Three months and counting


Cat waiting outside of mouse hole

Three months and counting

As I write this, I realize that it will be three months since my file was sent to the court for a decision.  Thus, my case now seems to stretch into an unusual category, since this time of extended delay seems, from what I can tell, to be remarkably unusual.

Companioni took three weeks to decide (and review was granted).  Another case of someone I know took two months for a denial.  Ovalle took just under a month to decide (and review was again granted).  While I’m sure there are other cases that wait three months for a decision on the application, I have not found one.  This leaves me in the peculiar position of wondering why it is taking so long to actually make a decision.  Part of me wonders if the Court is waiting to see if CIC makes a decision on my other application (thus allowing the Court to wriggle out of making a decision that is unlikely to be popular, regardless of what they decide.)

Of course, nothing seems to be moving when it comes to the Canadian government and any of my applications.  At the beginning of July, the GCMS notes for my request to Seattle (for the TRP – in order to definitively settle the question of admissibility or not) indicated that Seattle had still not started processing my application.  Given that they quoted a three to six month application time frame (and it’s now at five months) I’m now wondering if even six months is a realistic number.

Heck, I’m still waiting to hear from CIC with respect to my request to withdraw the sponsored spousal application (indeed, that hurt to do – I put it off until May, but I didn’t seem to have much choice in the matter.)  Knowing my luck, they’ll finally match the withdrawal letter with the file the dayafter the Court declines to grant my judicial review application.

The final looming deadline is that my current work permit expires on September 3, 2012.  That means that in about a month’s time I will need to gather up all the paperwork for it and submit a renewal. Of course, my hope had been to have a TRP by then so I could apply for the renewal of both the work permit and the TRP at the same time – but that really only worked if I had the TRP by June.  At this point, even if i did get the TRP, I seriously doubt I could get a renewal of the work permit and the TRP prior to September 3, 2012.  Of course, an inland application for a work permit is automatically canceled if you leave Canada after the expiration of the first work permit and prior to the granting of the second (new) permit.

The inland work permit application differs from the outland application in one critical area.  The inland permit renewal asks if you have any “serious medical conditions” and while I wouldn’t think of an asymptomatic disorder to be “serious” I’ve been assured by my attorney that CIC considers it to be one and that I must answer yes.  The outland permit renewal asks if you have any serious medical conditions that require treatment other than prescription medications and the answer for that in my case is “no”.  Indeed, my attorney told me that he was involved in the drive to change the rules (and specifically this field of the form).

So I’m not quite at the point where I have to prepare for the work permit renewal.  But I’m already thinking about it.

In the meantime, it’s now been three months, no decision.  Perhaps there will be a decision tomorrow – or not.  Only time will tell.

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Three Years


Three Years

Celebrating Three Years

I realized earlier this week that my immigration journey has now been ongoing for three years.  My attorney at the time submitted my application three years ago to Sydney, Nova Scotia to the “Central Intake Office” (CIO) responsible for doing initial evaluation of Federal Skilled Worker (FSW) applications for CIC.  Little did I know that three years later I would find myself with immigration unresolved.  If I  had, I think I probably would not have filed the application – no human deserves the disrespect and dehumanization that this process represents.  I wonder if it is as dehumanizing for the workers at Citizenship and Immigration Canada as it is for the applicants they are evaluating – I suspect that at times it must be – after all, each of the applications represents the stories of real people and you either have to distance yourself from their stories or you would be deeply saddened by those same stories.

I suspect my story would not have been one to pluck at the heart-strings.  After all, I’m actually successful – I am well-known in my field and successful.  I have traveled extensively, work with people all over the world.  One would think I am an ideal candidate – I basically enter Canada with my set of skills, my own customers, and a proven track record of being able to create novel and creative work (now I have four issued US patents and I’m working on more, not to mention multiple published books in my field, many technical articles, public presentations, etc.)  Technically I barely met the bar for consideration: I had the lowest possible score (67) because of course being able to set up shop on my own doesn’t count for anything in the FSW category (they give you big points for having arranged employment, but nothing for being able to create a new firm and bring your customers with you.)  I struggle by in my rudimentary French (I only studied three years back in High School and that was many years ago with very little intervening use since then.)  I only have a Bachelor’s degree, albeit with many years of experience.  My evidence of English were my published books, articles, talks, and the fact that I was born in the US in a household in which English was our only language (ok, American English, so it’s not quite the same as Canadian English.)

