An Act to amend the Immigration and Refugee Protection Act (medical inadmissibility — excessive demand)

This bill was last introduced in the 42nd Parliament, 1st Session, which ended in September 2019.

Sponsor

Jenny Kwan  NDP

Introduced as a private member’s bill. (These don’t often become law.)

Status

Introduced, as of Feb. 15, 2018
(This bill did not become law.)

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Immigration and Refugee Protection Act in order to remove the health ground on which a foreign national is inadmissible if their health condition might reasonably be expected to cause excessive demand on health or social serv­ices.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Citizenship and ImmigrationCommittees of the HouseRoutine Proceedings

May 10th, 2018 / 3:15 p.m.
See context

NDP

Jenny Kwan NDP Vancouver East, BC

moved:

That the 15th report of the Standing Committee on Citizenship and Immigration, presented to the House on Wednesday, December 13, 2017, be concurred in.

Mr. Speaker, it is my privilege to stand in the House today to once again raise the issue around paragraph 38(1)(c) of the Immigration and Refugee Protection Act, better known as medical inadmissibility due to excessive demand.

As many in this place are now aware, this division of IRPA is a cost-only analysis that estimates the potential costs in the use of social and health services that a person applying for permanent residence in Canada could incur.

Currently, under subsection 38(2) of IRPA, convention refugees, protected persons, spouses, and dependants as part of a family sponsorship application are exempt from this restriction. This means that only those who are economic applicants and their families, caregivers, provincial nominees, parents and grandparents, students, foreign workers, and temporary residents would be subject to paragraph 38(1)(c). The provision works in such a way that should one member of a family be found at risk of placing an excessive demand on health or social services, the entire family's application would be rejected.

As I said, this is a cost-only analysis. Not only does it ignore the benefits that an individual brings to Canada, but it also ignores and invalidates the sum of benefits the whole family brings to Canada.

This issue made national headlines in 2016 regarding the case of Professor Felipe Montoya. Professor Montoya came to Canada with his wife, daughter, and son in 2012. He and his wife worked, paid their taxes, and contributed to their community. Their daughter and son attended school in Canada. However, when the Montoya family decided that they wanted to stay here, make Canada their permanent home, and apply for permanent residence, they were rejected. Why? Their son Nico has Down's syndrome.

Following this, last summer, Global News Investigative Journalism brought even more attention to this little-known provision, raising serious questions about how the policy was implemented. There were questions over the so-called basket of services that counted in the calculation and those that did not, why it was that the threshold was set the way it was whether or not the policy was discriminatory, and the impact it was having on families.

In October 2017, the Standing Committee on Citizenship and Immigration undertook a study on this provision. We heard from 25 witnesses and received 23 briefs. Committee members heard loud and clear that this provision was legislated discrimination against individuals with disabilities. Of the witnesses that offered their opinion on what should be done with this policy, it was nearly unanimous that the only option was to repeal paragraph 38(1)(c) of IRPA. Anything less would simply continue the discrimination.

In fact, not only were the witnesses who appeared at committee convinced this policy was discriminatory, so too were Liberal MPs. The member for St. John's East stated to the Minister of Immigration, Refugees and Citizenship during the minister's appearance, “I must say that at this point in time I do not see how raising the threshold and excluding fewer people changes the fact that excluding anyone is prima facie discriminatory and violates Canadian values.”

The member for Surrey Centre changed the opinion he had about the policy during the course of this study and evoked a strong and harsh image where he compared the idea of this policy to the mindset of slave trade. He said, “I would say that initially I thought it was a good policy, because that would perhaps be a big burden on Canadians, but then I looked back—and I don’t want to equate it to this—and it’s no different from the slave trade, in which only those selected as the strongest and the most able-bodied were brought from Africa. It’s not that the whole policy is good at all, but I’m saying it is akin to discriminating when we’re picking only people who are healthy, fully functioning, with no intellectual disabilities and no physical disabilities.”

The member also summed up the general view of committee members when he said, “As you can tell, almost all of us have an inclination that this policy is discriminatory. We already can see that even within immigration there's a two-tiered policy.”

The minister stated on numerous occasions that the policy is “out of step with Canadian values on accommodating people with disabilities”. The minister promised changes. Given the near unanimous opinion of witnesses, the strong views of Liberal members on the committee, and the minister's understanding that this policy was wrong, I was hopeful the committee would be able to table a unanimously supported report that called on the government to do one thing and one thing alone, which is to repeal paragraph 38(1)(c) of IRPA.

