Learning moments – Medical inadmissibility in the context of H&C application for PR from within Canada.
May 6, 2020
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Hello, fellow practitioners!
Today’s question deals with medical inadmissibility in the context of a humanitarian and compassionate (H&C) application for permanent residence from within Canada.
Scenario:
A foreign national in Canada submits an H&C application and requests an exemption from a finding of medical inadmissibility on humanitarian and compassionate grounds because she has severe medical conditions requiring urgent care and which render her incapable of traveling abroad. She is unable to prepare an individualized plan to ensure that no excessive demand will be imposed on Canadian health and social services.
Question:
Is there any relevant case law that could be used in support of such an exemption?
Answer:
This question raises an interesting general issue about the processing of humanitarian and compassionate applications.
Under s.25(1) of IRPA, an applicant can request that almost any requirement of the Act or Regulations be waived if there are sufficient humanitarian and compassionate grounds. There are some exceptions to this, which you should carefully review: https://laws.justice.gc.ca/eng/acts/i-2.5/page-6.html#docCont
The most common type of request under H&C grounds is to allow a person already inside Canada to be approved for permanent residence without meeting the requirement of first applying and being processed from abroad. Most people don’t give it much thought, but an H&C application for permanent residence from within Canada is actually a request for a waiver of s.11(1) of IRPA, which states:
11 (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. (underlining added for emphasis)
A successful application for PR under H&C grounds therefore represents an approval to apply inland for permanent residence. After that approval is issued (called an approval-in-principle), the applicant must then clear admissibility requirements such as medical, criminal and financial admissibility.
Notwithstanding the above, H&C requests can be made in order to waive virtually any requirement, and it is not restricted only to applying for PR from within Canada. This includes requests for a waiver of medical inadmissibility.
Sometimes, you will find that the very reasons for requesting a waiver of s.11(1) of IRPA are reasons that lead to inadmissibility. A medical issue is an example of this. Severe medical issues which prevent a person from being able to depart from Canada, or which are not treatable in the country of origin, could be the very reason why a person requests to remain in Canada on H&C grounds to begin with.
Getting an approval-in-principle in such a case then leads to the next question of admissibility, where the medical problem again arises.
I assume based on the wording of the question, that there is no serious defence to the issue of medical inadmissibility. In other words, it seems the applicant has a condition which would indeed cause an excessive demand on medical services in Canada per s.38 of IRPA. If that is the case, then the appropriate thing to do is to request a second H&C waiver, this time of medical inadmissibility. It seems from the question posed that the consultant made it this far.
In order to request a second waiver, you may rely on the same grounds upon which you relied in the request to waive s.11(1) of IRPA, or you may add additional grounds which either were not very relevant to the s.11(1) waiver or were not raised at that stage for one reason or another, perhaps because they did not exist at that time.
The key take-away here is that it is absolutely possible to ask for more than one H&C waiver of more than one requirement of the Act or Regulations in the same application.
If your grounds based on medical arguments were strong enough to get an approval-in-principle on the underlying application, there is a pretty strong (but not guaranteed) chance that those same arguments could persuade an officer to waive medical inadmissibility as well.
Circling back to the original question, the consultant mentioned that the client is unable to present a mitigation plan for the excessive demand costs. Keep in mind that the mitigation plan is not in fact a legal requirement – the only legal requirement is set out in s.38 of IRPA – that the client should not pose an excessive demand to medical services. A mitigation plan is just a self-prepared document that you would voluntarily submit IF you are trying to argue that the client will not pose an excessive demand. I don’t think you are trying to argue that, based on the question. You therefore do not need to ask for a waiver of the mitigation plan – you need to ask for a waiver of medical inadmissibility because you are unable to show that the client is medically admissible.
Concerning case law, beyond the basic legal test for H&C set out in Kanthasamy (https://laws.justice.gc.ca/eng/acts/i-2.5/page-6.html#docCont), I do not think that it is really necessary to use case law in this scenario, because you are arguing for a medical waiver based on sympathetic grounds and this decision is going to turn on the facts of the case. That said, if you can find cases that are factually similar to yours, you can use them to show that H&C exemption should be warranted given the factual similarities between those cases where an H&C exemption was granted and your own. That might be useful, but I think not strictly necessary. Since I don’t know any details about your client’s specific illness or personal situation, I can’t help you to identify cases that might be similar. You could try going on the Federal Court website and putting key words in to the search function in order to see what comes up. If you find a similar fact scenario that was successful, certainly you can mention it.
At the end of the day, your argument and its chances of success will be based on the compassionate facts of your case and how well you corroborate those – there are either sufficient compassionate grounds in the officer’s view to overcome the excessive demand, or there are not. H&C cases are typically decided on the strength of facts, not case law. It is appropriate of course to focus the officer’s attention on the legal test from Kanthasamy, but beyond that, the issue is very fact-specific. I would not spend much time worrying about case law in this instance, but rather focus your energy on clearly explaining the sympathetic circumstances of the case and corroborating with evidence the arguments that you make.