Application Reasons

Federal Court (Canada)

Federal Court (Canada) (Photo credit: Wikipedia)

As I noted previously, this is an “application for judicial review” – it tries to provide serious issues that justify a judge spending her or his time reviewing.  Something like 20% of “applications” are granted by the court and most are dismissed.  There are three steps to this process: the application, the response, and the request for hearing.  The first and third are written by the applicant and the second by the government’s attorney in most immigration cases.

The standard for review, as explained by CIC:

Review by the Federal Court is a two-stage process. In the first stage, which is known as the “leave” stage, the Court reviews the documents related to your case. You must show the Court that an error was made in the decision, or the decision was not fair or reasonable.

Of course, the Federal Court has the actual text including the rules and standards applied to this process (and it differed a bit from the explanation I’d been given up to this point.)

So what is critical at this juncture are the arguments.  If the initial arguments are not very strong then the court will probably just dismiss them. It is ultimately up to the discretion of the court and thus the job of the applicant is to frame questions that will pique the interest of the judge reviewing the initial record.

In my case, my attorney has chosen five arguments to present:

  • The medical officer made an error in law by failing to make an individualized assessment in deciding that I was medically inadmissible.
  • The medical officer violated her duty of procedural fairness by failing to provide me with a fair opportunity to respond to her concerns.
  • The medical officer failed to provide adequate reasons for her decision and this makes them unreasonable, particularly given that the same medical officer reached a different conclusion for a similar case with similar circumstances.
  • Section 38(1)(c) of the Immigration and Refugee Protection Act (IRPA) is constitutionally invalid because it represents a Federal intrusion into the Provincially controlled arena of health care.
  • Section 38(1)(c) of the IRPA is invalid because it violates section 15(1) of the Canadian Charter of Rights and Freedoms.

While the arguments presented to back up these claims stretch for more than a dozen pages, these are the key arguments.

The first three are, on their surface, sufficient to obtain judicial review.  Particularly the third argument. In a previous case (known to my attorney) the same medical officer concluded that the applicant had failed to mitigate their excess demand circumstances by failing to show insurance to cover their needs.  In my case, the medical officer states that insurance was immaterial.

While my attorney did not state it, my take-away from this was “we’re going to reject these people, and we’re going to make up arbitrary reasons why as needed, even when they are contradictory.”

The first three arguments are likely sufficient to obtain review – they do seem to raise serious questions of procedural fairness.  However, a finding in my favour is merely going to refer the case back to CIC for further decision making.

The last two arguments are the more interesting ones.  If either of these is adopted by the court, the entire basis for the rejection is discarded.  While my case would be remanded back to CIC, there would not be anything further required for them to do for my original application.  They would likely ask me for updated medicals and police clearance, but beyond that there wouldn’t be much of anything to decide.  That would (from my perspective) be the ideal decision.

I’m writing this a week before the Respondent’s arguments are due.  I’m going to schedule it for publication AFTER they are due, simply because I don’t want to post anything that might compromise the case.


Immigration: Anyone with a condition will be a drain

Down's SyndromeOne of the fundamental underpinnings of the concept of “inadmissibility due to excessive demand” is the idea that people who are different are also liabilities to Canadian society.  This is reflected in the very process – in which only costs are considered, not added value, for example – and represents a deep-seated bias.  Even more peculiar is the idea that in some cases this excessive demand can be waived – for example, in the sponsored spousal class.

Of course, I’m dealing with this in my own case, as it is at the heart of the medical inadmissibility decision process: let’s look at costs above all else.  I must admit, I do understand the need to try and balance contributions against expenditures, but the law in this area is crazy – CIC turns it into an adversarial process, in which they say “sorry, but you might cost us too much money” and then makes you go figure out HOW they reached that decision (they certainly don’t tell you) and come up with some argument they might find persuasive.  If you guess wrong, you lose and you are rejected.

