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.

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Another unusual entry: medical file sent


 

 

Medical FilesToday’s surprise was two-fold.  It started simply enough – I decided to check the docket system and see if there was a new entry indicating that the “certified tribunal record” had been received by the Court, since yesterday was the deadline and my attorney indicated that he received a copy of the tribunal record.  His words were “there are no surprises here”.

However, I did not find the tribunal record notation.  Instead, what I found was a notation that said:

Copy OF APPLICANT’S MEDICAL FILE sent by [counsel name omitted] (COUNSEL FOR RESPONDENT) ON BEHALF OF CIC (OTTAWA) on 10-AUG-2012 pursuant to the order of the Court Received on 10-AUG-2012.

Once again, I find an unusual entry in the docket.  I’m uncertain what it means.  Oh, I also don’t see any indication that a copy of this order was logged by the Registry.  I likely won’t know the significance of this for a while – my attorney is gone on vacation until August 20th.  So I likely won’t hear anything about this until after his return, if even then.

I did go back and look through other medical inadmissibility files and, once again, I didn’t find anything equivalent in any of them.  If I take this at face value, someone in the Court is paying attention to this case – they looked through the tribunal record and did not find what they expected to see and thus ordered the government to produce it.  Since Ottawa is the regional medical centre, that this came from Ottawa makes sense as well.

Of course it is also possible that the Court requested my latest medical, not my original medical.  I really don’t know, since I didn’t see the order.  However, if I had to guess the Court just asked for my medical file – and if I were the government I’d send everything, not just the medical file that applies to this particular case.

One thing is certain: this case is not following the typical path.

Next deadline is the August 20, 2012 deadline for us to submit an additional affidavit, although my attorney indicated he did not see a reason to do so.

I shall strive to focus on enjoying summer here in Vancouver while I can and try not to worry too much about the case progress.

 

 

Eight Weeks and Counting:


8 Weeks

While 8 Weeks is enough for optimum health, it isn’t enough for the court to make a decision.

It’s been quite a while since I posted anything on this blog. It isn’t because I haven’t been busy – I know I’m spending more time in various online forums reading and answering a broad range of immigration questions and constantly marveling at the inane and dehumanizing nature of the process.

No, I haven’t been posting anything because I’ve been both busy working and patiently waiting, thinking that I would be seeing a decision – on pretty much anything – at some point soon.

As of today it has now been eight weeks since the Registry first forwarded my file to the Court for disposition.  The Court rules say that the handling will be in a timely fashion but they never bother to define what that means precisely.  Certainly, at some point it will reach a stage at which it is ridiculous – is that six months or a year?  Presumably, at that point a separate filing (to the Appeals Court?) for a Writ of Mandamus would be a potential option, but I’m certainly not expecting it will take that time.  I read an interesting case yesterday of someone who has been waiting since 2006 for completion of the processing of their family class (spousal) sponsored permanent resident application.  That person even had a letter from CIC saying “Therefore, it appears that this application is proceeding normally with no unexpected or unwarranted delays“.  It reminded me that Mandamus is always an option, provided that one can reasonably argue it’s been “too long”.  Two months, while annoying, isn’t quite in that camp.

I suspect, but cannot confirm, that the issue is there’s real substance to the arguments, which means the case cannot be summarily dismissed.  In addition, the Court rules state that if a decision to grant review is made, the hearing date must be between 30 and 90 days from the date review is granted (at which time a scheduling Order is entered).  Thus, to issue a positive determination, they must have a courtroom and a judge.

At any rate, it’s more of the same: hurry up and wait.  Eight weeks might be enough to get to Optimal Health, but it isn’t enough to get to a Court decision.  Not yet at any rate.

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.