Immigration Canada ‘breaking the law,’ when denying some disabled applicants, say legal experts
Families looking to become Canadian permanent residents are being unfairly rejected by immigration officials, say legal experts, and in some cases the federal government may be breaking the law.
The consequence can be devastating for families trying to move to Canada.
The issue involves the government’s failure to provide specific cost estimates in “procedural fairness letters” given to people who could be denied due to so-called “medical inadmissibility.”
Immigration Canada uses these letters to explain to applicants why their application might be denied. Applicants then have a chance to respond to the letter in defence of their case.
WATCH: Samrat Saha frustrated by vague language of family’s PR denial letter
In each of these cases, the applicant – or someone in their family – has a medical condition or disability the government says might place “excessive demand” upon Canada’s publicly-funded health and social services.
According to immigration lawyers – as well as the Canadian Bar Association – the law requires that all procedural fairness letters clearly outline the government’s concerns with respect to an applicant’s medical condition or disability. This includes producing a list of all health and social services an applicant will use once in Canada, and then calculating the “likely cost” of these services.
WATCH: Adrienne Smith, a lawyer based in Toronto, says the feds are breaking the law
But as a Global News investigation into medical inadmissibility has discovered, immigration officials often fail to provide applicants with any sort of cost estimate during this process. Instead, they simply list the services the applicant may require without providing any detail on why the government thinks the costs will be excessive.
According to lawyers, this is a fundamental breach of applicants’ rights and proof some immigration officials do not fully understand the law they’ve been tasked to enforce.
“[Immigration Canada] is breaking the law,” said Adrienne Smith, a Toronto-area immigration lawyer and former analyst at Immigration Canada. “The Federal Court of Appeal has been very clear, that an officer who’s assessing medical inadmissibility has to provide the cost of the medical or social services.”
Smith says the government is violating Canadian case law by failing to disclose likely cost estimates. She added that this places applicants in the difficult position of having to challenge unspecified allegations made by immigration officers.
This is echoed by immigration lawyer Ron Poulton, who says the government must adhere to the courts’ decisions or risk having cases overturned.
“To make it real and meaningful, [applicants] have to know the exact figures,” Poulton said. “Otherwise you are responding to very general comments and they become absolutely meaningless and impossible to deal with.”
Family ‘scared’ for their future
For Samrat Saha, a software engineer based in Toronto, reading the vague language of his family’s denial letter was both frustrating and upsetting.
Saha, along with his wife Shelly and their six-year-old son Rajarshi, moved to Toronto from India in 2013 to work for an information technology company. The couple, both 38 years old, hold master’s degrees and applied for permanent residency in 2014. The family’s application was rejected in May 2017 because their son has autism.
“I didn’t expect this to happen,” said Saha, adding that he believes Canada is a global leader when it comes to inclusivity and the treatment of persons with a disability. “[I’m] very much scared for my son’s future, and what’s going to happen with him.”
WATCH: Immigration lawyer Ron Poulton says PR applicants need exact figures if they are being rejected
Immigration Canada said in a “fairness letter,” that Rajarshi was diagnosed with “autism spectrum disorder with accompanying delays in his speech and language skills, and in his social skills.” Immigration officials also said social services; including special education, behaviour therapy, speech therapy and occupational therapy would be required for the couple’s son.
Saha says he is willing to pay for any additional services his son will require – including private schooling – but he says the government didn’t provide any cost estimate to dispute.
“It’s very frustrating,” Saha said. “For me it’s a blank, I can’t see [any costs] and I don’t know what I need to show. Every parent who goes through this situation has similar feelings, they are all scared for their kid’s future.”
Saha says he’s spent about $7,000 applying for permanent residency and expects to spend another $12,000 fighting for his family to stay in Canada.
“When you say the cost is excessive, be specific,” Saha said. “Like these are the costs that will be excessive, you need to bear those costs, government is not going to support this for your case going forward… Then parents can plan for their kids.”
WATCH: Immigration Minister says part of Canada’s immigration system is ‘out of step’ with today’s societal standards
In an interview with Global News, Immigration Minister Ahmed Hussen said he wouldn’t comment on specific cases but did say that his department is looking at concerns around excessive demand and is working with provinces and territories on the issue.
“My own view is that excessive demand provisions that we have in our immigration system are a little bit out of step with societal standards now with respect to accessibility and how we approach individuals with disabilities,” Hussen said. “You can count on the fact that this is something that I care about.”
Hussen said improving services for immigration applicants is a goal for his department.
“Client services is the goal that we have in terms of putting the client at the centre of everything that we do, which in the past hasn’t necessarily been the case,” he said. “So what you’re telling me furthers the ability to have better client service and as such that is something we should do. The more information we could provide our clients the better it is for them, for us.”