For example, in my case I’ve struggled to find out how much they think the meds are going to cost.  Not even the clinic in Vancouver can tell me the actual cost of these meds (and I’ve asked.)  I know what I can pay to buy them in the open market.  I’ve even gone so far as to research patent expiration dates to find drugs that are NOT covered by Canadian patents any longer and thus should be about the same cost as the generics I can find priced on the internet.  There are treatment options at around $2,000 per year.  But because I cannot find out the costs the government pays, I can’t even argue that their assessment is wrong – all I can do is say “ok, I have enough insurance to pay 100% of the cost” to which they reply “we know you’re just saying that and as soon as you can you’re going to jump on the gravy train…”  Nothing quite as inspirational as a process that automatically assumes you are a liar.  Of course, I’m not and I signed an unconditional affidavit saying I would pay the costs of the medications should they be necessary.  So I consider that no matter what the outcome, I am bound by that oath.

At any rate, last night I read this interesting article on the refusal of a parental sponsored application because they have an adult daughter with Down’s Syndrome. It’s what triggered this thought process for me.  There is an inherent bias in the system against people who are different.

This is an important part of our argument that this is a Charter violation – and this case is an excellent example of exactly the kind of bias we’re suggesting is the issue.

Healthcare in Canada: Who is responsible?

Political Map of Canada

As I previously noted, my application for judicial review before the Federal Court of Canada argues that the Federal Government does not have the legal right to make excessive demand decisions, because it involved an exclusively provincial domain (namely, health care.)

While researching this issue I found the following description of the history of health care in Canada on Wikipedia:

The federal government felt that the health of the population fell under the Peace, Order, and Good Government part of its responsibilities. This led to several decades of debate over jurisdiction that were not resolved until the 1930s. Eventually the Judicial Committee of the Privy Council JCPC decided that the administration and delivery of health care was a provincial concern, but that the federal government also had the responsibility of protecting the health and well-being of the population.

What I find interesting is that when I look back at one of the seminal cases (Deol v Canada) the court specifically said that CIC had no obligation to advise the applicant of a provincial bonding program.  If the Federal government is representing the interests of the province in making immigration oriented health care decisions who is responsible for advising the applicant of such a program? In other words, if CIC is the agent of the province in this case, how can they abrogate a reasonable obligation to advise the applicant of their option under the very laws and regulations they are purportedly representing?

Here is the text from the judicial review application, as filed:

Issue four: s. 38(1)(c) violates the constitutional division of powers

1. Section 38(1)(c) of the Act authorizes the federal Minister of Citizenship and Immigration to make determinations involving costs of administering provincial health plans. Therefore, this section is invalid because it intrudes upon provincial health jurisdiction and jurisdiction in local matters under ss. 92(7), (13) and (16) of the Constitution Act. 1867.

2 . S. 91(25) of the Canadian Constitution Act authorizes the federal government to regulate naturalization and aliens.

Constitution Act, 1867, s. 91(25)

3. S. 92(7), (13) and (16) of the Constitution Act. 1867 provide provinces with the authority to regulate health care and jurisdiction over local matters.

Constitution Act, 1867, s. 92(7), (13) and (16)

4. S. 38(1)(c) of the Act, in pith and substance, involves the federal government in
regulating the cost of provincial health care. As such, it is ultra vires the federal

5. Regardless of whether the Immigration and Refugee Protection Act as a whole is valid immigration legislation, it may contain provisions which are neither valid immigration provisions, nor ancillary to immigration provisions. An invalid legislative provision is not rendered valid because it is included in a legislative scheme that, viewed globally, is valid. The proper approach is to rigorously scrutinize what each provision says and does.

6. S. 38(1)(c) of the Act, in pith and substance, involves the federal government in regulating the cost of provincial health care. As such, it is ultra vires the federal government.

