Canada's “excessive demand” inadmissibility regime is in need of reform — is a right of appeal the solution?
On December 3, 2015, Don Davies, the member of Parliament for Vancouver Kingsway, introduced Bill C-214, An Act to Amend the Immigration and Refugee Protection Act (Appeals) (Bill C-214). If passed, Bill C-214 would provide a right of appeal to the Immigration Appeal Division (IAD) for prospective immigrants whose applications for permanent residency are refused because Immigration, Refugees and Citizenship Canada (IRCC) determines that they will likely represent an excessive demand on Canada’s health and social services systems.
Because Bill C-214 is a private member’s bill, it is unlikely to become law. Indeed, Davies has introduced similar bills in previous Parliamentary sessions, to no effect. However, what he is proposing is certainly worthy of discussion and debate. I hope that if he reads this post that he will consider my comments, if he ever reintroduces or amends his proposed legislation. As well, at the end of this article I will discuss another immigration issue that Davies has proposed that I hope he reintroduces soon.
Canada’s Immigration and Refugee Protection Act provides that foreign nationals are inadmissible to Canada on health grounds if their health conditions might reasonably be expected to cause an excessive demand on Canada’s health or social services.
Health services are any medical services for which the majority of funds are contributed by governments, including the services of family physicians, medical specialists, chiropractors and hospital care.
Social services include home care, residential services, social and vocational rehabilitation services that are intended to assist a person function physically, emotionally, socially, psychologically, or vocationally, and for which the majority of funding is contributed by governments. It includes special needs education for children.
An excessive demand on health or social services that results in a person being inadmissible to Canada occurs when the anticipated health and social services costs of that person during the first five (although in some cases it is ten) years after the person immigrates to Canada would likely exceed the average Canadian per capita costs. In 2015, the threshold was $6,387 per year.
In the permanent resident context, a family member’s inadmissibility for excessive demand will result in an entire family’s immigration application being denied. It does not matter if that family member will actually be accompanying the family to Canada. The reason for this somewhat harsh rule is that foreign nationals who are being sponsored by Canadian family members are exempt from the excessive demand inadmissibility provisions. It would thus be easy for immigrants to circumvent excessive demand inadmissibility if during the immigration process a family could simply exclude a medically inadmissible family member from the family’s immigration, and then sponsor the excluded family member immediately after immigrating.
IRCC can sometimes be extremely blunt in refusing applications for medical inadmissibility. In 2014, for example, our office was retained to seek judicial intervention where a refusal letter stated:
Pursuant to subsection 38(1) of the Immigration and Refugee Protection Act, your family member [name withheld], is a person whose health condition of mental retardation might reasonably be expected to cause excessive demand on health or social services.. As a result, your family member is inadmissible to Canada on health grounds.
Subsection 42(a) of the Act states that a foreign national, other than a protected person, is inadmissible on grounds of being an inadmissible family member if their accompanying family member or, in prescribed circumstances, their nonaccompanying family member, is inadmissible. Your accompanying family member is inadmissible to Canada. Consequently, you are also inadmissible.
As a result of the Supreme Court of Canada’s decision in Hilewitz v. Canada (Minister of Citizenship and Immigration), IRCC must provide potential immigrants with advance notice of any concerns about a potential medical inadmissibility after the immigrants undergo their mandatory immigration medical examination, and it must provide applicants with the opportunity to respond. To provide an example, in the case that I mentioned above, IRCC’s procedural fairness letter stated:
Your family member [name withheld], has the following medical condition or diagnosis: Severe Mental Retardation. In the opinion of the Medical Officer: This applicant born on April 19, 2008 was diagnosed with severe mental retardation. Recent assessment indicated a mean developmental age of 8.75 months and a developmental quotient of 22. There is gross delay in her motor development as well as language development. She has received no adequate special schooling or home training so far. She is deemed totally dependent in all her activities of daily living. She requires special training including special education and speech therapy for the coming years.
This applicant’s medical condition is ongoing. She requires intervention services and special education services, which are expensive. Based upon my review of the results of this medical examination and all the reports I have received with respect to this applicant’s health condition, I conclude that she has a health condition that might reasonably be expected to cause excessive demand on social services. Specifically, this health condition might reasonably be expected to require services, the costs of which would likely exceed the average Canadian per capita costs over five years.
In consultation with the Health Management Branch of Citizenship and Immigration Canada, I have determined that the following social services would be required: early childhood education services in British Columbia, which range from $6,000 to $24,000; special education, which from grade 1 onward costs $16,000 or more; family support for children with disability, which, based on information from the provincial and territorial funding programs for children with mental retardation, is $40,000 per year per child in British Columbia.
Before I make a final decision, a person has the opportunity to submit additional information that addresses any or all of the following:
- The medical condition(s) identified
- Social services required in Canada for the period indicated above
- His or her individualized plan to ensure that no excessive demand will be imposed on Canadian social services for the entire period indicated above and their signed Declaration of Ability and Intent.
They must provide any additional information within 60 days of this letter.
Responding to such letters within such a short time period is a daunting and challenging task. Immigration applicants are expected to obtain independent medical advice, familiarize themselves with the health and social services available in a province, and determine what alternatives to public services exist. This can be difficult for someone who lives in Canada. It can be almost impossible for someone who lives half-way across the world, and IRCC frequently refuses immigration applications when it determines that an applicant’s Declaration of Ability and Intent is vague or insufficient.
What is especially galling for many applicants is their belief that if they could only speak to an IRCC officer in person they could satisfy the Canadian government that they or their family member will not be a burden on Canada, and/or of why there may be sufficient humanitarian and compassionate grounds to overcome the inadmissibility. However, Canada’s permanent resident visa application process is currently almost exclusively paper-based, and unless applicants are being sponsored by a Canadian family member, refused visa applicants do not have the right to an in-person appeal.
