INFORMATION GUIDE
SPONSORSHIP APPEALS
MEDICAL
The questions and answers below are to help you prepare for your appeal hearing. The following information is limited and general only. It is not complete legal advice. Please note that the new Immigration and Refugee Protection Act has been passed and is expected to be in force later in 2002, so the information in this guide may not apply to later cases.
1. INTRODUCTION
Your relative was refused an immigrant visa because your relative was found have a health problem and because of that problem at least two medical officers believed that your relative:
- would likely be a danger to public health or to public safety, or
- might reasonably be expected to cause excessive demands on health or social services.
To win your appeal you must show one of the following:
- the refusal was not legal (for example, the medical opinion was not reasonable); or
- there are compassionate or humanitarian reasons (also called H&C) for allowing the appeal for your relative to come to Canada (this will be discussed later).
What if I have new medical information?
You may disagree with the medical officers' opinion about your relative because you have information
that your relative's medical problem is not as serious as the medical officers said it was, or because it will not cause excessive demand on health or social services in Canada. If you give this new medical information to Citizenship and Immigration Canada ( CIC), it is possible that you do not have to go ahead with your appeal hearing if CIC will agree to your relative doing a new medical examination overseas. Then CIC will look at the new information and reconsider your case.
If you want CIC to agree to a new medical, you usually need to provide CIC with a new medical report that deals with the exact reasons for refusal. These reasons are stated in the Medical Notification form from the medical officer. A new medical report could come from either a Canadian doctor or a doctor in your relative's country. Before a doctor or specialist writes a new medical report, you should give that doctor a copy of the Medical Notification form, as well as a copy of the Summary Assessment both of which you should find in the record prepared by CIC for the appeal and other medical information you or your relative have.
If CIC agrees to do a new medical examination of your relative, then the scheduling of the hearing of your appeal will be delayed while the new medical examination is being completed (see below "How will I know when my appeal hearing will take place?").
If CIC does not agree to a new medical examination, or if CIC sees the new medical report but does not change its decision to refuse, then your appeal hearing will go ahead.
Where will my appeal hearing take place?
Your appeal hearing will take place at the Immigration and Refugee Board. The Immigration and Refugee Board is an independent tribunal. It is not part of CIC.
Who will decide my appeal?
A Member of the Immigration Appeal Division ( IAD) of the Immigration and Refugee Board will decide your appeal.
Who will be at my appeal hearing?
In addition to you and the IAD Member who will decide your appeal, your counsel, if you chose to be represented, will be at the hearing. There will also be counsel for the Minister of Immigration ( CIC), who may provide evidence, question you and other witnesses, and make arguments against your appeal. Any witnesses that you or the Minister's counsel bring to testify (give oral evidence) will also be at the hearing. An interpreter will be there for you or any of your witnesses if you have asked for one. Members of the public are also allowed to attend.
Do I need someone to represent me in my appeal?
You do not have to have someone represent you, but you may if you think that this will help your appeal. There are often questions of law that need to be argued in the appeal and you have to make sure that your case is supported by enough evidence. You should also know that Minister's counsel will be at your hearing to question you and other witnesses, and make arguments against your appeal. If you have someone represent you, this can be a lawyer (a person with legal training and a licence to practise law) or a consultant, friend, or relative. That person must be available and prepared on the date of the appeal hearing.
How will I know when my appeal hearing will take place?
You will receive a letter from the IAD to appear at an assignment court on a specific date and time. You should be there on the date and at the time stated in the letter. At the assignment court, an IAD Member will ask you and the Minister's counsel questions to make sure that your case is ready to be scheduled. If the Member is satisfied that your appeal is ready to be scheduled, you will be told the day your appeal hearing will take place and you will be given a written notice of that date.
If CIC has agreed to new medical examinations for your relative, then an IAD Member at assignment court will discuss with you and the Minister's counsel a plan or timetable for when the process will be finished and when the scheduling of the hearing (if one is needed) may happen. If CIC does not agree to a new medical examination, you may still want to use any new medical reports at the appeal hearing. If you do not yet have those reports at the time of the assignment court, the Member may decide to not schedule the hearing date until you have given the new medical reports to the IAD and to CIC, unless the Member believes that is too long to wait.
What will happen if my counsel and I cannot appear on the appeal hearing date?