At any rate, here we are, three years later and the application is still not technically completed – after all, I still have a pending application before the Federal Court challenging the decision.  And of course, I haven’t heard anything on that either.  Since Monday July 2, 2012 is a statutory holiday (Canada Day) I won’t hear anything before the 11 week mark at this point.  Even though I have a second option (spousal sponsored immigration) I am forever bound by my unconditional promise to pay for my medication, should that prove to be necessary – I realize there is no legal mechanism for enforcement, but I recognize it as an immoral act to violate my own solemn sworn oath.

It is ironic that I now must worry about my sponsorship.  My spouse’s family is very unhappy about our marriage and is using every emotional tool in the arsenal to force a return home (where for them “home” means where they are, not where we are.)  I don’t expect that to happen, but I have to consider what I will do should it happen (of course, at the same time I am being as supportive as I can because regardless of what my spouse decides I know it will be for the best.)

If that does happen and the court decides not to hear my case (which seems likely at this point – it’s now pushing three months) then my plan is to go back to the US.  Sad, to be defeated and unwanted by both Canada and one’s own country – at least the US has no choice but to allow me to return.

We shall see what happens…

Wishing everyone a Happy Canada Day.

Operational Bulletin 425


OB 425

Announcement of the closure of the Buffalo, NY CIC processing office.

One thing that can make the immigration process frustrating for those living through it is that there is such a total lack of control.  The process has profound impact on one’s life and any bump or wrinkle in the process sends jolts of fear through those currently in the middle of the process.

For the past two months the processing time of applications at CPC-M (“Case Processing Centre Mississauga”) has been increasing about 1/2 week per elapsed week.  Thus, when we submitted the sponsored application (in early March) the estimated processing time was 55 days.  By May 14 (9 weeks later) the estimated processing time was 90 days (so an increase of 35 days in a period of 63 days.)  That number hasn’t been updated in two weeks.

Then the other shoe drops and suddenly the backup in Mississauga makes sense – CIC has decided to close Buffalo.  My suspicion (entirely random speculation since I’m just another leaf caught in the maelstrom here) is that this decision was made back in March as part of the new budget.  So the backup would be due to the shifting of processing to other centres – in this case, it seems that the permanent resident processing will be moving to New York City (who already denied me once, so I wasn’t too thrilled to see that change) or to Ottawa.

In the meantime, we sit and wait for the court to make a decision on my judicial review application.  Today marks six weeks since the Registry forwarded the file to the Court for a determination.  I’ve only seen one case in my own (random) study that’s taken this long and it was ultimately rejected.  I’m hoping to avoid the same fate.

Immigration will certainly teach you the meaning of patience – and of what it is like to put your life on hold for several years while the process winds along.  I suppose I should be grateful I’m not one of the pre-2008 people who have recently had their applications withdrawn and sent back to them.  CIC did refund the fees, but if I were one of those people I’d be furious – in at least some cases, their files were finally being considered.

 

Ovalle v MCI


Court Decision (Gavel)It’s been several weeks since I reviewed the recent court decisions.  I was glad to see a new one that is pertinent to my case: Ovalle v MCI (2012 FC 507).  It was argued by the same attorney that I am using and – interestingly enough – the government was represented by the same attorney as well.  At some point I suspect these two will feel like old friends (or perhaps rivals at least.)

At any rate, in this case, Mr. Ovalle applied for immigration, was HIV positive when he applied, was taking drugs provided to him by a non-profit known as Aid for AIDS International and they agreed to continue providing him with the drugs, even if he were to immigrate to Canada.  He also showed that he was stable and other than the meds, he would not be an excessive demand on the health services of Canada.

