January 12, 2015
South African doctor's immigration bid rejected because her autistic child would cost taxpayers too much
By Tom Blackwell
Of the one million or so permanent-resident applications filed every year, 0.2% - or about 20,000 - are rejected as medically inadmissible
A judge has upheld an immigration officer's decision to deny entry to a South African doctor because her autistic child would cost taxpayers too much money, highlighting a little-known law that puts a pricetag on the medical conditions of would-be new Canadians.
Thousands of potential immigrants are rejected every year because of the rule, and numerous appeals - involving people with everything from HIV to arthritis - have reached the courts.
At the heart of the cases is a 13-year-old section of the Immigration and Refugee Protection Act that deems people "medically inadmissible" if their condition would trigger excessive medical or social costs here.
"It continues to impact real people, often in surprising cases," the author of medicallyinadmissible.com, a blog critical of the policy, wrote recently. The anonymous U.S. citizen, who describes himself as HIV-positive, says the legislation should be rescinded.
"Maybe because it violates the various UN agreements to which Canada is signatory, or because it violates the Charter rights," he charges. "Whatever the reason, it will be nice to see the morally repugnant scheme struck down."
One leading Canadian immigration lawyer, however, says the law serves an important purpose.
"The act wisely provides a mechanism to ensure aspiring immigrants don't unduly burden the system, because that wouldn't be fair," said Sergio Karas, a Toronto-based lawyer. "The system is already over-taxed. All you need to do is walk into any emergency room and you see what the problem is. There are people in the corridors for hours on end."
Of the one million or so permanent-resident applications filed every year, 0.2% - or about 20,000 - are rejected as medically inadmissible, Bill Brown, a Citizenship and Immigration Canada spokesman, said.
While those cases include people judged a threat to public health or safety, most stem from the excessive-cost question, said Mario Bellissimo, a Toronto immigration lawyer.
In the latest case, Asmeeta Burra, a physician in South Africa, and her architect husband had applied to be permanent residents under the skilled-worker category, planning to settle in British Columbia.
The fact her son is autistic triggered a medical assessment, which concluded that the cost of special education for the boy would total about $16,000 a year. That well exceeds the annually adjusted average social and medical cost for Canadians, currently about $6,300.
The couple responded that they would cover the cost of any special assistance their son would need, and noted that in South Africa he goes to a mainstream school, and requires only sporadic help from a private agency.
Applicants are allowed to submit a plan to mitigate such costs. Immigration officials rejected Dr. Burra's submission, though, saying there was no proof of the couple's likely income and that, regardless, the services their son would need are provided by publicly funded institutions.
She asked the Federal Court to overturn that decision, but in a recent ruling, Justice Cecil Strickland upheld the Citizenship and Immigration handling of the case, saying that the plan the parents filed lacked specifics and failed to clearly counter the excessive cost issue.
Dr. Burra could not be reached for comment.
Mr. Bellissimo, her lawyer, said the case underlines a problem in this area and other parts of the immigration system. The government encourages people to make applications without legal help - as his clients did in the early stages of their case - but the requirements are often difficult for lay people to understand, he said.
Still, Mr. Bellisimo stopped short of criticizing the law itself, noting that some immigrants are successful in arguing that they can mitigate the costs of medical or social services. That is usually done by promising to pay for private treatment or education.
"I think for the most part, it strikes a fair balance," he said.