New Medical Information on CIC Website


CIC Logo
CIC has been reorganizing their website so that the old medical procedures manuals have been replaced.  The new layout is more complex to navigate (it’s a website instead of an operational manual) but there are also substantive changes to the information and material.

For anyone trying to understand more about the medical evaluation process, it’s important to become very familiar with this information.

http://www.cic.gc.ca/english/resources/tools/medic/index.asp

Personally, I’m glad that some of this wasn’t in place for the processing of my own application – it would have added months onto the process (there are procedures for sponsor notification in some cases and requiring the sponsor agree to continue the sponsorship in spite of the medical condition.)

 

Advertisements

Schedule F: The Chain Link Fence to Keep Sick People Out of Canada


Permanent Resident CardI recently was discussing the issue of the cost of drugs inside versus outside Canada. One of the side-effects of the strong controls present in the Canadian system is that it forms a fence around Canada further making immigration for someone with a medical condition challenging.  This is because of the way the existing law is written.

The cost of certain drugs is much lower outside Canada.  While we can discuss the relative merits of this, such as this recent Forbes article or this recent book on the topic, the bottom line is that the cost of drugs in Canada is high – in some cases as much as 10x higher than the same drugs are from a reputable manufacturer (Cipla, Teva, etc.) in a different country, such as India, where patent rights differ.  One thing that makes this even more difficult in Canada is the blanket prohibition of the importation of certain drugs, currently on a list known as Schedule F, though this is in the process of being replaced by a similar scheme that makes it easier for Health Canada to manage the list.

The purpose of the list, however, is to prohibit the importation of certain drugs into Canada unless one is a doctor, a pharmacist or a hospital.  A patient may bring in a 90 day supply for personal use – but that doesn’t allow the drugs to be shipped.

So, how does one get around this?  Well there are a few options:

  • You can find a sympathetic doctor willing to receive the medications – essentially to serve as the “importer”.  This can be tricky, as some doctors are not willing to accept the potential liability of these non-Canadian approved drugs.  Still, some doctors are a bit more sympathetic.  It can be difficult to find such a doctor. One good thing about the new regulations is that they would extend the importation ability to anyone with the legal right to prescribe in the province.  Here in BC, for example, naturopathic doctors have prescription rights for many things and thus would be allowed to import drugs in some of these cases.  That increases the potential pool of doctors willing to assist.
  • You can arrange for delivery to the US border and then pick up a 90 day supply every three months.  Services like Kinek charge a modest fee for receiving a package for you in the US.  The US has an exception to the importation ban when the drugs are for personal use, which makes it easier to import them into the US.  Then you can bring them into Canada under the 90 day personal use exception.
  • You can try to find a Canadian pharmacy willing to sell the drugs to you.  For example, here in BC there’s a pharmacy in Surrey (Blue Sky Drugs) that indicates they will ship to Canadian addresses; whether this constitutes importation by a Canadian pharmacy or not is something that I will admit is definitely not clear.
  • You can “take your chances”.  This is what people who don’t have to worry about immigration do.  In my experience these services will reship anything that doesn’t arrive.  This is definitely a grey area, as they are exploiting the fact that CBSA cannot police every package and thus only a small fraction are actually seized.

For someone trying to convince CIC that they have a credible plan this situation can be problematic: some officers at CIC know about Schedule F and can use it as a means to refuse someone from being granted permission to immigrate.  In that case the best thing is to find a sympathetic doctor willing to allow shipments of the meds to them.  The doctor might be more willing if they know the drugs are coming from a foreign charity (NGO) rather than an internet pharmacy;  the patient may need to sign a written release indemnifying the doctor in case the drugs provided are ineffective or contaminated – after all, the doctor has no way of being able to verify the veracity of the drugs any more than the patient.  Were I trying to come to Canada and had a foreign NGO willing to provide me with expensive (or overpriced – depends upon your perspective) drugs, I’d be happy to indemnify a doctor willing to help me get into Canada in the first place!

Of course some types of drugs are worse than others.  In January 2013, Gilead reported they had a 76% profit margin.  AIDS Healthcare Foundation has been calling for moderation of their prices, but at the present time that’s the way the system works – the laws protect the companies’ profits not the health and well being of the actual patients.  For those wishing to immigrate to Canada this creates a real barrier to entry.

