Growing up in the Philippines, Mercedes Benitez dreamed of moving to Canada for one reason alone — its reputation as a champion for human rights.
“[In Canada] it’s all equal and very high in human rights, and everybody is [respected],” Benitez told Global News. “This is the best country that I ever thought I [could] live [in] the rest of my life.”
Benitez arrived in Toronto in 2008 as a temporary foreign worker under the federal government’s live-in caregiver program. She wants to become a Canadian citizen but has been stopped by an immigration system lawyers say discriminates against people with disabilities.
Global News has learned a part of Canada’s immigration system uses incomplete and inaccurate information to turn away hundreds of applicants every year.
Benitez applied for permanent residency for herself, her husband, Romeo, their oldest son Bill and their 18-year-old son, Harold, in 2010.
Five years later, she was told her application could be denied because her son might be deemed “inadmissible” by Canadian immigration officials because of an intellectual disability that would place “excessive demand” upon the country’s publicly funded health and social services.
WATCH: Canada rejects immigrants based on incomplete data. Carolyn Jarvis investigates.
Immigration, Refugees and Citizenship Canada said in a 2015 “fairness letter” sent to the family that Harold had been diagnosed with “mental retardation” and functioned at the level of a three- to four-year-old child.
“It still makes me cry because I feel like I’m being betrayed because I work hard,” said Benitez, wiping tears from her eyes. “I did the best I can to be a [law-abiding citizen] or a resident of Canada. I pay my taxes and because of Harold’s condition I might not stay anymore in Canada.”
The Benitez family and other who spoke with Global News say a section of Canada’s immigration act — created to ensure newcomers to the country do not cause “excessive demand” on publicly funded health and social service programs — could prevent them from becoming citizens.
In 2017, Immigration Canada set the limit for “excessive demand” at $6,655, the average annual health and social service spending per Canadian in 2016. If the costs of caring for a person’s condition are higher than this figure the applicant and all family members are denied permanent residency.
WATCH: Mercedes Benitez on what it’s like to not have her son with her
Global News obtained statistics from Immigration Canada that show 1,100 applications were denied due to medical inadmissibility between 2014 and 2016, an average of 365 a year. Roughly 36 per cent of these applications, or 392 individual cases, involved applicants with “mental and behavioural disorders.”
However, a separate document obtained by Global News through a freedom of information request shows the average number of applications Immigration Canada denies each year due to excessive demand and medical inadmissibility is between 900 and 1,000. This includes roughly 200 to 300 cases related to “special education needs.”
Reasons to deny an application included “nervous system disease,” diseases of the ear (deafness) and diseases of the eye (blindness).
Immigration Canada refused to provide Global News with a complete list of the medical diagnoses used to deny permanent residency, citing privacy concerns for the individuals involved. The ministry also did not provide data for years prior to 2014 due to “changes in the systems used by the Medical Unit.”
Applications denied based on incomplete data
According to a Global News investigation, the figure used by Immigration Canada to determine “excessive demand” and the denial of permanent residency does not accurately reflect the cost of providing health and social services in the country.
According to Immigration Canada, the $6,655 figure is based upon two separate numbers. The first, $6,299, is the amount of money spent annually on health care per Canadian according to the Canadian Institute for Health Information. The second, $356, is how much Immigration Canada says was spent on social services last year based on “publicly available” data and information from LifeStageCare, an online subscription service owned by a subsidiary of Sykes Enterprises, a company based in Tampa, Florida.
But information provided to Global News by the Conference Board of Canada, based on provincial public accounts, suggests that the government doesn’t account for nearly $27 billion in annual social service spending by the provinces when assessing the limit for excessive demand. That number could be as high as $40 billion if the Canada Social Transfer is included, or roughly $1,105 a year per Canadian.
This means the $6,655 limit for excessive demand set by the government should be at least $7,404 if all social service spending in Canada is accurately accounted for.
It’s unclear how long the government has been using these incomplete figures.
Legal experts in disbelief, disappointed
WATCH ABOVE: Lawyer Lorne Waldman said it’s ‘disturbing’ that the government could be using inaccurate information
Immigration lawyer Lorne Waldman said it’s “really disturbing” that the government could be using inaccurate information to deny applicants a home in Canada.
“These numbers are relied upon by judges, by members of the immigration appeal courts, and we trust, we’re expected to believe that the government’s numbers are based upon actual facts,” Waldman said. “When we go to court these numbers are presented and no one challenges them because we assume if the government has a number it comes from a reliable source.”
Adrienne Smith, a former analyst at Immigration Canada and an immigration lawyer with Jordan Battista, a Toronto-area law firm, said these revelations are incredibly “significant.”
“[Immigration officers] treat that number as a very firm number, which means if it’s anything over [$6,655], then the person can be inadmissible,” Smith said, adding that she’s represented clients who’ve been found inadmissible for as little as $400 over the limit. “That number is everything in whether their case gets approved or it gets refused.”
WATCH: Immigration lawyer says her clients expect the government to make immigration decisions on correct data
Smith acknowledged there are legitimate reasons for refusing an application based on excessive demand — like paying for cancer treatments — as a means of managing costs, but she says the government needs to do a much better job of tracking social service spending if they’re going to use this number to deny applications.
“I think the government has one option right now, or I would say two options: they can either come up with the correct definition of what is social services and what are the actual costs to Canadians, or they could look at eliminating that entirely,” she said. “If you can’t track the cost of social services, you can’t find someone inadmissible based on an artificially low number.”
Meanwhile, Waldman says he guarantees immigration lawyers from across the country will soon be challenging the government’s statistics now that the sources of this information say they do not track social service spending according to the ministry’s own definition.
