Law Times

Page 8 March 13, 2017 • Law TiMes www.lawtimesnews.com Stop rejecting immigrants for health reasons: lawyer BY MICHAEL MCKIERNAN For Law Times A Toronto immigration lawyer says Canada should stop rejecting immigrants for health reasons after a series of high- profile cases involving migrants turned down because of their children's disabilities. Last year, Felipe Montoya, a York University professor whose child has Down syndrome, was denied permanent residency due to his son's condition, while a group of Toronto live-in care- givers launched a publicity cam- paign following similar rejec- tions for several of its members. All the applications fell foul of s. 38(1)(c) of the Immigration and Refugee Protection Act, which makes foreign nationals inadmissible to Canada if their health condition "might reason- ably be expected to cause exces- sive demand on health or social services." Mary Keyork, who runs Key- ork Immigration Law in Toron- to, says she would like to see the provision scrapped altogether. "Personally, I would say this shouldn't exist. Having illnesses and medical conditions are part of life, and I don't think they should prevent a person from immigrating somewhere," Key- ork says. "As a place of values, I think we should be more inclusive as a society and welcome people with these conditions. And we should be inspiring other coun- tries to do the same." The Toronto-based Caregiv- ers' Action Centre echoed those sentiments in a statement last year, claiming s. 38(1)(c) needs to go because it "allows for dis- criminating against people with disabilities." The group had identified 25 live-in caregivers who entered the country under the Temporary Foreign Worker Program but saw their sub- sequent permanent residence applications rejected based on their own health problems or those of a dependant. But Andy Semotiuk, an im- migration lawyer with Pace Law Firm in Toronto, says a complete repeal of the section would be unrealistic. "If people around the world learned that Canada is prepared to accept ill or sick persons with- out question, then we're going to have a huge lineup in every country of people waiting to get in for health reasons or to get access to medical care," he says. "The rule needs to be there, but it needs to be exercised fairly and f lexibly enough so that worthy cases are getting through." Even Hadayt Nazami, an im- migration lawyer and friend of Montoya, says some kind of re- striction on admissibility is jus- tified when it comes to medical costs. "Because of the public nature of our medical system, it's go- ing to be hard to argue that it's fair to completely get rid of the rule," says Nazami, a senior law- yer at Toronto immigration and refugee law boutique Jackman Nazami and Associates. Montoya, an environmental science professor, applied for permanent residence for him- self, his wife and his two children after joining York University on a work permit. But in March 2016, a letter from Immigration, Refugees and Citizenship Canada in- formed him they had all been denied. According to the letter, an officer determined that then-13- year-old Nico Montoya was "a person whose health condition might reasonably be expected to cause excessive demand on so- cial services in Canada," defin- ing the threshold as "a demand for which the anticipated costs exceed the average Canadian per capita health and social services costs, which is currently set at $6,387 per year." In contrast, the IRCC letter predicted Nico's health and so- cial care costs would top $20,000 per year thanks to the cost of educating a child with special needs. However, Nazami says that figure was arrived at "with- out any logical basis." "Medically, there is nothing wrong with the child. The only thing that set him apart from the rest of the family was the vis- ible disability that showed up," Nazami says. The Montoyas ended up leaving Canada for Costa Rica, the family's country of origin, while fighting back against their rejection. Felipe Montoya retained his connection with York Uni- versity, working on a project it sponsors in the Costa Rican rainforest. The family eventually got some good news later in 2016, when their permanent residence application was granted after all on humanitarian and compas- sionate grounds, following an intervention at the ministerial level. But Nazami, who with Fe- lipe Montoya has met with se- nior IRCC officials to discuss his case, says the fight goes on against the operation of s. 38(1) (c), adding that he would ulti- mately like to see amendments made to the IRPA. According to a statement from IRCC spokeswoman Na- thalie Schofield, the federal gov- ernment is currently in the mid- dle of a "fundamental review" of the excessive demand provision with its provincial and territorial counterparts. However, she notes that the law survived a Constitutional challenge back in 2002 and points out that it was used to reject just 330 permanent resi- dent applications in the last four years, or 0.03 per cent of the 1.1 million applications received in the same period. "No specific health condition will result in an automatic rejec- tion of an applicant," Schofield says. A rejected applicant can file a mitigation plan that shows their willingness to contribute to the social services costs, but they can't be considered for health services as federal law requires them to be covered by provincial and territorial insurance plans, Schofield explains. LT FOCUS ON Immigration Law Andy Semotiuk says a repeal of part of the Immigration and Refugee Protection Act is unrealistic. FOCUS 2017 CANADIAN LAWYER LEGAL FEES SURVEY Survey closes April 3 Complete the survey at canadianlawyermag.com/surveys for a chance to win a $200 gift card. Check out the results in the June issue to see how your fees compare across multiple practice areas. Untitled-1 1 2017-03-08 12:03 PM

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