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!

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Landing: The Close of One Chapter


I’m writing this a week after the event. Indeed, even now it’s still a bit of a euphoric shock.  The images isn’t my landing stamp, but it’s very similar and it doesn’t have any specific identifying information.

USPS finally managed to deliver the letter.  A day late.  But it was a relief to know that they hadn’t lost it.

Thus, my company’s US office finally received the paperwork on Friday October 12.  Since I couldn’t see the paperwork, I couldn’t know 100% that they had issued a COPR. The person in the US office who put it into a FedEx envelope said “it looks like they returned the documents you sent to them.”  After all this time I must admit, I was still not 100% convinced this was going to happen, that something would “go wrong” at the last moment.  No PR, work permit rejection and – of course – I’d abandoned the challenge on my original PR application rejection before the Federal Court of Canada.  Even knowing that it was a paranoid fantasy doesn’t mean that the thought didn’t run through my head.  This in spite of the fact that my last ATIP report had been returned to me just days earlier, with complete information on it.

Case Analysis FOSS: Application for PR denied due to medical inadmissibility December 2011 (HIV Positive). Development of Relationship: Second marriage for PA, USA citizen had valid status in Canada – expired 2012/09/03. Met in 2008 via the internet, communicated   via the internet for several months prior to meeting in person in 2009. PA and sponsor continued to see each other  on a regular basis, engaged and married in 2011 cohabitation from 2010/11/15 to 2012/01/23. Eligibility:  Photos of relationship provided, copies of e-mails also provided as evidence of communication. Relationship appears to be genuine. Admissibility: FBI Clearance
provided, RCMP screening submitted. Based on  information provided, further review required due to previous inadmissibility. RPRF- Paid

Note: emphasis added.

So while I think the review might have been timely, I suspect it was pushed to the front in order to get it done quickly – and thus provide CIC with some sort of plausible defence against my JR application.  The emphasized section is what I was expecting and normally this would mean it goes into the “cases needing more attention” pile.  That normally adds months onto the processing time.  But just five days later:

Reviewed file and case analysis: FOSS: PA previously refused SW application on A38, medical inadmissibility for  excessive demand. That file currently has application for leave for JR pending with Federal Court. Current medical result is Passed (M39 – EDE). No other eligibility or  admissibility concerns noted on previous file. PA residing in Canada on WP since 2009, recently applied to  extend. PA currently has TRP appln in process in Seattle. Based on evidence on file, I am satisfied the relationship is  genuine and has not been entered into primarily to gain immigration status in Canada. Eligibility passed. [redacted section on Security] Criminality: No concerns, passed. All requirements met: File RFV. File forwarded to Los Angeles for finalization.

This is what makes me think the file was being pushed.  The case notes don’t tell me who actually reviewed the file, but each officer is identified by initials and numbers.  The first entry I listed was done by ND01111.  The second one was done by SO0213.  From reviewing these files, I’ve noticed that the lower numbers generally appear to correspond to more senior individuals.  I suspect this is coincidental – that they may be sequential numbers assigned by the database, with people having been in the organization longer (or at least in the computer system longer) having lower numbers. But at any rate, the point is that SO0213 did this last review – someone more senior than ND01111.  That’s my theory, at least.

The most recent entry is from Los Angeles:

E-mail to sent to SEATTLE once visa issued, so that they may close their TRP application for subject.

This one was entered by DV00073.  If my theory is correct, this is someone very senior that added this note.  Of course, this is consistent with what the VO in Seattle had told me – she said that they’d close out the file once the COPR was issued. The actual paper file was logged into LA two days after this notation (by MY04934).

It is easy to overanalyze these notes however, and I will state right here that I’ve put forward a lot of conjecture.  Maybe some of it is right, but it’s likely I’ve mis-guessed here as well.  Nevertheless, the facts are that I appear to have been processed in record time – before more than two dozen other people I know, all of whom applied in March 2012.  Second in the group (after someone from the London Visa Office) and the first in the Ottawa/LA group.

At any rate, it doesn’t show the PPR on 26 September, even though that’s the date on this last ATIP report. Thus, i suspect it was extracted earlier in the day.

