RE: July 26, VIA COURIER and VIA

Transcription

1 July 26, 2011 VIA COURIER and VIA Consulate General of Canada Immigration Section 1251 Avenue of the Americas Concourse Level New York, New York , USA ATTN:, Designated Immigration Officer Dear : RE: File No.: (ME) We represent the above-named who has previously given you authorization to deal with our office on a Use of Representative form. We enclose that form again for your convenience. We are writing in response to your letter dated March 29, 2011 to provide you with submissions on the issue ofmr. medical admissibility. We have reviewed the notes of the medical officer that have been made in our client's file. These notes raise concerns about the costs of our client's health condition as it relates to the cost of anti-retroviral medication which Mr. may in the future use to treat HIV. Because the medical officer confined his concerns solely to the cost of anti-retroviral medication, our submissions will be restricted to the issue of whether our client's treatment with anti-retroviral medication in Canada might reasonably be expected to impose an excessive demand on Canadian health services. We are aware that for the last several years Operation Processing Instruction has been used by medical officers in assessing the medical admissibility of people with HIY. However this Operation Processing Instruction was developed prior to the 2005 Hilewitz decision of the Supreme Court of Canada (described below) and therefore the Processing Instruction makes no mention of the assessment standards established by the Court. We therefore require confirmation that Operation Processing Instruction was not used in the assessment of our client's admissibility.

2 -2- We have enclosed the following documents in support of our submissions: 1. Declaration of Ability and Intent sworn July 22, 2011; 2. Canadian Work Permit with an expiry date of September 3, 2012; 3. Financial Documentation: - Printout of summary of account with dated July 1, 2011; - Statement of account with dated June 16, 2011 ; - Printout of summary of account with dated July 4, 2011; - Printout of summary of accounts with dated July 1, 2011; - Printout of account balance with dated July 1, 2011 ; Property Assessment Notice; Property Tax bill; - Certificate of ownership of stocks with dated November 9, 1994; 4. Employment Documentation: - Letter from General Manager,, dated July 7, 2011; 5. Letter from Dr. dated July 22, 2011; 6. Printout of summary of benefits with Manulife Financial dated July 1, 2011 with confirmation of coverage of HIV medication; 7. Group Insurance Plan with Chambers of Commerce dated May 5, 2011; 8. Dr. medical report dated July 19,2011. The Law As you know, the law respecting the consideration of medical inadmissibility on health grounds under section 38(1) of the Act changed dramatically following the decision of the Supreme Court of Canada in Hilewitz v. Canada 2005 S.C.C. 57. In that case, the Supreme Court of Canada found that the Immigration and Refugee Protection Act requires an individualized assessment of the particular circumstances presented by individual applicants for Canadian permanent residence. The Court also found: medical officers must assess likely demands on public services, not mere eligibility for them; it is impossible to determine "demands" without a consideration of an applicant's ability and intention to pay for services; the legislative threshold is reasonable probability, not remote possibility. Therefore, it must be more likely than not based on an applicant's circumstances that excessive demands will arise. The Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Colaco 2007 FCA 282 determined that the reasoning of the Supreme Court in Hilewitz applied to all categories of immigrants, including skilled workers.

3 -3- In Hilewitz, the Supreme Court required that the applicant's ability and willingness to attenuate the burden on publicly provided services had to be considered. The Federal Court has now determined that this reasoning applies to health services such as the cost of out-patient drugs: Companioni v. Canada (Minister 0/ Citizenship and Immigration), 2009 FC 1315, para 10, Mazhari v. Canada (Minister o/citizenship and Immigration), 2010 FC 467, para. 13. As demonstrated in further detail below, it is our submission that Mr. on a balance of probabilities will not require publicly funded assistance with the cost of any anti-retroviral medication which is prescribed in the future. Mr. Health: no deterioration expected We are enclosing a letter from Dr. HIV infectious disease specialist with the University Health Network in Toronto. Dr. is an infectious disease physician specializing in HIV, a doctoral candidate in Clinical Epidemiology and associate physician in the Immunodeficiency Clinic at the Toronto General Hospital. Dr. has reviewed the medical history of Mr. Dr. states that the condition of his HIV infection is stable even in the absence of anti-retroviral medication. Should the stability of Mr. HIV infection change, Dr. notes that the initiation of anti-retroviral treatment regimens will result in an extremely low risk of illness and hospitalization. Dr. places Mr. one year progression to AIDS or death to be less than 1.5% without anti-retroviral medication and less than 0.5% with anti-retroviral medication. Based upon Dr. expert report, therefore, it is submitted that there is compelling and uncontradicted evidence before you that on a balance of probabilities there will be no deterioration in the health conditions of Mr. Therefore, the risk of hospitalization or other extraordinary medical intervention due to our client's HIV status can be discounted. We therefore submit that your sole consideration relating to the tests under section 38( 1) of the Act concerns the potential public cost of anti-retroviral medication for Mr. after he becomes a Canadian permanent resident. Willingness and ability to assume responsibility for all or part of cost of future anti-retroviral medication In Hilewitz, the Supreme Court of Canada stated that individualized assessments are required in applying s. 38(1) and that individualized assessments in tum require an assessment of an applicant's willingness and ability to pay for services: The wording of the provision shows that medical officers must assess likely demands on social services, not mere eligibility for them... To do so, the medical officers must necessarily take into account both medical and non-medical factors, such as the availability, scarcity or cost of publicly funded services, along with the willingness and ability of the applicant or his or her family to pay for the services.

