Fairness Letter Response May Allow Family To Remain In Canada

By James Metcalfe | March 16, 2016

James Metcalfe - Director of ImmigrationJim Metcalfe – Director of Immigration: A Costa Rican university professor at York University must respond to a “fairness letter” after his family’s request for permanent residency was refused. The reason for the refusal was that the child has Down syndrome. The professor considers the refusal discriminatory:

Even though they are leaving the country, they’re still fighting what they call medieval and barbaric legislation because they say it may help other families.

Felipe Montoya and Alejandra Garcia-Prieto have been trying to get permanent residency in Canada since they first moved to Toronto three years ago with their two teenage children so Montoya could teach environmental studies at York University…

Montoya said when he first landed the job at York University, the international hiring officer warned him that he might encounter stumbling blocks to permanent residency because of Nico’s condition, but he thought he must have misheard the officer.

“He was singled out solely because of his genetic identity,” he explained. “The only difference is he has a genetic condition that makes him different.”

After the story broke in the press this week, Canadian immigration officials told them not to pack it in just yet:

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.

What Is A Fairness Letter?

Fairness letters are normally issued to any person who has a medical condition which could lead to a refusal under the Immigration Act. The applicant is given an opportunity to rebut the presumption of excessive demands on health and social services, i.e., the taxpayer’s wallet.

I can say from experience that a well-prepared submission addressing the concerns of an immigration officer can lead to a positive result. We had a fairness letter case several years ago regarding the daughter of a client who had severe psychological and educational problems. We obtained an education psychologist’s report, a school report and some data readily available on the internet to indicate that excessive demand should not be a concern. The result was positive and the family’s application was approved.

I am not saying that it will be a similar result in this case. Indeed, as the above CBC article points out:

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.

These days, people who receive negative decisions from the immigration department voice their concerns in the media and online. While Minister McCallum has granted relief in a number of recent cases, he is probably getting tired of trying such cases in the court of public opinion. We will see how this case is resolved.