Of course, I had plenty of time to go over this both when I got it and once again on Saturday, October 13.  I also dutifully checked the CIC website. Instead of the “In Process” it had shown for the past three weeks it said “Decision Made”.  That was enough for me to jettison the paranoid fantasies – I knew the Confirmation of Permanent Residency was included in the overnight package – a relief.  I obsessively checked the FedEx website throughout the morning, so I could see the letter had made it to Memphis, then later it made it to Vancouver, then it cleared customs and finally, just before 9 am, it was loaded on a truck for delivery (by 5 pm, their service commitment).  Before heading to work my spouse asked me if I still planned on heading down to the border. Naturally I said yes – after waiting this long, I really wanted to have this matter settled once and for all.

The morning slipped away and I frittered away my time by reading the news, checking facebook and spending my time answering questions in an online immigration forum (an obsessive trait that had worsened in the previous month). I have learned quite a bit about the Canadian immigration process, and I’ve been sharing bits of that experience with others – hopefully it’s been right more often than not!

I even took the time to write my previous blog post.

I finally decided to shower and get ready to go – taking the phone with me (I wasn’t going to risk not getting that package) and quickly rushing through the process.  Still nothing…  In many ways, that morning seemed every bit as long as the months and years leading up to that point.

But it did eventually arrive.  I buzzed the driver into our building and at 1:31 pm I signed for that precious envelope.  I opened it up and found that in addition to what I expected – my passport and the COPR – they actually returned a number of the documents that I had sent along – my birth certificate, the certified copy of our marriage certificate, the photos we had sent and a couple other documents.  I must admit, I was rather surprised, since I didn’t expect to get any documents back.  But nestled in the pile was the precious COPR. Two copies, actually.  Almost identical except at the bottom where one said “CIC Copy” and the other said “Client Copy”.  Both had my picture affixed (something that confused the border officer later – he seemed to expect only his copy to have the picture on it.)

Then the frenetic activity started.  I pulled out just what I needed to land (passport, COPR copies) and realized I needed to walk the dog before I could actually go anywhere.  So I’m scrambling around, walking the dog, trying to book a zip car, text my spouse, etc.  After juggling everything we agreed that I wouldn’t book the zip car, that we’d drive to the border together after my spouse finished work.

And that’s what we did.  We picked Peace Arch (“Douglas”) because it had the lighter traffic load. Being a US Citizen, I had to get my passport stamped (a non US Citizen could have requested an “administrative refusal” which means they stamp the date on a piece of paper saying you weren’t admitted to the US.)  That’s because, as a matter of law, a US Citizen had a legal right of entry into the United States.  So we had to park the car, go inside, stand in line, all so I could get my passport stamped that I had been in the US.  I did not confirm that this is still necessary, but a friend of mine from the US had to make an extra cross-border trip to get his passport stamped several years ago in order to land, so I thought it safest.  The border guards had no problems with any of this – the primary inspection officer wrote “flag pole” on a referral slip even.

The “return to Canada” lane was barracaded, so we had to talk our way out of the secondary inspection area (since I didn’t have a slip) and then go through a pair of round-abouts (rotaries for those from New England or maybe even traffic circles for others.)  Then we were lined back up heading into Canada. I was driving (my spouse was funny – “I don’t know what to say to them at the border”) which is very unusual.

Let’s put it this way. we’ve owned this car for 13 months and this was the second and third time I’ve ever driven it!  This time we took the Nexus lane.  Practically the first thing the officer asked was “what’s your status in Canada”, to which I replied “well, until 30 minutes ago I was living with implied status on an expired work permit, but if you don’t mind I’d like to go over to the office to resolve that, because I have this COPR…” I’m pretty sure I rattled it off like that, modulo punctuation.  So he wrote “Landing” and “B” on a referral slip, called it in, handed me everything back and off we went to the Canadian immigration building.