Unfortunately, I was to be disappointed. Instead of issuing that report, the committee tabled a report which, while it included repeal as a recommendation, provided the government with a host of interim measures it could take instead. It was as though committee members were no longer worried that this policy was prima facie discriminatory, as the member for St. John's East described it.

As the NDP representative at the committee, I attached a dissenting opinion to the report. I will never forget the story of Mercedes Benitez, a caregiver, who, after nearly a decade of working in Canada waiting to be reunited with her family, was informed her application would be rejected because her son has an intellectual disability. Thankfully, after intense advocacy, support from the public, and media reports, like the Montoya family, she was able to receive an intervention on the file from the minister, which ultimately was approved.

Mercedes Benitez told committee members:

Even though my case is already resolved, I think the excessive demands should be repealed. I still feel the pain when they say I'm good [enough] to work, but not good enough to stay because of my son.

In this spirit, the NDP moved two recommendations in our dissenting report: one, to repeal paragraph 38(1)(c) of IRPA; and two, for the government to work with the provincial and territorial governments to determine any increased costs to health and social services as a result of this repeal, and to increase CST and CHT funding accordingly.

The minister stated that the government would be announcing its policy change on April 12, 2018. This is because that was the deadline for the government to respond to the committee's report. While the minister did not feel the urgency to act, like many of the families impacted, I was very eager to learn what the minister would do to address this discriminatory policy.

The minister missed his self-imposed deadline, and when he finally got around to announcing the new policy, I truly was disappointed with the announcement. The policy announcement was not to repeal paragraph 38(1)(c). Despite warnings from the member for St. John's East, the government announced it would instead be increasing the threshold from $6,555 per year to $20,000, and amended the definition of “social services” by removing references to special education, social and vocational rehabilitation services, and personal support services.

The government expects this will reduce discrimination by 75%. That is not 100%, which is to say that 25% discrimination is okay. While the government states that it agrees with the recommendation to eliminate the policy, it provides no timeline for when that 25% would no longer be discriminated against. At the press conference, the minister stated that this new policy would be forward-going only. This is devastating news for families whose applications were just rejected recently.

The suggestion that they can then apply for permanent residency under humanitarian and compassionate grounds can add up to another three years to the long separation families have already endured. If the H and C application is accepted, only then can they submit a sponsorship application for the family to be reunited. For some families, this additional process may well mean that their children would not qualify to be part of the application as they would have aged out.

In addition, the minister also failed to state whether the new policy would apply to individuals and families with current applications in the system. As a result, many of the individuals impacted by this policy expressed hope, but still worry about the pathway forward. Such is the situation with Monica Mateo Ilarde.

Monica also arrived in Canada as a live-in caregiver in 2008. She has worked hard every day for 10 years taking care of the children of a Canadian family. She has spent most of her 13-year marriage separated from her husband, Richard, and their nine-year-old daughter, Brianna. On most nights, Monica cries herself to sleep from the pain of the separation.

In 2012, she applied for permanent resident status. Monica's permanent resident application was flagged for excessive demand, because her daughter, Brianna, who was cared for by Richard in the Philippines, was born with a visual impairment, a condition that was arbitrarily determined to require “excessive demand” on the Canadian health care system. Brianna would benefit from speech therapy, and could possibly require surgery, but is otherwise a healthy and happy child.

In December 2017, Monica was expecting her second child. Every effort was made so that Monica could be reunited with her family in Canada so she would not be alone when she gave birth to her second baby. The call for her file to be expedited failed, and she was advised by IRCC that her only option would be to apply for an urgent temporary visitors visa for her husband and daughter if she did not want to be alone during childbirth. After discussing this with her family, it was decided that the cost of applying for these additional visas and the travel expenses was just too much for the family. This is because over the course of the last six years, since first applying for permanent resident status, Monica and her family have had to redo medical exams four times, in addition to security screenings and continued renewals of work permits for Monica.

On January 1, 2018, Monica gave birth to her baby boy, alone, in Canada. Unwaveringly optimistic and driven to reunite with her family in Canada, Monica believes that she was blessed to have her son and sees him as a reward for her isolation. She continues to dream of being permanently reunited with her daughter, Brianna, and her husband, Richard.

