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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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.

Silence can be deafening


Silence SpeaksWell it’s now evening on Wednesday.  My attorney presumably returned from vacation yesterday and yet, two days later, I’ve heard nothing from him with respect to the odd filings I mentioned previously.

I try hard not to make myself a pest – I did send two e-mails, and I thought that I would hear from him upon his return. While I’m sure he had other matters awaiting his attention when he got back, I don’t expect he has a large number of pending judicial review applications before the Federal Court of Canada – he does seem to argue one or two per year.

Maybe I’m just being impatient.  For him this is just one case of many – it’s a job for him.  For me it is admittedly a bit of an obsession, but then again it is my life here.  I’ve pointed out that three plus years is a long time for anyone to put their life on hold awaiting the outcome of a bureaucratic process.  I have also pointed out previously how dehumanizing this process is, so perhaps this is just another reflection of that reality.

At any rate, now I wait.  In one week the next deadline is upon us – the Government’s deadline for filing any additional affidavits.  I’m not sure if they will submit anything.  Next month will be deadlines for additional legal briefs to be filed.  If there are any potential parties wishing to intervene on either side, that would be the point at which they would do so.

So I shall sit here and wait and try to enjoy the silence.

Deadlines


Today I decided to really look further into the case law around tribunal records.  In the process I got side tracked by noticing Immigration Rule 21(2):

No time limit prescribed by these Rules may be varied except by order of a judge or prothonotary.

So my distraction turned into a bit of a search for case law regarding the meaning of the rules around the strict timelines laid down by the Federal Court of Canada.  Why is this important?  If the response is not timely and the Court does not grant an order then the material is excluded from consideration.

I also noticed another time issue: the “certified tribunal record” includes material that is dated AFTER the original decision, which runs counter to CIC’s own rules – the tribunal record should only include information/material that was considered by the decision maker.  Interestingly, if the extra material had been present in December 2011, the visa officer should have reached a positive determination, since it indicates I am not medically inadmissible (a code of “M39” which means “medically admissible – excessive demand exempt, will require health and/or social services”).

One might think that a single day doesn’t really matter – but it does.  It could be easily overcome by filing an application with the Court, asking for the change in schedule to be allowed and explaining why the extension is justified.  Indeed, I read a case in which the attorney delivered the application to the Bailiff for service on the day the service was due but the Bailiff did not serve the papers until the subsequent day.  The court did not consider the application record because it was not served in a timely fashion and the Applicant’s counsel did not ask for an extension of time to file.

I have seen signs of game playing in civil litigation before, so I shouldn’t be surprised at these shenanigans, but it is a bit shocking when it is my case to which they are being applied.

Then again, it makes me wonder: if the government had a strong case here, why would they play these games.  This really does suggest they expect to lose.  In some ways, having the Court strike down 38(1)(c) might be a blessing for the government because it would get them out of the medical inadmissibility business, which does seem to create a lot of grief for them.

We will know on or after October 17, 2012. I don’t see that deadline changing.

British Columbia and the Optional Nature of Health Care


 

Chopped Care CardSince my surprise on Friday I’ve spent a bit of time going over various materials.  One large project I’ve undertaken is to start reviewing all the relevant case law.  I’m doing this by researching the various decisions, including the Supreme Court of Canada (one decision), the Federal Court of Appeals (three decisions), and the Federal Court of Canada (100+).  This is a lot of material to review, so I’m not really ready to start covering it here, but I will be – if for no other reason than to provide those who follow with a bit of a starting point in analyzing the material.

I also looked through the copy of my “immigration file” and found an interesting piece of e-mail recorded within the computer notes.  To be honest, it probably should not have been included, because it looks to be privileged communications (attorney/client).  However, the ATIP folks review everything before they send it out, so someone reviewed it and decided it wasn’t sensitive.

The applicant identified above has filed a judicial review application challenging the refusal to grant him a PR status on the basis of his medical inadmissibility. He is challenging this finding suggesting that fairness was breached in that his case did not benefit from a personalized assessment as established by Hilewitz . Could you please look at the attachments and confirm that the documents he has now introduced in his application before the Court, were also provided in support of his application for PR .

Your comments are appreciated. Of particular interest is whether or not he presented evidence to demonstrate that he could opt of British Colombia‘s publicly funded Medical plan.

It was this last paragraph that caught my attention as I was reading through this, because indeed, we did not present this information to the visa officer – why would we?  Based upon the fairness letter, they asked about costs, not about BC’s coverage of those costs.  While my attorney wrote up the letter to CIC regarding my case, I’m the one that had picked him based upon my own reading of the Companioni decision – I essentially used this as a check list for a well-formed plan.

Had the original fairness letter stated “Alternative payment plans will not be considered because BC pays 100% of the cost…” I would not have wasted my time presenting a plan to provide 100% coverage of the costs.  instead, I would have argued “BC does allow an opt-out scheme”.  The government will argue that the judge should not consider this because it was not before the visa officer at the time of the decision.  However, it does underscore the fact the fairness letter itself was deficient because it did not clearly establish this concern of the officer.

