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Case of the Month

The Importance of Individualized Assessments

Our Case of the Month is a successful judicial review involving a finding of inadmissibility under s.38 of IRPA (health grounds). The two adult sons of the primary applicant suffer from a genetic metabolic disorder involving skeletal and neurological impairments of varying degrees of severity. The visa officer determined that the family was inadmissible because these sons would pose an undue burden on Canadian social services, including vocational training and respite care.

In Hilewitz v Canada, it was indicated that individualized medical assessments are essential in order to justify exclusion. Here, the assessment was not individualized, as the Medical Officer did not seek expert opinions about the level of severity of the sons’ conditions before concluding that they would cause an excessive demand on Canadian social services. The Officer also failed to accept the parents’ abilities and intentions to provide for their sons’ needs, even though the services in question are optional (vocational training and respite care) and the parents have always provided for their sons needs. [The Honourable Mr. Justice Barnes found this approach troubling, as it would mean that families would be barred from emigrating to Canada if they had a child with an intellectual impairment, even if the family had demonstrated a willingness and ability to provide for this child’s needs.]  Further, the fairness letter provided to the parents was found to be deficient, as it did not clearly indicate what concerns the parents should respond to, or request a detailed plan of how the parents would obtain social services or provide for an alternate arrangement.

Due to this lack of an individualized assessment, the failure to consider the parents’ intentions to provide for their sons’ needs, deficiencies in the fairness letter provided, and a deficient assessment of the applicant’s financial means, the applicant was allowed.

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