Canada’s Immigration Minister Ahmed Hussen said his office is considering removing a section of the country’s Immigration Act that advocates say discriminates against people with disabilities.
“All options are on the table,” Hussen said. “We could eliminate it completely.”
Hussen was speaking in Ottawa Wednesday before a parliamentary committee that is reviewing a provision of the act known as excessive demand or 38-1C, which can bar persons with a disability and their family members seeking permanent residency on the grounds they could place a burden on the the country’s publicly-funded health and social service systems.
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Immigration Canada ‘breaking the law,’ when denying some disabled applicants, say legal experts
The testimony follows a Global News investigation that revealed how Canadian immigration officials use inaccurate information to deny potentially hundreds of applications each year and how officials often fail to provide specific cost estimates in “procedural fairness letters” given to people who could be denied due to so-called “medical inadmissibility.” Providing cost estimates is required under existing Canadian law.
“This review is necessary and long overdue. To put it into perspective this provision has been around for 40 years,” he said. “The current excessive demand provision policy simply does not align with our country’s values on the inclusion of persons with disabilities.”
READ MORE: Immigration Canada reopens Manitoba family’s application for permanent residency
Advocates and immigration experts have long decried the excessive demand provision as “unjust” and said it unfairly targets those people with a disability, while also tearing families apart.
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“We’re just very encouraged by the fact that the minister is seriously considering repeal,” said Adrienne Smith, a Toronto-area immigration lawyer with Jordan Battista LLP and a former Immigration Canada policy analyst. “To me it doesn’t seem like there’s any other option.”
Hussen, meanwhile, said his office is considering several options as the federal government looks at changing the law which is estimated to save about $135 million over a five-year period in medical costs and represent just 0.1 per cent of all provincial and territorial health spending.
These changes could include “double or triple” the cost threshold used to deny applicants, changes in the groups exempted from the provision, or redefining the services considered for prospective applicants when deeming them inadmissible, he said.
“The reason the department is considering what to do about section 38 is because this process is unfair – so we have that recognition from the minister,” Smith said.
At present, only refugees and their family members are exempted from the provisions of medical inadmissibility and excessive demand.
READ MORE: Canada rejects hundreds of immigrants based on incomplete data, Global News investigation finds
Hussen said these options could lead to the approval of roughly 80 per cent of all applications that are currently denied under existing rules.
But Smith says if the law as currently written is unfair, changing it so that fewer people are discriminated against won’t be enough to address the problems the minister has identified.
“Even if one of the people that is caught by the excessive demand threshold – even if that one person is treated unfairly – then to me it’s an unfair law,” she said.
Problems with figures used by Immigration Canada
At present, a person can found medically inadmissible if Immigration Canada decides the health or social service costs required to treat their disability or medical condition exceeds the threshold of $6,655 per year.
A Global News investigation previously raised serious concerns with how the government calculates this threshold – which includes potentially ignoring up to $40 billion in annual social service spending when calculating the per capita figure.
Michael MacKinnon, a senior manager responsible for Immigration Canada’s health division, testified before the committee last month that Global News’ figures are inaccurate because costs like social housing and social assistance are not considered when assessing medical inadmissibility and are therefore not included in the $6,655 threshold.
But a review of several decisions by Immigration Canada shows that some applicants have been denied permanent residency in Canada as a result of needing housing and disability-related social assistance.
For example, in 2013 Immigration Canada denied the application of Sandra Ivonne Gonzalez Ortiz who attempted to sponsor her 44-year-old brother Romeo to enter Canada as a permanent resident.
Ortiz’s application was denied because the government said her brother suffered from “mental retardation” and the costs of his care once in Canada would be too high. The potential costs listed by Immigration Canada in the decision included: the Ontario Disability Support Program, attendant care, nutrition programs like Meals on Wheels, transportation to doctor’s appointments, assistance with housekeeping and supportive housing.
Global News asked Immigration Canada to explain the apparent contradictions between MacKinnon’s testimony and the decision in Ortiz’s denial, but they were unable to explain the discrepancies.
Support from all parties
MPs from all parties on the standing committee agreed that provision needs to be changed or eliminated altogether.
Liberal MP Nick Whalen called the policy “egregious” and runs counter to the inclusive values of Canadians.
“Allowing these 1,000 applicants into our country and cleansing our own souls wouldn’t put any real jeopardy to the social services or the health care system,” Whalen said. “I do not see how changing the threshold and excluding fewer people changes the fact that exclusing anyone is prima facia discriminatory and violates Canadian values.”
READ MORE: Immigration Canada ‘breaking the law,’ when denying some disabled applicants, say legal experts
Conservative MP Michelle Rempel called the current criteria “ablest” and said the committee heard a significant amount of testimony around how the immigration rules are being improperly applied.
“Minister, I think for once we agree on something—our immigration policy shouldn’t be ablest, but it also needs to be cognizant of the need to ensure sustainability of our social programs,” Rempel said.
And Liberal MP Randeep Sarai said the policy harkened back to the era of slavery in the U.S.
“I don’t want to equate it to this but it’s no different than the slave trade where only the selective, the strongest and the most abled bodied were brought from Africa,” Saraid said.
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