Other families denied without cost estimates
A couple from Colorado who moved to Waterhen, MB in 2013 with their four children also had their permanent residency application denied without being given any costs estimates.
Jon and Karissa Warkentin were denied because Immigration Canada alleged their 6-year-old daughter, Karalynn, was diagnosed with Global Developmental Delay and attention deficit hyperactivity disorder (ADHD) (the Warkentin’s dispute these diagnoses).
No cost estimates for the anticipated care of Karalynn’s condition were provided in the procedural fairness letter.
In fact, according to the Warkentin’s lawyer, Alastair Clarke, not even the notes prepared by the immigration official responsible for evaluating the family’s application referred to the likely cost of care for their daughter. Instead, the medical officer’s notes, obtained through an Access to Information request, simply stated that the girl’s care would be “expensive.”
This is unacceptable, says Poulton. He says when officials don’t provide cost estimates, they’re handcuffing a person and making it nearly impossible to respond.
“The requirement of fairness is that they disclose all of that information,” Poulton said. “If they don’t, then the court would – if it went that far – strike the case down as being a breach of procedural fairness, which is, in a sense, a breach of the law.”
Smith, meanwhile, says these issues are symptoms of a much larger problem. She says the government needs to take major steps toward improving the system and ensuring both medical and immigration officials understand their responsibilities – particularly given the life-changing consequences of their decisions.
“Every time I get a procedural fairness letter that doesn’t contain a cost estimate it concerns me. Because what it means is the person who’s responsible for reviewing my client’s application doesn’t know the correct case law in this area,” Smith said. “If there’s no cost that are listed, then how is the applicant supposed to provide a meaningful plan to overcome the admissibility? I think it really weakens their chances.”
Ongoing concerns with excessive demand figures
A Global News investigation into Canada’s immigration system has revealed other concerns with procedural fairness letters and the way immigration officials handle cases of “excessive demand” and “medical inadmissibility.” This includes the use of inaccurate information and could have led to the wrongful denial of hundreds of applications each year.
The limit set by immigration Canada for excessive demand is $6,655, the number the government says was the average 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 immediate family members are denied permanent residency.
Global News has reported that immigration officials have failed to account for as much as $40 billion in annual social service spending when calculating the limit for excessive demand, meaning the $6,655 limit should be at least $7,404 if all social service spending in Canada is accurately accounted for.
The government, meanwhile, says don’t consider all social service spending when calculating the limit for excessive demand. But as recently as [last week] officials from Immigration Canada still refused to provide detailed information on how exactly they calculate this figure.
“What is more troubling is the process that they went [through] to arrive at that figure,” Poulton said. “As an accountant said to me once ‘if your books are off by ten cents they might as well be off by a million dollars.’”
“If they haven’t done [due diligence] then they have broken their promise to the Canadian people, they have broken a promise to us and they have also rejected a lot of families that shouldn’t have been.”
Canadian Bar Association recommends changes
While the Canadian Bar Association [CBA] will not say the government has outright “broken the law,” it does agree with Smith and Poulton that the law requires the government provide likely cost estimates to applicants deemed medically inadmissible.
“The [Supreme Court of Canada] said that the term ‘excessive demand’ is inherently evaluative and comparative,” said Mario Bellissimo, a leading immigration lawyer and spokesperson for the CBA. “A medical officer must provide the immigration officer with a medical opinion about any health condition an applicant has and the likely cost of treating the condition… So the types of scenarios you highlight would likely not constitute procedural fairness.”
As a part of the government’s ongoing review of medical inadmissibility, the CBA recommended the government make several changes to the current system. These include centralizing the review process so only experienced immigration officers handle such complicated cases, and investing in more up-to-date research.
Bellissimo says that while the process can work when handled correctly, there are still a number of key issues the government needs to address – not the least of which includes providing clearer direction and guidelines to immigration officials and the public.
“Many medical officers still defer in error to immigration officers when considering a response,” said Bellissimo, describing what he sees as one of the biggest problems with the current system. “The [CBA] recommended clarifying instructions to medical and immigration officers on their distinct roles… This would address the inconsistencies and allow for more effective decision making.”
But for Saha and his family in Toronto they are left worrying about the future.
“If Canada doesn’t allow me to stay here, or to get the permanent residency here, and then I need to go back to my country, truly speaking, my country doesn’t have – at this moment – doesn’t have that level of infrastructure to support autism,” Saha said. “Help us to stay in this country, then we can pay the rest of the costs for my son. We don’t have a problem. We can manage that.”
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