When an appeal hearing date is set, you should be ready for the hearing on that date. If you believe that you will not be ready, you may ask for a postponement (that the hearing be delayed to a later date) by sending a letter explaining your situation to the registry office of the Immigration Appeal Division, and a copy to the Minister's counsel, Citizenship and Immigration Canada, Hearings and Appeals. The addresses of the IAD regional office and the CIC regional office are in the material that the IAD sends to you after you have filed your appeal. In your letter you must explain why you want your appeal hearing to be postponed. Your hearing will only be postponed for a very good reason. If the IAD does not reply, or if the IAD refuses your request, you must appear on the hearing date prepared for your appeal hearing. If you do not appear, your appeal may be dismissed.
You may ask for a postponement at your hearing, but it will not be allowed unless you can show there is a very good reason for your hearing not going ahead that day.
2. PREPARING FOR YOUR APPEAL
What must I show to win my appeal?
It is your responsibility to show that the refusal is not legal or that there are compassionate or humanitarian reasons for allowing the appeal for your relative to come to Canada.
Legal
Your relative was diagnosed as having a specific medical problem. It is important to know that the law requires the IAD Member to accept the medical problem found by the medical officers. To win your appeal in law, you can only argue that the opinion of the medical officers about the impact on Canadian society of your relative's medical problem was not reasonable or that the medical officers' reasons were not clear or proper.
For example, you must show that:
- The medical officers did not give clear or proper reasons; or
- They did not consider all the evidence; or
- They did not consider your relative's particular circumstances; or
- There is evidence to show that your relative would not likely be a danger to public health or to public safety (if this was the reason for the refusal), or
- There is evidence to show that your relative would not reasonably be expected to use health or social services in Canada in a way that is more than what is normal or necessary (if this was the reason for the refusal).
To decide this issue the IAD Member may consider evidence about:
- Your relative's medical problem at the time of the assessment and since that time;
- The information that the medical officers based their decision on;
- Whether your relative would not likely be a danger to public health or to public safety (if this was the reason for the refusal);
- Whether your relative would not reasonably be expected to use health or social services in Canada in a way that is more than what is normal or necessary (if this was the reason for the refusal);
- The arrangements that have been made in Canada for the care and support of your relative; or
- Any other information that may help the IAD Member decide this issue.
Compassionate or Humanitarian
Even if the refusal of your relative is legal, you may still win your appeal by showing that there are compassionate or humanitarian reasons for allowing your relative to come to Canada. The IAD Member may consider evidence about:
- Whether your relative's medical problem has changed since the refusal;
- What is the nature of the medical problem;
- Whether the problem is one that is likely to be a danger to public health or to public safety;
- What sort of treatment or support is needed to deal with your relative's medical problem;
- Whether the problem is one that is likely to require your relative to use Canadian health or social services in a way that is more than normal or necessary;
- The kind of relationship you have with your relative;
- Whether you have other relatives in Canada and, if so, the kind of relationship you have with them;
- Whether you can visit your relative in his or her country;
- The kind of support your relative can provide to you;
- The circumstances of your relative in his or her country;
- Whether there are reasons why you may not deserve special consideration; or
- Any other information that may help the IAD Member decide your appeal
You should come prepared to deal with all of the reasons the visa officer or immigration officer gave for refusing the sponsorship or application.
Do I need to provide any documents?
Documentary evidence can be very important in helping you to win your appeal. To show that the refusal is not legal, some appellants provide documents to show their relative's medical condition at the time of the medical assessment and what it is now. You may want to provide documents that explain what health or social services your relative was using at the time of the medical assessment, and what health or social services your relative is using now.
For compassionate and humanitarian consideration, you can provide documents to show your relative's medical situation now, and what medical treatment or other services your relative would need in Canada. To show the relationship you have with your relative and the importance of the sponsorship, you may want to provide documents such as letters, phone bills, receipts for money transfers and/or plane tickets. Some people also provide letters from family, friends, and/or employers.
If you would like to provide documents, you must make two copies of each document (including any photographs or videocassettes). You must send one copy to the registry office of the
Immigration Appeal Division, and send one copy to the Minister's counsel, Citizenship and Immigration Canada, Hearings and Appeals. The addresses of the IAD regional office and the CIC regional office are in the material that the IAD sends to you after you have filed your appeal.
