Countdown: Six Weeks to Go


Today marks six weeks to go before the hearing date.  While I’m sure the time will fly by (after all, that means we’re over 50% of the way since leave was granted) living it up close and personal is always an interesting experience.  Nothing like waiting months and years for something that is so fundamental to life.

Indeed, I often find myself reflecting upon the whole process, wondering if I would have been far wiser to have never pursued immigration in the first place.  A look over at my spouse (being domestic right now, putting away laundry) assures me that the net outcome really is a good one, but absent that I seriously doubt I’d reach the same conclusion.  Of course, underlying the court battle is my strong desire to prevail “on my own” – to basically not burden my spouse with this ongoing obligation to be responsible for me.  While I don’t expect anything to happen, we never do plan for these sorts of things, do we?

The past week has been a good one overall, though.  I pointed out the observation in my previous post that the PHSP would have overcome the medical officer’s objection to my attorney who thought that was an important point that he would incorporate into his memorandum (the memorandum is due on 18 September).   I’ve also had the opportunity to interact with some other people who have been through the same process as me.  One of them had a hearing yesterday (judgment reserved – but it was only 30 minutes, suggesting there really wasn’t much argument.  Whether that is good or bad remains to be seen).  The other won his case back in 2009 but was ultimately unable to successfully immigrate to Canada (from what I was told, this is because they couldn’t prove something that could only be determined once they had come to Canada.)

I took the past two days off as well.  My spouse and I enjoyed a pair of wonderful days – late summer days, enjoying some time together – a rarity these days.  It has given me a time to reflect and consider the nuances of this process.  One thing I find myself wondering is if much of this “process” is really a mechanism by which Canadian Immigration can enshrine biases and discriminatory practices.  Certainly both cases I learned about have suggested that this might be the case, but of course two cases do not prove a pattern, either.

Ironically, what helped me crystallize this thinking was a news article I read on The Huffington Post.  It was the story of a child with Down’s Syndrome who was denied boarding on an American Airlines flight.  The airline claimed the pilot was concerned about security.  It made me realize that discrimination is so damned hard to prove precisely because it can be disguised in the clothing of “rational process”.  Thus, they agree to allow someone into Canada but only if they can do something prior to granting permission that can only be done after they’ve been admitted to Canada.  “So sorry, you are still not admissible to Canada.”

This passes an initial inspection as “due process” but fails to withstand scrutiny.  What is particularly ironic is that immigration is about encouraging diversity – but only within a very limited range.  There’s nothing wrong with having such a system, but it would seem to be disingenuous to dress it up in the guise of an equitable system.

There is a certain inherent hypocrisy in the system.  While I had hoped that my case might serve to shine a bright light into the dismal innards of the system, the reality seems to be that this isn’t likely.  The system is self-protecting.  In my case, they will point to the fact that I can always enter the system through a different mechanism and thus avoid the possibility of examining the inherent bias in the system itself.  While I can say that this is a shame for the process overall, I have selfish motivations here – I want the process to end.

Six weeks from today I’ll be allowed to watch them argue my fate.  Some time after that I’ll learn the final outcome of my case.

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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.

British Columbia and the Optional Nature of Health Care


 

Chopped Care CardSince my surprise on Friday I’ve spent a bit of time going over various materials.  One large project I’ve undertaken is to start reviewing all the relevant case law.  I’m doing this by researching the various decisions, including the Supreme Court of Canada (one decision), the Federal Court of Appeals (three decisions), and the Federal Court of Canada (100+).  This is a lot of material to review, so I’m not really ready to start covering it here, but I will be – if for no other reason than to provide those who follow with a bit of a starting point in analyzing the material.

I also looked through the copy of my “immigration file” and found an interesting piece of e-mail recorded within the computer notes.  To be honest, it probably should not have been included, because it looks to be privileged communications (attorney/client).  However, the ATIP folks review everything before they send it out, so someone reviewed it and decided it wasn’t sensitive.

The applicant identified above has filed a judicial review application challenging the refusal to grant him a PR status on the basis of his medical inadmissibility. He is challenging this finding suggesting that fairness was breached in that his case did not benefit from a personalized assessment as established by Hilewitz . Could you please look at the attachments and confirm that the documents he has now introduced in his application before the Court, were also provided in support of his application for PR .

Your comments are appreciated. Of particular interest is whether or not he presented evidence to demonstrate that he could opt of British Colombia‘s publicly funded Medical plan.

It was this last paragraph that caught my attention as I was reading through this, because indeed, we did not present this information to the visa officer – why would we?  Based upon the fairness letter, they asked about costs, not about BC’s coverage of those costs.  While my attorney wrote up the letter to CIC regarding my case, I’m the one that had picked him based upon my own reading of the Companioni decision – I essentially used this as a check list for a well-formed plan.