Davies hopes to change this.
Currently, the only recourse for permanent resident applicants who are refused for excessive demand is to file applications for leave to commence judicial review in the Federal Court of Canada. This process can take as little time as a few weeks if IRCC immediately recognizes that it made an unreasonable or procedurally unfair decision, or as long as several months to almost a year if a full hearing before a judge is required to determine the outcome. Applicants cannot raise new evidence during the judicial review, nor can they participate in the hearing, where, essentially, two lawyers discuss before a judge as to whether IRCC erred.
An appeal to the IAD would be very different. The IAD is a hearing de novo, which means that appellants can introduce new evidence to the IAD that they did not previously provide to IRCC. As well, appellants can argue their case at a hearing in person or via teleconference. They can also call witnesses. In addition to determining whether IRCC was factually or legally incorrect in refusing an application, the IAD can rule that notwithstanding the inadmissibility, there are sufficient humanitarian and compassionate grounds to override the inadmissibility. If the IAD allows the appeal, the matter is referred back to IRCC for continued processing. The visa office is then prohibited from overruling the IAD on the matter that was appealed. In the context that Davies’ legislation addresses, IRCC would be prohibited from again refusing the application due to a person’s inadmissibility for excessive demand. The entire process typically takes several months to almost two years.
When Mr. Davies introduced Bill C-214 he stated in the House of Commons that “the principles of justice include a substantive right to appeal” and that “people who are seeking to obtain permanent residence in this country often have their decisions decided in a very impersonal administrative manner, with no real right of appeal.”
This is certainly true. There would obviously be many refused applicants, perhaps most of them, who would benefit from being able to go to the IAD if their application was refused.
However, there are two aspects of the IAD process that should give Davies pause, and he should consider amending his legislation if his aim is for all visa applicants to benefit from his proposed changes. First, he may wish to consider providing refused applicants with the option of either seeking judicial review or appealing to the IAD. Section 72(2)(a) of the Immigration and Refugee Protection Act provides that a refused visa applicant cannot seek judicial review unless all administrative appeals have been exhausted. Given how long it can take for the IAD to hear and decide appeals, if IRCC’s refusal was unreasonable (instead of simply being based on insufficient evidence), then the judicial review process would likely be much faster and more efficient. In the case our office handled that I described above, the refusal was set aside in a matter of weeks. If the matter had proceeded to the IAD, it would have likely taken at least one year. Ironically, Bill C-214, if passed, would make the process much slower.
The second issue that Davies may want to address is the application of res judicata, which is the principal that a matter that has been decided by a competent court or administrative tribunal cannot be relitigated. In the spousal sponsorship context, for example, it is sometimes advisable to not appeal, but simply reapply. The reason is that if the IAD were to dismiss the appeal, then IRCC could in the future simply automatically refuse any applications on the basis of res judicata. In the context of excessive demand, it is not difficult to envision the IAD dismissing an appeal for someone with a severe medical condition, and then IRCC refusing subsequent immigration applications by that person even if that person’s health improves, simply because of res judicata. While res judicata is a complicated legal principal that has numerous rules and exceptions that are beyond the scope of this post, Davies should consider explicitly excluding the application of res judicata from his proposed appeal right.
The two issues above are essentially the same shortcomings I see with Davies proposal to allow refused temporary resident applicants access to the IAD. For most of these individuals, the ability to immediately apply again or seek judicial review is more than sufficient recourse. The IAD process would be lengthy, and if the IAD were to dismiss the appeal then the application of res judicata could theoretically permanently prohibit a person from visiting Canada if they wished to apply in the future.
In October 2015, I wrote an article for Policy Options predicting what the impact of various election outcomes would be on Canada’s immigration system. In contemplating what an NDP government could mean, I wrote:
While in opposition, the NDP, and especially its British Columbia Member of Parliament Don Davies, has consistently criticized CIC’s practice of issuing minimal reasons in visa refusal letters. CIC got away with doing this under both the Liberals and the Conservatives, and if the NDP fulfilled its promise to require immigration officers to provide the full reasons for refusal, it would be a subtle, simple change that would dramatically increase the fairness of Canada’s immigration system.
Davies has not yet introduced such legislation in this Parliamentary session. I hope that he does so soon.
I would make a final note on excessive demand inadmissibility. Terence Corcoran recently published an article in the National Post lambasting inadmissibility for excessive demand. His entire article is worth reading, and I particularly enjoyed these two paragraphs:
Not much logical room for Down syndrome in that rundown of good reasons for sending people back from whence they came. To get to the immigration rules related to Down syndrome, it is necessary to dig through to a sub-clause of a sub-clause of a clause in the immigration protection act. Under section 38(1)(c): “A foreign national is inadmissible on health grounds if their health condition…might reasonably be expected to cause excessive demand on health or social services.”Only a welfare state blindly enamoured with its monopoly health-care system would find this to be a reasonable justification for ruling Felipe Montoya and his family inadmissible as permanent residents. What kind of bureaucratic regime is this that looks at a healthy and productive man, his beautiful wife and their daughter, and then turns to see 13-year-old Nico and says: “Oh. That’s not good. He has something wrong with him. Looks like Down syndrome. He is a 13-year-old functioning at a three-year-old level. Inadmissible!
It is safe to state that Davies and Corcoran are on opposite ends of the political spectrum. Both clearly see a desperate need to reform this area of Canadian immigration law. Hopefully, as awareness spreads more voices join theirs.
At a minimum, no parent should receive a letter from the Government of Canada curtly stating that their immigration application is refused because their child has Down Syndrome, or, as they told my client, mental retardation.