Silence can be deafening


Silence SpeaksWell it’s now evening on Wednesday.  My attorney presumably returned from vacation yesterday and yet, two days later, I’ve heard nothing from him with respect to the odd filings I mentioned previously.

I try hard not to make myself a pest – I did send two e-mails, and I thought that I would hear from him upon his return. While I’m sure he had other matters awaiting his attention when he got back, I don’t expect he has a large number of pending judicial review applications before the Federal Court of Canada – he does seem to argue one or two per year.

Maybe I’m just being impatient.  For him this is just one case of many – it’s a job for him.  For me it is admittedly a bit of an obsession, but then again it is my life here.  I’ve pointed out that three plus years is a long time for anyone to put their life on hold awaiting the outcome of a bureaucratic process.  I have also pointed out previously how dehumanizing this process is, so perhaps this is just another reflection of that reality.

At any rate, now I wait.  In one week the next deadline is upon us – the Government’s deadline for filing any additional affidavits.  I’m not sure if they will submit anything.  Next month will be deadlines for additional legal briefs to be filed.  If there are any potential parties wishing to intervene on either side, that would be the point at which they would do so.

So I shall sit here and wait and try to enjoy the silence.

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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.

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.

An unusual entry in the Docket

Status


Sparks St. Headquarters

Image via Wikipedia

I haven’t checked the docket system in a while – after all, I don’t expect anything else to change until the government has responded to the application.  For whatever reason, I looked at it today and was rather surprised to find there was a new entry:  The government has assigned an attorney to this case apparently, because she filed a letter with the Court indicating she was assuming “carriage” of this case.

I found this about two hours ago (as I write this) and I’m still oddly rattled.  Indeed, initially I was floored – I’ve never seen an entry like this one in the dozens of other immigration cases I’ve reviewed on the docketing system.  Of course, I wasn’t specifically looking for this entry either, so I just figured I had not really noted it previously.  So I spent about an hour going back over old cases and none of them indicated an attorney by name taking the case.  Usually the next notation after the application being filed is the response being filed.

I’ve decided to include it as an image; while it can be recognized via OCR, this will prevent the name from being normally indexed (or so I hope – web stuff is getting rather sophisticated these days!)

Docket entry

Docket Entry

This was enough information for me to do some web searching.  This is an attorney with quite an extensive history of handling high profile cases.  She sat on a panel discussion last year discussing medical inadmissibility in the Canadian federal court system.

I’m at a loss as to how to interpret this.  I suspect I may be over thinking it.  So at least for the time being I’ve decided to interpret it as a positive sign – that Justice Canada is taking my application seriously.  Ironically, this may make it more likely that I’m granted leave – since it suggests there are substantive issues to decide.

It does seem likely that the response in this case is going to be a strong one.  There is little doubt that my attorney is going to earn his fee on this case (or perhaps just this added level of attention means he’s already earned it!)

Application Filed

Status


Just a quick note that the application for judicial review was in fact filed with the Federal Court today.

At this point the government has 30 days to respond (so March 29, 2012).  We will then have one final opportunity to file within 10 days.

The clock is ticking.

Note that I do not yet have a copy of what was actually filed with the Court, but I have already asked my attorney to forward one to me (that should be easy, given that they submit electronically these days.)