According to information provided to Monica, it appears that as long as she is processed under the new rules, her application will finally be completed and successful. That means that her daughter would get to meet her little brother for the first time, and her husband would get to meet his son for the first time.

Her case is one example of why I was so anxious to learn whether the new rules would apply to pending cases. After multiple inquiries, I was finally given assurances from the minister's office, last Sunday night, that applications currently in the system would be assessed under the new rules. For that, I thank the government, and I thank the minister. Monica is hopeful that her case will be processed before this winter so that her family can be reunited here in Canada for Christmas.

Aside from the cases currently being processed in the system, I want to draw members' attention to caregivers who have been providing valuable support and services to families in Canada for years, have been subjected to unjustly long processing delays on their permanent resident applications, and after waiting 10 years, in some cases, to bring their families here, have recently been rejected because of this discriminatory policy. In fact, on Monday, May 7, I held a press conference in Toronto to shine a light on this heartbreaking story.

Shirley Benigno is a single mother of three. Her son, John Nicko, has Down syndrome. Shirley has worked hard her entire life to provide for her family. She first moved to Hong Kong, where she tolerated abuse and harassment in her work environment so that she could send money back home.

She had hoped her transition to Canada would mean a new beginning for her family. Upon arrival in Canada in 2009 as part of the live-in caregiver program, Shirley started working two jobs and saving all the money she could for her children's move to Canada. She applied for permanent resident status in Canada, and to be reunited with her family, in 2011.

Outside of work, she prepared food for various events, supplied homemade goods for two convenience stores, and took the national food safety training program, with the expectation and hope of one day going back to school and eventually opening her own family restaurant. All this came to an abrupt end, after waiting seven years, when her application for permanent residence was denied in 2017 because of her son's disability. This is despite her son's medical assessment stating that John Nicko is capable of taking care of himself and is even able to work in an unskilled or semi-skilled position.

As result, Shirley's work permit was revoked, depriving her of all income. She could no longer provide for herself, let alone for her family. This meant that she was unable to send money back home to her family, and her children had to leave school, because they could not afford tuition. This is absolutely devastating to Shirley and her family. Shirley stated, in disbelief, “I always thought Canada did not discriminate against people because they are different. I thought Canada had protections for people who are different.”

Since the rejection of her application, Shirley has finally been able to obtain legal counsel, who is trying to help her with a request to reconsider her denial. If this is not granted, she will be forced to apply for permanent residence on humanitarian and compassionate grounds, a purely discretionary stream of immigration that could take up to three years to process. Aside from this additional delay, if Shirley had to make a new application, it would mean that one of her children would age out and would not be able to be reunited with Shirley, shattering her dream of having her family here in Canada.

If Shirley's application were processed under the new rules, John Nicko would not be deemed an excessive demand. My office was advised that the estimated cost John Nicko would place on social services would be $120,000 over five years, which is $24,000 per year. We were provided with a breakdown of the costs per year: vocational skills training, $5,000; employment programs, $7,000; and day programs, $12,000. Increasing the threshold and exempting the cost of vocational skills training would mean that John Nicko would now be under the threshold and would be eligible for permanent residence in Canada. I brought this case to the attention of the minister, and it is my most sincere hope that he will use his authority to intervene and do what is right.

Shirley and others like her have shown for a decade that she is good enough to be here. She has earned her place in Canada and deserves to be reunited with her family. It would be a great injustice if we allowed individuals like Shirley to be forced to leave after all this time, after all this waiting, because of a discriminatory policy that has now been changed. The minister has the opportunity to prevent such a gross injustice and to do the right thing and allow this family to stay. If the government took that action and applied the new policy to Shirley and her family, they would be able to stay.

It would be reasonable for cases that have recently been rejected, such as in the last 12 months, for example, to be assessed under this new policy. This would not produce excessive demand on our system. During the committee's study, we heard that under the old rules, after appeals and mitigation times, fewer than 400 of the 1,000 cases per year flagged under paragraph 38(1)(c) were ultimately rejected.

We have the opportunity to do what is right and to undo the hardships our system has caused for families through a policy we all know was out of step with our values.

I would be remiss if I did not take this opportunity to remind the members of this House that in February, I tabled Bill C-398, which would repeal paragraph 38(1)(c). I would like to once again inform the government that I would be happy to work with the government to make this bill the government's own bill. Until that happens, until that discriminatory policy is repealed, the government can do something for the families that have been waiting for years and years, especially those families that have just recently been rejected. The government can apply the new rules to them and reopen their cases so that they have the opportunity to reunite with their families here. It is the right thing to do. I hope that I can hear a positive response from the government side with respect to this request.

