Nervousness and waiting


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Something to pass the time while I'm waiting.

So it’s just after 1:30 pm PT, which means that my daily ritual of checking the registry website “makes sense” as they would be closed in Toronto.  I suppose it’s possible the decision will be made elsewhere (like here in Vancouver) in which case they could post it as late as 4:30 pm PT.

The interminable waiting is surprisingly stressful.  Fortunately, I’ve had my work to keep me busy, and this past weekend I volunteered to assist at a regional athletic competition, which involved very long days.  Plus, today is the deadline for filing taxes (they are done, I just have to walk them over to the tax service office and drop them off before 4:30 pm.)  I don’t owe any money, so even if late, there’s no penalty.  Then again, since I’m getting a refund, I’d rather get them in sooner.  Usually I get them in by the end of March, but this year I didn’t make it – and somehow April has evaporated.

Still, I keep the court docket up in my web browser and periodically check to see if there is any sort of update.  It will be two weeks tomorrow that the case has been sent to the Court for disposition and most decisions seem to come down at around the three week mark.  I know my attorney has asked me to withdraw the sponsored application and I will write up the documents to do so this week, but my thinking is to hold onto that until we get a decision on the review application – right now it looks like we’re about five weeks out on them even opening the application so I’d rather wait a bit longer – after all, if review is turned down I’ll at least be a couple months into the sponsored application process, which seems to be a net plus.

Ah well.  Time to try and ignore the elephant in the room and find other things to keep me occupied.  Fortunately, work has been VERY busy, which makes staying distracted easier.  Still, I wake up at night worrying about this.  Life feels uncertain at this point, and it’s distinctly an uncomfortable feeling.

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Minister Kenney and Huffington Post


Minister Kenney (Citizenship and Immigration Canada) apparently agreed to answer immigration questions on the Huffington Post website.  Sadly, I did not see the offer to answer questions soon enough so while I posted a question (a pair of questions) it was past the time that it would receive a review.  Nevertheless, I found the comments illuminating.  It is certainly clear that a fair number of those posting about their experiences with CIC came from non-native speakers of English, yet the anguish in their entreaties was heart-felt.

Many of the posts were from people experiencing the increasing wait times for sponsored spousal applications.  For example, in the past five weeks (since we submitted our application, in fact) the waiting time has increased linearly – ergo, there has been no reported progress on the CIC website.  I’m not convinced the CIC website is really reflective of the actual processing time, but it is the best source of information made available to us (I will post a bit more about our application soon, but for the moment let’s stick to the matter at hand).

I also found the statement from someone that “we should just shut down all immigration until the job situation improves” to be symptomatic of the feelings of some Canadians – that immigrants are “taking our jobs away”.  As I pointed out, in my situation I brought my own revenue stream, my own customers and have been able to hire existing Canadians to assist in my business.  I’d like to hire more, but to be honest I cannot legitimately make the case for doing so in the face of the very real possibility that I might not be allowed back into the country at the whim of a CBSA agent.  That would be a true nightmare situation – to have to default on my obligations to others simply because of my own bizarre situation.

So I will continue to muddle along.  And I hope that I have added a unique perspective to the discussion.

Case now under consideration

Status


As of this morning the case has been sent to the Court for determination.  The docket has an entry that says: “Communication to the Court from the Registry dated 17-APR-2012 re: sent to Court for disposition – A’s reply filed”.

So this means that the filings have been sent to the Court for a decision on the application.  Generally it seems to take 3-4 weeks for the Court to decide.  Thus, we should have a decision on the application by mid-May.  Actually a bit earlier than I had thought might happen.

 

Reply submitted


People of Canada

Canadian Flag made up of individuals

It’s been a while since I posted anything, although there has been some activity.  First, my attorney filed a “reply brief” responding to the government’s response.  It essentially said “largely moot” is not a term of any meaning in Canadian jurisprudence.  An issue is either moot, or it is not.

I’ve actually read some of the case law involved here (and indeed my attorney cited the same case law).  Specifically Borowski v. Canada (Attorney General) 57 D.L.R.(4th ) 231.  There is a certain amount of acid in my attorney’s reply:

The Respondent’s characterization of the application as “largely moot” implies that the Respondent is well aware that the application is not moot.

and

Given that the Respondent has not contested the presence of serious issues in this matter, it is respectfully requested that the Court grant leave. The Respondent is able to raise the mootness issues in the future if the circumstances justify it.

At any rate, the matter is now before the court.  The next step is that at some point in the next several weeks the registry will notice that the application is complete (both sides having submitted their documents) and it will be sent to the court for determination.  The court then takes anywhere from two to six weeks to decide if leave will be granted.

