Happy (belated) Anniversary!


First AnniversaryI meant to finish this up yesterday, but somehow the time just simply got away from me.

December 22, 2011 was the date upon which Ms. Marlene Edmond of the Citizenship and Immigration Canada visa office in New York City, NY, USA officially rejected my application for permanent residency.

Thus, on this the first anniversary date (plus one) of the rejection I am looking back.  Things have changed dramatically in the past year.

When she has to refuse an application I wonder if she worries if she has made a mistake.  Perhaps in a case such as mine she doesn’t – though the subsequent events suggest to me that in fact the rejection – or at least the procedure leading up to that rejection – was a mistake.  I have no idea if such cases are ever reviewed internally at CIC to see if they are actually “doing things correctly” or not. I do know that it seems like once they lose a case, they bend over backwards to correct whatever the fundamental flaw was in the original process.  Still that doesn’t guarantee that the application will be granted.

In Ms. Edmond’s case, my opinion is that her mistake was in not pushing back on the medical officer’s decision.  That even a casual reviewer – let alone an immigration officer of her many years of experience – would look at this and say “wow, how can you reach a conclusion that someone is inadmissible when they have multiple overlapping plans for payment that don’t require on personal promises to pay and cover 100% of more than 4x the estimated current cost?” suggests to me that she should have been asking that question.

Or perhaps another way of looking at it Ms. Edmond: if you were going to reject me simply because of the policy of British Columbia, why did you ask me to submit anything to you in the first place?  I could have saved the thousands of dollars I spent in responding to the fairness letter and you wouldn’t have needed to waste your scarce resources on reviewing that response.   Indeed, looking back at it now, I find it difficult to see how a Federal Judge wouldn’t have asked that question – and therein concluded that there really was no “individualized assessment”.  After all, the decision simply required referring to the provincial policy.

In Sapru, the Court concluded that the immigration officer could not “fix” the poor decision of the medical officer.  In my case, the Medical Officer Hélène Quevillon really didn’t have any other reason in her original written notes to indicate this was related to me – it really was about BC’s public funded drug policy.  Ms. Edmond didn’t even go as far as the officer in Sapru did – she certainly didn’t push back on Ms. Quevillon’s determination and there is absolutely no indication that she reviewed that decision, especially in light of her duty to do so under the Sapru decision.  She certainly didn’t try to invent additional rationale for reaching the decision.  Thus, she acted more like a rubber stamp – with even less “value add” than was the case in Sapru – a case in which the Court overturned CIC’s decision.

So while I seriously doubt that Ms. Edmond will ever review her decision in my case, if I could communicate directly with her I would say that I am disappointed – not in the outcome, but rather in her execution of the process.

I am quite fortunate – I had the drive and resources available to challenge her decision.  Most people in such a position likely just walk away from the decision.  That is why it is so important that people like Ms. Edmond do their best to ensure their decision is fair and equitable.

In the interveningyear, I’ve had the honour to assist several people with their cases, and one is a case similar to mine: a federal skilled worker application in which the spouse was found to be HIV positive.  The medical decision is still pending – they have now furthered it once again, because the test results indicate that without treatment this individual does not require treatment under current guidelines in their intended province.  Of course, if they were coming to BC it would be easier – CIC could just reject them, since the provincial policy is to provide treatment to everyone, regardless of their lab results.  It saddens me to see how difficult this is for people – leaving their lives hanging in the balance for months and years.

So Ms. Edmond, it’s been one year now since you wrote that rejection letter.  Even now as I read the closing (“thank you for your interest in Canada“) I feel a certain degree of bitterness with the snide nature of that closing line. Canada deserves better – it deserves immigration officers and medical officers that remember there are real people behind those files.

While I didn’t win the victory I really wanted, I have managed to achieve sufficient victory for me to be satisfied with the outcome.  I hope both you and Ms. Quevillon do your very best for Canada now and in the future.

Merry Christmas!

 

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The importance of a credible plan


Cerebal PalsyPeriodically I read decisions as they come out of the Courts regarding medical inadmissibility.  This case (De Hoedt Daniel) was heard here in Vancouver – I wish I’d been there to hear the arguments.  While the finding of excessive demand medical inadmissibility was upheld, the judge had some unusual words to say.  For anyone dealing with issues of medical inadmissibility there are valuable lessons in this case: be prepared, present a credible plan.  The shape of a possible plan just isn’t enough.  Indeed, this is the same lesson as Companioni – your plan must be real enough to convince a CIC officer.

Of course, even so, such a plan is not a guarantee of success.  They turned down my plan – even though it was a real, in place plan.  The final rationale offered for rejecting my plan (“we weren’t convinced that the plan would work for medication available for free from the province”) was created after-the-fact and failed on even a cursory analysis – the plan included a non-discretionary plan.  I also verified that the insurance would cover the medications by actually filling prescriptions – although that was done after the rejection.  Had the visa office expressed that concern, it would have been easily addressed. They didn’t do so however – they just rejected.

Here is the interesting comment at the end of the decision (an obiter dictum):

It is recommended by the undersigned that the number of well-intentioned individuals, organizations and entities, having come forward to assist the Applicant with the care of the said child, begin the process again and that the Canadian authorities give priority to that process, recognizing the time and effort that has already been given to the voluminous documents accompanying the application for permanent residence by all involved, including the specific individuals and entities in Maple Ridge, British Columbia.
It would seem that a viable plan requires the preparation of a practical commitment on paper to ensure that it is acknowledged and understood as such by the authorities who would then make their decision thereon.

This is an essential point for anyone involved in a fairness response: your plan needs to be real, it needs to be concrete and it needs to be clear to the decision maker that it overcomes the initial concern of excessive demand.

I cannot stress this enough: you must have a credible plan.  It needs to be in-place, workable and it must address the cost concerns – remember, this is all about money. That’s the issue you must address.

Ideally, anyone in this situation (dealing with a fairness letter regarding medical inadmissibility) should keep this point in mind: have a clear plan.  Make it concrete and real.  If it is hypothetical or the visa officer has any doubts about the viability of the plan, it will likely be rejected.  Better to do the up-front work and overcome the objection before it makes it before the court.

Wizard’s Second Rule


The greatest harm can result from the best intentions.

The greatest harm can result from the best intentions.

I recently read this interesting article in one of our local daily free newspapers.  As I read it, I couldn’t help but realize that this would, in essence, become a de facto way of refusing permanent residency to anyone who was afflicted with this condition.  Well, with the exception of those who are excessive demand exempt.

In that way, it takes what seems to be a humanitarian effort and perverts it into a subtle way of exclusion.  By extension, it means that any attempt to improve treatment for those already in Canada can be used to exclude anyone with that condition from coming to Canada.

This reminded me of the Wizard’s Second Rule (Terry Goodkind’s fantasy series).  The point of this rule is that when we do things we think are beneficial, they may have ramifications beyond the “good deed”.  In this case, I have no doubt that the people behind this effort truly believe that what they are doing is for the greater good, yet it will profoundly affect the lives of others in equally negative ways.

I take this as a subtle cautionary tale: unintended consequences do happen and we must be careful to protect ourselves against them.

Best wishes to all this holiday season!