Reason for PR application rejection on medical grounds

[alexure]

Hi,
I found case in which an application was refused due to fact that applicant's son had pulmonary valve stenosis.
The only difference is that my son has gradient of 36 [mmHG] across pulmonary valve which is considered as mild stenosis and the boy in case described had gradient of 55 [mmHG] across pulmonary valve which is considered as significant stenosis and in such case the doctor will recommend to undergo balloon valvuloplasty.
The case was allowed for judicial review.
The judgment was as follows:
[22] IT IS THEREFORE ORDERED AND ADJUDGED THAT:
1. The application for judicial review is allowed and the decision of the immigration officer dated June 22, 2000 is set aside.
2. The application for landing is to be referred for reconsideration by a different immigration officer and by two different medical officers. The immigration officer is directed to have regard to the jurisprudence of this Court referred to in the reasons for judgment and to the requirements of section 22 of Immigration Regulations, 1978.

My questions are:
1. Is it possible to find information about the end of this story (using Docket no or something)?
2. Can I use this case in my response to fairness letter (hope I will not get it, crossed fingers : ) and if yes how I should use it in most efficient way?
3. Could the case itself provide a "lifejacket" in my case?

caselaw.canada.globe24h.com/0/0/federal/federal-court-of-canada/2001/04/06/behagan-v-canada-minister-of-citizenship-and-immigration-2001-fct-301.shtml


Thanks,
Alex.

 

[computergeek]

It sounds like you may avoid any issues then. That's good news!

 

[computergeek]

You are referring to this case: http://canlii.ca/t/pg5

You can refer to it if you think it is appropriate or necessary to do so, but it really just reiterates the case law surrounding "excessive demand" and pointing out how it was not realized in this particular case. Thus, I don't think it will materially add to your case.

You should order a copy of your GCMS case notes (if you have not already) both electronic case notes as well as medical records. This may provide you with additional insight into what the medical officer is really concerned about.

In your case, the stenosis is not severe and thus may not require any treatment in the 5-10 year period under consideration. That seems to be your best line of argument.

 

[alexure]

You are referring to this case: canlii.ca/t/pg5

You can refer to it if you think it is appropriate or necessary to do so, but it really just reiterates the case law surrounding "excessive demand" and pointing out how it was not realized in this particular case. Thus, I don't think it will materially add to your case.

You should order a copy of your GCMS case notes (if you have not already) both electronic case notes as well as medical records. This may provide you with additional insight into what the medical officer is really concerned about.

In your case, the stenosis is not severe and thus may not require any treatment in the 5-10 year period under consideration. That seems to be your best line of argument.

Yes I agree with you, but in this case the judge talked about situation when it is unknown if surgery is needed or not
"The fact that an individual suffers from a medical condition such that some treatment is likely, does not in itself equate to a finding of excessive demand". This is exactly what I'm concerned about "In the future (possibly within the next few years) he may need another valvotomy (most probably balloon catheterization) to repair the pulmonic valve".

Will you recommend to order GCMS notes now or should I wait for fairness letter?
Thank you,
Alex.

 

[computergeek]

Yes I agree with you, but in this case the judge talked about situation when it is unknown if surgery is needed or not
"The fact that an individual suffers from a medical condition such that some treatment is likely, does not in itself equate to a finding of excessive demand". This is exactly what I'm concerned about "In the future (possibly within the next few years) he may need another valvotomy (most probably balloon catheterization) to repair the pulmonic valve".

This is standard case law, even under IRPA (which replaced the law in place at the time of this decision). From reading decisions, it is clear the Federal Court is concerned about this issue and how it is handled by CIC - that's why they tend to overturn CIC, especially for FSW applications like this.

Another question I have is "if you are going to rule that an entire group of people is inadmissible because ONE has a medical condition, why wouldn't you use the anticipated costs of the GROUP rather than of one INDIVIDUAL." That seems to be patently unfair (e.g., it discriminates against a person because of their disability). Wouldn't it make more sense to consider the costs of the entire group. For example, in a family of four, why wouldn't the math be computed for the entire group, not just for that one person. The most plausible reason seems to be that there is an inherent bias against anyone with a medical condition.

Will you recommend to order GCMS notes now or should I wait for fairness letter?

You can wait until the fairness letter. To be honest, I suspect you won't get one, since it isn't clear your child is going to be excessive demand.

 

[alexure]

Another question I have is "if you are going to rule that an entire group of people is inadmissible because ONE has a medical condition, why wouldn't you use the anticipated costs of the GROUP rather than of one INDIVIDUAL." That seems to be patently unfair (e.g., it discriminates against a person because of their disability). Wouldn't it make more sense to consider the costs of the entire group. For example, in a family of four, why wouldn't the math be computed for the entire group, not just for that one person. The most plausible reason seems to be that there is an inherent bias against anyone with a medical condition.

You think that I can use it somehow?

To be honest, I suspect you won't get one, since it isn't clear your child is going to be excessive demand.

Hope you are right. I just want to be ready for a worst case.

Thanks

 

[computergeek]

You think that I can use it somehow?

You can present whatever arguments that you wish to present to CIC. Personally, I think I'd present the UN Convention and question the fairness of a system that disallows an entire group of people simply because one of them might require additional care. If we did this in other fields, we'd be accused of "cherry picking" our data. A more fair model would be to say "in examining this ENTIRE application, we note that the family will only be excessive demand if the anticipated usage exceeds the the limit of the ENTIRE group".

I wouldn't expect a CIC officer to over rule CIC policy on this point, though I note that "excessive demand" is not defined in law, it is defined by CIC in their policy and thus a CIC officer does have latitude in this area that isn't available for statutory or regulatory requirements.

