Hello, fellow practitioners! Today’s column deals with PR medical examination in Canada where no panel physicians are available.
Question:
One of my clients has applied for PR under the Spouse or Common-Law Partner in Canada Class (SCLPC). The application was re-submitted and received by IRCC on July 16, 2020. Recently, the client was requested to complete an immigration medical examination (IME) within 30 days of the date of the IRCC letter.
Due to the fact that the client resides with their sponsor in Iqaluit, Nunavut, they are not in a position to undergo a medical examination by a panel physician because there are no panel physicians for that area. Further, as a result of the current pandemic, any resident of Nunavut who wishes to travel to the mainland (especially if it is a private trip) faces a lot of logistical challenges, including a travel ban and mandatory 14-day isolation period in Ottawa prior to returning to their home community, to name a few.
In light of the above situation, my question is whether it would be reasonable to request “dispensation” in the client’s circumstances in spite of the fact that it appears that dispensation requests may only be granted in exceptional circumstances due to IRCC’s obligations under the Official Languages Act.
Answer:
By way of background, the requirement to undergo an immigration medical exam (“IME”) is found in section 16 of the Immigration and Refugee Protection Act (“Act”). This section states:
16 (1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.
(2) In the case of a foreign national, (b) subject to the regulations, the foreign national must submit to a medical examination.
Normally, when an applicant fails to undergo an IME, their application is at risk of being refused for either non-compliance with section 16 of the Act, or because an Officer is not satisfied that the applicant is not inadmissible under section 38 of the Act. Due to the ongoing pandemic, IRCC is being generous with deadlines for IMEs and is not refusing applications for non-compliance for the time being.
For those who are required to undergo an IME, the only legal mechanism available to obtain an exemption is section 25 of the Act. Section 25 allows the Minister to grant an exemption from any applicable criteria of the Act if it is justified by humanitarian and compassionate considerations.
The requirement that IMEs be done by designated panel physicians is a matter of IRCC policy. As the question correctly points out, IRCC also has a policy that allows for alternate medical practitioners (i.e. non-panel physicians) to become temporarily authorized to perform medical examinations in exceptional circumstances. This is known as “dispensation”. The Program Delivery Instructions (PDIs) that relate to dispensation state as follows:
In exceptional circumstances, an applicant may not be in a position to access a panel physician. In Canada, due to IRCC’s obligations under the Official Languages Act, Health Branch may temporarily authorize a non-panel physician to perform an immigration medical examination (known as “dispensation”). Very rarely is dispensation granted outside Canada.
Procedures for requesting dispensation
Dispensation granting authority rests with the Health Branch. In all circumstances, the Health Branch determines if the request for dispensation is reasonable in consultation with the appropriate regional medical office and/or migration office (if the applicant is outside Canada).
Applicants in Canada: In accordance with the Official Languages Act, dispensation is considered when no panel physician is able to offer services in the applicant’s preferred official language within either 250 km or 4 hours (one way) of the applicant’s residence. Requests for dispensation must be submitted directly by the applicant or their representative through the IRCC Call Centre. The Call Centre directs all dispensation requests and should ensure the applicant or the applicant’s representative has provided both of the following:
· the doctor’s contact information
· confirmation that the doctor is willing to conduct the medical examination
The full PDIs can be found
here.
While the PDIs seem to suggest that the intent behind dispensation is to comply with obligations imposed on IRCC by the Official Languages Act, I do not read the PDIs as precluding requests for dispensation in other circumstances.
I would advise the client to do as follows:
- Find a doctor in Nunavut who would be willing to perform the IME. Phone IRCC’s Call Centre and request dispensation on the grounds that there are no panel physicians available in Nunavut and that the pandemic has made travel outside of the province prohibitive. Per the PDIs, provide the doctor’s contact information and confirmation that they would be willing to perform the IME. Record the time and date of the call and take notes on what was said.
- If dispensation is not allowed, then proceed by prepariing an affidavit which lists every effort made to find a panel physician in Nunavut. Include screenshots from the online “Find a Panel Physician” tool as an exhibit to the affidavit. Include the travel restrictions/quarantine requirements from the territorial government’s website as another exhibit. Include all relevant details from the phone call with the Call Centre.
- Submit the affidavit to the responsible processing office together with a cover letter requesting an extension of time to undergo the IME. Submit subsequent extension requests if required, until the applicant is able to travel to a panel physician.
I would not advise that the client request a waiver from having to undergo the examination altogether, unless for whatever reason prolonging the application or travelling out of province would cause the applicant a great deal of hardship. Preparing humanitarian and compassionate arguments would be costly, and I do not think the chances of success are high. An Officer would be much more inclined to grant an extension.
The above advice is also applicable to any case in which a waiver, exemption, or deviation from standard practice is being requested. The applicant should demonstrate, by way of an affidavit and corroborating evidence, that they have pursued every reasonable option to comply with the demand being made of them.