Hilewitz: Paying your own way

On Sept 7, Citizenship and Immigration Canada provided an Operational Bulletin in response to the SCC’s Oct 21, 2005 decision in Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57. Dealt with in one judgment, the two appellants share a common story.

They, along with their families, had applied for permanent residence in Canada as business class applicants. Though the applicants had substantial wealth that would have otherwise qualified them for admission, they were not admitted because they both had a dependent child with a mental disability who, it was thought, “would cause or might reasonably be expected to cause excessive demands on social services.” (s. 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c.I-2). This decision was made despite the insistence of the applicants that they would not need government services and that they had the wealth to ensure proper care of the child with the disability.

In a 7-2 majority, the SCC rejected the blanket approach of denying applicants based solely on medical conditions. Rather, the court promoted individual assessments that take into account other factors. Abella J. wrote,

[H]ere the legislation is being interpreted in a way that impedes entry for all persons who are intellectually disabled, regardless of family support or assistance, and regardless of whether they pose any reasonable likelihood of excessively burdening Canada’s social services. Such an interpretation, disregarding a family’s actual circumstances, replaces the provision’s purpose with a cookie-cutter methodology. … The Act calls for individual assessments.

Interestingly, the ironic way in which importance of wealth was weighed as a factor was also pointed out,

It seems somewhat incongruous to interpret the Immigration Act in such a way that the very assets that qualify these individuals for admission to Canada can simultaneously be ignored in determining the admissibility of their disabled children.

The dissent, for its part, deployed the tried-and-true argument of deferring to legislative intent. They stated that Parliament did not intend non-medical factors to be looked at in medical inadmissibility, and that the SCC lacks the institutional power to expand the factors beyond what is set out in the Act.

The dissent also pointed out an important practical note. After canvassing various ways in which terms and conditions can be imposed on an immigrant, they concluded, “Without the ability to enforce the promise to pay for social services, there is no way to ensure that the family will in fact mitigate any excessive demands placed on public funding.”

With the newly provided bulletin, immigration officers and medical officers are given clearer guidance and procedures to implement this SCC decision at the front lines of immigration hearings. Though the fear that families might not “actually mitigate excessive demands placed on public funding” is always there, the requirement of a Declaration of Ability and Intent outlining the intended alternate delivery method of these services will likely reduce that risk. Further, with the ultimate discretion resting with the immigration officer in deciding the viability of these alternate plans, the risk outlined by the dissent should no longer be a looming concern.

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