Key Legislative Definitions and Legislative Thresholds
s. 38(1) Health Grounds – A foreign national is inadmissible on health grounds if their health condition
a. is likely to be a danger to the public health;
b. is likely to be a danger to public safety
c. might reasonably be expected to cause excessive demand on health or social services
s. 38(2) Exception – Para. 1(c) does not apply in the case of a foreign national who (see s.24 of the IRPR)
a. who has been determined to be a member of the family class and to be the, common law partner or child of a sponsor within the meaning of the regulations
b. has applied for permanent residence visa as a Convention refugee or a person in similar circumstances
c. is a protected person, or
d. is, where prescribed by the regulations, the spouse, common-law partner, child or other family member of a foreign national referred to in any paragraphs (a) to (c)
s. 31 Public Health – Before concluding whether a foreign national’s health condition is likely to be a danger to public health, an officer who is assessing the foreign national’s health condition shall consider:
a. any report made by a health practitioner or medical laboratory with respect to the foreign national
b. the communicability of any disease that the foreign national is affected by or carries, and
c. the impact the disease could have on other persons living in Canada
s. 33 Public Safety – Before concluding whether a foreign national’s health condition is likely to be a danger to public safety, an officer who is assessing the foreign national’s health condition shall consider:
a. any reports made by a health practitioner or medical laboratory with respect to the foreign national; and
b. the risk of sudden incapacity or of unpredictable or violent behaviour of the foreign national that would create a danger to the health or safety of persons living in Canada
NB (excessive demands) – OP 15 Medical Procedures further provides:
* R. 34 and R. 139(4) reiterates the exceptions set out above, but further provides that these persons must undergo medical examinations for purposes of public health and public safety only.
* If the status of the applicant changes a new medical assessment is required: this assessment will consider excessive demands.
OP 15 – Medical Procedures provides:
* where a finding of medical inadmissibility is made, applicants must be permitted to respond
* The applicant has a minimum of 60 days from the date of the letter of notification to respond
* Failure to respond or supply new information within the time permitted will result in a refusal of the applicant’s application
Pursuant to OP 21 – Appeals and Litigation, the following is CIC practice:
“If new medical information is provided during the appeal process and the medical officer determines that a new examination is warranted, the visa office must:
* contact the applicant to request photographs;
* issue new medical instructions within 30 days;
* advise the applicant that a new medical examination must be conducted within 30 days; or if that is not possible, the visa office must be advised, before the end of the 30-day period, of a date of a medical appointment. Failure to comply will result in the termination of the medical reassessment process;
* indicate in CAIPS the date on which the new medical instructions were issued;
* forward new assessment by the medical officer to the hearings officer with a copy to the IAD;
* advise the hearings officer if the applicant does not comply with the instructions to undergo a new medical examination.
Appeals may be withdrawn by DOJ where there has been an improvement in the Applicant’s medical condition such as to remove them from the earlier conclusion of inadmissibility.