7. Regardless of whether the Immigration and Refugee Protection Act as a whole is valid immigration legislation, it may contain provisions which are neither valid immigration  provisions, nor ancillary to immigration provisions. An invalid legislative provision is not rendered valid because it is included in a legislative scheme that, viewed globally, is valid. The proper approach is to rigorously scrutinize what each provision says and does.

Quebec (Procureur General) v. Canada (Procuruer General) 2010 SCC 61 at para. 78,87

8. The purpose or ” matter” of s. 38(1)(c) has been acknowledged to be “to reduce the impact on Canada’s publicly funded health and social services from excessive demand”. Unlike s. 38(1)(a) and (b), which are concerned with protecting the health of Canadians from newcomers who could pose a threat, s. 38(1)(c) in pith and substance is designed to manage and contain the cost of provincial health programs. This is not a valid immigration law purpose. This is a provincial concern.

Regulatory Impact Analysis Statement, Canada Gazette Part I, Part IV, p. 4497

9. The Supreme Court has determined that s. 92 provides provinces with jurisdiction over the costs of health care. The Court stated:

“In addition, there is no dispute that the heads of s. 92 invoked by the appellant confer on the provinces jurisdiction over health care in the province generally, including matters of cost and efficiency, the nature of
the health care delivery systems, and the privatization of the provision of medical services.”  [Emphasis added]

R. v. Morgantaler [1993] 3 S.C.R. 463 78,87

10. Recently, the Supreme Court described the provincial health power as “broad and

PHS Community Services Society v. Canada (Attorney General) 2011 SCC 44 at
para. 68

11. Deciding which newcomers are too costly for provincial health programs IS a provincial concern because it is a local matter requiring expertise regarding local conditions. For example, such an assessment requires detailed knowledge regarding how the health care system in a specific province is administered. Provincial authorities rather than federal bureaucrats are best placed to make such determinations.

12. Deciding which newcomers are too costly for provinces is also a local concern because it requires a balancing of the cost of the particular newcomer’s contributions with their expected costs.

13. In the Applicant’s case, for example, it is more appropriate for British Columbia to determine whether the Applicant is too great a cost for the province, taking into consideration that he resides there contributing to the local economy, consuming local goods and services. and paying taxes to British Columbia. A system which allows a federal medical officer in Ottawa to make such determinations on behalf of the province intrudes into provincial jurisdiction over local matters.

An unusual entry in the Docket


Sparks St. Headquarters

Image via Wikipedia

I haven’t checked the docket system in a while – after all, I don’t expect anything else to change until the government has responded to the application.  For whatever reason, I looked at it today and was rather surprised to find there was a new entry:  The government has assigned an attorney to this case apparently, because she filed a letter with the Court indicating she was assuming “carriage” of this case.

I found this about two hours ago (as I write this) and I’m still oddly rattled.  Indeed, initially I was floored – I’ve never seen an entry like this one in the dozens of other immigration cases I’ve reviewed on the docketing system.  Of course, I wasn’t specifically looking for this entry either, so I just figured I had not really noted it previously.  So I spent about an hour going back over old cases and none of them indicated an attorney by name taking the case.  Usually the next notation after the application being filed is the response being filed.

I’ve decided to include it as an image; while it can be recognized via OCR, this will prevent the name from being normally indexed (or so I hope – web stuff is getting rather sophisticated these days!)

Docket entry

Docket Entry

This was enough information for me to do some web searching.  This is an attorney with quite an extensive history of handling high profile cases.  She sat on a panel discussion last year discussing medical inadmissibility in the Canadian federal court system.

I’m at a loss as to how to interpret this.  I suspect I may be over thinking it.  So at least for the time being I’ve decided to interpret it as a positive sign – that Justice Canada is taking my application seriously.  Ironically, this may make it more likely that I’m granted leave – since it suggests there are substantive issues to decide.

It does seem likely that the response in this case is going to be a strong one.  There is little doubt that my attorney is going to earn his fee on this case (or perhaps just this added level of attention means he’s already earned it!)

