IRPA s. 38 Medical Inadmissibility Lawyer | Excessive Demand + Mitigation Plan | BridgePoint Law

IRPA s. 38 Medical Inadmissibility · Excessive Demand · Danger to Public Health

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.

Disclosure: Ontario LSO licence. Coordination with medical professionals for evidence preparation.

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

  1. Ontario LSO licence only. US bar 2027 expected.
  2. No PRC law licence — Shanghai cooperating firm.
  3. Not registered as financial advisors.

Contact

Phone: (613) 417-1850 | Book consultation