Both the US and Canadian buildings are very new, having been completely rebuilt in the past two years.  They’re quite nice actually, so it makes the experience a pleasant one.  We pulled over, the CBSA officer in the parking area told us to go inside and we went and stood in Line B.  Two minutes later I was at the counter, giving the passport and COPR to the officer, explaining that my goods were already in Canada, and that I had no goods to follow – albeit with him prompting me for some of this information – and then he said “go sit down and I’ll call you up when I’m done.”

I posted an announcement on Facebook:

Becoming a permanent resident of Canada. Only took 3 years, 3 months and 17 days.

And just after I posted that, the officer called my name. I went up, he went over the forms, paying particular attention to the criminal charges and the undeclared dependents section.   He had me initial both places on both forms and sign along the bottom.  He kept one – he actually tried to keep the wrong one, but I corrected him.  He stamped my passport, wrote an I with the line next to it – that means “admitted as an immigrant with no departure date”, added “no goods to follow” as well, stapled my copy into my passport, folded it all up nicely and handed it back to me.

The entire process took no more than 10 minutes.

And thus, on Saturday October 13, 2012 my status in Canada changed from “foreign national” to “permanent resident”.  As I write this a week later, I still feel the euphoria.  The process was long and painful.  But it’s over now.  Time to start looking forward.

 

The Best Laid Plans…


Note:  I originally wrote this post on 11 October.

Yesterday afternoon I was excited to find that the USPS tracking website was now showing information for the prepaid Express Mail waybill for my passport – and presumably the holy “Confirmation of Permanent Residency”.

So I jumped into action – I wrote an e-mail to the folks in the US, alerting them to the incoming package and providing directions on sending it me here in Canada.  I discussed my plans for heading down to the US tomorrow in order to complete the “landing” process – this is the change in status from foreign national to permanent resident.  It’s really just a paperwork thing, but it’s the end-point of this entire process.

At  2 pm today – 5 pm ET  where my company’s offices in the US are located – I heard from them that the package never arrived.  So much for the “guaranteed delivery by 3 pm”.  But the last entry in their tracking system is:

Dispatched to Sort Facility       LOS ANGELES CA 90071                   10/10/12  6:52pm

So, basically, they haven’t seen it since yesterday evening – but USPS tracking is notoriously unreliable, though Express Mail is their best service offering.  This clearly illustrates why one can never count on anything in this process going “as expected”.  In all fairness, I would normally have used FedEx, given the choice, but there were exactly two options available to me: first class mail or Express Mail to a US address.

At any rate, I’m hoping that they find it between now and tomorrow.  Lurking in the back of my head is the “ugh, what if they LOSE it”.  It’s only my passport and that incredibly precious immigration document.  The passport can be replaced, but I have this fear that the only way to replace that immigration document will be to go through the whole process all over again.

So close to the end….

 

Passport Request Recieved


So, September 26, one day after the conversation with my lawyer and CIC‘s attorney about the spousal application, my spouse received an e-mail from the immigration section of the Canadian Consulate in Los Angeles requesting that I submit my passport to them for issuance of my IMM 5292 (“Confirmation of Permanent Residency”) form.  The letter said that I must submit it within sixty days.

For me, this marks the real end of the journey.  Initially I was surprised by receiving this e-mail so quickly – one day after my attorney had relayed the conversation with CIC’s attorney (at Justice Canada).  But upon some reflection I wonder if she had been pushing to have it done in time to present this as an argument to the court: “his application for spousal sponsored immigration has been approved, so this issue truly is now moot.”

I’m reasonably certain it has been pushed.  I monitor a number of online immigration forums and I’m the first person in the “March 2012” group to receive a passport request, although several have gone into “In Process“.  I will note that my application probably didn’t require a huge amount of review – I’d already been thoroughly reviewed for the previous application, so a security review by CSIS should have been simple, particularly since I’ve been legally living in Canada for several years now.

Upon reflection, I suspect this is as close to an admission that my JR application had merit as I’ll ever receive under the circumstances.  But no one would have pushed my spousal sponsorship application had there not been at least some merit to the claims in the JR application – thus, CIC gets rid of a troublesome case and I achieve my own ultimate goal.