The Application

Last night I received a copy of the actual application that my attorney filed with the court.  It’s 259 pages of material, some of which I’d never seen before – like the original notes from the medical officer‘s file.  I thought it was interesting what was omitted from the file (some of the documents that were filed with the case) so I’m not sure what the rationale was for including or excluding specific information.  Be that as it may, the application record contains the bulk of information that was provided to CIC as well as information received from CIC.

Of particular interest to me were the legal arguments (19 pages), as ultimately it is the persuasive value of those arguments that will determine if the court agrees to hear the case (“grant’s the application for judicial review“).  The legal arguments for review consist of five different points:

  • The medical officer did not make an individualized assessment
  • The medical officer violated the duty of procedural fairness by not allowing me a fair opportunity to respond to the medical officer’s concerns
  • The medical officer’s reasons for her decision are inadequate.  In my case the medical officer reached a conclusion that is opposite of the conclusion reached in a different case with similar circumstances
  • The medical inadmissibility clause of the law is invalid because health care is legally the jurisdiction of the provinces
  • The medical inadmissibility clause violates Section 15(1) of the Charter of Rights and Freedoms

After reading the basic rationale, I would assume the lawyer assigned to this case for the Respondent will have some work to do.  The fourth argument is novel and has not previously been considered by the court, although there is plenty of case law pertaining to the separation of powers in the arena of health care.  The fifth argument is one that remains unsettled in Canadian jurisprudence.

My initial sense after reading this was that the first three arguments really do merit review.  The facts backing this up are interesting – the same medical officer decided that insurance was of paramount importance in the original Companioni decision, yet in my case decided that insurance was immaterial in my case.  Following the medical officer’s logic, no one in my situation would be medically admissible for immigration to BC.  That would seem to make things easy for CIC – blanket rejection.  Yet the point of the Hilewitz decision was to reject such a “cookie cutter” approach.  The inconsistency of the medical officer’s opinions does seem to be troubling (same medical officer, similar circumstances, completely different and contradictory rationale.)

It is, however, the last two arguments that are the more intriguing.  The separation of power’s argument has a reasonable counter-response: to cite to the British Columbia/Federal agreement allowing the Federal government to make medical decision on behalf of British Columbia with respect to immigration. (See canada bc immigration agreement for a copy of the 2010 agreement.)  It is a bit vague, but it is reasonable to argue that this grants the Federal government the authority to make decisions on British Columbia’s behalf.  There is a trap here however: first, the agreement requires that BC and CIC have drafted mutually agreed upon standards – and I haven’t been able to find them yet.  Second, and perhaps more dangerous, it would make the Federal government liable under British Columbia human rights legislation.  The idea here is that a government cannot abrogate it’s legal obligations by contracting with someone else to discharge its duties.  In theory then, it should be possible for me to bring a provincial human rights complaint (denying access to services based upon disability) against the Federal government.  If they then argue that they are immune from such, it would seem to create a very untenable position – they claim to have the right to exercise provincial authority in one context, yet deny the obligation to abide by provincial law in another context – both involving the same case?

The Charter argument has had plenty of time to ripen – it does not appear to have been argued in recent memory and there’s been quite a bit of development in the intervening years.  The arguments the attorney put forward are actually well-developed.

I was actually a bit concerned when I finished reading the legal arguments: they seem to be sufficiently interesting that I now rate the likelihood of judicial review happening at about 40% – there’s enough here to pique the curiosity of a judge.  My thinking is that if you’re given a stack of applications to review, most of which are refugee applications, and then you find one that appears to have some interesting potential arguments, you’d be inclined to grant the application.  At least that’s my hope.

Then there’s the scary side of this: suppose one of those last two arguments is successful and the court agrees that Section 38(1)(c) of IRPA is unlawful and must be struck down.  There is no way that the government will not challenge this, which means that it will take 2-3 years to resolve (and I’m betting that the cost of supporting an appeal in this regard will cost $30-50k.)

