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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Is it Moot?


In the days leading up to the government’s response there was correspondence from the attorney representing the government advising us that because there was a spousal sponsored application in the mix she would file a “Motion to Strike” and correspondingly ask for an award of costs.

This led to some interesting conversations with my attorney – I had not told him what I was doing with respect to a spousal sponsored application for a couple of reasons: I’ve engaged his services to represent me in the judicial review action, not in a spousal undertaking for example; I’ve been told that the two are not related.

It is a bit frustrating to have a professional (such as a lawyer) treat me as if I were someone who did not understand the subject matter.  I’m not an expert but I’m also not stupid.  I was very careful in my communications with him not to lie, although I certainly did not disclose everything to him either.  Since that time he ask explicitly requested that I do so.  Thus, I’ve sent him a copy of the sponsored spousal application for his records as well as the letter I submitted to the visa office in February when I discovered they had not shown submitted documents in the CAIPS notes (including those materials).

So, with the record now clear, we’re still proceeding on the presumption that my ability to challenge the original finding in my FSW application is not abrogated simply because I might be allowed in under a separate immigration category.  According to the timing published this week Mississauga won’t even open the application until mid-May (75 days as of April 2, 2012).  Maybe we missed something, in which case I have to fix and resubmit the application.  Maybe they won’t allow my spouse to sponsor me (there ARE potential issues in our relationship that might lead to that conclusion).  Most likely, they will approve my sponsor and then forward the entire file to Buffalo.  Odds are it will then take a couple of months for Buffalo to even start processing my file.

However, the government did not file a Motion to Strike.  Instead, they filed a response. The government’s response entirely ignored the substantive points raised in the application.  They did not defend the medical officer’s decision, they did not challenge the separation of powers argument and they did not defend against the Charter challenge.  The argument boiled down to: the applicant is filing under the sponsored spousal family class in which medical inadmissibility is not an issue and thus this court should not hear this case. They did ask for a “small award for costs”.  They also challenged a couple of the items that were submitted because they were not available to the visa officer.  Some of this did not make any sense (like the medical officer’s decision in the previous case) since its presence in front of the visa officer or not seems irrelevant.  But that’s what they argued.

My attorney said that until I’m granted permanent residency in the new class, there is little if anything to support a claim that the issues I raised are moot.  In my conversations with him I said, pointedly, that if I’m granted review I will withdraw my application as a sponsored spouse pending outcome.

Certainly, part of my mental process back in January was that the likelihood of obtaining review was fairly low (20-25%).  At least by initiating the parallel application, if that were the actual outcome I’d be able to at least trim several months off the processing time required (although probably not in time to avoid renewing my work permit, the next challenge I have to face.)  Perhaps it was a bit of panic thinking at the time – the idea of being kicked out, pushed away from my job, my spouse, my dog, my apartment and my home of choice certainly was not a pleasant one.

However, the argument against the government’s position is that simply because there is another possible avenue to explore, there is no guarantee that I would be successful.  For example, I pointed out that if one followed this logic, the court could dismiss any medical inadmissibility case if the government argued they had not pursued an H&C application – even though such an application would most likely fail.  Otherwise, this becomes an argument of relative probabilities.  But my attorney did say that once granted permanent residency in the sponsored spousal class the court would dismiss my challenge in relation to my original federal skilled worker application.

I did point out (although he did not respond to my observation) that even if I’m granted permanent residency in a different class, I’m now bound by a sworn affidavit to eschew using the very provincial medical services in question and thus I could argue that I still have standing, even though I’ve been granted permanent residency because I’m still bound by my prior affidavit.  Thus, the government want’s to “have it’s cake and eat it too” – I’m morally bound by an agreement not to use these services, but the government need not be bound to defending their very right to ask me for said guarantee.

Unless the court buys this argument (that the matter is moot), which does not seem to have support in law, it looks like we will get judicial review.  While certainly not the goal, the spousal sponsored application may actually help us get a day in court – as I’ve said before, I’d still prefer to obtain permanent residency on my own.

One week from today my reply (drafted and filed by my attorney) to the government’s response is due.  Then 6-8 weeks later the court should make its decision on whether or not to grant review.  My attorney thinks it is likely now (and I’ve raised my own worthless estimate to 75%).

Application Reasons


Federal Court (Canada)

Federal Court (Canada) (Photo credit: Wikipedia)

As I noted previously, this is an “application for judicial review” – it tries to provide serious issues that justify a judge spending her or his time reviewing.  Something like 20% of “applications” are granted by the court and most are dismissed.  There are three steps to this process: the application, the response, and the request for hearing.  The first and third are written by the applicant and the second by the government’s attorney in most immigration cases.

The standard for review, as explained by CIC:

Review by the Federal Court is a two-stage process. In the first stage, which is known as the “leave” stage, the Court reviews the documents related to your case. You must show the Court that an error was made in the decision, or the decision was not fair or reasonable.

Of course, the Federal Court has the actual text including the rules and standards applied to this process (and it differed a bit from the explanation I’d been given up to this point.)

So what is critical at this juncture are the arguments.  If the initial arguments are not very strong then the court will probably just dismiss them. It is ultimately up to the discretion of the court and thus the job of the applicant is to frame questions that will pique the interest of the judge reviewing the initial record.

In my case, my attorney has chosen five arguments to present:

  • The medical officer made an error in law by failing to make an individualized assessment in deciding that I was medically inadmissible.
  • The medical officer violated her duty of procedural fairness by failing to provide me with a fair opportunity to respond to her concerns.
  • The medical officer failed to provide adequate reasons for her decision and this makes them unreasonable, particularly given that the same medical officer reached a different conclusion for a similar case with similar circumstances.
  • Section 38(1)(c) of the Immigration and Refugee Protection Act (IRPA) is constitutionally invalid because it represents a Federal intrusion into the Provincially controlled arena of health care.
  • Section 38(1)(c) of the IRPA is invalid because it violates section 15(1) of the Canadian Charter of Rights and Freedoms.

While the arguments presented to back up these claims stretch for more than a dozen pages, these are the key arguments.

The first three are, on their surface, sufficient to obtain judicial review.  Particularly the third argument. In a previous case (known to my attorney) the same medical officer concluded that the applicant had failed to mitigate their excess demand circumstances by failing to show insurance to cover their needs.  In my case, the medical officer states that insurance was immaterial.

While my attorney did not state it, my take-away from this was “we’re going to reject these people, and we’re going to make up arbitrary reasons why as needed, even when they are contradictory.”

The first three arguments are likely sufficient to obtain review – they do seem to raise serious questions of procedural fairness.  However, a finding in my favour is merely going to refer the case back to CIC for further decision making.

The last two arguments are the more interesting ones.  If either of these is adopted by the court, the entire basis for the rejection is discarded.  While my case would be remanded back to CIC, there would not be anything further required for them to do for my original application.  They would likely ask me for updated medicals and police clearance, but beyond that there wouldn’t be much of anything to decide.  That would (from my perspective) be the ideal decision.

I’m writing this a week before the Respondent’s arguments are due.  I’m going to schedule it for publication AFTER they are due, simply because I don’t want to post anything that might compromise the case.