Had the original fairness letter stated “Alternative payment plans will not be considered because BC pays 100% of the cost…” I would not have wasted my time presenting a plan to provide 100% coverage of the costs.  instead, I would have argued “BC does allow an opt-out scheme”.  The government will argue that the judge should not consider this because it was not before the visa officer at the time of the decision.  However, it does underscore the fact the fairness letter itself was deficient because it did not clearly establish this concern of the officer.

At any rate, after thinking about it for a while i realize the government is in a trap of their own construction.  By noting that they are aware of BC’s policy for payment for this particular class of drugs, which is not described on the BC MSP website or the Fair PharmaCare website, it would suggest they are familiar with subtle nuances of the BC medical services plan.  Yet now they seem to be arguing that they don’t really know much about the provincial health program and it was my obligation to educate them about their own program.

How can you both be responsible for administering a program and simultaneously arguing you are not responsible for being knowledgeable about it?  That would seem to run counter to natural justice – CIC is only responsible for knowing those bits of policy that allows them to reject you, particularly if you are someone with a disability.

The original letter doesn’t mention British Columbia’s policies at all.  To pull this out at the end as part of the final rejection is indeed unfair because it never gave me an opportunity to respond.

It does seem to bolster the separation of powers argument as well.  It is not good policy to allow CIC to “cherry pick” which parts of provincial health policy they have to understand.  In Deol [2002 FCA 271] the court rejected the idea that CIC had to advise an applicant of a program that might have been beneficial to the applicant:

As for the visa officer’s alleged unfairness in not drawing Mr. Singh’s attention to Manitoba’s bonding program, Muldoon J. noted that visa applicants have the burden of establishing that they meet the qualifications for admission. Accordingly, the visa officer was not under a duty to advise Mr. Singh how he might overcome the “excessive demands” hurdle by drawing to his attention a program offered, not by Citizenship and Immigration Canada or any other federal agency, but by the Department of Health of the province of Manitoba. He also noted the paucity of evidence about the program, including its availability to Ms. Deol.

This does not say the visa officer was not under an obligation to understand the laws of the province, although it does imply this.  But it does help strengthen the separation of powers argument – if CIC isn’t required to understand provincial health care law, why are they making decisions based upon it?  How is this fair to the applicant?

I am feeling somewhat upbeat at this point.  It would seem that CIC does not have a good track record when it comes to medical inadmissibility cases.  I don’t have a complete number yet, but by the time I’m done I will.  Right now though it is clear that CIC loses more cases than they win in this area – the Federal Court often finds their decisions come up deficient.

I’m hoping to tip that count a bit more.

 

 

Time to Renew the Work Permit


 

Canadian Work Permit
As much as I had hoped I wouldn’t need to do it, the time has come to renew my work permit – it expires in September.  When I looked at the CIC website a few months back I was impressed to see that their processing times were only a few weeks for a renewal.  Some time in the past few months they must have been hit with a surge in applications, however, because they now require 55 days for a renewal application (or a mere 54 days if you submit it online!)

Normally I wouldn’t be too concerned, but of course with a negative determination on my FSW application, it seems likely that it is more likely to be subject to questioning.  Of course, the fact I have to cross the border on a regular basis does make this a bit more complicated – if I’d known the time to process was two months, I’d have submitted back at the beginning of May – when the time to process was just a couple of weeks.  Hindsight, as always, is much better than foresight.

In addition, the application form that one uses at the border has changed substantially – it now explicitly asks about all previous applications.  The inland renewal application asks about “serious medical conditions”.   Thus, either way I try to process a renewal it is far more likely I’m going to be subject to additional scrutiny.

My attorney has recommended filing via the inland renewal process.  My concern with that is that as the processing time is now almost two months (and seems to have slowed down by two days in the past week) I’m going to end up being forced to leave for work prior to the actual renewal – particularly if it is referred to a local office (here in Vancouver, no doubt) for additional processing.  My attorney has argued that the information I provided before (insurance coverage) should be sufficient to obtain a renewal. I’d expect my Canadian spouse to carry as much weight, to be honest, and I have to include a spousal declaration on my application in any case.

If I do have to leave Canada while an inland renewal is in process, one of three things will happen:

  • My renewed work permit will be issued prior to my return to Canada (in that case, I can just have someone forward it to me);
  • I can submit an application at the POE (Port of Entry);
  • I can request a “visitor record” for the period of time while they are processing my renewal inland (but legally I cannot work in Canada during that time.)

As long as I remain in Canada, I can continue working (“implied status”).

I sent everything along to my attorney for his review and I’m now waiting to hear back from him.  I will send in the inland renewal (this week) and then if I do need to leave the country I will make sure I have everything that I need to submit the application at the POE – the “don’t work in Canada” doesn’t work so well for my situation (the idea of a vacation does sound nice, but it doesn’t really work for me.)

Of course, I really hope that this is the last time I’ll have to renew my work permit.

 

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.

Application Reasons


Federal Court (Canada)

Federal Court (Canada) (Photo credit: Wikipedia)

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

The standard for review, as explained by CIC:

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

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

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

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

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

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

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

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

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

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

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