If judicial review is granted, particularly with these arguments presented, I worry about being successful – it basically would mean that a complete decision, with my name attached to it, would be splattered all over the legal history books.  I realize that’s a long shot.  It seems far more likely that a judge would decide on narrow grounds (e.g., “medical officer erred in her analysis”) than on broad grounds (“Section 38(1)(c) of IRPA violates the Canadian Constitution and/or Charter of Rights and Freedoms”). But to deny review, the judge must dismiss all of these concerns.  Under review, they can all be addressed (or some can be ignored.)

A positive decision on narrow grounds would simply return the file to CIC for further consideration.  In that case, with two applications in process, I’ll gladly take the one that comes first.  A negative decision on this application won’t affect the application in process.

A positive decision on broad grounds would be interesting – it would remand the decision to CIC after having invalidated this section of IRPA.  Thus, it would seem that the visa office would have to issue the PR visa (and in fairly short order, since all other criteria were satisfied.)  As I have mentioned before, there is a certain level of notoriety with a successful decision.  I’d have to expect an affirmative decision in this case on broad grounds would be exactly that sort of notorious decision.

Over the next few weeks I’ll see what I can do to capture more information about some of the arguments presented and the rationale used.

March 30: Respondent’s deadline.  I expect them to respond and disagree with our position.  I give a small chance to them assenting to the first points and disagreeing with the latter few points.  If they do the latter, it would be tactical – assenting on the first few points could lead to a decision in which the judge remands the case back to CIC based just upon the written pleadings (and thus side-stepping the Constitutional and Charter arguments.)  I’m not familiar enough with Canadian Jurisprudence to know if this is even a reasonable possibility.

Sponsored Application: Sent

So after spending the past couple of weeks traveling all over (mostly for work) I’ve now ended up at home (just in time to celebrate my birthday with my family!)  My goal had been to submit my application prior to my birthday.   Sunday and Monday were spent going over everything one more time.  I split apart my overview letter into a series of discreet documents.  I went through the checklist to make sure I had everything and to organize things.

The final application was likely a bit over-done.  Every page was inserted into a sheet protector.  These sheet protectors were in turn included in a 3″ binder.  The front of the binder had both our names and pictures on it.  Each critical section of the application had a separate tab, independently labeled to make it easy to find each document.  I also included a complete copy of everything in the application in a separate envelope – no staples, no paperclips, nothing.  Just in case they don’t like the binder approach to things.

Receipts for the fees are included (application fee plus right of permanent residence fee.)  Completed original applications, supplementary materials, original IMM 1017 EFC form (as completed by the DMP) and my original FBI clearance letter (which is printed on a special paper that when copied exposes a watermark saying “unauthorized copy” on it.)

The entire package was 5.2kg (11 lbs).  It was shipped out on Monday March 5, 2012 right at the wire – 4:45 pm (cut-off time.)  It was delivered on Tuesday March 6, 2012 at 10:35 am to the mail room of the Case Processing Centre in Mississauga, ON.

Currently, the CIC website indicates that it takes 55 days before they open a new application after receipt (8 weeks) although that’s certainly subject to change.  But assuming that schedule, they should open the application around May 1.  Hopefully we will hear that the sponsor has been approved by the end of May and the file then transferred to Buffalo, NY.  So, let’s hope they log it in by the middle of June.

In parallel, the judicial review should be moving forward.  Decision on whether to grant review or not would be due in roughly the same time frame: early to mid June.  At this point I’m not expecting review to be granted (it seldom is) and if granted a positive determination seems unlikely (looks like about 20% of review cases result in a determination for the applicant.)  So, 20% chance of being accepted review and a 20% chance of success would yield a 4% chance of success this way.  Not outside the realm of possibility, but not the kinds of odds on which one should base one’s life.