Lee v MCI


MP Jason Kenney of the Conservative Party fiel...

Citizenship and Immigration Canada has been doing some major revisions to their website of late.  One area in which things are more interestingly laid out is the area dealing with medical issues, in particular, medical inadmissibility due to excessive demand.

I’m familiar with most of these cases, but I’d never reviewed the oldest of them: Lee v MCI.

Why is this important?  Because in the Lee decision, the court overturned the refusal because the officer failed to consider the applicant‘s request for a Temporary Resident Permit (TRP).  That request was a bit informal from what the record indicates.  Yet it reminded me that in our own original response to the visa office we asked they consider a TRP.  This was never addressed by the visa officer, nor was it raised in the application for leave and Judicial Review we filed.  In my case it didn’t matter (we obtained leave anyway) but it’s important for people going through this process to keep in mind they do have the option to request they be granted a TRP and to raise this as an issue in any legal challenge, as there is case law on-point here.

So if an officer has a concern about something in your plan – for example, perhaps she or he isn’t sure your insurance will cover the cost of prescription drugs – rather than blanket refusing you, she or he could grant a TRP for a period of time, say six to twelve months, with the understanding that in that time the applicant should be able to confirm that the insurance plan is working as intended.

Or let’s revisit Companioni – where the judge was concerned that their plan was inchoate.  To create a viable plan essentially required they be in Canada – after all, even my own plan was viable only because I was already in Canada.  Everything was set up and ready to go.  So to get out of the “chicken and egg” issue here, a TRP could allow someone to come to Canada for a short period of time – a year, for example – and set things up so she or he could show that they really wouldn’t be a burden.

After a year, the applicant could go back and apply for an extension, pointing out that the plan is working and the applicant is not a burden.  If that’s the case, the TRP can be extended again.

After three years of this, the applicant becomes eligible for permanent residency as a member of the “permit holder’s class“.  The medical inadmissibility concern is no longer an issue to CIC – but an officer had two opportunities to review the file and verify that the applicant really was complying with the terms and conditions of the application.

This underscores one more approach that a motivated applicant can pursue.

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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.