If leave is granted, the court will schedule a hearing date (60-90 days into the future) and advise both parties of the date and the decision to hear the controversy.

While I am still quite hopeful that we will obtain a full hearing, nothing is guaranteed at this point.

Is it Moot?


In the days leading up to the government’s response there was correspondence from the attorney representing the government advising us that because there was a spousal sponsored application in the mix she would file a “Motion to Strike” and correspondingly ask for an award of costs.

This led to some interesting conversations with my attorney – I had not told him what I was doing with respect to a spousal sponsored application for a couple of reasons: I’ve engaged his services to represent me in the judicial review action, not in a spousal undertaking for example; I’ve been told that the two are not related.

It is a bit frustrating to have a professional (such as a lawyer) treat me as if I were someone who did not understand the subject matter.  I’m not an expert but I’m also not stupid.  I was very careful in my communications with him not to lie, although I certainly did not disclose everything to him either.  Since that time he ask explicitly requested that I do so.  Thus, I’ve sent him a copy of the sponsored spousal application for his records as well as the letter I submitted to the visa office in February when I discovered they had not shown submitted documents in the CAIPS notes (including those materials).

So, with the record now clear, we’re still proceeding on the presumption that my ability to challenge the original finding in my FSW application is not abrogated simply because I might be allowed in under a separate immigration category.  According to the timing published this week Mississauga won’t even open the application until mid-May (75 days as of April 2, 2012).  Maybe we missed something, in which case I have to fix and resubmit the application.  Maybe they won’t allow my spouse to sponsor me (there ARE potential issues in our relationship that might lead to that conclusion).  Most likely, they will approve my sponsor and then forward the entire file to Buffalo.  Odds are it will then take a couple of months for Buffalo to even start processing my file.

However, the government did not file a Motion to Strike.  Instead, they filed a response. The government’s response entirely ignored the substantive points raised in the application.  They did not defend the medical officer’s decision, they did not challenge the separation of powers argument and they did not defend against the Charter challenge.  The argument boiled down to: the applicant is filing under the sponsored spousal family class in which medical inadmissibility is not an issue and thus this court should not hear this case. They did ask for a “small award for costs”.  They also challenged a couple of the items that were submitted because they were not available to the visa officer.  Some of this did not make any sense (like the medical officer’s decision in the previous case) since its presence in front of the visa officer or not seems irrelevant.  But that’s what they argued.

My attorney said that until I’m granted permanent residency in the new class, there is little if anything to support a claim that the issues I raised are moot.  In my conversations with him I said, pointedly, that if I’m granted review I will withdraw my application as a sponsored spouse pending outcome.

Certainly, part of my mental process back in January was that the likelihood of obtaining review was fairly low (20-25%).  At least by initiating the parallel application, if that were the actual outcome I’d be able to at least trim several months off the processing time required (although probably not in time to avoid renewing my work permit, the next challenge I have to face.)  Perhaps it was a bit of panic thinking at the time – the idea of being kicked out, pushed away from my job, my spouse, my dog, my apartment and my home of choice certainly was not a pleasant one.

However, the argument against the government’s position is that simply because there is another possible avenue to explore, there is no guarantee that I would be successful.  For example, I pointed out that if one followed this logic, the court could dismiss any medical inadmissibility case if the government argued they had not pursued an H&C application – even though such an application would most likely fail.  Otherwise, this becomes an argument of relative probabilities.  But my attorney did say that once granted permanent residency in the sponsored spousal class the court would dismiss my challenge in relation to my original federal skilled worker application.

I did point out (although he did not respond to my observation) that even if I’m granted permanent residency in a different class, I’m now bound by a sworn affidavit to eschew using the very provincial medical services in question and thus I could argue that I still have standing, even though I’ve been granted permanent residency because I’m still bound by my prior affidavit.  Thus, the government want’s to “have it’s cake and eat it too” – I’m morally bound by an agreement not to use these services, but the government need not be bound to defending their very right to ask me for said guarantee.

Unless the court buys this argument (that the matter is moot), which does not seem to have support in law, it looks like we will get judicial review.  While certainly not the goal, the spousal sponsored application may actually help us get a day in court – as I’ve said before, I’d still prefer to obtain permanent residency on my own.

One week from today my reply (drafted and filed by my attorney) to the government’s response is due.  Then 6-8 weeks later the court should make its decision on whether or not to grant review.  My attorney thinks it is likely now (and I’ve raised my own worthless estimate to 75%).