The waiting game


Salvador Dali Clock

The waiting game

One aspect of the immigration process that seems to be near-universal is the extremely stressful and disruptive nature of the immigration process.  For example, I’ve done a bit of searching on the internet for the immigration officer that signed off on the letters sent to me.  I’m sure she’s a nice person, diligently working processing mountains of paperwork, trying to sift through the potential applicants wishing to come to Canada to live and work. The very process in which she is involved is itself somewhat dehumanizing – after all, she (and others like her) are not looking at people, but rather documents.  Perhaps she gets a sense of who we are from those documents – certainly in the spousal case, I have a good sense that the pictures and letters and narrative story help make us seem more human – after all, if you are reading about someone’s relationship, looking at pictures of their moments together, and getting a sense of their home life, it would be difficult to not at least start to think of them as something other than just pieces of paper.

Be that as it may, the actual process for those involved in it is incredibly stressful.  I’ve been in Vancouver on my work permit for 29 months, I submitted my own application 3 months before than and I was spending significant chunks of time here in Vancouver before I applied, so it feels like even more to me (over three years).  And yet I cannot get settled because I have to live with the very real possibility that I’ll have to pick up and move – and in the process leave my spouse behind, since Canada is our only real option for remaining together.  Oh, and did I mention that there is also the small shock of being diagnosed with a disease that we’re told is fatal?  But the first thing is to get settled so I can stop spending so much time worrying about immigration!

I think it doesn’t help that my occupation (in the IT field, I specialize in the development of software that organizes and manages unstructured information in computer systems) tends to encourage my desire to understand complex systems and their nuances.  I’m sure that most people aren’t sending e-mails to their lawyers discussing the issues of case law regarding legal issues in an immigration appeal (I suspect he might not appreciate it either.)

Ah well.  Perhaps I’ll learn patience one of these days.

 

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Reasons


Canadian Federal Court

Canadian Federal CourtCanadian Federal Court

So this morning I received an e-mail from my attorney including the reasons for the rejection.  What it boils down to is “the applicant wants to move to British Columbia, and given British Columbia’s policy of paying the full cost of medication, the applicant is medically inadmissible due to excessive demand.”

This is as I had concluded. My attorney is telling me:

My initial reaction is that this decision makes the same error that was addressed by the Supreme Court in Hilewitz, confusing mere eligibility for a program with probability of demand.  In your case we submitted undisputed evidence regarding lack of demand; the application was refused based upon your eligibility for the program.

While I have not really discussed it up to this point, I have done quite a bit to educate myself on the current treatment paradigms.  The clinical practice varies dramatically from what I have found in the research data – and the research information is all over the board.  I suspect this is because there is actually too much money available to fund research – this encourages far too many people to submit far too many ideas.  In addition, it relies upon a system that becomes de-facto self-perpetuating (e.g., in order to obtain and maintain funding you have to gain the blessing of those in power, and those in power only approve research that is in agreement with the current paradigm.)  In some ways, we may have been better off in the days when funding sources for research were numerous and varied – simply because it eliminates some of this conformance-based policy practice.

At any rate, the current treatment paradigm here in British Columbia is to prescribe pharmaceutical drugs to everyone who is either at risk or diagnosed.  Those pharmaceuticals are quite expensive, at least in Canada, because they are subject to patent protection (although some of those patents are starting to run out.)  Thus, the essence of the current CIC policy, combined with the policy of British Columbia, is that anyone who is not medically exempt is ineligible for immigration.   The irony of this is that the amount of money they are considering (roughly $58,000 over 10 years) is less than the amount I’ve already paid (in two years) in just income taxes here in British Columbia. But this isn’t a cost/benefit decision, this is a pure cost decision.

Bottom line: I’ve now spent quite a bit of money pursuing my own protocol – running tests for things that actually matter (according to the scientific literature that I’ve read, although I have to keep in mind that it is wise to be skeptical of such literature,) taking treatments that might work (a bit more speculative) and finding other affected people who have experience in avoiding the mainstream paradigm (which is “oh, we’d best put you on chemotherapy because otherwise you might get sick!”)  Protocols such as I’ve been following aren’t even an option in the mainstream public funded health care system, despite the availability of peer reviewed scientific data in support of them.

