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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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!

 

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.

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.

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.