The individualized assessment: how the Hilewitz and De Jong cases played out in Abdelkader Belaouni’s struggles against immigration controls and ableism

Abdelkader Belaouni’s struggle for status in Canada lasted 3 years, 9 month and 22 days. This is the amount of time Belaouni spent at Montreal’s St Gabriel Church since January 1, 2006 until the long-awaited granting of his status in September, 2009. Prior to the legalization of his status, Belaouni found sanctuary in this Montreal Church as his only alternative to evading a deportation order. Having lost his vision earlier in life, Belaouni’s story has become a living example of a hero who not only won the victory against immigration controls, but also surmounted ableism within Canada’s immigration system.

Belaouni’s legal struggles showcase many of the obstacles that disabled applicants face in pursuit of legal status in Canada. What is the attitude of Canada’s immigration system towards disabled applicants? What does medical inadmissibility entail in the context of Canadian immigration law? In order to address these questions, it is important to describe Belaouni’s legal struggles in relation to two commonly cited cases on disability and immigration law in Canada, the Hilewitz and De Jong cases.[1]

The Algerian man who had lost his eyesight in his mid-twenties, fled to New York City in 1996 after a civil war unraveled in his country. Apprehensive about his future in the USA, a country where racial prejudice had spiked following the 9/11 terrorist attacks, Belaouni sought refuge in Canada in March 2003. He was denied status on the basis that he was unemployed and because he did not have family in the country. Ever since his arrival, this man and hundreds of supporters standing behind him have fought steadfastly to prove that, regardless of his disability, he can be a functioning member of Canadian society.

In addition to running a radio broadcast from the Church where he taught French and Arabic and sent messages, and before going into a sanctuary, Belaouni volunteered for the Multi-Ethnic Association for the Integration of Persons with Disabilities. His many attempts in finding employment were unsuccessful. In an interview, he admits: “In Canada, the discrimination is not because I’m Muslim or Arabic, but because I’m blind.”

According to the Canadian National Institute for the blind, only 25% or working people with vision loss are employed and only 30% of those have permanent employment.[2] These systemic barriers in the integration of blind residents in Canada are illustrative of the debates that often surround the topic of disabled applicants’ treatment under Canadian immigration law. Another systemic impediment in the admission and integration of disabled people into Canadian society is Section 19(1)(ii) of the former Immigration Act.[3] According to this provision, one can be denied an application for permanent resident status in Canada on grounds of medical inadmissibility, namely because of a disability that would cause an excessive burden on Canada’s health care system. A similar paragraph 38(1)(c) came into force at the repeal of the former Immigration Act and the passing of the new Act in 2001.[4]

The question on medical inadmissibility as ground for rejection of one’s admission as a permanent resident arose before the Courts in both the Hilewitz and De Jong cases. In these cases, both applicants, although deemed qualified under the “investor” and “self employed” classes set out in the Immigration Act, were denied admission because a dependent child suffered from an intellectual disability.[5] The issue raised was whether the resources of the Hilewitz and De Jong families should be ignored in determining if the disabled children would create an excessive burden on Canada’s social services.[6]

The Court concluded on an analysis of paragraph 19 of the former Immigration Act that a mere finding of ineligibility because his or her admission “would” or “might reasonably be expected to cause excessive demands” does not satisfy the intent of the legislation.[7] A further analysis of Ontario’s Developmental Act made by the Court led it to find that Ontario considers financial contributions from families and their ability and willingness to contribute a significant portion of the costs associated with certain social services provided by the province.[8]

Furthermore, the Court made a significant change in its reasoning. After embarking on a review of legislative history, the majority Judges concluded that there had been an important shift in approach taken by the Courts: from one based on an unconditional refusal to a more context-based and individualized assessment, as expressed by Justice Abella in the following paragraph:

43. “To do so, the medical officers must necessarily take into account both medical and non-medical factors, such as the availability, scarcity or cost of publicly funded services, along with willingness and ability of the applicant or his or her family to pay for the services.”

Effectively, the majority cast aside the standard used by the Federal Court of Appeal, which held that non-medical factors, such as family support and the ability and willingness to pay, were not relevant considerations, and instead the Supreme Court reaffirmed the contrary.

The successful outcome in the case of Abdelkader Belaouni is reminiscent of the principle of “individualized assessment”, asserted in Hilewitz and De Jong. This approach is perhaps more adequate in ensuring that disabled persons are not placed in one single category, but that their cases are carefully reviewed on an individual basis. It remains to be seen whether the individualized approach provides a viable alternative to addressing ableism within Canada’s immigration system.

[This entry was made possible by the Rathlyn Foundation Student Activities Endowment.]

[2] Canadian National Institute for the Blind, “Fast Facts about CNIB.” http://www.cnib.ca/en/about/media/vision-loss/Default.aspx (accessed on February 1, 2010)

[3] Hilewitz v. Canada (Minister of Citizenship and Immigration) and De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57 at par. 3

[4]Immigration and Refugee Protection Act (2001, c. 27)

http://laws.justice.gc.ca/eng/I-2.5/page-3.html#anchorbo-ga:l_1-gb:l_4

[5] Hilewitz supra at para 3

[6] Hilewitz supra at para 73

[7] Hilewitz supra at para 68

[8] Hilewitz supra at para 69