Lee v MCI


MP Jason Kenney of the Conservative Party fiel...

Citizenship and Immigration Canada has been doing some major revisions to their website of late.  One area in which things are more interestingly laid out is the area dealing with medical issues, in particular, medical inadmissibility due to excessive demand.

I’m familiar with most of these cases, but I’d never reviewed the oldest of them: Lee v MCI.

Why is this important?  Because in the Lee decision, the court overturned the refusal because the officer failed to consider the applicant‘s request for a Temporary Resident Permit (TRP).  That request was a bit informal from what the record indicates.  Yet it reminded me that in our own original response to the visa office we asked they consider a TRP.  This was never addressed by the visa officer, nor was it raised in the application for leave and Judicial Review we filed.  In my case it didn’t matter (we obtained leave anyway) but it’s important for people going through this process to keep in mind they do have the option to request they be granted a TRP and to raise this as an issue in any legal challenge, as there is case law on-point here.

So if an officer has a concern about something in your plan – for example, perhaps she or he isn’t sure your insurance will cover the cost of prescription drugs – rather than blanket refusing you, she or he could grant a TRP for a period of time, say six to twelve months, with the understanding that in that time the applicant should be able to confirm that the insurance plan is working as intended.

Or let’s revisit Companioni – where the judge was concerned that their plan was inchoate.  To create a viable plan essentially required they be in Canada – after all, even my own plan was viable only because I was already in Canada.  Everything was set up and ready to go.  So to get out of the “chicken and egg” issue here, a TRP could allow someone to come to Canada for a short period of time – a year, for example – and set things up so she or he could show that they really wouldn’t be a burden.

After a year, the applicant could go back and apply for an extension, pointing out that the plan is working and the applicant is not a burden.  If that’s the case, the TRP can be extended again.

After three years of this, the applicant becomes eligible for permanent residency as a member of the “permit holder’s class“.  The medical inadmissibility concern is no longer an issue to CIC – but an officer had two opportunities to review the file and verify that the applicant really was complying with the terms and conditions of the application.

This underscores one more approach that a motivated applicant can pursue.

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Countdown: Six Weeks to Go


Today marks six weeks to go before the hearing date.  While I’m sure the time will fly by (after all, that means we’re over 50% of the way since leave was granted) living it up close and personal is always an interesting experience.  Nothing like waiting months and years for something that is so fundamental to life.

Indeed, I often find myself reflecting upon the whole process, wondering if I would have been far wiser to have never pursued immigration in the first place.  A look over at my spouse (being domestic right now, putting away laundry) assures me that the net outcome really is a good one, but absent that I seriously doubt I’d reach the same conclusion.  Of course, underlying the court battle is my strong desire to prevail “on my own” – to basically not burden my spouse with this ongoing obligation to be responsible for me.  While I don’t expect anything to happen, we never do plan for these sorts of things, do we?

The past week has been a good one overall, though.  I pointed out the observation in my previous post that the PHSP would have overcome the medical officer’s objection to my attorney who thought that was an important point that he would incorporate into his memorandum (the memorandum is due on 18 September).   I’ve also had the opportunity to interact with some other people who have been through the same process as me.  One of them had a hearing yesterday (judgment reserved – but it was only 30 minutes, suggesting there really wasn’t much argument.  Whether that is good or bad remains to be seen).  The other won his case back in 2009 but was ultimately unable to successfully immigrate to Canada (from what I was told, this is because they couldn’t prove something that could only be determined once they had come to Canada.)

I took the past two days off as well.  My spouse and I enjoyed a pair of wonderful days – late summer days, enjoying some time together – a rarity these days.  It has given me a time to reflect and consider the nuances of this process.  One thing I find myself wondering is if much of this “process” is really a mechanism by which Canadian Immigration can enshrine biases and discriminatory practices.  Certainly both cases I learned about have suggested that this might be the case, but of course two cases do not prove a pattern, either.

Ironically, what helped me crystallize this thinking was a news article I read on The Huffington Post.  It was the story of a child with Down’s Syndrome who was denied boarding on an American Airlines flight.  The airline claimed the pilot was concerned about security.  It made me realize that discrimination is so damned hard to prove precisely because it can be disguised in the clothing of “rational process”.  Thus, they agree to allow someone into Canada but only if they can do something prior to granting permission that can only be done after they’ve been admitted to Canada.  “So sorry, you are still not admissible to Canada.”

This passes an initial inspection as “due process” but fails to withstand scrutiny.  What is particularly ironic is that immigration is about encouraging diversity – but only within a very limited range.  There’s nothing wrong with having such a system, but it would seem to be disingenuous to dress it up in the guise of an equitable system.

There is a certain inherent hypocrisy in the system.  While I had hoped that my case might serve to shine a bright light into the dismal innards of the system, the reality seems to be that this isn’t likely.  The system is self-protecting.  In my case, they will point to the fact that I can always enter the system through a different mechanism and thus avoid the possibility of examining the inherent bias in the system itself.  While I can say that this is a shame for the process overall, I have selfish motivations here – I want the process to end.

Six weeks from today I’ll be allowed to watch them argue my fate.  Some time after that I’ll learn the final outcome of my case.

Time to Renew the Work Permit


 

Canadian Work Permit
As much as I had hoped I wouldn’t need to do it, the time has come to renew my work permit – it expires in September.  When I looked at the CIC website a few months back I was impressed to see that their processing times were only a few weeks for a renewal.  Some time in the past few months they must have been hit with a surge in applications, however, because they now require 55 days for a renewal application (or a mere 54 days if you submit it online!)

Normally I wouldn’t be too concerned, but of course with a negative determination on my FSW application, it seems likely that it is more likely to be subject to questioning.  Of course, the fact I have to cross the border on a regular basis does make this a bit more complicated – if I’d known the time to process was two months, I’d have submitted back at the beginning of May – when the time to process was just a couple of weeks.  Hindsight, as always, is much better than foresight.

In addition, the application form that one uses at the border has changed substantially – it now explicitly asks about all previous applications.  The inland renewal application asks about “serious medical conditions”.   Thus, either way I try to process a renewal it is far more likely I’m going to be subject to additional scrutiny.

My attorney has recommended filing via the inland renewal process.  My concern with that is that as the processing time is now almost two months (and seems to have slowed down by two days in the past week) I’m going to end up being forced to leave for work prior to the actual renewal – particularly if it is referred to a local office (here in Vancouver, no doubt) for additional processing.  My attorney has argued that the information I provided before (insurance coverage) should be sufficient to obtain a renewal. I’d expect my Canadian spouse to carry as much weight, to be honest, and I have to include a spousal declaration on my application in any case.

If I do have to leave Canada while an inland renewal is in process, one of three things will happen:

  • My renewed work permit will be issued prior to my return to Canada (in that case, I can just have someone forward it to me);
  • I can submit an application at the POE (Port of Entry);
  • I can request a “visitor record” for the period of time while they are processing my renewal inland (but legally I cannot work in Canada during that time.)

As long as I remain in Canada, I can continue working (“implied status”).

I sent everything along to my attorney for his review and I’m now waiting to hear back from him.  I will send in the inland renewal (this week) and then if I do need to leave the country I will make sure I have everything that I need to submit the application at the POE – the “don’t work in Canada” doesn’t work so well for my situation (the idea of a vacation does sound nice, but it doesn’t really work for me.)

Of course, I really hope that this is the last time I’ll have to renew my work permit.