𝗣𝘂𝗿𝗽𝗼𝘀𝗶𝘃𝗲 𝗔𝗽𝗽𝗿𝗼𝗮𝗰𝗵 𝗯𝘆 𝘁𝗵𝗲 𝗖𝗼𝘂𝗿𝘁𝘀 𝘁𝗼 𝗠𝗲𝗱𝗶𝗰𝗮𝗹 𝗜𝗻𝗮𝗱𝗺𝗶𝘀𝘀𝗶𝗯𝗶𝗹𝗶𝘁𝘆 𝗥𝗲𝗳𝘂𝘀𝗮𝗹𝘀

Early decisions of the Immigration Appeal Division (IAD) which allowed appeals in law in medical refusal cases, and especially those which followed the Federal Court’s decision in 𝘏𝘪𝘳𝘢𝘮𝘦𝘯 𝘷. 𝘔.𝘌.𝘐. (𝘍.𝘊.𝘈., 𝘯𝘰. 𝘈-956-84) tended to do so on purely technical grounds based on deficiencies in the refusal letter or the Medical Notification form. 

However, later decisions of the Court generally emphasized a less technical and more purposive approach which looked at whether the sponsor was informed of the case to be met and whether there was an expression of the opinion required under the law.

The Act provides that where an appeal has been allowed by the IAD, processing of the application is to be resumed, and the visa officer is to approve the application, if the requirements of the Act and regulations, other than those requirements on which the decision of the Appeal Division has been given, have been met. 

The disadvantage to the sponsor of winning an appeal based on a technical defect is that the visa officer may again refuse the application on the medical ground, as the substantive ground did not form the basis for the IAD’s decision.

For example, where an appeal was allowed because the medical reports had expired before the visa officer rejected the application, the visa officer could again consider the medical condition, as the Board’s decision did not relate to the medical condition. Likewise, where the appeal was allowed because the reasons for refusal did not adequately inform the sponsor of the case to be met, the application could again be refused on the same ground, but this time with the reasons for the refusal adequately expressed.

The effect of this provision was examined by the Federal Court where it was held that the applicant still had to establish their medical admissibility. The only issue that was 𝘳𝘦𝘴 𝘫𝘶𝘥𝘪𝘤𝘢𝘵𝘢 is the medical issue found to be erroneous by the IAD.

A visa officer is required to inform the sponsor of the reasons for the refusal of the sponsored application for permanent residence. The purpose of this provision is to ensure that the sponsor is aware of the case that has to be met on appeal. It has been held that the nature of the medical condition must be disclosed where the refusal is based on medical inadmissibility. However, the refusal letter should not be looked at in isolation from the record.

𝘔𝘦𝘥𝘪𝘤𝘢𝘭 𝘕𝘰𝘵𝘪𝘧𝘪𝘤𝘢𝘵𝘪𝘰𝘯 𝘍𝘰𝘳𝘮

After assessing an applicant’s medical condition, the medical officers prepare a Medical Notification form to notify the visa officer of their diagnosis, opinions, and the applicant’s medical profile. The visa officer relies on this information to determine the applicant’s admissibility. 

The Medical Notification form must contain an expression of the opinion required by the Act in order to support a refusal. 

Once there is a clear expression of the medical opinion required by law, the evidentiary burden of proof shifts to the sponsor to show that the medical officers failed to take into consideration relevant factors, or took consideration irrelevant factors in forming their opinion.

There is a duty upon immigration officials to act fairly and to ensure that the medical officers’ opinion is reasonable. What is necessary to comply with the duty of fairness will depend on the circumstances of each case.

The Federal Court has recognized an immigration officer’s duty to act fairly. This duty of fairness can be breached when an applicant is not given a fair opportunity to make submissions before a decision is made on medical grounds.

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