Happy Anniversary!


Today marks the 3rd anniversary of my refusal letter.  It’s amazing to me that it has been that long: I really had to think about it this morning to confirm the length of time, as I’d originally thought it had only been two years.

I continue to learn more about medical inadmissibility in Canada – it continues to impact real people, often in surprising cases.  I have been able to help several people through the gauntlet.  By far the most successful path through is to demonstrate that the actual medical treatment required falls below the excessive demand threshold – it’s surprising how often CIC medical officer’s just say “it’s expensive” and foist the burden of computing costs back onto the applicant.

As for me, well I’ve turned my eyes towards the citizenship process.  With the impending changes to the process I either must apply now (and face a 3 year wait to chat with a Citizenship Judge) or wait until sometime in 2018 to apply (and face a 2 year wait…)  Life continues to be interesting.

For those of you dealing with Canadian excessive demand medical inadmissibility I wish you the very best.  While I’m not nearly so active these days, I do continue to answer questions and leave this blog as a (hopefully useful) resource for those facing it.

I do hope to read one of these days that the Federal Court has struck down A38(c)(3).  Maybe because it violates the separation of powers between Federal and Provincial governments, maybe because it violates the various UN agreements to which Canada is signatory, or because it violates the Charter rights.

Whatever the reason, it will be nice to see the morally repugnant scheme struck down.  And maybe – once I have citizenship – I’ll be more public and vocal in the political process for reform in the system.  As a permanent resident I have to worry about the criminalization of protest in Canada – after all, it only requires one brush with the law and permanent residency can be revoked.  And since permanent residents remain so by the grace of her majesty’s government it’s generally best to remain “below the radar”.

Best wishes for all in 2015!

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BC and Drug Coverage


Fair Pharmacare
I recently did some analysis of the BC health care coverage for prescription medications for treating HIV. To my surprise, it would appear that none of them are covered under the provincial prescription drug plan.

Why did I find this surprising?  Because this is the very basis of the decision by CIC to refuse my original application.  But the teensy detail they failed to mention (and I hadn’t fully grasped) is that in order to obtain “free” medications in British Columbia you must enroll in the grand medical/social experiment.  In doing so your detailed medical information is provided to the Centre for Excellence for whatever use they deem.

Further, as it turns out, the Centre for Excellence maintains a strict policy with respect to treatment options.  So if your doctor thinks you would be better served by a different treatment option than the ones permitted she probably won’t even mention it to you because she knows it won’t be permitted by this group.

Thus, gaining access to this “free treatment” isn’t part of the health care policy, but rather it is in exchange for agreeing to be a guinea pig in this large medical experiment.  It seems to be a harsh basis for a refusal simply because there is a research group that will permit you to trade your medical privacy (so they can obtain something of value from it) in exchange for “free medication”.   That sure looks more like the normal arrangement for medical experiments.

Thus, it would seem that CIC’s position is that if there’s someone out there that obtains governmental funding for doing research and you might be willing to exchange something of value (your right to the best treatment option for you specifically and your medical privacy rights) for something that might also be helpful to you, then you’re just ineligible to come to Canada in an economic class – well, at least for British Columbia.

I wish I had known about the nuances of how the system worked several years ago, because this would have been a rather interesting conversation: anyone who doesn’t want to participate in the experimental study group has no coverage.  None of the drugs I checked were covered by Fair Pharmacare, which means they don’t count against the cost limit ($10k maximum, lower amounts based on income).  Thus, they cannot create excessive demand.

And if someone does wish to participate in the experimental study group they can do so – but it’s a standard commercial exchange.  The study group does receive governmental funding, but those funds are used as a quid-pro-quo for something else of value.

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.

Schedule F: The Chain Link Fence to Keep Sick People Out of Canada


Permanent Resident CardI recently was discussing the issue of the cost of drugs inside versus outside Canada. One of the side-effects of the strong controls present in the Canadian system is that it forms a fence around Canada further making immigration for someone with a medical condition challenging.  This is because of the way the existing law is written.

The cost of certain drugs is much lower outside Canada.  While we can discuss the relative merits of this, such as this recent Forbes article or this recent book on the topic, the bottom line is that the cost of drugs in Canada is high – in some cases as much as 10x higher than the same drugs are from a reputable manufacturer (Cipla, Teva, etc.) in a different country, such as India, where patent rights differ.  One thing that makes this even more difficult in Canada is the blanket prohibition of the importation of certain drugs, currently on a list known as Schedule F, though this is in the process of being replaced by a similar scheme that makes it easier for Health Canada to manage the list.

The purpose of the list, however, is to prohibit the importation of certain drugs into Canada unless one is a doctor, a pharmacist or a hospital.  A patient may bring in a 90 day supply for personal use – but that doesn’t allow the drugs to be shipped.

So, how does one get around this?  Well there are a few options:

  • You can find a sympathetic doctor willing to receive the medications – essentially to serve as the “importer”.  This can be tricky, as some doctors are not willing to accept the potential liability of these non-Canadian approved drugs.  Still, some doctors are a bit more sympathetic.  It can be difficult to find such a doctor. One good thing about the new regulations is that they would extend the importation ability to anyone with the legal right to prescribe in the province.  Here in BC, for example, naturopathic doctors have prescription rights for many things and thus would be allowed to import drugs in some of these cases.  That increases the potential pool of doctors willing to assist.
  • You can arrange for delivery to the US border and then pick up a 90 day supply every three months.  Services like Kinek charge a modest fee for receiving a package for you in the US.  The US has an exception to the importation ban when the drugs are for personal use, which makes it easier to import them into the US.  Then you can bring them into Canada under the 90 day personal use exception.
  • You can try to find a Canadian pharmacy willing to sell the drugs to you.  For example, here in BC there’s a pharmacy in Surrey (Blue Sky Drugs) that indicates they will ship to Canadian addresses; whether this constitutes importation by a Canadian pharmacy or not is something that I will admit is definitely not clear.
  • You can “take your chances”.  This is what people who don’t have to worry about immigration do.  In my experience these services will reship anything that doesn’t arrive.  This is definitely a grey area, as they are exploiting the fact that CBSA cannot police every package and thus only a small fraction are actually seized.

