Skilled individuals apply with their families to start a new life in this country.
Families wait for years to re-unite in Canada with their sponsor.
In either case, that desire to come to Canada may be stymied if the applicant or their accompanying family member is inadmissible by reason of a medical condition. In this case, CIC will provide with a 'fairness letter'. The fairness letter will detail the diagnosis and the prognosis of the particular condition which is expected to impose a burden on health and/or social services in Canada. The fairness letter should include a list of health or social services required and their cost implications.
The relevant legislation is s.38 of the Immigration and Refugee Protection Act.
The fairness letter allows the applicant to provide additional information or documents relating to the medical condition, diagnosis or opinion. The applicant can submit any information addressing the issue of excessive demand.
If the applicant is being sponsored as a member of the family class, he or she can appeal a negative determination to the Immigration Appeal Division which can consider all the circumstances including humanitarian and compassionate considerations and set aside a finding of inadmissibility. We have attached, in a previous blog posting, an audio recording of an IAD matter that dealt with the medical inadmissibility of an accompanying family member with schizophrenia.
Note: if the applicant is under an economic class, there is no appeal to the IAD.
The relevant case law is the Supreme Court's decision in Hilewitz. It should be more likely than not, based on a family's circumstances, that the contingencies will materialize. The threshold is "reasonable probability, not remote possibility".
The applicant (and sponsor if applicable) should provide signed Declarations of Ability and Intent in support of their argument that the contingencies will not materialize. The Federal Court of Appeal in Colaco noted that the officer needs to assess "both the risk of demand and the extent of that demand, the foreign national's ability and willingness to pay for the services".
It is imperative that the representative thoroughly research, investigate and understand the nature of the particular medical condition. In addition to the Declarations of Ability and Intent, it is essential to attach proof of the sponsor's establishment in Canada and his or her resources as well as the applicant's ability and financial resources. Additional psychological or medical opinions should be sought and referenced. Evidence of the family's strong, close and loving connection and commitment should be provided. Contact should be made with advocacy, volunteer or charitable organizations that deal with the particular medical condition or disability. A statement as to the future plans should be enclosed. All (negative) inferences made by an officer should be challenged.