IRPA s. 38 Medical Inadmissibility Lawyer — Excessive Demand + Procedural Fairness
For applicants found medically inadmissible under IRPA s. 38 — typically “excessive demand on health/social services” for chronic conditions (HIV/AIDS, autism, kidney disease, intellectual disability, etc.). We provide Procedural Fairness Letter (PFL) response, Federal Court review, and Mitigation Plan negotiation.
IRPA s. 38 Framework
IRPA s. 38(1) declares inadmissible any person whose health condition: (a) is a danger to public health; (b) is a danger to public safety; or (c) might reasonably be expected to cause excessive demand on health/social services.
S. 38(2) exempts: spousal/common-law partner sponsorship, refugee protection, dependent children of citizens/PRs, and some H&C applicants from the “excessive demand” ground (b/c the family unity policy overrides).
“Excessive Demand” Test
Per Hilewitz v. Canada (2005 SCC) and Sapru v. Canada, the test is:
- 2024 threshold: CAD 26,220/year (3x national average per-capita health/social spending of CAD 8,740)
- Officer must consider: nature, severity, probable duration of demand
- Must consider applicant\’s personal circumstances (private insurance, family support, ability/willingness to pay)
- Generalized assumption of demand is not enough — must be individualized assessment
Common Inadmissibility Conditions
- Autism Spectrum Disorder (educational services)
- Intellectual disability (residential care, special education)
- HIV/AIDS (antiretroviral drugs ~CAD 25,000/year)
- Severe kidney disease requiring dialysis (~CAD 60,000/year)
- Cancer (advanced stage, ongoing treatment)
- Multiple sclerosis with severe progression
Procedural Fairness Letter (PFL) Response
Before final refusal, officer issues PFL allowing applicant to respond. PFL response is the critical opportunity to:
- Provide updated medical reports showing improvement/stability
- Submit Mitigation Plan: detailed evidence of private resources, family support, ability/willingness to pay for services privately
- Challenge cost projections: officer\’s estimate may be inflated; expert reports can rebut
- Demonstrate non-reliance on public system: Canadian relatives committing to support, private insurance commitment
Federal Court Review
If PFL response unsuccessful and refusal issued, 30-day window for ALJR judicial review. Strong grounds:
- Officer failed to conduct individualized assessment (used generalized assumptions)
- Officer rejected Mitigation Plan without engagement
- Procedural fairness breach in PFL process
- Unreasonable cost projection
FAQ
My child has autism — will Canadian immigration refuse?
Not necessarily. (a) Spousal/dependent child sponsorship of Canadian citizen/PR is EXEMPT from excessive demand under s. 38(2). (b) Other immigration categories: case-by-case analysis. Mild autism with stable behavioral therapy support may not exceed threshold. Severe ASD requiring 1:1 aide may exceed.
HIV positive — can I immigrate to Canada?
Depends. Refugee/spousal sponsorship: exempt. Other categories: depends on antiretroviral medication costs. Some ARV combinations exceed CAD 26,220 threshold; some do not. Mitigation Plan can include private insurance / private cost coverage commitment.
What is a Mitigation Plan?
Detailed written submission demonstrating you will not impose excessive demand: (a) private medical insurance (Canada-eligible); (b) sufficient personal funds to cover medical costs; (c) family commitment to cover costs; (d) details of treatment plan and cost projections; (e) relevant Canadian Federal Court precedents.
Related Hubs
Three-Disciplinary Disclosure
- Ontario LSO licence only. US bar 2027 expected.
- No PRC law licence — Shanghai cooperating firm.
- Not registered as financial advisors.
Contact
Phone: (613) 417-1850 | Book consultation