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.