John Kaye

Hi,

My application for sponsoring my father for immigration to Canada has been rejected
for medical reasons. I appreciate very much if the experts in this news group could
comment on my chance to appeal the case successfully.

My father was treated for cancer three years ago. Cancer was detected at very early
stage and surgery was performed . he was cured.

The physician, appointed by the embassy for his medical exam, has confirmed that he
is cured and his chance of having cancer again is not higher than any body else.
However, the Embassy that handled my father's application, claims that my father may
need costly treatment in Canada because of his history of having cancer and as such
he is not admissible. They totally ignored the fact that he is currently a healthy
person from medical point of view .

your comments are much appreciated

best regards

J.K

Simon_Singh

For medical inadmissibility cases, the pivotal case is Tong (Federal Court of Appeal)...see link at http://www.canlii.org/ca/cas/fct/1998/1998fct10363.html

In the old days (pre-IRPA) medical inadmissibility was covered by section 19. There still exists a medical inadmissibility section (although spouses and dependent children are no longer caught by this section)...In your father's case, an appeal will likely be successful if it can be shown (with medical evidence) that the recurrence of his cancer is not appreciable higher than the general incidence among Canadians. However, an appeal will also succeed on grounds of equity -- IE the visa officer's decision may in fact be correct, but it would be the just (Humanitarian and Compassionate) for the appeal to succeed...So basically - appeal attack on error of fact (visa officer/med officer did not consider a relevant issue) and attack on equity...No one can give you "chances" but it seems reasonable...

PMM

Hi Simon


That Federal Court Ruling no longer holds as to the degree of family support or wealth in medical inadmissibility appeals. There were a group of 3 adjudged in the last 3/4 months by the Court of Appeal, where the judges stated that family support cannot be used to overcome cost comparison.

Also the family was probably given a "fairness" letter to rebut the proposed refusal.

PMM

Simon_Singh

I believe that you are right - and to be frank the 'wealth' argument was not very persuasive to me either - generally I referred to Tong and there is a number of Fed Ct med inad cases to illustrate that appeals on this ground are numerous and have succeeded -- moreover, an appeal to the IAD is stronger anyway b/c of the ability for them to consider equity...