At any rate, this response means the timer is now ticking – there are 30 days to file the “Application”.

Filing for a Temporary Resident Permit

Status


Justice image

Awaiting a decision

So I’ve taken the plunge – my application is in the mail today. It includes all of the documents (hand-written – the Temporary Resident Permit (TRP) application has not been converted to an online fillable form AND it is region specific.) I have sent it to the nearest Consulate (Seattle). It includes the completed application, a (three page) cover letter and supplementary materials (which included the rejection letter from New York and the draft application for spousal sponsorship.)

I’ve not been able to determine what happens if the TRP is rejected, but I suspect it will make my life even more difficult.  On the other hand, I’ve put myself into a category in which the TRP is normally granted.  The one thing I have not done (yet) is actually file the spousal sponsorship application, as I’m waiting for my medical examination (February 6), my FBI clearance (when that happens remains an open question but this time around I used a credit card to pay the fee, so I should see when they charge it), and CRA income verification paperwork (for my spouse – even though income isn’t actually an issue in spousal cases.)  I also have a couple of supporting letters for which I have agreement from the people involved to write, they just have to be completed and signed off (and my sense is we have time to complete them.)

The entire package I sent to Seattle was around a half kilo (perhaps a bit more) of paper in support of the application.  It’s all pertinent material, and I hope that this is sufficient.

If I am successful in obtaining a TRP, my expectation is that it will be valid through September 2012 (when my work permit expires.)  Then I can file for an extension of both the work permit and TRP simultaneously.  By that time, my sponsored family class application should be well under-way and I would expect that both the work permit and the TRP will be renewed.

If I am NOT successful then I’m not exactly sure what my position will be.  At best it will be the same as I have now – the perennial threat of being refused entry into Canada at the border.  In the interim, I will keep a copy of my application materials with me whenever I have to travel out of the country (sadly, that’s a reality of the process at this point.)  I’ll be in a stronger position once the file has actually been submitted for processing.

Proving a marriage is legitimate


 

One of the interesting challenges in preparing a new application for spousal sponsorship has been to substantiate the legitimacy of our marriage.  I’m quite sure that, given my previous rejection by CIC, this will be an area of inquiry.  From what I’ve read in other forums (e.g. Canada Immigration and Visa Discussion Forum) an important aspect of speeding the spousal immigration process along quickly is to ensure that you document everything.  I’m not trying to be so exhaustive that I overwhelm them, but at the same time I’m trying to make sure that the immigration officer reading through the file has no doubts that ours is a legitimate marriage.

Complicating this a bit is that our marriage is hardly a traditional one.   We didn’t have a big wedding (my spouse had just returned from a family wedding and agreed with my assessment that big weddings are tremendously stressful.) We had actually discussed marriage before, but to be honest I had concerns – one of which was I never wanted my spouse to ever think that I’d used our relationship for immigration purposes (another is that there’s a bit of an age difference between us.)

Even though I expected to receive the fairness letter (I just went back and looked – I received it from my attorney on the 7th of April 2011) it was still a real shock to the psyche. Something that one cannot fully appreciate until in this position is the concern about losing your home and family because of the arbitrary and capricious nature of a bureaucratic process.  Of course, bureaucratic processes are, by their very nature, dehumanizing. They turn real people into files full of paper, with numbers attached and objective standards to which the decision maker must adhere.

At any rate, we agreed to marry on April 9, 2011.  After my spouse returned in May (recall there was a family wedding and my spouse is from Taiwan originally) we started discussing when and how to do it.  I had suggested low key (with a party afterwards, although we’ve procrastinated a bit on the party unfortunately.)  After going through a big wedding my spouse was in agreement and we agreed on the low key approach.  Indeed we treated the whole thing somewhat casually – we went to Dim Sum on Friday May 13, 2011 and I said “you know, we could just go get the licence” – and that’s exactly what we did.  We went over to the Jack Chow Insurance office in Chinatown that also happens to issue marriage licences.  After showing our identification and being advised that we had to use the licence within ninety days, we left – both of us were a bit giddy.