The medical officer reviewed the additional evidence and said that it did not change the diagnosis or prognosis.  The visa officer relied solely upon the feedback from the medical officer, discounted everything submitted by Mr. Ovalle, and rejected him.

The Court was not happy with this decision – this was reviewed strictly on the “fairness” of the actual decision (an admittedly challenging basis on which to win a decision):

While the officer had detailed information before him about the medication Mr. Ovalle would require, its cost, and his ability to meet that cost, the officer merely reiterated the medical officer’s opinion that Mr. Ovalle’s diagnosis and prognosis had not changed. But neither the prognosis nor the diagnosis was the issue. There was no dispute about that. The issue was whether Mr. Ovalle would impose an excessive demand on Canadian resources. The officer did not address that issue in his reasons. It is not possible, therefore, to understand the basis for his conclusion that Mr. Ovalle’s plan was not satisfactory.

(Paragraph 9).

As a result, the judge decided the decision was not reasonable.   Kudos to Justice O’Reilly in holding CIC accountable to the standards as set forth in Sapru v MCIas I previously discussed.

The decision in this case is a narrow one (e.g., it applies to the specifics of this case) but it does demonstrate that the Courts are not allowing the Minister to simply reject people without a reasonable explanation as to why they are being rejected.

My own case has now been pending a decision on my application (to see if we even get to have a hearing) for 27 days.  While there is no guarantee of any specific time frame, it is now longer than most decisions of this type based upon my review of other cases – I have seen as long as two months to make a decision (twice – once it was granted, once it was denied).

Only time will tell.

The least expensive treatment option


One of the most difficult parts of formulating a response to the fairness letter in my particular case was even determining what the actual costs are to the Canadian Government.  It took me a while to find a source for such information, but it turns out that the Government of Quebec publishes a complete list of what they are willing to pay; my understanding is that this in turn is based upon the actual negotiated prices of the Canadian Government.  The liste de médicaments provides exactly this information.

By using this information I have been able to find what would be the least expensive option for treating an HIV infection in Canada at the present time.  While not the “preferred first line” treatment, it is still listed as a valid first line treatment and thus should be an option for anyone arguing the fairness letter.

Specifically, the combination of lamivudine, zidovudine and nevirapine (also known as Combivir and Viramune) now involves two drugs that are off patent (zidovudine and nevirapine) in Canada as well as the third (lamivudine) for which the patent expires June 2, 2012 (it is already off patent in the United States).

The current cost (as I write this) according to the Quebec price list is:

Zidovudine (100mg x 3) twice per day = $6.32/day

Lamivudine 150 mg twice per day = $9.30/day

Nevirapine 200mg twice per day = $2.47/day

Total cost per day = $18.09/day

$542.70 per month.  At $6,512.40 per year, this is above the maximum allowed, albeit only slightly over that limit.  With the impending generic status of Lamivudine, I would expect those prices to fall so they are below the threshold.

For a comparison, I used an online Canadian pharmacy (based in Quebec) to determine the price of generic equivalents.(Canadian Family Pharmacy – Your Cart)

Canadian Family Pharmacy

Canadian Family Pharmacy

It is a bit of a challenge to put this all together cleanly, but let’s go through the math:

Zidovudine is $4.56/day

Lamivudine is $2.00/day

Nevirapine is $3.40/day

Total per day: $9.96.

That’s $298.80 per month for this treatment option.  I did not combine the first two drugs together because that combination is covered by a patent still (“Combivir”) that has not yet expired.  However, my point is that all of these drugs are available as generics staring June 2, 2012.  This is a Canadian based company selling these drugs.  Note that this company will not ship products to Canada.  This is due to the Canadian rules that these drugs may not be imported (they are “Schedule F”) but for the purposes of computing the cost of generics, this is a reasonable place to start – if the government wishes to disagree, they can but they would need to be in a position to explain how they reached their conclusion.

Bottom line: if you find yourself arguing against a fairness letter due to your HIV positive status, obtain a letter from your doctor indicating that this combination is an acceptable starting therapy for you.  Then use this cost analysis to point out that the total cost of treatment is now under $3600 per year.  Even with periodic testing, your total costs will be well under the current limit (just over $6000 per year).