Immigration, Refugees and CitizenshipAdjournment Proceedings

March 21st, 2018 / 6:55 p.m.
See context

NDP

Jenny Kwan NDP Vancouver East, BC

Mr. Speaker, I rise in the House once again to urge the government to take action on the ongoing discrimination in Canada's immigration system against individuals with disabilities. Paragraph 38(1)(c) of the Immigration and Refugee Protection Act allows for the rejection of an entire family of applicants if one individual has a disability or medical condition that officials believe could put “excessive demand on [Canada's] health or social services”.

Witnesses who appeared before the Standing Committee on Citizenship and Immigration confirmed that the numbers provided to assess excessive demand are arbitrary, inaccurate, and do not take into account the potential contributions of the disabled person and/or the family unit. This paragraph of the act has been explicitly and repeatedly recognized by parliamentarians, committee witnesses, and the Minister of Immigration himself as enabling discrimination against individuals with disabilities.

In fact, during the recent Standing Committee on Citizenship and Immigration study of this provision, the member for Surrey Centre stated:

I would say that initially I thought it was a good policy, because that would perhaps be a big burden on Canadians, but then I looked back—and I don't want to equate it to this—and it's no different from the slave trade, in which only those selected as the strongest and the most able-bodied were brought from Africa. It's not that that whole policy is good at all, but I'm saying it is akin to discriminating when we're picking only people who are healthy, fully functioning, with no intellectual disabilities and no physical disabilities.

The member for Surrey Centre also stated:

As you can tell, almost all of us have an inclination that this policy is discriminatory. We already can see that even within immigration there's a two-tiered policy.

The member for St. John's East, in an exchange with the minister, said:

I must say that at this point in time I do not see how raising the threshold and excluding fewer people changes the fact that excluding anyone is prima facie discriminatory and violates Canadian values.

The parliamentary secretary, in the House, when I asked him this question, said, “The excessive-demand provision is indeed an outdated policy”. He also said, “From a principled perspective, the current excessive-demand policy simply does not align with our country’s values on the inclusion of persons with disabilities in Canadian society.”

However, widespread recognition of this blatantly discriminatory policy has instilled no sense of urgency from the government to rectify the issue. The government has been consulting on this policy since October 2016, even though this provision is a textbook case of discrimination, one that has affected the lives of hundreds of immigrants who are good enough to work but not good enough to stay if their loved ones are affected by a disability.

That foot-dragging is both irresponsible and an insult to people like Mercedes Benitez and Monica Mateo. These women came to Canada under the live-in caregiver program and have cared for our children and seniors. After years of waiting to be reunited with their families, because one of their children has a developmental disability, they are now being discriminated against. These families deserve to be treated with respect and dignity.

Will the government commit to taking my private member's bill, Bill C-398, turn it into a government bill, and repeal paragraph 38(1)(c) of the Immigration and Refugee Protection Act?

Immigration and Refugee Protection ActRoutine Proceedings

February 15th, 2018 / 10:05 a.m.
See context

NDP

Jenny Kwan NDP Vancouver East, BC

moved for leave to introduce Bill C-398, an act to amend the Immigration and Refugee Protection Act (medical inadmissibility—excessive demand).

Mr. Speaker, it is with a sense of duty and urgency that I rise in the House to table my bill which would repeal paragraph 38(1)(c) of the IRPA.

Canada is a signatory to the UN Convention on the Rights of Persons with Disabilities. Paragraph 38(1)(c) directly contravenes this convention, allowing Canada's immigration system to discriminate against individuals with disabilities on the mere assumption an individual could pose an excessive burden on Canada's health or social services.

Following national media attention, the Standing Committee on Citizenship and Immigration studied this provision. It was made clear by witnesses, government members, and even the minister himself that this policy is out of step with Canadian values.

For two years, the minister has been consulting on this policy and has failed to act. Meanwhile, families like those of Monica Mateo and Marilyn Cruzet continue to suffer and wonder if their families will ever be reunited despite their contributions to this country by caring for our seniors and children. It is simply unacceptable. Full repeal is the only option to go forward.

I call on the government to adopt my bill as its own and take immediate action on this urgent issue.

(Motions deemed adopted, bill read the first time and printed)