4 -4- This, it seems to me, requires individualized assessments. It is impossible, for example, to determine the "nature", "severity" or probable "duration" of a health impairment without doing so in relation to a given individual. If the medical officer considers the need for potential services based only on the classification of the impairment rather than on its particular manifestation, the assessment becomes generic rather than individual. It is an approach which attaches a cost assessment to the disability rather than to the individual. This in turn results in an automatic exclusion for all individuals with a particular disability, even those whose admission would not cause, or would not reasonably be expected to cause, excessive demands on public funds. Not all demands on health or social services are "excessive". As stated by the Federal Court of Appeal in Colaco v. Canada (Minister of Citizenship and Immigration) 2007 FCA 282: "The very concept of 'excessive demand' conveys the notion that a certain level of demand is acceptable and is no impediment to the admissibility of a foreign national." The Federal Court has acknowledged that proof of enrolment in an insurance plan which covers prescription medication can rebut a presumption of "excessive demand" and medical inadmissibility: Companioni v. Canada (Minister of Citizenship and Immigration) 2009 FC 1315 at paragraph 10; Rashid v. Canada (Minister of Citizenship and Immigration) 2010 FC 157. It is important to note first of all that Mr. is not currently on the anti-retroviral medication about which the medical officer raised concerns. Given the stability of his HIV infection, there is not even a projected date at which the initiation of such medication would occur. Further, Mr. pursuit of non-antiretroviral treatments to maintain his health renders the initiation of anti-retroviral treatment even more remote (see enclosed letter from Dr. dated July 22,2011). In any case, even assuming that there will arise a need for antiretroviral medication within the legislative window, we have enclosed a declaration of ability intent from Mr. in which he undertakes to maintain insurance coverage which would cover the cost of his anti-retroviral medication in Canada. The attached plan specifies three mechanisms in place to cover any HIV medication prescribed to Mr. in the future: A personal comprehensive policy which he holds with Manulife Financial; it provides extended health benefits, including prescription drug coverage - with a minimal deductible and a cap of $10,222 per year - as well as travel insurance, etc. This has a cost of approximately $2100 per year (and this amount is fully reimbursed from the PHSP provided by Mr. employer for his benefit.) Note that this plan is effective in Canada (in fact, it requires active MSP enrollment for coverage here in British Columbia.) A group insurance policy provided by Chambers Insurance which provides extended health benefits, including prescription drug coverage (with a 20% deductible) for up to a benefit amount of $50,000 per year. An employer provided PHSP that reimburses for up to $20,000 in out of pocket expenses, including co-pays, non-msp eligible providers (e.g., Mr. GcMAF treatments, the K PAX vitamin supplement, plus probiotic supplements,) and the cost of the personal policy with Manulife.

5 -5- Thus, at the present time, the Manulife and Chambers policies will provide prescription drug coverage of up to $60,222. This would also have roughly $10,200 in deductible costs associated with these same prescription drugs, which would be covered by the PHSP. Thus, if the PHSP is used to pay the full amount of this deductible, plus the cost of the Manulife policy, there would still be an additional $7700 available, thus providing coverage for up to approximately $67,922 in prescription drug costs. It is important to note that these mechanisms are currently in place and not contingent upon any future occurences. Mr. employment is stable considering that he has been with the same employer since 1994 and possesses a highly specialized set of skills and reputation, managing a portion of the business that generates a substantial percentage of the company's annual revenue. In light of these mechanisms, there is no incentive for Mr. of his medication. to rely upon provincial funding After reviewing the mechanisms in place for coverage of anti-retroviral medication which may be prescribed to Mr. in the future, Dr. concludes that the only public costs presented by Mr. health would be routine follow-up visits and outpatient laboratory monitoring amounting to $1848 annually, which is far below the excessive demands threshold. It is therefore our submission that our client has presented a credible plan to mitigate the required cost of anti-retroviral medication for the following reasons: Mr. is not currently on anti-retroviral medication and there is no projected date at which such treatment will be initiated; Mr. has never been and is not currently dependent upon publicly funded services for medication. Mr. has provided evidence of three mechanisms for covering the cost of his anti-retroviral medication if it should be prescribed to him in the future; In the context of this application, Mr. received a positive selection decision and therefore a visa officer has formed the opinion that he would become "economically established" in Canada pursuant to Reg. 75(1). The determination that Mr. would become "economically established" therefore precludes a likelihood of his dependence upon publicly funded drug benefit programs or social assistance. Moreover, as demonstrated by Mr. employment history and enclosed proof of property ownership, savings, assets and investments, he has been steadily employed and is economically self-sufficient. Conclusion We therefore submit that based upon the standards for individualized assessments required for determinations of medical inadmissibility based on the Supreme Court of Canada's decision in Hilewitz, the evidence before you indicates that on a balance of probabilities that Mr. will not present an excessive demand on Canadian health services. His is not currently on anti-

6 -6- retroviral medication and has credible plans in place to cover the cost of medication should it become necessary in the future. In the alternative, should you find Mr. medically inadmissible, we request that a temporary resident permit be which will allow him to demonstrate his personal capacity to bear the costs of his medication for three years before applying for Canadian permanent residence. We invite you to contact us should you have any questions regarding these submissions and look forward to your decision. Yours truly,