I wouldn't present any of this until you get a fairness letter. It's good to consider how you might proceed, but until that happens it isn't productive to make the arguments. IF you get a fairness letter, you'll have time to respond (they will give you 60 days, but the first thing to do normally is request an extension of time).

 

[salem10]

This is standard case law, even under IRPA (which replaced the law in place at the time of this decision). From reading decisions, it is clear the Federal Court is concerned about this issue and how it is handled by CIC - that's why they tend to overturn CIC, especially for FSW applications like this.

Another question I have is "if you are going to rule that an entire group of people is inadmissible because ONE has a medical condition, why wouldn't you use the anticipated costs of the GROUP rather than of one INDIVIDUAL." That seems to be patently unfair (e.g., it discriminates against a person because of their disability). Wouldn't it make more sense to consider the costs of the entire group. For example, in a family of four, why wouldn't the math be computed for the entire group, not just for that one person. The most plausible reason seems to be that there is an inherent bias against anyone with a medical condition.

You can wait until the fairness letter. To be honest, I suspect you won't get one, since it isn't clear your child is going to be excessive demand.

Plus 1 for you. This is great new idea. I followed your posts and you have excellent experience with this subject.

Similar, I have received my fair letter and officer estimates the cost of social work, special education, for my child might exceeds the limits. Officer showed calculation of $27000/year for special class.
I responded to their letter with the following:
1. The medical report and cognitive assessment from psychologist showed this child has limit of expected learning ability. I said that its not expected that my child will continue in public school for long time due to her ability is limited. I showed new average of education cost/year.
2. The number of children in her class is increased from 5 to 7 which also decrease the cost per child
3. The officer use the full cost of special education which is not fair. Only difference between the special education cost and normal child education cost should be involved in this case.

As result of all the three factors above, the cost dropped to $5800/year

I have sent this response about three months ago, and no answer up to day. What is your opinion about my defence points?
Hope the best,
Thank you

 

[alexure]

Plus 1 for you. This is great new idea. I followed your posts and you have excellent experience with this subject.

Similar, I have received my fair letter and officer estimates the cost of social work, special education, for my child might exceeds the limits. Officer showed calculation of $27000/year for special class.
I responded to their letter with the following:
1. The medical report and cognitive assessment from psychologist showed this child has limit of expected learning ability. I said that its not expected that my child will continue in public school for long time due to her ability is limited. I showed new average of education cost/year.
2. The number of children in her class is increased from 5 to 7 which also decrease the cost per child
3. The officer use the full cost of special education which is not fair. Only difference between the special education cost and normal child education cost should be involved in this case.

As result of all the three factors above, the cost dropped to $5800/year

I have sent this response about three months ago, and no answer up to day. What is your opinion about my defence points?
Hope the best,
Thank you

I wish you good luck man.

 

[alexure]

You can present whatever arguments that you wish to present to CIC. Personally, I think I'd present the UN Convention and question the fairness of a system that disallows an entire group of people simply because one of them might require additional care. If we did this in other fields, we'd be accused of "cherry picking" our data. A more fair model would be to say "in examining this ENTIRE application, we note that the family will only be excessive demand if the anticipated usage exceeds the the limit of the ENTIRE group".

I wouldn't expect a CIC officer to over rule CIC policy on this point, though I note that "excessive demand" is not defined in law, it is defined by CIC in their policy and thus a CIC officer does have latitude in this area that isn't available for statutory or regulatory requirements.

I wouldn't present any of this until you get a fairness letter. It's good to consider how you might proceed, but until that happens it isn't productive to make the arguments. IF you get a fairness letter, you'll have time to respond (they will give you 60 days, but the first thing to do normally is request an extension of time).

Thank you very much.

 

[computergeek]

Plus 1 for you. This is great new idea. I followed your posts and you have excellent experience with this subject.

Similar, I have received my fair letter and officer estimates the cost of social work, special education, for my child might exceeds the limits. Officer showed calculation of $27000/year for special class.
I responded to their letter with the following:
1. The medical report and cognitive assessment from psychologist showed this child has limit of expected learning ability. I said that its not expected that my child will continue in public school for long time due to her ability is limited. I showed new average of education cost/year.
2. The number of children in her class is increased from 5 to 7 which also decrease the cost per child
3. The officer use the full cost of special education which is not fair. Only difference between the special education cost and normal child education cost should be involved in this case.

As result of all the three factors above, the cost dropped to $5800/year

I have sent this response about three months ago, and no answer up to day. What is your opinion about my defence points?
Hope the best,
Thank you

It took five months for the medical officer to review my submission and you'd have the same medical office (Ottawa). So you should hear something soon.

They might ask for more information. Or they will move it forward: asking for passports or refusing you.

You should consider your options here. If refused will you challenge them? If so, I'd supplement your filings with any new arguments you might have (if they received it then it's part of the record for a JR application). Otherwise just wait.

 

[alexure]

Hi, today I visited the embassy due to the fact that it is already passed more than month since my son's docomunets were submitted. They checked the status in their system and said that the documents are still being reviewed and if within one month I will not get an answer they will send status request to the medical officer. Medical results of all other family members are received and are OK.
Alex.

 

[tee1]

Could you please recommend me additional attorney?

Thank you again,
Alex.

Mario Bellissimo comes highly recommended from what I've heard. Based in Toronto but it does not matter you can still use him. Specializes in complex medical cases if you feel you would like the help.

 

[alexure]

Mario Bellissimo comes highly recommended from what I've heard. Based in Toronto but it does not matter you can still use him. Specializes in complex medical cases if you feel you would like the help.

Thanks.

Hope that his services will be not needed.

 

[alexure]

Hi, today after a waiting period of more than 2 months I received a fairness letter. I hope that the response that I'll prepare with attorney's assistant will help me.