I don’t really think I’ve “sold out” here.  Legal actions routinely settle all the time, with the parties agreeing to a resolution that leaves each with something they want.  It is nothing more or less than compromise.

If I had been successful with the JR application (as seemed likely) the outcome would have been to send the case back to CIC for reconsideration.  I’d have gone through the same process all over again – medical examination, review of my current health, determination I might be medically inadmissible and then a fairness letter, a fairness response and a second decision.  I cannot honestly say that I wanted to spend another 18 months going through that all over again.  At some point I’d realized the most reasonable thing to do if I had received JR would have been to withdraw the application.  Then instead of “refused” it would have been “withdrawn” and thus not subject to the same level of scrutiny.

But that became moot on September 26th.  CIC has made their determination that I do qualify for immigration in the spousal class, even with the prior rejection in place.

So now my new scramble: to get the passport to CIC in time for them to complete the paperwork and get that passport back to me in time to head to the US in mid-October so that I can testify at trial in the US (“work”).  The process was a bit odd: the only expedited processing they will do is if I sent a USPS Express Mail envelope with a US return address on it.  But I’m in Canada.  Further, I cannot leave the country right now because I’m on implied status, with my work permit renewal in process – so if I leave, my work permit application must be processed at the border or I have to take a VR to return to Canada (preventing me from working).  So instead I sent someone else down in for me; he bought the overnight envelopes, addressed them  and sent the return envelope along with my passport, the completed height and eye colour chart and two photographs of me.  I also enclosed a copy of my travel itinerary showing that I had to leave for the US in mid-October, and requested they return my passport prior to that time.

The return envelope is actually addressed to go to my company’s office in the US.  THEY have no problem sending it to me wherever I am (including Canada) via FedEx.

They had the entire package in LA on Friday 28 September 2012.   I’m going to try to only check once per day (in the evening) to see if the return envelope has been presented.  I don’t really expect anything to happen before the end of this week – I’m hoping it will be done by the end of NEXT week, so that I have the entire bundle of paperwork ready to take with me to the US in mid-October.

If I get it back before mid-October, I’ll probably drive to the border, ask the US side to stamp my passport on entry (I’ve been told they need that on the Canadian side for some reason) and then loop around to head to the Canadian side, have them ask me about my expired work permit and get sent in to secondary inspection, where I can present my COPR and complete the landing process.

If I don’t get it back before mid-October, I’m hoping I’ll have it before I return to Canada on October 27th, so that I can complete the formalities after I land in Canada.  Otherwise, I’ll be back in the “must renew the work permit at the border” case – which I will need to do because I have work meetings in Canada in early November.

So, assuming all goes well, this part of the journey will be ending for me by the end of this month.

Indeed, what a long strange trip it’s been.

Reflections, Apologies and Moving Forward


My attorney recently learned of my blog from a rather surprising source: Justice Canada. Apparently I’ve said some unflattering things on here and (now that I’ve been re-reading them) I can see why he might be upset.

While it was a tense couple of days as we went back and forth (I won’t detail the conversations at this point, but I did learn that an attorney cannot drop a client easily, without the agreement of the client or permission of the Court.)  In doing this I realized that his criticism was actually correct – that I didn’t trust him.  This wasn’t fair to him, because the distrust wasn’t really appropriately aimed at him.  Rather, the distrust was really from my previous attorney.  Once I received the medical results back from CIC my old attorney said basically “sorry about this, too bad it won’t work out.”  Not surprisingly, I now realize this made me feel abandoned.  I’d picked my attorney precisely because he presented himself as being knowledgeable about GLBT immigration issues.  It turns out he wasn’t as comfortable pushing into this area.

So I did all the leg work necessary: coordinated with my employer to create the medical savings plan.  I already had a private insurance policy and with a bit more work I arranged to be covered by a group policy (with no medical underwriting because of the size of the group).  This provided 100% coverage, with overlapping policies – and the PHSP is a medical savings plan, so there’s no question that it by itself would pay.  But since the one thing I couldn’t do is identify the cost of the drugs, I didn’t want there to be any question that the coverage wouldn’t be sufficient – and it was external to me.