We went ring shopping the next day after my spouse got off work.  We’d done some online shopping up to that point, so we picked a shop that had a number of rings that we really liked.  After looking at a number of rings we narrowed it down to three different rings.  My spouse then wanted me to pick, but rather than do that I said, no you pick one and I’ll pick one and then we’ll see if we can accept one of those two choices.  We both picked the same ring, which as far as I was concerned was the best possible outcome.   It’s not particularly fancy, but it has a bit of “bling” to it (something my spouse likes) and really did represent a good blending of our own likes.

I contacted a marriage commissioner the next day (Saturday) and our first pick was available for the following Friday (May 20, 2011.)  So we drove over (along with two close friends) to Kitsilano (still part of Vancouver, but a specific neighbourhood and outside of downtown where I lived.)  The day was fantastic – beautiful weather (about 24 celcius), dry and sunny.  Indeed, it was the best weather day in the first half of the year!  The ceremony was poignant and we both cried at various points throughout it.  The whole thing took about 20 minutes.  We’d brought a bottle of champagne and I think I drank most of it.

It was an amazing day.  Simple, yet thoroughly memorable.  Even the lottery ticket I bought (for the 20 May 2011 lottery) won!  It was only $20 (exactly what I spent) but given that its the most I’ve ever won on the lottery here, I was pretty happy about that outcome.

At any rate, I wander.  I’m going to include pictures from that amazing day.  Plus I’ve asked the owner of our gym to take a picture of us and write a letter of support (and she’s agreed to do so – this is a Crossfit gym, which is definitely NOT your typical gym.)  I’ve also asked my doctor (who my spouse has seen twice as well) to write a letter supporting us.  My hope is that this will be sufficiently compelling (I mean, we work out together at the gym.  If that doesn’t say love, what does?)

Just for the record, my spouse has pushed for formal pictures and engraving the date in our rings.  I’ve agreed to both.  Plus we still have a party to throw – I’m thinking that May 20, 2012 would be a good date for it (it’s a Sunday.)  We shall see.

 

Taking the plunge: another medical exam

Status


Doctor Patient Picture

Booking a meeting with the doctor

The process of obtaining a physical examination is a bit different for spousal sponsorship than it is for federal skilled worker immigration – in the latter, you wait until they send a form saying “go get your physical” while in the family sponsorship category they have you go get it up front:

If you are applying under the family class and being sponsored as a spouse, common-law partner, conjugal partner, or dependent child, then you should complete your medical examination before submitting your application.

That’s actually encouraging since a medical examination is technically only “good” for a period of 12 months – suggesting that they expect the entire process to be done in a year. Let’s hope.  From what I’ve read, if one sends a complete file the processing can actually go quite rapidly.

I’ve spent the past couple of days filling out all the paperwork.  I’m now down to just a handful of things remaining to be done:

  • pay the right of permanent residence fee (not required but I’ve read that this will speed things up – assuming the application is successful.)
  • medical examination
  • FBI clearance (I sent that in already, just waiting for it to come back, which could be in February or March.  I COULD submit without it and then send it along when I have a file number, but there is a certain advantage to having it all done and complete in one package
  • Supplementary materials in support of the legitimacy of our marriage.  Maybe other people are good at remembering exact dates and places: “when did you first meet?” – I know roughly when and even where we met, but exactly?  Of course, one thing that I’ve enjoyed about this is thinking back to those heady initial days.  Not that a visa officer will care about that sort of thing, of course.  So the fact that the landlord still hasn’t returned an executed copy of our apartment lease (hey, it’s only been 7 months, why rush things?) is now a bit more than a minor annoyance.  We do own a car together and have bank accounts together, have traveled together and I’m off looking through telephone records (ugh!  we mostly text!) and pictures (call me a die hard romantic, but there are some that just make me tear up.)

It’s quite a pile.  Since I can’t seem to get a straight answer to almost anything I now have to mull over whether or not to send in this whole pile and request a temporary resident permit.  As I previously noted, a simple reading of the CIC website pretty clearly says that I’m not eligible for a spousal sponsorship, even though other people say that I am.  The only way to really tell is to submit the application and see what happens. Ugh!