Canada in turn only looks at a few diseases very closely.  I personally know of people with heart conditions (requiring multiple surgeries and hospital stays after coming to Canada) who disclosed their conditions but were not subjected to the “excessive demand” fire drill.  But this is what the Canadian public has decided to do.  Immigration is always fraught with this sort of problem – a deep-seated xenophobia.  That’s hardly unique to Canada, sadly.

Happy (belated) Anniversary!


First AnniversaryI meant to finish this up yesterday, but somehow the time just simply got away from me.

December 22, 2011 was the date upon which Ms. Marlene Edmond of the Citizenship and Immigration Canada visa office in New York City, NY, USA officially rejected my application for permanent residency.

Thus, on this the first anniversary date (plus one) of the rejection I am looking back.  Things have changed dramatically in the past year.

When she has to refuse an application I wonder if she worries if she has made a mistake.  Perhaps in a case such as mine she doesn’t – though the subsequent events suggest to me that in fact the rejection – or at least the procedure leading up to that rejection – was a mistake.  I have no idea if such cases are ever reviewed internally at CIC to see if they are actually “doing things correctly” or not. I do know that it seems like once they lose a case, they bend over backwards to correct whatever the fundamental flaw was in the original process.  Still that doesn’t guarantee that the application will be granted.

In Ms. Edmond’s case, my opinion is that her mistake was in not pushing back on the medical officer’s decision.  That even a casual reviewer – let alone an immigration officer of her many years of experience – would look at this and say “wow, how can you reach a conclusion that someone is inadmissible when they have multiple overlapping plans for payment that don’t require on personal promises to pay and cover 100% of more than 4x the estimated current cost?” suggests to me that she should have been asking that question.

Or perhaps another way of looking at it Ms. Edmond: if you were going to reject me simply because of the policy of British Columbia, why did you ask me to submit anything to you in the first place?  I could have saved the thousands of dollars I spent in responding to the fairness letter and you wouldn’t have needed to waste your scarce resources on reviewing that response.   Indeed, looking back at it now, I find it difficult to see how a Federal Judge wouldn’t have asked that question – and therein concluded that there really was no “individualized assessment”.  After all, the decision simply required referring to the provincial policy.

In Sapru, the Court concluded that the immigration officer could not “fix” the poor decision of the medical officer.  In my case, the Medical Officer Hélène Quevillon really didn’t have any other reason in her original written notes to indicate this was related to me – it really was about BC’s public funded drug policy.  Ms. Edmond didn’t even go as far as the officer in Sapru did – she certainly didn’t push back on Ms. Quevillon’s determination and there is absolutely no indication that she reviewed that decision, especially in light of her duty to do so under the Sapru decision.  She certainly didn’t try to invent additional rationale for reaching the decision.  Thus, she acted more like a rubber stamp – with even less “value add” than was the case in Sapru – a case in which the Court overturned CIC’s decision.

So while I seriously doubt that Ms. Edmond will ever review her decision in my case, if I could communicate directly with her I would say that I am disappointed – not in the outcome, but rather in her execution of the process.

I am quite fortunate – I had the drive and resources available to challenge her decision.  Most people in such a position likely just walk away from the decision.  That is why it is so important that people like Ms. Edmond do their best to ensure their decision is fair and equitable.

In the interveningyear, I’ve had the honour to assist several people with their cases, and one is a case similar to mine: a federal skilled worker application in which the spouse was found to be HIV positive.  The medical decision is still pending – they have now furthered it once again, because the test results indicate that without treatment this individual does not require treatment under current guidelines in their intended province.  Of course, if they were coming to BC it would be easier – CIC could just reject them, since the provincial policy is to provide treatment to everyone, regardless of their lab results.  It saddens me to see how difficult this is for people – leaving their lives hanging in the balance for months and years.

So Ms. Edmond, it’s been one year now since you wrote that rejection letter.  Even now as I read the closing (“thank you for your interest in Canada“) I feel a certain degree of bitterness with the snide nature of that closing line. Canada deserves better – it deserves immigration officers and medical officers that remember there are real people behind those files.

While I didn’t win the victory I really wanted, I have managed to achieve sufficient victory for me to be satisfied with the outcome.  I hope both you and Ms. Quevillon do your very best for Canada now and in the future.

Merry Christmas!

 

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.

 

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.