) Spouse, common-law partner or member of the family class sponsorship application
(b) Permanent resident visa applicant as a convention refugee
(c) Protected person; or
(d) Spouse, common-law partner, child or other family members of a foreign national referred to in paragraphs (a) to (c).
If you or anyone you know has received a refusal because of medical inadmissibility, feel free to call us at (403) 216-1199. For any further queries or legal assistance dealing with visa refusals, please email us at firstname.lastname@example.org. Our team of immigration lawyers are here to help!