scudetto said:
computergeek,
could you please share (via PM) trusted attorney specializing in medical inadmissibility cases?
And also could you please tell your opinion about my situation:
We applied under federal skilled worker program and already have received medical forms for a child (our forms we had received earlier).
Unfortunately our newborn child has serious health problems and I have concerns that we will not receive a positive feedback after medical exam and therefore our application will be refused due to medical inadmissibility.
Here is what our child has:
CHARGE Syndrome is under question. (there is now specific test that can be done which will definitively diagnose or rule out CHARGE. In fact it is a combination of different problems). Genetic tests are ok, be we still have not received a definite opinion from our doctors. Clear diagnosis is very difficult nowadays. But in all our medical document CHARGE Syndrome _under question_ is present. Even if it is CHARGE, our case is not the worst, but still serious.
In our case we have Choanal Atresia (already done the surgery to fix it, periodical routine checks required and may require additional surgery.. or may not - nobody knows now) and problems with ears (one of them has unusual form and also there is a high possibility of some hearing loss - we have some tests already done, but doctors say it is impossible to predict smth until baby is 6 month old).
In fact I am not really sure whether we should consult an attorney... maybe there are no chances at all and we shouldn't even waste money on it. And if there are some chances when is the best option to contact professionals, before medical exam or only after receiving of fairness letter. Will be very grateful if you share you thoughts about it and give some advices..
There is always a chance. Indeed, I think there are some serious legal arguments that could be persuasive. My personal favourite is what I call the "reverse cherry picking" argument. It goes something like this:
(1) CIC evaluates
all applicants as a group in terms of determining inadmissibility. Thus, if one person is found inadmissible in the family
all members are inadmissible. But to reach this determination they take the
worst case individual from the group and compare them to the
average case across Canada. "Cherry picking" is the process of picking only the BEST case to use for consideration; thus, reverse cherry picking is to find the WORST case. But comparing the WORST case against an AVERAGE doesn't seem to be a fair practice.
Thus, the argument would be: if CIC is going to rule the entire family is inadmissible they need to use the average cost of the family, not the worst case cost of one individual. Then at least they'd be comparing averages to each other.
(2) There are other legal arguments available as well (e.g., Canada's legal obligations under International law: they are signatories to the UN Convention on People with Disabilities, and the UN Convention on the Rights of the Child, both of which clearly don't allow this type of discrimination). One I'd like to see argued is that because health care is the legal right of the Province, CIC's processing of this area is as an agent of the Province (the Provinces have written contracts with CIC granting CIC the right to act in immigration). In that case, CIC is subject to Provincial human rights legislation (ergo, you cannot disclaim your legal responsibility by empowering an agent to act on your behalf. The agent is bound to the same legal requirements that CIC is bound).
It's also possible that the costs in your case won't exceed the excessive demand threshold. If you're willing to fight, I encourage you to do so. But be prepared for it to potentially take several years and cost much more than you might like (it's not unreasonable to expect it to cost CAD$10k if you must go to Federal Court: the cost for an attorney to formulate a reply to the fairness letter, medical opinions, then court fees, service fees, etc.)
CIC does not do very well with excessive demand medical inadmissibility cases like yours. They don't lose them all, but their track record is far worse in this area than in most other areas of immigration law.
