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.

Advertisements

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.

Case now under consideration

Status


As of this morning the case has been sent to the Court for determination.  The docket has an entry that says: “Communication to the Court from the Registry dated 17-APR-2012 re: sent to Court for disposition – A’s reply filed”.

So this means that the filings have been sent to the Court for a decision on the application.  Generally it seems to take 3-4 weeks for the Court to decide.  Thus, we should have a decision on the application by mid-May.  Actually a bit earlier than I had thought might happen.

 

Is it Moot?


In the days leading up to the government’s response there was correspondence from the attorney representing the government advising us that because there was a spousal sponsored application in the mix she would file a “Motion to Strike” and correspondingly ask for an award of costs.

This led to some interesting conversations with my attorney – I had not told him what I was doing with respect to a spousal sponsored application for a couple of reasons: I’ve engaged his services to represent me in the judicial review action, not in a spousal undertaking for example; I’ve been told that the two are not related.

It is a bit frustrating to have a professional (such as a lawyer) treat me as if I were someone who did not understand the subject matter.  I’m not an expert but I’m also not stupid.  I was very careful in my communications with him not to lie, although I certainly did not disclose everything to him either.  Since that time he ask explicitly requested that I do so.  Thus, I’ve sent him a copy of the sponsored spousal application for his records as well as the letter I submitted to the visa office in February when I discovered they had not shown submitted documents in the CAIPS notes (including those materials).

So, with the record now clear, we’re still proceeding on the presumption that my ability to challenge the original finding in my FSW application is not abrogated simply because I might be allowed in under a separate immigration category.  According to the timing published this week Mississauga won’t even open the application until mid-May (75 days as of April 2, 2012).  Maybe we missed something, in which case I have to fix and resubmit the application.  Maybe they won’t allow my spouse to sponsor me (there ARE potential issues in our relationship that might lead to that conclusion).  Most likely, they will approve my sponsor and then forward the entire file to Buffalo.  Odds are it will then take a couple of months for Buffalo to even start processing my file.

However, the government did not file a Motion to Strike.  Instead, they filed a response. The government’s response entirely ignored the substantive points raised in the application.  They did not defend the medical officer’s decision, they did not challenge the separation of powers argument and they did not defend against the Charter challenge.  The argument boiled down to: the applicant is filing under the sponsored spousal family class in which medical inadmissibility is not an issue and thus this court should not hear this case. They did ask for a “small award for costs”.  They also challenged a couple of the items that were submitted because they were not available to the visa officer.  Some of this did not make any sense (like the medical officer’s decision in the previous case) since its presence in front of the visa officer or not seems irrelevant.  But that’s what they argued.

My attorney said that until I’m granted permanent residency in the new class, there is little if anything to support a claim that the issues I raised are moot.  In my conversations with him I said, pointedly, that if I’m granted review I will withdraw my application as a sponsored spouse pending outcome.

Certainly, part of my mental process back in January was that the likelihood of obtaining review was fairly low (20-25%).  At least by initiating the parallel application, if that were the actual outcome I’d be able to at least trim several months off the processing time required (although probably not in time to avoid renewing my work permit, the next challenge I have to face.)  Perhaps it was a bit of panic thinking at the time – the idea of being kicked out, pushed away from my job, my spouse, my dog, my apartment and my home of choice certainly was not a pleasant one.

However, the argument against the government’s position is that simply because there is another possible avenue to explore, there is no guarantee that I would be successful.  For example, I pointed out that if one followed this logic, the court could dismiss any medical inadmissibility case if the government argued they had not pursued an H&C application – even though such an application would most likely fail.  Otherwise, this becomes an argument of relative probabilities.  But my attorney did say that once granted permanent residency in the sponsored spousal class the court would dismiss my challenge in relation to my original federal skilled worker application.

I did point out (although he did not respond to my observation) that even if I’m granted permanent residency in a different class, I’m now bound by a sworn affidavit to eschew using the very provincial medical services in question and thus I could argue that I still have standing, even though I’ve been granted permanent residency because I’m still bound by my prior affidavit.  Thus, the government want’s to “have it’s cake and eat it too” – I’m morally bound by an agreement not to use these services, but the government need not be bound to defending their very right to ask me for said guarantee.

Unless the court buys this argument (that the matter is moot), which does not seem to have support in law, it looks like we will get judicial review.  While certainly not the goal, the spousal sponsored application may actually help us get a day in court – as I’ve said before, I’d still prefer to obtain permanent residency on my own.

One week from today my reply (drafted and filed by my attorney) to the government’s response is due.  Then 6-8 weeks later the court should make its decision on whether or not to grant review.  My attorney thinks it is likely now (and I’ve raised my own worthless estimate to 75%).

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.