I didn’t make this argument because the emphasis by CIC in the past was on insurance.  Their response to me was “your insurance doesn’t matter, all that matters is the total cost of treatment, which is paid for by the provincial government”.  If I had known insurance didn’t matter, I’d have focused on costs.  Hopefully, if you find yourself in the same situation you can avail yourself of this argument.

Good luck!

Minister Kenney and Huffington Post


Minister Kenney (Citizenship and Immigration Canada) apparently agreed to answer immigration questions on the Huffington Post website.  Sadly, I did not see the offer to answer questions soon enough so while I posted a question (a pair of questions) it was past the time that it would receive a review.  Nevertheless, I found the comments illuminating.  It is certainly clear that a fair number of those posting about their experiences with CIC came from non-native speakers of English, yet the anguish in their entreaties was heart-felt.

Many of the posts were from people experiencing the increasing wait times for sponsored spousal applications.  For example, in the past five weeks (since we submitted our application, in fact) the waiting time has increased linearly – ergo, there has been no reported progress on the CIC website.  I’m not convinced the CIC website is really reflective of the actual processing time, but it is the best source of information made available to us (I will post a bit more about our application soon, but for the moment let’s stick to the matter at hand).

I also found the statement from someone that “we should just shut down all immigration until the job situation improves” to be symptomatic of the feelings of some Canadians – that immigrants are “taking our jobs away”.  As I pointed out, in my situation I brought my own revenue stream, my own customers and have been able to hire existing Canadians to assist in my business.  I’d like to hire more, but to be honest I cannot legitimately make the case for doing so in the face of the very real possibility that I might not be allowed back into the country at the whim of a CBSA agent.  That would be a true nightmare situation – to have to default on my obligations to others simply because of my own bizarre situation.

So I will continue to muddle along.  And I hope that I have added a unique perspective to the discussion.

Immigration: Anyone with a condition will be a drain


Down's SyndromeOne of the fundamental underpinnings of the concept of “inadmissibility due to excessive demand” is the idea that people who are different are also liabilities to Canadian society.  This is reflected in the very process – in which only costs are considered, not added value, for example – and represents a deep-seated bias.  Even more peculiar is the idea that in some cases this excessive demand can be waived – for example, in the sponsored spousal class.

Of course, I’m dealing with this in my own case, as it is at the heart of the medical inadmissibility decision process: let’s look at costs above all else.  I must admit, I do understand the need to try and balance contributions against expenditures, but the law in this area is crazy – CIC turns it into an adversarial process, in which they say “sorry, but you might cost us too much money” and then makes you go figure out HOW they reached that decision (they certainly don’t tell you) and come up with some argument they might find persuasive.  If you guess wrong, you lose and you are rejected.

For example, in my case I’ve struggled to find out how much they think the meds are going to cost.  Not even the clinic in Vancouver can tell me the actual cost of these meds (and I’ve asked.)  I know what I can pay to buy them in the open market.  I’ve even gone so far as to research patent expiration dates to find drugs that are NOT covered by Canadian patents any longer and thus should be about the same cost as the generics I can find priced on the internet.  There are treatment options at around $2,000 per year.  But because I cannot find out the costs the government pays, I can’t even argue that their assessment is wrong – all I can do is say “ok, I have enough insurance to pay 100% of the cost” to which they reply “we know you’re just saying that and as soon as you can you’re going to jump on the gravy train…”  Nothing quite as inspirational as a process that automatically assumes you are a liar.  Of course, I’m not and I signed an unconditional affidavit saying I would pay the costs of the medications should they be necessary.  So I consider that no matter what the outcome, I am bound by that oath.

At any rate, last night I read this interesting article on the refusal of a parental sponsored application because they have an adult daughter with Down’s Syndrome. It’s what triggered this thought process for me.  There is an inherent bias in the system against people who are different.

This is an important part of our argument that this is a Charter violation – and this case is an excellent example of exactly the kind of bias we’re suggesting is the issue.