“These numbers haven’t been challenged,” said Waldman. “But I can assure you, from now on they will be.”
Asked to explain the discrepancy between their numbers and those provided by the Conference Board of Canada, Nancy Chan, a spokesperson for the ministry, stated in an email to Global News that, “These are not the figures [Immigration Canada] uses in assessments.”
Global News contacted other organizations tasked with collecting data in Canada — both government and non-government — to confirm the ministry’s assertions. All the organizations contacted by Global News said they do not track the cost of social services specific to persons with disabilities or long-term medical illnesses as defined by Immigration Canada.
In fact, Statistics Canada, the country’s premiere source of all “publicly available” data, said it would be “difficult” to assess the costs of social services as defined by Immigration Canada.
“With our current data sources, it would be difficult to quantify the value spent on social assistance programs targeting this specific group in the population,” said an analyst for Statistics Canada when asked to provide a cost estimate of care for persons with disabilities.
Global News also reached out to the Treasury Board of Canada, which confirmed it does not track spending according to Immigration Canada’s standards either.
Meanwhile, both Sykes and the Canadian Institute of Health information, the two reported sources of government information, also confirmed they do not track this information.
Despite repeated efforts to try to identify the source of Immigration Canada’s data on social service spending, officials from the ministry refused to answer and were either unwilling or unable to provide Global News with a specific source for their information.
Issues raised with ‘fairness letters’
These types of cases, often involving children, have popped up in the past, but never moved beyond the plight of an individual family.
A 2005 Supreme Court decision involving the families of David Ralph Hilewitz, from South Africa, and Dirk Cornelis Jan de Jong, from the Netherlands, looked at the issue of excessive demand and inadmissibility.
Both families had a child with intellectual disabilities and had the financial means to pay for their children’s support, but immigration officials rejected their applications.
The Court ruled the applicants’ financial circumstances were relevant in the decision-making process and sent the cases back to the government for reconsideration.
In 2016, the case of York University professor Felipe Montoya and his family, whose immigration application was denied because his 13-year-old son, Nicolas, had Down syndrome sparked significant attention.
A letter from Immigration Canada sent to Montoya references reports that Nicolas functions at the level of a three-year-old, and estimated special education costs for his condition at roughly $20,000 to $25,000 a year.
In the letter, an immigration officer cited the work of Brock University researcher, Sheila Bennett, as justification for the costs.
But Global News reviewed the research and found that nowhere in the article does Bennett mention anything with respect to the cost of providing care. In fact, Bennett says her research argues for “including students with exceptionalities.”
WATCH: Mercedes Benitez plea to the Canadian government: ‘Put yourself in my shoes’
When contacted by Global News, Bennett said she was “appalled” to learn her work had been used to help turn down an application for a 13-year-old boy with Down syndrome.
“In my interpretation, the document I wrote was the opposite of what it was used for,” Bennett told Global News. “I see disability as identity. I don’t see it as a burden and most of my work centres around a notion that we educate all children, period.”
Other immigration letters reviewed by Global News indicated similar problems, where cost estimates were not identified or there were issues with the sources of these costs.
In Benitez’s case, immigration officials said they estimated her son’s care would cost Canadian social services between $85,000 to $115,000 over five years, including $17,000 to $23,000 annually in special education cost.
Benitez said she cannot afford to pay for the support services the government says her son will need. But she said Harold wouldn’t be a burden on taxpayers because her husband acts as his full-time caregiver.
The letter lists the Ontario Ministry of Education’s website and the Ottawa District School Board — now Ottawa Carleton District School Board — as sources for the educational costs estimates.
But when Global News contacted Ontario’s Education Ministry for comment, a spokesperson said they do “not access program costs on an individual student basis” and were never contacted by Immigration Canada in regard to Benitez’s case.
Meanwhile, a spokesperson for the Ottawa school board said it “does not assign or track costs on the basis of any individual student.”
“The allocation of resources, whether in the regular classroom, or through additional supports, is not tied to the average per-capita funding, but is based on how to best meet the needs of every student,” said the spokesperson.
Benitez says going through this process has led to many “stressful nights.”
“I cannot sleep, I cannot eat,” she said. “We received the letter before Christmas [in 2015] and that is the worst Christmas that we have ever experienced.”
“I spend nights like thinking ‘What are we going to do now?’” she said.
Immigration Canada has acknowledged it faces challenges around the issue of excessive demand. In a presentation created by the ministry and obtained by Global News through a freedom of information request, the department says it faces several challenges; including “pressure to reverse some inadmissible cases” from the courts and concerns over “negative media attention” around some individual cases.
WATCH: Minister of Immigration, Refugees and Citizenship says there is a review ongoing
But according to Canada’s Immigration Minister, Ahmed Hussen, no one is ever automatically denied permanent residency based on the fact they have a disability. He says the government is currently conducting a review of measures surrounding excessive demand and medical inadmissibility.
“We are consulting with provinces because, as you know, health care is a provincial jurisdiction,” Hussen said. “We are doing what we can to find out from provinces how to move forward on this.”
Hussen said there was no timeline on when this process might be completed, or when families may see change, but said the ministry is considering the options carefully and looking very closely at the issue.
Global News requested an additional interview with Hussen to discuss potential problems with the way the ministry assesses the limit for excessive demand, but officials from his office denied our requests.
Meanwhile, Parkdale Community Legal Services, based in Toronto, is helping Benitez and has asked Immigration Canada to reconsider her case, which is currently under review.
“It’s just like our dream [is] like finished, you know? It’s hard really, I feel pain,” Benitez said. “I still have faith that they will listen to me … there should be no discrimination with regards of disability.”
Have you been denied permanent residency based on a medical condition or disability? If yes, please contact Global News with your story.
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