PROCEDURAL FAIRNESS SERIES (1): MEDICAL EXAMINATION

In 2018, the federal government tripled the cost of medical expenses (currently around 20,000 Canadian dollars). In addition, the burden of social welfare due to disability will no longer lead to unqualified medical examinations, and the Ministry of Immigration will relax the medical examination conditions.
Under the new standard, even a disease that carries HIV, which requires sustained drug control, can pass a physical examination.

“Procedural fairness” is a very important principle in the process of visa and immigration cases. The principle of application of fairness is piled up by countless cases. Physical examination is a common and more concerned topic.
To do super-visa, study visa, work visa, and apply for any type of immigration, in CIC’s words, “staying in Canada for more than 6 months” requires a medical examination. It’s just that what kind of physical examination can pass, what kind of can’t be passed, and many people are confused.
The case that “the medical examination cannot be passed” applies to the immigration law IRPA 38:

38. A foreign national is inadmissible on health grounds if their health condition
(a) is likely to be a danger to public health;
(b) is likely to be a danger to public safety; or
(c) might reasonably be expected to cause excessive demand on health or social services.
(2) Paragraph (1)(c) does not apply in the case of a foreign national who
(a) has been determined to be a member of the family class and to be the spouse, common-law partner or child of a sponsor within the meaning of the regulations;
(b) has applied for a Permanent resident visa as a Convention refugee or a person in similar circumstances;
(c) is a protected person; or
(d) is, where prescribed by the regulations, the spouse, common-law partner, child or other family member of a foreign national referred to in any of paragraphs (a) to (c).

Let us first look at (1) (a) and (1) (b) that there are threats to public health or public safety in Canada, such as serious infectious diseases. Most of the problems with medical examinations are refusal to quote 38(1)(c).
Look at (2), what kind of person is wrong (1) (c), the answer is very clear, exceptions for reunion categories, refugees and protected people, so people in these categories do not have to worry if there is a problem with the medical examination. Then economics (including investment immigrants, skilled immigrants, provincial nominees, etc.) and various visas are no exceptions.
Finally, look at (1) (c), which is the subject of this article: “There will be a greater burden on health or public services in Canada.” We have listed this sentence separately: might reasonably be expected to cause excessive demand on health or social services. Every word in this sentence has caused countless controversies, and has produced countless cases.
What kind of burden can be counted as “excessive demand”? This is quantified and will increase slightly every year. The latest standard on December 1, 2014 is a burden of more than $6,387 per year, which is a big burden. Then, according to the doctor’s illness, the visa officer will find the relevant doctors and social organizations to calculate the burden of how much the applicant will have to Canada in one year. If the applicant does not exceed the visa, he or she will refuse the visa. What?
Still not! The importance of fairness here comes out, and the visa officer must give the applicant an opportunity to explain. The fairness of the procedure is that the visa officer should give the applicant an opportunity to explain and let the applicant dispel the concerns of the visa officer. This letter is often called the Procedural Fairness Letter (PFL). For cases where the medical examination does not meet the requirements, the procedural fairness must be reflected. If you are refused a medical examination one day, but have not received a PFL, the appeal will definitely win.
How to reply to PFL? For a physical examination, you can reply to the PFL from at least two aspects.

Price calculation

The first is to question the price calculation of the visa officer. For example, diabetes, the visa officer thinks that it is necessary to take insulin every week, how much is the insulin and then take it too much – we just give a simple example, the actual situation is more complicated – sent PFL, so we responded to various medical reports The doctor’s certificate, case, etc., prove that insulin only needs to be taken once a month, supplemented by medication, about how much money is enough, and the applicant is still actively recovering, the situation will get better and better.
For this kind of reply, the visa officer has three kinds of decisions: First, they insist on their own calculation refusal, and if the applicant still has opinions, they can only go to the court. The second is that the visa officer recalculated in conjunction with the applicant’s opinion. Although the price is different, it is still over, so the visa officer needs to send another PFL. The third is that the visa officer has approved the applicant’s opinion, and the applicant is no longer inadmissible and can continue to hear the case.

Ability and willingness to reduce health and social spending

To say this section, you must say two cases, one to the Supreme Court: Hilewitz v. Canada; De Jong v. Canada, 2005 SCC 57. This is the applicant for some business immigrants because the family medical examination did not pass the refusal, The visa officer believes that the applicant’s assets and their willingness to pay for medical and social expenses are irrelevant to the results of the medical examination.
The summary of the final judgment of the Supreme Court is as follows:

[70] The medical officers were obliged to consider all relevant factors, both medical and non-medical, such as the availability of the services and the anticipated need for them. In both cases, the visa officers erred by confirming the medical officers’ refusal The account of the potential impact of the families’ willingness to assist. Moreover, their failure to read the families’ responses to the fairness letters sent to them by the medical officers meant that their decisions were not based on all the relevant available information.
[71] The parties are in agreement that correctness is the applicable standard for reviewing the visa officers’ decisions in these appeals. The error in the interpretation of s. 19(1)(a)(ii) warrants the setting aside of those decisions .
[72] Both appeals are allowed with costs throughout, and both applications are referred to the Minister for reconsideration and redetermination by different visa officers in accordance with these reasons.

That is, the visa officer should consider the applicant’s non-medical factors, including whether the applicant is capable and willing to bear the corresponding expenses.
Because the Supreme Court’s decision is for business immigrants, is it applicable to skilled immigrants? This is the second case we have to talk about Canada v. Colaco, 2007 FCA 282, and the Federal Court of Appeal gave a positive response.

[8] If a skilled worker applicant, like the respondents, can establish that his or her admissibility in Canada cannot reasonably be expected to cause excessive demand social business, there is, in our respectful view, no reason to exclude that applicant on that Basis.
[9] The appeal will be dismissed and the following certified question:
Does the reasoning of the Supreme Court of Canada decision of Hilewitz and de Jong apply to individuals applying to immigrate to Canada as skilled workers?
Will be answered in the affirmative.

Although these two judgments are beneficial to the applicant, it is especially complicated. Now that the visa officer sends the PFL, you must attach a Declaration of Ability and Intent to let the applicant choose whether to sign. Applicants can submit materials to prove how they will reduce health and social spending in Canada. In the end, how to dispel the visa officer’s doubts is that there is a lot of work to be done.
In any case, having such an opportunity is better than nothing. Since all medical measures are case by case, most applicants do not have to worry about their physical examination, because the price is not necessarily exceeded, and the second is even super. It is also possible to take some effort. With the increasing control of the HIV virus, in recent cases (Companioni v Canada, 2009 FC 1315), HIV carriers are considered acceptable.

Careful people may find that since the reunion category can be an exception, then I will immigrate myself, and then reunite the physical condition can not pass the spouse and children, is it feasible?
It is not feasible. The spouse and children of the immigrant applicants need a medical examination even if they are not accompanying them. If they do not have physical examination, they will lose the opportunity to reunite in the future. Of course, this does not block the fake divorce. Just as domestic housing purchases are also ineffective for fake divorce, there may be no way to block fake divorce.