November 7, 2013

Case of the Month: The Minister of Citizenship and Immigration v. Lawrence

Medical Inadmissibility and Distinguishing Roles of Immigration and Medical Officers

The case of Lawrence v. Canada (Citizenship and Immigration) 2012 FC 1523 was heard on 20 December 2012, written reasons provided on 8 January 2013 by the Honorable Justice Mosley. It most recently went to the Court of Appeal on 4 November 2013, discussed below.

The Lawrence case involved a federal skilled worker application where the applicant’s son suffered from moderate developmental delay. The immigration officer sent the applicant a medical fairness letter, and the applicant responded. In the response, the applicant did not contest his son’s medical diagnosis but provided evidence to rebut the opinion that their son would create excessive demand on social services, including two letters from private schools. The Immigration Officer did not forward the applicant’s response to the Medical Office for determination as she found that the response and submissions were not medical in nature, and because the applicant did not contest the medical diagnosis. The application was refused, and the applicant sought judicial review. Judicial review was granted by the Honorable Justice Mosley, who found that the officer erred in law by failing to forward the applicant’s response to the Medical Officer. As per the Hilewitz[1] case, the Medical Officer considers both medical and non-medical factors when assessing excessive demand.  A question was also certified, as follows:

When a Principal Applicant in a response to a fairness letter does not dispute the medical diagnosis or medical prognosis or the cost estimates to provide social services is there an obligation on the immigration officer to refer the response to the Medical Officer for considerations and decision?

 The Minister appealed to the Court of Appeal, heard recently in Toronto. Here, the applicant (respondent) argued that the applications judge made no reviewable error and correctly applied the law regarding the roles of Immigration and Medical officers, whereas the Minister argued that Immigration Officers, where no medical evidence is provided and the medical diagnosis is not contested, can make their own assessment regarding medical inadmissibility without reverting to the Medical Officer and to do otherwise creates an excessive burden on time and resources of the latter.  Ultimately, the Court of Appeal rendered its decision on 4 November 2013, dismissing the Minister’s appeal[2].  The Court also answered the certified question above as follows:

When a principal applicant in response to a fairness letter submits a proposal to mitigate the costs of publicly funded social services, and the proposal raises matters that may fall within the mandate of the medical officer (as explained in Hilewitz v. Canada (Minister of Citizenship and Immigration)’ De Jong v. (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 SCR 706), that proposal must be submitted to the medical officer for consideration even if the applicant does not dispute any of the medical officer’s initial conclusions.

Therefore, the law is clear that when presented with a medical fairness letter and an applicant does not dispute the medical diagnosis but rather submits a mitigation plan to offset excessive demand on publically funded services, these submissions must go to the medical officer for review, and not to the visa officer.