Family whose son has Down syndrome can appeal immigration 'inadmissibility,' Ottawa says

After a Costa Rican family went public with an allegation that their permanent residency was blocked due to their son's Down syndrome, Canadian immigration officials are urging them to not give up on their application. 

York University professor Felipe Montoya told CBC News his application for permanent residency was deemed "inadmissible" because his 13-year-old son Nico's Down syndrome would be too much of a burden on taxpayers.

• Canadian immigration rules 'cold-hearted' but fair, expert says

• York University prof denied permanent residency over son's Down syndrome

The family has until May 3 to respond to a "procedural fairness letter," which was sent by federal officials last December that outlines the government's concerns, Citizenship and Immigration Canada spokesperson Nancy Caron said in an email statement.

The family may still be able to get permanent residency if they can explain how they will cover any costs associated with Nico's Down syndrome.

"The clients must establish to the satisfaction of the assessing officer that either the family member is not inadmissible to Canada, or that they have an individualized plan to demonstrate that no excessive demand will be imposed on Canadian social services due to the medical inadmissibility," Caron said.

The Immigration and Citizenship Act states "a foreign national is inadmissible on health grounds if their health condition might reasonably be expected to cause excessive demand on health or social services." 

Bhaskar Thiagarajan, the president of the Down Syndrome Association of Toronto, said the Montoya family is in an unfortunate situation that many others have gone through. Each year, several families contact his office seeking advice, but he said it's so difficult he can't even bring his own sister who has Down syndrome to Canada from India.

"I've been with this organization for almost 15 years, and I don't think I've seen a single case where they've been able to migrate and come to Canada," Thiagarajan told CBC News.

Father criticizes need for 'individualized plan'

Montoya, his wife Alejandra Garcia-Prieto and their two teenage children, Tanya, 17, and Nico, 13, have been trying to get permanent residency status for three years.

He said he plans to fight the government on the grounds that its policy violates the Canadian Charter of Rights and Freedoms, which prohibits discrimination on the basis of disability.

He also takes issue with the logic and language of the "procedural fairness letter," which suggests Nico has a medical condition.

"He is not ill, he has no sickness. He is completely healthy. The fact that he has a disability is different than having a illness," Montoya said. 

"We are fighting against the fact that people with a disability are defined as ill people," he said.

Montoya said he rejects the need for an "individualized plan," saying his income taxes already cover his son's health and education costs.

The family is set to move back to Costa Rica in June while continuing their bid for permanent residency status.

"It's to give our family some sense of security," Montoya said.

Family members assessed individually

An immigration expert who spoke with CBC News said the policy is "cold-hearted" but fair. 

"The system works on balance," said David LeBlanc, of Ferreira-Wells Immigration Services. "But it doesn't mean that, in looking at each individual decision, that it doesn't seem harsh."

Caron said anyone wanting to immigrate to Canada must be medically assessed to see if they would pose an excessive demand on the health-care system.

"No particular health condition makes an applicant automatically inadmissible to Canada," Caron said.

"Excessive demand decisions are based on the likely costs of providing care to the individual over time, and the impact that will have on publicly funded Canadian health and social services and on medical waiting lists in Canada." 

She said each applicant is assessed individually, taking into consideration the current state of any health conditions, probable prognosis, anticipated health and social service costs, and the potential impact on waiting lists.

If an applicant is deemed inadmissible, she said he or she can provide a "credible plan" to offset the costs to Canada's health-care system.

The federal department will review the plan before it makes a final decision, she said.