An IAD Rule states that documents must be received at least 20 days before the hearing. If you do not do this (called "disclosure"), the IAD Member may decide not to permit your documents to be used in your appeal hearing.For medical appeals, the IAD recognizes that more time is needed for someone to look at and respond to a new medical report, and the IAD will usually give CIC more time (such as 60 days) before a hearing goes ahead. The IAD usually will not schedule a hearing until the IAD and the parties have received the new report.
Even if you have provided copies of your documents before the hearing, you should bring the original documents to the hearing if you have them.
If your documents are not in English or French, they must be translated, and the translations must be sent along with the copies of the documents to the IAD and to the Minister's counsel. The person who translated the documents should be a certified translator and attach a statement certifying that the translation is accurate.
Do I have to bring witnesses?
You do not have to bring witnesses, but you may if you think this will help show that the refusal is not legal or that there are compassionate or humanitarian reasons for allowing the appeal for your relative to come to Canada. If you would like to bring witnesses, they must be prepared to answer questions at your hearing. You must let the IAD and the Minister's counsel know at least 20 days before the hearing who you will be bringing as a witness and why that witness will be testifying at your appeal hearing (by completing the form that will be given to you for this purpose).
What do I do if I need an interpreter?
If you or any of your witnesses need an interpreter, you must let the IAD know at the assignment court or at least 15 days before your appeal hearing.
May my relative testify?
Even though your relative may be in another country, your relative may testify at your appeal hearing by telephone if you wish. If you want to do this, you must tell the IAD before the appeal hearing, and you must make sure that your relative can be reached by telephone on the date of your hearing. Since you must pay for the call, you have to bring with you long distance phone
cards with aminimum of two hours' international calling time available. If your relative will need an interpreter, you must tell the IAD and the Minister's counsel at least 15 days before the hearing.
3. YOUR APPEAL HEARING
What will happen at my appeal hearing?
- You will testify.
If you have counsel, your counsel will begin by asking you questions so that you can give evidence to show that the refusal is not legal or that there are compassionate or humanitarian reasons for allowing the appeal for your relative to come to Canada. If you do not have counsel, you may tell the IAD Member what you think is important or you may ask the Member to ask you questions that the Member thinks are needed to decide your appeal. The Minister's counsel will also question you on the evidence you have given at the hearing because the Minister's counsel is there to argue against the appeal.
- Witnesses will testify
After your testimony, your witness or witnesses will testify. This may include your relative testifying by telephone from another country. Any witness you bring to the hearing will usually be asked to stay in the waiting room and not join the hearing until after you have testified. The witness then will be called to answer questions. Your counsel may question the witness or, if you do not have counsel, you may question the witness or ask the IAD Member to do it. The Minister's counsel will also be able to question the witness. The Minister's counsel can also bring witnesses to testify. You have the right to question any witnesses brought by the Minister's counsel.
- Arguments will be made.
After you and the witnesses have testified, the IAD Member will ask you to explain why you think the evidence shows that the refusal is not legal or that there are compassionate or humanitarian reasons for allowing the appeal for your relative to come to Canada. The Minister's counsel will also be asked whether he or she thinks you have proven your case. You will then be asked to respond to the submission of the Minister's counsel.
When will I know the decision in my appeal?
The IAD Member may be able to decide your appeal and give reasons for the decision at the end of the hearing. If not, the Member will tell you that the decision and reasons will be sent to you by mail at a later date, usually within 90 days of the hearing.
MORE INFORMATION
- IMMIGRATION AND REFUGEE BOARD OF CANADA: AN OVERVIEW
This document provides basic information on the types of appeals heard at the IAD and the appeal process.
- SPONSORSHIP APPEALS
This paper describes how different types of sponsorship appeals are decided.
- REMOVAL ORDER APPEALS
This paper describes how different types of removal order appeals are decided.
- PRACTICE NOTICE: Scheduling of Appeal Hearings in the Immigration Appeal Division ( IAD) of the Immigration and Refugee Board
This notice sets out the policy and procedure of the IAD concerning how appeals are scheduled to be heard.
- PRACTICE NOTICE: Postponements and Adjournments in the Immigration Appeal Division ( IAD) of the Immigration and Refugee Board
This notices sets out the policy and procedures for postponements and adjournments requests of appeal hearings.
- REFLEX
This is a publication of summaries of selected recent immigration and refugee law decisions since May 1991.
- IMMIGRATION ACT and IMMIGRATION APPEAL DIVISION RULES