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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It never really ends: the Permanent Resident Card


Permanent Resident CardOn Thursday I finally broke down and attempted to call the immigration call centre because I was concerned that my permanent resident card had not yet arrived.  While it’s not strictly required, it’s prima facie evidence that I’ve successfully become a permanent resident of Canada.

I’ve read stories about how people cannot get through to an agent and thus was not surprised when after going through 60 seconds of voice prompts and listening to admonishments that the agents would not tolerate foul or abusive language that I was told they were too busy and was disconnected.  I tried again a number of times with similar results.  I’ve never been a big fan of the telephone as a means of transferring information – as I like to say “it’s worth the paper on which it is written.”

Friday morning I decided to try once again and was pleasantly surprised when my call was placed in queue for being answered.  After waiting about five minutes I spoke with an agent, explained the situation and she agreed with my assessment that I should have received my PR card – published processing time is 58 calendar days and I’m coming up on three months.  She collected various bits of information from me, ostensibly to confirm my identity, though I am never sure why using public record information really does anything about authenticating someone.  But I digress.

She then placed me on hold for several minutes and upon her return she explained to me that while my card had indeed been produced, there was an issue with my paperwork and it would require that I submit an additional form requesting correction of my “Confirmation of Permanent Residency” document – something about a missing date.  She advised me they were sending out the card that very day and would also be sending me a letter telling me of the issue with respect to the landing paperwork.  She also then e-mailed me a link to the form I would need to correct the error.

I’ve gone over my copy of the COPR and I cannot find an error similar to what she described (apparently something about a date) but it does remind me that when I landed the border officer did try to give me the wrong copy back – so now I wonder if he omitted a date on the copy he kept.

I suppose the lesson here is that the adventure never really ends.

Epilogue

This morning (20 January) after traveling all day yesterday – up at 1:45 am PT and finally home at 9:30 pm PT, I found a string of comments on this post from objecting to my linking to their blog and the image on their blog post – a post that’s almost 8 years old at this point and to images that are still publicly accessible.  From the tone it sounds like they objected to the content of my blog and the fact that I didn’t remove the links quickly enough for their taste.  Sadly that sort of intolerance still seems to happen, even in a progressive country like Canada.

Thus, I’ve changed it to a different sample card and point to a different immigration blog – and like I did before using the previous image, I’ve sent a note to the registered owner of the domain advising them that I am going to link to their image. There’s this interesting issue with images: some people don’t like hot linking to them while others don’t like it if you create a separate cached copy – there’s no “right” answer.  But in either case the net effect for anyone viewing the page is the same – a copy of that image ends up on your computer, in your browser cache.   I’ve not really worried too much about it as my own blog’s following is rather small.  But just for the record, in this case, the original post material came from a US-based server and thus the use of their posted material is subject to the US Copyright “Fair Use” Doctrine. I’m confident that I fell well within the Fair Use doctrine.

Of course, I’m not in favour of allowing bigotry, but it just isn’t possible to fight every battle – you’ll leave yourself exhausted.  So the first thing I did after turning on the computer and reading this tirade is give them what they wanted – to not be associated with my own story, presumably because they found it morally repugnant.  Of course, the original image is still publicly available and it and the blog post still come up at the top of a Google image search.

Oh, and in case it matters, my own permanent resident card was delivered while I was gone.

Rashid v MCI


This truly is a process that encourages one to scream at times.  I’m reading various cases (this time, using the fabulous search tools at the Canadian Legal Information Institute. I’m finding their linkage tools (“find cases that cite this case”) to be invaluable.

Of course, the downside to this is that I’m likely torturing myself through this process.  Because in this case (Rashid v MCI)  the applicant‘s application was rejected.  A careful reading of the logic suggests that it could be applied to my case.

The judge did certify a question in this case, one that had it been answered would likely have direct bearing upon my case:

When a medical officer has determined that an applicant will be in need of prescription drugs, the cost of which would place the applicant over the threshold of “excessive demand” as set out in the Immigration and Refugee Protection Regulations, must a visa officer assess the applicant’s ability to pay for the prescription drugs privately when those same drugs are covered by a government program for which the applicant would be eligible in the province/territory of intended residence?

This question directly squares with my own situation. Rashid however failed because he did not already have the necessary insurance in place.  Thus, interpreting the current jurisprudence it would seem that in order to be successful proving an insurance based plan to mitigate excessive demand one would have to already be inside Canada and the insurance must already be in place.

The CIC medical officer in my case added an additional requirement: one must already be using the insurance, in order to assuage her (after the fact) concerns that the insurance truly will pay the prospective costs.

Indeed, it is this continual raising of the bar that makes me grudgingly question if this isn’t really not about procedural fairness but rather more about “let’s just make it difficult for anyone ‘undesirable’ to immigrate to Canada.”  Frankly, very few people will take their case to the Federal Court of Canada in a case like this.  I suspect that most abandon their case at the point they get the fairness letter.  “Oh well, we didn’t make it.”  Some respond and of them a few actually work with an experienced attorney to craft an intelligible response.  At that point, how many people will continue to challenge the system?

Finally, even if they are successful at challenging the system, what do they win?  After all, their application is just sent back to CIC for consideration by another officer.  From what I can tell, that doesn’t seem to be successful in most cases anyway.

Is there any wonder that this really looks more like a scheme to provide the veneer of respectability over what is, at its heart, primarily based upon bias?

I just hope that I’m wrong.

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.

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.

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.

Immigration: Anyone with a condition will be a drain


Down's SyndromeOne of the fundamental underpinnings of the concept of “inadmissibility due to excessive demand” is the idea that people who are different are also liabilities to Canadian society.  This is reflected in the very process – in which only costs are considered, not added value, for example – and represents a deep-seated bias.  Even more peculiar is the idea that in some cases this excessive demand can be waived – for example, in the sponsored spousal class.

Of course, I’m dealing with this in my own case, as it is at the heart of the medical inadmissibility decision process: let’s look at costs above all else.  I must admit, I do understand the need to try and balance contributions against expenditures, but the law in this area is crazy – CIC turns it into an adversarial process, in which they say “sorry, but you might cost us too much money” and then makes you go figure out HOW they reached that decision (they certainly don’t tell you) and come up with some argument they might find persuasive.  If you guess wrong, you lose and you are rejected.

For example, in my case I’ve struggled to find out how much they think the meds are going to cost.  Not even the clinic in Vancouver can tell me the actual cost of these meds (and I’ve asked.)  I know what I can pay to buy them in the open market.  I’ve even gone so far as to research patent expiration dates to find drugs that are NOT covered by Canadian patents any longer and thus should be about the same cost as the generics I can find priced on the internet.  There are treatment options at around $2,000 per year.  But because I cannot find out the costs the government pays, I can’t even argue that their assessment is wrong – all I can do is say “ok, I have enough insurance to pay 100% of the cost” to which they reply “we know you’re just saying that and as soon as you can you’re going to jump on the gravy train…”  Nothing quite as inspirational as a process that automatically assumes you are a liar.  Of course, I’m not and I signed an unconditional affidavit saying I would pay the costs of the medications should they be necessary.  So I consider that no matter what the outcome, I am bound by that oath.

At any rate, last night I read this interesting article on the refusal of a parental sponsored application because they have an adult daughter with Down’s Syndrome. It’s what triggered this thought process for me.  There is an inherent bias in the system against people who are different.

This is an important part of our argument that this is a Charter violation – and this case is an excellent example of exactly the kind of bias we’re suggesting is the issue.