At any rate, after thinking about it for a while i realize the government is in a trap of their own construction.  By noting that they are aware of BC’s policy for payment for this particular class of drugs, which is not described on the BC MSP website or the Fair PharmaCare website, it would suggest they are familiar with subtle nuances of the BC medical services plan.  Yet now they seem to be arguing that they don’t really know much about the provincial health program and it was my obligation to educate them about their own program.

How can you both be responsible for administering a program and simultaneously arguing you are not responsible for being knowledgeable about it?  That would seem to run counter to natural justice – CIC is only responsible for knowing those bits of policy that allows them to reject you, particularly if you are someone with a disability.

The original letter doesn’t mention British Columbia’s policies at all.  To pull this out at the end as part of the final rejection is indeed unfair because it never gave me an opportunity to respond.

It does seem to bolster the separation of powers argument as well.  It is not good policy to allow CIC to “cherry pick” which parts of provincial health policy they have to understand.  In Deol [2002 FCA 271] the court rejected the idea that CIC had to advise an applicant of a program that might have been beneficial to the applicant:

As for the visa officer’s alleged unfairness in not drawing Mr. Singh’s attention to Manitoba’s bonding program, Muldoon J. noted that visa applicants have the burden of establishing that they meet the qualifications for admission. Accordingly, the visa officer was not under a duty to advise Mr. Singh how he might overcome the “excessive demands” hurdle by drawing to his attention a program offered, not by Citizenship and Immigration Canada or any other federal agency, but by the Department of Health of the province of Manitoba. He also noted the paucity of evidence about the program, including its availability to Ms. Deol.

This does not say the visa officer was not under an obligation to understand the laws of the province, although it does imply this.  But it does help strengthen the separation of powers argument – if CIC isn’t required to understand provincial health care law, why are they making decisions based upon it?  How is this fair to the applicant?

I am feeling somewhat upbeat at this point.  It would seem that CIC does not have a good track record when it comes to medical inadmissibility cases.  I don’t have a complete number yet, but by the time I’m done I will.  Right now though it is clear that CIC loses more cases than they win in this area – the Federal Court often finds their decisions come up deficient.

I’m hoping to tip that count a bit more.

 

 

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.

 

BC Health Care revisited


 

BC Care CardBack in April I mentioned a Huffington Post article about a woman here in BC who had to give birth in a hotel here rather than in hospital because she was not yet eligible for provincial health services.

Since that time I have learned that in fact this really wasn’t the case and that in fact BC really is quite generous when it comes to granting medical care to those with PR applications in process.  Since I found this to be useful information, I’m going to capture it here as well in hopes that it will be useful to others in the future.

Bottom line: the spouse of a BC resident living with that resident in BC is normally eligible for coverage as well according to documents on the BC MSP website:

Most immigration documents, when submitted with the required MSP form, provide sufficient information for MSP to determine whether a person qualifies for benefits. There are circumstances, however,  where additional documentation is required. If, for example, a spouse/child has visitor status in Canada and his/her papers do not state “Case Type 17” or provide any other indication that permanent resident status has been applied for, the MSP form should be submitted with copies of as many of the following as possible:

  • a photocopy of any immigration document he/she may hold
  • any relevant letters issued by Citizenship and Immigration Canada (CIC)
  • proof that the application fee for permanent resident status has been paid to CIC online or through a financial institution
  • the identity page of the spouse/child’s passport and any other pages stamped by CIC or the Canada Border Services Agency
  • a copy of the spouse/child’s birth certificate if he/she is a United States citizen.
  • pages one and two from the CIC e-Client Applications Status website (www.cic.gc.ca) showingthe receipt date of the application. (On that website, click on Check Application Status.)

The above helps confirm that CIC considers the person to be an applicant for permanent resident status, and helps MSP determine when, if appropriate, coverage should begin.

Thus, it would seem that had that woman submitted evidence they had submitted the application (payment receipt, evidence that it was received in Vegreville, AB) she likely would have been eligible.  Instead, the original point of the article was that she wouldn’t qualify until such time as she was granted AIP (initial approval).

I’d been looking at this recently in any case, because of the opt-out provision of the BC provincial plan (as far as I can tell, only BC and Alberta have such a provision, although hopefully if there are other options for other provinces someone will tell me and I can update this information).  For me that was important because it demonstrated one possible way out of the excessive demand argument and indeed, had there been [b]any hint[/b] from the visa officer that no amount of insurance would overcome the BC policy, I would have offered to opt-out.  All I received was a generic form letter – and the only text in the medical officer’s opinion that deviated from the standard language that provides no insight into the rationale of the officer was “This applicant’s medical condition is likely to require treatment that is expensive and publicly funded in B.C.  Although he has private insurance, antiretroviral medications are covered 100% by the provincial drug plan in the province of British Columbia with no payment from private insurance.”

Previously, this same medical officer (in a different case, with the same medical condition): “Admissibility is dependent on the visa officer determining if the clients will have access to private or employer based insurance”.

Thus my point – I’ve investigated insurance alternatives.  It’s not easy to [b]get[/b] insurance with a pre-existing condition but it isn’t impossible – there are actually brokers who deal with that sort of thing (albeit with restrictions).

Of course, now that’s a moot point – CIC didn’t communicate clearly, so there was no effective way for me to respond back to them.