For someone trying to convince CIC that they have a credible plan this situation can be problematic: some officers at CIC know about Schedule F and can use it as a means to refuse someone from being granted permission to immigrate.  In that case the best thing is to find a sympathetic doctor willing to allow shipments of the meds to them.  The doctor might be more willing if they know the drugs are coming from a foreign charity (NGO) rather than an internet pharmacy;  the patient may need to sign a written release indemnifying the doctor in case the drugs provided are ineffective or contaminated – after all, the doctor has no way of being able to verify the veracity of the drugs any more than the patient.  Were I trying to come to Canada and had a foreign NGO willing to provide me with expensive (or overpriced – depends upon your perspective) drugs, I’d be happy to indemnify a doctor willing to help me get into Canada in the first place!

Of course some types of drugs are worse than others.  In January 2013, Gilead reported they had a 76% profit margin.  AIDS Healthcare Foundation has been calling for moderation of their prices, but at the present time that’s the way the system works – the laws protect the companies’ profits not the health and well being of the actual patients.  For those wishing to immigrate to Canada this creates a real barrier to entry.

Canada in turn only looks at a few diseases very closely.  I personally know of people with heart conditions (requiring multiple surgeries and hospital stays after coming to Canada) who disclosed their conditions but were not subjected to the “excessive demand” fire drill.  But this is what the Canadian public has decided to do.  Immigration is always fraught with this sort of problem – a deep-seated xenophobia.  That’s hardly unique to Canada, sadly.

It never really ends: the Permanent Resident Card


Permanent Resident CardOn Thursday I finally broke down and attempted to call the immigration call centre because I was concerned that my permanent resident card had not yet arrived.  While it’s not strictly required, it’s prima facie evidence that I’ve successfully become a permanent resident of Canada.

I’ve read stories about how people cannot get through to an agent and thus was not surprised when after going through 60 seconds of voice prompts and listening to admonishments that the agents would not tolerate foul or abusive language that I was told they were too busy and was disconnected.  I tried again a number of times with similar results.  I’ve never been a big fan of the telephone as a means of transferring information – as I like to say “it’s worth the paper on which it is written.”

Friday morning I decided to try once again and was pleasantly surprised when my call was placed in queue for being answered.  After waiting about five minutes I spoke with an agent, explained the situation and she agreed with my assessment that I should have received my PR card – published processing time is 58 calendar days and I’m coming up on three months.  She collected various bits of information from me, ostensibly to confirm my identity, though I am never sure why using public record information really does anything about authenticating someone.  But I digress.

She then placed me on hold for several minutes and upon her return she explained to me that while my card had indeed been produced, there was an issue with my paperwork and it would require that I submit an additional form requesting correction of my “Confirmation of Permanent Residency” document – something about a missing date.  She advised me they were sending out the card that very day and would also be sending me a letter telling me of the issue with respect to the landing paperwork.  She also then e-mailed me a link to the form I would need to correct the error.

I’ve gone over my copy of the COPR and I cannot find an error similar to what she described (apparently something about a date) but it does remind me that when I landed the border officer did try to give me the wrong copy back – so now I wonder if he omitted a date on the copy he kept.

I suppose the lesson here is that the adventure never really ends.

Epilogue

This morning (20 January) after traveling all day yesterday – up at 1:45 am PT and finally home at 9:30 pm PT, I found a string of comments on this post from objecting to my linking to their blog and the image on their blog post – a post that’s almost 8 years old at this point and to images that are still publicly accessible.  From the tone it sounds like they objected to the content of my blog and the fact that I didn’t remove the links quickly enough for their taste.  Sadly that sort of intolerance still seems to happen, even in a progressive country like Canada.

Thus, I’ve changed it to a different sample card and point to a different immigration blog – and like I did before using the previous image, I’ve sent a note to the registered owner of the domain advising them that I am going to link to their image. There’s this interesting issue with images: some people don’t like hot linking to them while others don’t like it if you create a separate cached copy – there’s no “right” answer.  But in either case the net effect for anyone viewing the page is the same – a copy of that image ends up on your computer, in your browser cache.   I’ve not really worried too much about it as my own blog’s following is rather small.  But just for the record, in this case, the original post material came from a US-based server and thus the use of their posted material is subject to the US Copyright “Fair Use” Doctrine. I’m confident that I fell well within the Fair Use doctrine.

Of course, I’m not in favour of allowing bigotry, but it just isn’t possible to fight every battle – you’ll leave yourself exhausted.  So the first thing I did after turning on the computer and reading this tirade is give them what they wanted – to not be associated with my own story, presumably because they found it morally repugnant.  Of course, the original image is still publicly available and it and the blog post still come up at the top of a Google image search.

Oh, and in case it matters, my own permanent resident card was delivered while I was gone.

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!

 

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.