Reliance on Extrinsic Evidence


I know I’m overthinking the process at this point.  I’m using different search terms to look at various court decisions.  My latest search turned up several hundred decisions and I’ve started by looking at very recent (2012) decisions.

One of these is Noh v MCI (2012 FC 529) an interesting H&C decision for a family who overstayed their visitor visas and are now trying to obtain permanent residency.  Cases such as this one are held up as an example of how the immigration system is broken.  Their children (now both over 18) have lived the past 8.5 years in Canada, going to school and even University here.  The parents are using their children’s needs as part of the rationale for why they should be allowed to remain in Canada.  I’ll leave it to the reader to decide if they should be allowed – or not – because that isn’t what caught my eye as I read the decision.

[20]           A decision-maker’s reliance on undisclosed extrinsic evidence is a breach of procedural fairness (see Tariku v Canada (Minister of Citizenship and Immigration) 2007 FC 474 at paragraph 2 and Qureshi v Canada (Minister of Citizenship and Immigration) 2009 FC 1081 at paragraph 14). Likewise, the opportunity to respond to a decision-maker’s concerns is also an issue of procedural fairness (see Karimzada v Canada (Minister of Citizenship and Immigration) 2012 FC 152 at paragraph 10 and Guleed  v Canada (Minister of Citizenship and Immigration) 2012 FC 22 at paragraphs 11 and 12.

To be honest, I’ve been thinking that the issue the medical officer raised in her affidavit (the text she didn’t have in her original notes but recalled nine months after the fact) was a “reasonableness” standard but after reading this I begin to think that in fact this is an issue of law and thus must be judged on a standard of correctness.

The standard of correctness is a much higher standard than reasonableness and there is no deference given to the tribunal for decisions on the correctness standard – while there is such deference given on the reasonableness standard.

In other words, if the medical officer and/or visa officer had concerns that the insurance coverage would pay the cost of medication, they should have advised me of this fact.  Otherwise, they deprived me of the right to address their concerns.  It reminds me of the trial in L’Étranger.

Even so, if one were to use the standard of reasonableness:

[24] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47, and Canada (Minister of Citizenship and Immigration)v Khosa 2009 SCC 12 at paragraph 59.  Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

The decision still falls short, because even if one accepts the medical officer’s opinion that the insurance wouldn’t provide coverage, it fails to address the PHSP that covers any legitimate medical expense.

The Companioni decision set the bar fairly high – so high that it is extremely difficult for anyone not already inside Canada to reach.  Despite this, I put together a plan that I maintain anyone objectively reviewing the evidence would conclude actually met that rather high bar – it was a choate plan, the biggest concern voiced by the judge in that case.  It did not rely upon a personal promise to pay, either, another potential issue.  And, it demonstrated more than adequate funding to pay for a huge amount (approximately $68,000).

I seriously doubt that an impartial reviewer using the reasonableness standard would agree with the original rejection because if this plan cannot pass muster, no plan could pass muster and thus this whole process is a charade.  Just reject people in my position categorically.

But what I submit really happened (where “really happened” means “on a balance of probabilities”) is that the plan was ignored.  The rationale for that now are concerns that had never previously been voiced.  Rather than bolstering the government’s case, it actually damages their credibility.  Perhaps that is why thus far the government hasn’t really presented any actual legal argument against this application.  My best guess is that they will do so in their filing on the 28th – complete with the advantage of providing us with no opportunity to reply.

As usual, it’s a waiting game. 39 days to go – for the hearing.  Nobody knows how long until the decision.

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One thought on “Reliance on Extrinsic Evidence

  1. Pingback: Rashid v MCI | Canadian Immigration and Medical Inadmissibility

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