25/09/2017 - Chi-Young Lee
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Canadian Immigration Blog
Initial Medical Inadmissibility Finding May Not be the End of the Story!
At Bellissimo law Group PC we are privileged to work on hundreds of medical inadmissibility cases and receive many inquiries. Unfortunately, we encounter a number of cases if the applicants had proper representation and/or knew what was truly involved the applicants and their family may not have been refused. Here are the types of questions we receive:
Q. I am from the Philippines and have applied 5 years ago for Permanent Resident status and included my husband and three children. We now get a letter that my husband, who had a kidney transplant may be too expensive to come to Canada. I have a chance to reply to the letter within 60 days. What should I state in my letter? Can I just bring my children?
A. Thank you for your question. What you received is a procedural fairness letter as Immigration Canada has made an initial determination that as a transplant patient, your husband may cause excessive demand on health and/or social services. Unfortunately, the inadmissibility finding applies to you and your entire family. However, this does not automatically mean that you are inadmissible.
The law in Canada changed primarily because of a Supreme Court of Canada case Hilewitz v. Canada (Minister of Citizenship and Immigration), De Jong v. Canada (Minister of Citizenship and Immigration), and 2005 SCC 57, that I am very proud to say I was part of, that required individualized assessments of applicants with medical conditions that could lead to a finding of medical inadmissibility. The Supreme Court highlighted the need for fair, diligent and proactive assessments by visa officers and medical officers, and a move away from a cookie cutter methodology that focused on the medical condition rather than the person.
So, what does that mean? It means that individual circumstances will be examined so if in your husband’s case he is doing really well after his transplant he will not be viewed in the same way as another person who had a transplant and is not doing well. So, the response must be individualized and include legal, medical and factual considerations.
What does that mean for you? You should not respond to procedural fairness letters without representation. The reply is a very complex exercise that requires extensive analysis and a very well documented response. Typically, and in brief, you will have to present specialists’ reports (nephrologists) analyzing your husband’s medical condition and assessing the cost in Canada for his medication, health care and social care over a period of five to ten years depending upon the period identified in the letter. Also, you will have to look at an individualized plan of care and your families’ ability and intent to absorb costs, help manage the condition; individual circumstances etc. will also be considered. This is why I would suggest that you seek counsel for this submission as it is very important to your future and requires very sophisticated and specialized legal preparation that may make living in Canada a reality for your family!
To learn more about Medical Inadmissibility, please click here to listen to my recent podcast with Mark Holthe on the Top 5 Considerations When Responding To A Fairness Letter.