The damage was done by then, though.  I’d been forced to be self-reliant and learn a distrust of my old attorney.  But carrying that into the relationship with my new attorney was unfair to him.

So I will say this.  I think my current attorney has done a very good job.  At one point I told him:

I think highly of your work.  I have recommended you to
several others already and I know at least one of them has engaged your for representation.  I would not have done that if I did not respect your abilities.

I do think this fairly summarizes my objective opinion of him.  I have apologized to him personally and I now do so publicly.  My comments were coloured by my bias and unduly harsh.  There really is no one else who would have done a better job of representing my case before the course.

I’m writing this after a very tumultuous 10 days or so, trying to capture the important essence now before it fades from my memory.

I think the attorney for Justice Canada has done a professional job on behalf of her client.  While I will never know, based upon my review of what has happened now that the dust is settling and I’m regaining some objectivity, I get the sense that when she reviewed this case she knew that her client had “screwed up” and she was going to have to do some work to prevent them from getting egg on their face.  I made her job easier, with the spousal application, because it gave CIC an “out”. She would have been well aware of the case law: Hilewitz, Sapru, Companioni and Rashid.  CIC lost three of those four cases.  When I read Sapru I thought “wow, this is my case except the visa officer didn’t even bother to try and backfill the rationale”.  In some ways I have sympathy for the visa officer – the medical officer really did hang her out to dry by not giving her much.  Then again, the visa officer probably should have pushed back. Maybe she was assuming I’d just give up and walk away, as I’ve talked about and I suspect most people in my situation would have done.

For the Justice Canada attorney, I’m sure none of this was personal.  She was doing her job.  Perhaps I’ve made it a bit more personal by some of the things I’ve said, but I suspect that she knows someone in my position isn’t going to be terribly objective.

So, I apologize to my attorney – he was not deserving of my lack of trust.  And if I have offended CIC’s attorney, I apologize as well, because in the end my read is that you’ve pushed for a good outcome for both parties, which is ultimately the objective.

I’ve made my decision, by the way.  After discussions with my attorney I concluded that there wasn’t enough to gain by moving forward.  He discussed the situation with CIC’s attorney and she inquired as to the status of my new application and the word relayed to me (from LA) was:

All statutory requirements have been met as of September 12th. We cannot speculate as to when the final decision will be rendered but as nothing else is pending, the file is expected to be concluded shortly.

With this, and the discussion with my attorney I agreed to discontinue the judicial review application.  The docket for my case is truly an unusual one, far outside the norm, but without a decision it’s not one that anyone else will ever study.  I don’t think that’s a bad thing, honestly.

Decision time


 

So I am now faced with a very difficult decision, one that pits my personal interests against my sense of duty and obligation to others.

I’ve been forced to really carefully review my current situation and attempt to determine what is my best course forward, because the decision I make now has potentially long-term consequences for me and for others in the future.

So where am I right now.  At the present time I technically have four different applications ongoing with respect to some aspect of my immigration status in Canada.

The oldest is my original application to be an immigrant to Canada in the Federal Skilled Worker category.  I applied in that because I seemed to be qualified.  I don’t think I fit the typical skilled worker model – I wasn’t looking to go to work for an existing company.  I’m already established in my field, I’ve written books, I give lectures and talks, I work with companies all over the world. Thus, no matter where I live, I bring my skills and my customers with me.  I actually made the decision to apply back in 2006.  Had I not waited three years to do so, none of this would have happened, because I’d have been done in 2008, even with the 18 month processing time typical at that time.

But I didn’t – I applied in June 2009.  By the time they got around to doing my medical I tested HIV positive and while not an “automatic” failure to qualify for FSW, based upon the rejection I did receive it is for all intents and purposes an automatic failure for anyone planning on immigrating to British Columbia.  The attorney I was using at the time basically gave up on me at that point, once I received the follow-up medical request.  I hadn’t thought much about this honestly, until my conversation with my current attorney – but it did profoundly impact my willingness to trust anyone else, something I had not seriously thought about until after my conversation with my current attorney on Friday.

