The Adewusi Case: Due Process and Medical Conditions2012-03-20
I’m going to discuss the case of Adewusi v. Canada (Citizenship and Immigration) decided January 19, 2012 at the Federal Court of Canada. This case illustrates that applicants can be successful at the court level when CIC does not follow due process required by law.
Right to procedural fairness
In this case, Mr. Adewusi was denied permanent residence (under the investor class) due to a decision by the visa officer that Mr. Adewusi had a medical condition that would cause excessive demand on the Canadian health care system.
Mr. Adewusi applied to the Federal Court to have the immigration officer’s decision reviewed.
The Court reviewed all the fact of the case and found that there was a breach of procedural fairness – in essence, the process followed by the immigration officer was not fair to the applicant.
The Court found that if there is a medical condition that may cause excessive demand on the Canadian health care system, the applicant can put forward a plan to manage the medical condition to minimize the impact on the health system. The medical officer must assess the feasibility of the plan and give his or her opinion to the immigration officer. The immigration officer must assess the reasonableness of the medical officer’s opinion.
Violation of procedural fairness
In this case, the immigration officer made a fundamental error – he made a decision on medical inadmissibility before receiving the medical officer’s opinion on the management plan and submissions made by Mr. Adewusi.
This was such a fundamental breach of fairness that the court quashed the decision, and remitted the matter back to a different immigation officer and different medical officer for a decision.
Although this case related to medical inadmissibility, all applicants must be afforded procedural fairness. This means that the applicant has a right to be heard and that the evidence must be considered (it does not mean an individual has a right to permanent residence however).
If you believe you have suffered a breach of procedural fairness, where a decision was made before you had a chance to respond to concerns where your response would have made a real difference in the determination, then you should contact an immigration lawyer to evaluate your options.