I’ll keep going over the application to make sure I haven’t missed anything, but having my previously filed application has been immensely helpful in preparing the new one (try remembering everywhere you’ve ever lived since you turned 18!)

CIC website and confusion


CIC image

CIC and confusion

One thing that can be frustrating with respect to the immigration process is that the CIC website often provides information that seems definitive but then turns out to be very contextually narrow or misleading.

For example, in “Guide 5289 – Applying for permanent residence from within Canada: Spouse or common-law partner in Canada class (IMM 5289)” the site clearly states:

A foreign national cannot become a permanent resident in Canada if he or she is inadmissible for reasons other than lack of legal immigration status in Canada.

A temporary resident permit (TRP) holder is inadmissible unless the circumstances that lead to the issuance of the TRP are resolved.

The person being sponsored must resolve the circumstances that resulted in the inadmissibility before submitting an application for permanent residence.

So my reading of this would say “if you cannot resolve the medical inadmissibility, you are not eligible for permanent residency as part of the sponsored immigration class.”  I’ve read (and re-read) this section several times.  Yet numerous sources confirm (including the CIC website) that medical inadmissibility is not a bar to sponsorship for spouses.  So, which is it?

I suspect the key to this is the title of this guide: Applying for permanent residence from within Canada: Spouse or common-law partner in Canada class.  Perhaps Guide 3999 is more appropriate, although it also says:

You and your family members, whether accompanying you or not, must undergo and pass a medical examination in order to come to Canada. To pass the medical examination you or your family members must not have a condition that:

  • is a danger to public health or safety
  • would cause excessive demand on health or social services in Canada.

Examples of “excessive demand” include ongoing hospitalization or institutional care for a physical or mental illness.

It seems little wonder why there is so much confusion in this field (and why nobody can give you a simple answer.)

Lee v Canada (126 F.T.R. 229)


It would seem the difficult citation against raising a Charter of Rights claim is Lee v Canada (126 FTR 229) in which the court said:

The applicants have no standing to bring an application for a Charter declaration in their capacity as TEPA’s henchpersons. The Charterdoes not apply extraterritorially in order to allow TEPA to make an effort to break through the frontiers of Canada, and counsel’s suggestion that it could mount a horde of declaration applications is not well taken. Conformity with Canadian law is all they need, nothing more nor less.

The members of TEPA who dislike the policy of heightened scrutiny have no standing to invoke the Charter: Madam Justice Wilson in Singh et al. v. M.E.I., [1985] 1 S.C.R. 177 at pp. 201-02; as to lack of standing – Canadian Council of Churches v. Canada, [1990] 2 F.C. 534, at p. 563, where the Canadian Bill or Rights was also invoked in an immigration matter. Those who are non-citizens, outside of the territory of Canada cannot invoke the Charter as is purported to be done here. Also illustrative of this proposition is Ruparel v. M.E.I. and Secretary of State, [1990] 3 F.C. 615.

This seems like a rather strident position to take (that only citizens within Canada have Charter rights that can be invoked) but it may also reflect the annoyance the Judge held for the Applicant in this case (they’d already been awarded resident immigrant visas yet were in court trying to argue about the way in which it was done.)  It does suggest a couple of things to me, however: first, that my spouse might have rights to intercede (“standing”) in this case and assert Charter rights (being a citizen within Canada) and that I might have rights because I’m within the territory of Canada, although not a Citizen of Canada.  The cited case is old enough I couldn’t find it online (not yet, at least.)  I’m sure I’d find it if I wandered down to the law library (I’m only two blocks away from the courts here in Vancouver.)

I did find some interesting analysis of this issue from searching for this citation.  For example, this piece “Independent Immigrant Selection Criteria and Equality Rights : Discretion, Discrimination and Due Process” was insightful, albeit older and thus lacking in coverage of more recent applicable case-law.

My thinking right now is that if Lee v Canada can be overcome in this case, the remaining part of the argument is actually quite straight-forward (the Auditor General report and CIC’s admissions are very solid bedrock upon which to build a case for known discriminatory conduct.)  Then arguing about the reasonableness of the restriction is certainly the fun part.