I’m the one who found my current attorney.  I did so by finding the Companioni decision and then looking through other decisions.  There are only a handful of attorneys with serious experience in medical inadmissibility and mine seems to specialize in the HIV cases. I’d been preparing the path to a solid response for quite some time.  Being an American I’m used to the idea of buying private insurance – indeed, it’s one of the very first things I did once I moved up here to work, which is quite fortunate because I wouldn’t qualify for personal private insurance any more.  I organized a group insurance policy as well and worked with my employer to set up a Personal Health Savings Plan (PHSP), which is a form of “health savings account”.  Thus, by the time I started working with my current attorney I’d put together all the fodder necessary to present a strong, credible, and current plan.

Behind all of this is my own fundamental distrust of the very paradigm that one must assume is true in order to create such a strong, credible, and current plan.  While I’m sure it marks me as a heretic, I find mounting evidence that the model of pharmaceutical intervention is deeply flawed.  I did write up a document to that effect and I even circulated it to my attorney and he did so to the expert who wrote up the report for me.  There was some feedback on it, but it was essentially negative – no surprise coming from someone who is deeply plugged into the current paradigm.  But the model for medical inadmissibility here doesn’t allow you to refuse the preferred treatment paradigm, no matter what the basis: religious, moral, philosophical or even scientifically based.  So while I can (and did) point to papers that say “um, this treatment paradigm doesn’t really work the way we’re telling people it works” (much like the article in the Guardian to which I linked earlier) that isn’t a winning strategy – and I did want to win.

Of course, in parallel with all of this I have the growing relationship with my now husband.  I’ve had previous relationships, and I was even married for quite some time, but this time my feeling is I’ve really found something quite special and that feeling has only grown and intensified.  When I received my fairness letter in early April 2011 it was actually upsetting, even though I had expected it.  I was very grateful for his strength and support and that was the final push and I asked him to marry me.  He agreed instantly.  We married six weeks later, after a week of actual planning – we literally were at breakfast (Dim Sum) and I said “so, you busy, because if you aren’t how about we get married?”  We didn’t get married that morning, but we did pick up our marriage licence.  We spent some time online looking at wedding bands and found several we liked at a local jewelry store, which is where we went the next day after he got home from work.  After looking at over a dozen different bands we narrowed it down to three.  He wanted me to pick, but I said, no, you pick one, and I’ll pick one and then we’ll figure it out from there.  We picked the same ring.  Even more amazing, they just happened to have two of those rings in stock.  Given that usually they have to order these things, it was surprising.  I’ll just say that it lent it that magical sense.  I contacted a wedding commissioner here, found she was available on the date we wanted (one week from getting the licence) and so we booked with her, made arrangements for two close friends to accompany us.  The day was an amazing spring day – sunny, bright, warm.  A true rarity in Vancouver in spring.  I even won the lottery that day!

The deadline for the initial submission was a Sunday, May 27.  My attorney indicated he had asked for an extension, but I’d not heard anything back, so I sent a copy of the document I had written, along with a cover letter saying that my attorney had asked for an extension and I wanted to make sure something was on file.  I also indicated that I’d been married, since I’m under an ongoing obligation to do so.

When the marriage certificate came in mid-June, I forwarded a copy to my attorney (although it turns out it was forwarded to my previous attorney, not my new attorney) and to CIC in NYC.

So, we submittted the mitigation plan.  My attorney did an excellent job of clearly laying out the issues and pointing to the case law, and my hat is off to him. When I noticed the change on the online CIC tracking system (to “decision made”) I was initially elated, thinking that this meant we were done.  But as I read a bit more and considered it a bit further I began to realize that it was most likely a rejection – my FBI clearance letter would have been expired by then, along with my medicals, both of which have a one year expiration date.  Thus, if they had decided to move my application forward, they would have ordered new medicals and a new FBI clearance letter.   Of course the rejection letter was sent to my attorney.  Since I was in NYC  – working in the same building as the Canadian Consulate – I tried to get a copy but they refused to even give me a copy.   So I had to wait until he returned from vacation to find out what was going on.

