Should a family be denied permanent residence to Canada because they have a young boy who is deaf, even after the child has been fitted with a cochlear implant?
This is the question the Federal Court of Canada was recently asked to address after the Canadian consulate in Buffalo rejected the application of Ronilo Perez, an engineer from the Philippines.
Perez came to Edmonton in March 2007 as a temporary foreign worker and went to work for WorleyParsons, a huge multinational engineering firm with 35,000 employees in 43 countries.
In June 2008, Perez was joined in Alberta by his wife and four children. Shortly after their arrival, their young son, Carlos, was diagnosed with deafness in both ears. In May 2009, Carlos was fitted with cochlear implants.
Perez applied and was selected for permanent residence by Alberta under its Provincial Nominee Program. However, foreigners selected by a Canadian province must also pass medical and background clearances administered by our federal immigration department.
The intent of Canada’s medical inadmissibility provisions is to avoid a negative impact on Canada’s publicly funded health and social service systems. If an applicant, or any of his/her dependents, is expected to cause an excessive demand on our medical or social services, the entire family is prohibited from immigrating to Canada.
The Canadian consulate wrote to Perez disclosing its concerns about Carlos and gave him 60 days to address these concerns. Perez responded with a letter from Carlos’ doctor stating that Carlos will not be a burden to health, education or social services in Alberta and that the most expensive part of his treatment — the cost of surgery and the devices — has already been incurred. She confirmed that Carlos had made progress since the surgery and that he would be able to attend a regular classroom setting with minimal support from a teacher’s assistant.
She also stated that Carlos was in a position to be a functional and contributing member of society.
Further, the principals of a local elementary school confirmed that Carlos would be welcome in their junior kindergarten program and Alberta’s Minister of Education supported the family’s application for permanent residence.
As well, WorleyParsons confirmed that Perez earns $129,000 per year and is covered by the company’s comprehensive benefit plan which includes extensive support for his son’s medical condition.
In spite of this evidence the visa officer, J. Seyler, concluded that Carlos will, in fact, need specialized educational support for several years and found Carlos medically inadmissible. As requested by Perez, the officer also considered a request to otherwise admit the family on humanitarian and compassionate grounds since Perez claimed that cochlear implants are rare in the Philippines and that Carlos would face hardship there. The officer rejected this request and refused the visa application.
On appeal to the Federal Court, Justice Yves de Montigny found that the officer did not assess Carlos as an individual, but rather as a member of a class of persons, i.e. deaf people. The judge applied the reasoning of a previous decision of the Supreme Court of Canada which held that a health impairment must be assessed on an individualized basis. “It is impossible, for example to determine the ‘nature,’ ‘severity’ or probable ‘duration’ of a health impairment without doing so in relation to a given individual.”
The court found that the officer was wrong in failing to look at Carlos’ specific circumstances but right in rejecting the humanitarian request since no reliable evidence was submitted as to what programs and facilities are available for Carlos in the Philippines. Accordingly, the court overturned the officer’s decision which will now force the visa post to reconsider its conclusions.
While there may still be a happy ending for the Perez family, this case underscores why it is impossible to say “generally” whether or not a specific health impairment, i.e. diabetes, blindness, deafness, etc. renders a person medically inadmissible to Canada.
The answer must always be answered with a specific individual’s circumstances in mind.
Guidy Mamann, J.D. practises law in Toronto at Mamann, Sandaluk & Kingwell and is certified by the Law Society of Upper Canada as an immigration specialist. For more information, visit www.migrationlaw.com or email metro@migrationlaw.com.
