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.

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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.

Revisionist History


 

Yesterday was the deadline for the government to file any remaining affidavits in the case and they availed themselves of the opportunity by filing one.  Today I had an opportunity to read the actual affidavit, although I am waiting for copies of the exhibits attached to the affidavit.

In this case, it was the medical officer.  On first reading, I must admit, it was actually somewhat convincing that she had actually done some real thinking before reaching her decision.  Admittedly, there are some flaws in that rationale, but after mulling it over for some time, I realized that there’s one thing missing from all of this: what she’s saying isn’t supported by the written record.  Thus, she is now supplementing her original written decision.  That’s not supposed to happen.  I have read numerous legal decisions and I’ve never read one in which it was the government adding new material to the record.  I have read decisions in which the judge pointedly ignores new material submitted by the applicant, precisely because it is not material that was part of the original decision under review – and hence irrelevant.  Thus, I would think the government cannot correct the record “after the fact” any more than I could do so.  This is especially galling since they refused to consider information I actually submitted before they made their decision – “oh, sorry, we didn’t get that.”

So, she provides a nice rationale about how she thought insurance companies wouldn’t pay for medication when they found out that the provincial government had a program for doing so.  She doesn’t offer any evidence of this, merely just her theory.  While that sounds great, I realized that even if you accepted that rationale, it doesn’t explain her rejection of the private health care reimbursement program – known as a PHSP – which (at $20,000 per year) would still have been more than sufficient to pay the anticipated drug costs and which isn’t an insurance company – it’s an employer sponsored expense reimbursement plan.

Had she come back and expressed these concerns, we could have provided her with further evidence.  I could have offered to opt out of the provincial health care plan, which in turn would then have made me ineligible for the very coverage she used to ban me.

Then I can see the clear influence of the government’s attorney – the medical officer claims she signed off on the new medical opinion, and that – voila – i am no longer medically inadmissible.  Of course, she fails to mention that the medical opinion upon which she bases her decision is not even valid for my original case and cannot be used to make the decision in my case.

However, the fact the government is playing this game does tell me one thing: that for whatever reason, the government is actually worried they will lose on the merits.  This nonsense about alternatives and what-not have no bearing on the original decision, they are red herrings intent upon distracting the Court.

My expectation is that the Court will see through this ruse, step back and say “this is all interesting, but it doesn’t repair the original decision, which is defective.”  Even if you accept the affidavit from the medical officer, it says there were hidden concerns that were never expressed.   That would mean the fairness letter wasn’t detailed enough for us to successfully address the concerns.  That would violate the natural fairness required by the process.

That’s giving her the benefit of the doubt.  What seems more likely is that the medical officer is trying to cover her tracks after the fact.  I suspect she just looked at the material and said “none of this changes the medical diagnosis, so I don’t really care.”

We’re now just 1.5 months away from the hearing date.  We will find out after that.

 

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.

And Sometimes I Overthink The Problem


 

The ThinkerAt times I am guilty of “over-thinking” the problem.  Spending a bit too much time looking at the evidence and attempting to speculate on the “holes” in the evidence.  It would appear that I have done just that with respect to the recent oddity in the Registry record.  On the other hand, it turns out I was right in at least one important speculative aspect.

At any rate, the Registry has now updated and there are a number of records.  I followed up by requesting copies of the materials submitted by the government from my attorney’s office, as my attorney is out of the office this week.

The Respondent’s council conveniently enough noticed the omission of the medical file in the “certified tribunal record” because it was missing the medical file.  Conveniently enough she happened to have a copy of my medical file, which she submitted to the court and apologized for the oversight.

Just for the record, there is a reasonable sized section in ENF 9: Judicial Review which is the CIC document describing the process, with particular emphasis on the responsibilities of CIC to comply with the legal requirements.  Dry reading, I’m going to reproduce the bulk of it here because it will help establish context for my comments:

The order granting leave for judicial review constitutes an order pursuant to Rule 17 of the Federal Court Immigration Rules whereby the tribunal (decision-maker) is required to produce the tribunal record within the time frame specified in the Court order. In cases where the Minister or an officer designated by the Minister is the decision-maker, the Rule 17 order will be directed to the CIC or the CBSA office responsible for making the decision.
Upon receipt of the order granting leave, the decision-maker or the official assigned to the task must immediately prepare and send two certified copies of the tribunal record to the Court Registry and one certified copy to each of the parties (the applicant’s counsel and the Department of Justice). The tribunal record will consist of the following documents numbered consecutively:
(a) the decision or order that is the subject of the application and the written reasons, if any, or a notice that no written reasons were issued;
(b) all papers relevant to the matter that are in the tribunal’s possession or control;
(c) any affidavits or other documents filed or considered during the course of any hearing, interview or process that resulted in the decision or order; and
(d) a transcript if there is one of any oral testimony given during the hearings, interviews or processes that led to the decision or order.
It is imperative that the tribunal record is produced as aforementioned no later than the date specified in the Court order. All papers relevant to the matter specified in paragraph (b) above refer to all the file material that the decision-maker referred to, considered or relied upon before making their decision. Such material would normally include the officer’s summary report or interview/review notes, submissions and any documents submitted by the client and or counsel and any other file material referred to or considered by the decision-maker, including FOSS or CAIPS notes. Any material or file information that was not considered by the decision-maker or postdates the decision date is not required and should not be included in the tribunal record. The person preparing the tribunal record should consult with the decision-maker where there are doubts as to what material was considered in making the decision that is being challenged.

There are a few key points here: first, the tribunal record has to be prepared by the tribunal (CIC in this case) and not casually submitted from materials that just happened to be sitting on the desk of legal counsel.

Second, it’s a certified copy – how can counsel certify that these are the materials that were reviewed by the officer in rendering her decision?  This seems dubious at best.

Third, the medical records included – as I suspected they would – material that would not have been considered in the initial rejection (e.g., the medical that I had done in February for the new application.)  Indeed, CIC’s counsel wasn’t even discreet about including it as it is the first material one sees when one opens up the supplementary materials.

Of course, this is the same barrister who argued in previous filings that we had inappropriately submitted materials that were not before the decision maker.  Indeed, I just commented on this fact in the CAIPS notes.  Perhaps I have a delusional sense of fairness, but I would think that the government cannot both argue we are barred from submitting new material at the same time they are submitting new material.   Of course, the court should not consider the new material – but the government has certified that this is material considered in making their decision!

I cannot imagine the Court won’t notice this poorly executed legerdemain.  I would think there are two likely outcomes: either refuse to consider any of the new material, which seems to make sense but for which I have not yet found supporting case law, or all the new material will be considered.  I suppose there are other options: basically various forms of sanction.  I’ve never read of a case in which CIC submitted new materials to the Court.

So, bottom line: there was no second court order, it was just fulfillment of the first order.  However, CIC’s counsel did manage to “sneak in” the new medical, thus reinforcing the idea that this is all just a waste of time for the Court.  Thus, I am guilty of over thinking the problem.  It is an easy mistake to make while caught up in this imbroglio.

I’ll find out more next week when my attorney returns, because it really is up to him on how to deal with this latest development.

 

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.