I still remember that early conversation and the questions without clear answers.  I even went so far to consult with a second attorney about one burning question: is it possible I might be rejected at the border?  Nobody really knew.  As a foreign national I do not have a legal right to enter Canada – it is discretionary and thus any border officer could look at my information and say “you’re inadmissible”.   I know this is not not a rational thought, but I am deeply in love with my spouse.  The thought of being forced to live apart is not a pleasant one for me.

So I studied and filed for a Temporary Resident Permit.  That’s my second oldest active application. Nobody knew if I was inadmissible, so asking for one would answer the question.  There were three possible outcomes:

  1. I’m not inadmissible and hence do not need a TRP;
  2. I’m inadmissible and am eligible for a TRP;
  3. I’m inadmissible and not eligible for a TRP

Of course, after everything that has happened since then I think (1) is the most likely outcome, but (2) is still not entirely unreasonable.

I’d also moved along with my spousal application.  That is my third application and I’ve talked about it (and these others) extensively.

The most recent is my work permit renewal. That’s just so I can remain in Canada while we sift through all of this.

Wow… so my situation is this – to move forward with the Judicial Review application I have to make sure my application is withdrawn.   That means sending my withdrawal letter via FedEx to them in LA (versus ahem, mailing it to them, a process that looks like it’s led to the loss of that letter).  But that raises the likelihood I will have to deal with the temporary inadmissibility issue.

A win on the Judicial Review will send my application back to CIC for reconsideration, which will mean going through the process again: a new medical, a new fairness letter, a new response to the fairness letter, etc.  At least another year.  Thus, the only “gain” here might be the positive legal decision.  But will it move the “state of the case law” forward enough to justify the personal inconvenience.

What I’d do most likely is just withdraw the application once it was returned to CIC.  That would make processing the spousal application simpler.  Ah, but I’ve been told that the spousal application is all but done – so there’s no reason to try and make it simpler, since it’s already over.

Thus my decision: do I declare a symbolic victory and move on with my life, or do I continue the fight?

Not an easy decision.

 

 

Rashid v MCI


This truly is a process that encourages one to scream at times.  I’m reading various cases (this time, using the fabulous search tools at the Canadian Legal Information Institute. I’m finding their linkage tools (“find cases that cite this case”) to be invaluable.

Of course, the downside to this is that I’m likely torturing myself through this process.  Because in this case (Rashid v MCI)  the applicant‘s application was rejected.  A careful reading of the logic suggests that it could be applied to my case.

The judge did certify a question in this case, one that had it been answered would likely have direct bearing upon my case:

When a medical officer has determined that an applicant will be in need of prescription drugs, the cost of which would place the applicant over the threshold of “excessive demand” as set out in the Immigration and Refugee Protection Regulations, must a visa officer assess the applicant’s ability to pay for the prescription drugs privately when those same drugs are covered by a government program for which the applicant would be eligible in the province/territory of intended residence?

This question directly squares with my own situation. Rashid however failed because he did not already have the necessary insurance in place.  Thus, interpreting the current jurisprudence it would seem that in order to be successful proving an insurance based plan to mitigate excessive demand one would have to already be inside Canada and the insurance must already be in place.

The CIC medical officer in my case added an additional requirement: one must already be using the insurance, in order to assuage her (after the fact) concerns that the insurance truly will pay the prospective costs.

Indeed, it is this continual raising of the bar that makes me grudgingly question if this isn’t really not about procedural fairness but rather more about “let’s just make it difficult for anyone ‘undesirable’ to immigrate to Canada.”  Frankly, very few people will take their case to the Federal Court of Canada in a case like this.  I suspect that most abandon their case at the point they get the fairness letter.  “Oh well, we didn’t make it.”  Some respond and of them a few actually work with an experienced attorney to craft an intelligible response.  At that point, how many people will continue to challenge the system?

Finally, even if they are successful at challenging the system, what do they win?  After all, their application is just sent back to CIC for consideration by another officer.  From what I can tell, that doesn’t seem to be successful in most cases anyway.

Is there any wonder that this really looks more like a scheme to provide the veneer of respectability over what is, at its heart, primarily based upon bias?

I just hope that I’m wrong.