Resolving an appeal without a hearing and scheduling an appeal where a hearing is required
Parties can often resolve an appeal based on inadmissibility on health grounds without a hearing. The medical condition of applicants found inadmissible on health grounds may change over time, and the original medical assessments leading to that finding may be looked at again.
The first time that appellants and their counsel appear in person at Assignment Court, they must be prepared to state the grounds of appeal. Where they do, the Minister's counsel can assess whether Citizenship and Immigration Canada (CIC) might be willing to consider resolving the appeal without a hearing, and the Division can decide whether it is possible to resolve the appeal without a hearing. Where appellants and their counsel do not state the grounds of appeal and a second appearance in Assignment Court is required, the Division will determine whether or not the appellant is responding quickly enough, and the Division may limit the time for the process and schedule the appeal for hearing.
Where the legal validity of a refusal is being challenged, CIC may consider reassessing inadmissibility and require the applicant to undergo further medical examinations abroad. This will mean lengthy delays in the process before the Division. Delays may also occur where the appellant presents new medical evidence to challenge the legal validity of a refusal. Different considerations apply where the legal validity of a refusal is not challenged and the appeal is based solely on humanitarian and compassionate considerations. In this situation, there will not be any new medical instructions, and the appeal should be scheduled for hearing after the appellant has confirmed that the appeal is based on those considerations alone.
Where the legal validity of a medical refusal is being challenged, the Division will not consider setting a hearing date until it is satisfied that the CIC will be able to assess any new medical evidence prior to that date. However, the Division may set a hearing date regardless of whether or not the appellant has made the necessary confirmation or CIC has finished assessing the new medical evidence as it is the Division that decides when cases will be scheduled.
If the appellant's new medical evidence specifically addresses the issues raised in the medical notification, which is included in the appeal record, then the likelihood of resolving the issue of legal validity is greater, and even if the issue cannot be resolved, the hearing of the appeal will be more focused.
When seeking new medical information, appellants and their counsel should give to any examining physician or specialist a copy of the applicant's medical notification, as well as a copy of the summary assessment, which sets out all the codes that may make up the medical profile. When the appellant is challenging the legal validity of a refusal, any medical report should expressly and clearly address the grounds of inadmissibility being disputed (e.g., the doctor's opinion on the applicant's health condition and/or the annual cost of any future excessive demand on health or social services).
Where the new medical evidence is so vague or irrelevant to the issues that the Division is not satisfied that it is likely that the appeal can be resolved without a hearing, the Division may schedule the appeal for hearing so as to avoid any further delay.
After the appellant informs the Division that the appellant wants to present new evidence to challenge the legal basis of the refusal, the Division will find out how long it will take to obtain the evidence and establish a timeframe for submitting it to CIC. The Division will generally limit appellants and their counsel to a single submission of new medical evidence in the process of trying to resolve an appeal without a hearing.
When new medical information is submitted to CIC, the Minister's counsel has a duty to advise both the appellant and the Division promptly whether the new medical information might cause CIC to change its view of the case. If CIC does not change its position and a resolution is not possible, then the Division will schedule the appeal for hearing. If CIC indicates that it is willing to issue new medical instructions and may reconsider its position, then the Minister's counsel must advise both the appellant and the Division accordingly as soon as possible.
The longest delays in appeals based on inadmissibility on health grounds occur where CIC has issued new medical instructions and the applicant then undergoes another medical examination. To reduce delays, it is necessary that both parties to the appeal take responsibility for moving the case forward. The appellant has a duty to ensure that the applicant follows instructions from the visa post about any further medical examinations. Appellants and their counsel must actively ensure that the visa post has the applicant's current address on file and is aware of the best way to contact the applicant. They must also ensure that the applicant is aware of the need to follow timeframes set by the visa post for arranging and undergoing medical examinations, as well as the need to provide the visa post with passport-size photographs of the applicant if the visa post no longer has photographs on file.
The Minister's counsel must advise the Division and the appellant whether or not the applicant has followed the instructions given by the visa post. At every scheduled Assignment Court, the Minister's counsel must also inform the Division and the appellant about the status of the case, i.e., any recent progress made by the visa post in processing the results of the medical examinations.
The procedure outlined above sets out obligations of both the appellant and CIC. The Division will monitor the progress of each appeal by requiring parties to appear in person at Assignment Court or to provide information in writing about any progress that may have been made.
If at any time either party wants to stop the process of attempting to resolve the appeal without a hearing, the party may notify the Division and the other party, and the Division will schedule the appeal for hearing following the scheduling procedure described in this commentary.