The Application


Last night I received a copy of the actual application that my attorney filed with the court.  It’s 259 pages of material, some of which I’d never seen before – like the original notes from the medical officer‘s file.  I thought it was interesting what was omitted from the file (some of the documents that were filed with the case) so I’m not sure what the rationale was for including or excluding specific information.  Be that as it may, the application record contains the bulk of information that was provided to CIC as well as information received from CIC.

Of particular interest to me were the legal arguments (19 pages), as ultimately it is the persuasive value of those arguments that will determine if the court agrees to hear the case (“grant’s the application for judicial review“).  The legal arguments for review consist of five different points:

  • The medical officer did not make an individualized assessment
  • The medical officer violated the duty of procedural fairness by not allowing me a fair opportunity to respond to the medical officer’s concerns
  • The medical officer’s reasons for her decision are inadequate.  In my case the medical officer reached a conclusion that is opposite of the conclusion reached in a different case with similar circumstances
  • The medical inadmissibility clause of the law is invalid because health care is legally the jurisdiction of the provinces
  • The medical inadmissibility clause violates Section 15(1) of the Charter of Rights and Freedoms

After reading the basic rationale, I would assume the lawyer assigned to this case for the Respondent will have some work to do.  The fourth argument is novel and has not previously been considered by the court, although there is plenty of case law pertaining to the separation of powers in the arena of health care.  The fifth argument is one that remains unsettled in Canadian jurisprudence.

My initial sense after reading this was that the first three arguments really do merit review.  The facts backing this up are interesting – the same medical officer decided that insurance was of paramount importance in the original Companioni decision, yet in my case decided that insurance was immaterial in my case.  Following the medical officer’s logic, no one in my situation would be medically admissible for immigration to BC.  That would seem to make things easy for CIC – blanket rejection.  Yet the point of the Hilewitz decision was to reject such a “cookie cutter” approach.  The inconsistency of the medical officer’s opinions does seem to be troubling (same medical officer, similar circumstances, completely different and contradictory rationale.)

It is, however, the last two arguments that are the more intriguing.  The separation of power’s argument has a reasonable counter-response: to cite to the British Columbia/Federal agreement allowing the Federal government to make medical decision on behalf of British Columbia with respect to immigration. (See canada bc immigration agreement for a copy of the 2010 agreement.)  It is a bit vague, but it is reasonable to argue that this grants the Federal government the authority to make decisions on British Columbia’s behalf.  There is a trap here however: first, the agreement requires that BC and CIC have drafted mutually agreed upon standards – and I haven’t been able to find them yet.  Second, and perhaps more dangerous, it would make the Federal government liable under British Columbia human rights legislation.  The idea here is that a government cannot abrogate it’s legal obligations by contracting with someone else to discharge its duties.  In theory then, it should be possible for me to bring a provincial human rights complaint (denying access to services based upon disability) against the Federal government.  If they then argue that they are immune from such, it would seem to create a very untenable position – they claim to have the right to exercise provincial authority in one context, yet deny the obligation to abide by provincial law in another context – both involving the same case?

The Charter argument has had plenty of time to ripen – it does not appear to have been argued in recent memory and there’s been quite a bit of development in the intervening years.  The arguments the attorney put forward are actually well-developed.

I was actually a bit concerned when I finished reading the legal arguments: they seem to be sufficiently interesting that I now rate the likelihood of judicial review happening at about 40% – there’s enough here to pique the curiosity of a judge.  My thinking is that if you’re given a stack of applications to review, most of which are refugee applications, and then you find one that appears to have some interesting potential arguments, you’d be inclined to grant the application.  At least that’s my hope.

Then there’s the scary side of this: suppose one of those last two arguments is successful and the court agrees that Section 38(1)(c) of IRPA is unlawful and must be struck down.  There is no way that the government will not challenge this, which means that it will take 2-3 years to resolve (and I’m betting that the cost of supporting an appeal in this regard will cost $30-50k.)

If judicial review is granted, particularly with these arguments presented, I worry about being successful – it basically would mean that a complete decision, with my name attached to it, would be splattered all over the legal history books.  I realize that’s a long shot.  It seems far more likely that a judge would decide on narrow grounds (e.g., “medical officer erred in her analysis”) than on broad grounds (“Section 38(1)(c) of IRPA violates the Canadian Constitution and/or Charter of Rights and Freedoms”). But to deny review, the judge must dismiss all of these concerns.  Under review, they can all be addressed (or some can be ignored.)

A positive decision on narrow grounds would simply return the file to CIC for further consideration.  In that case, with two applications in process, I’ll gladly take the one that comes first.  A negative decision on this application won’t affect the application in process.

A positive decision on broad grounds would be interesting – it would remand the decision to CIC after having invalidated this section of IRPA.  Thus, it would seem that the visa office would have to issue the PR visa (and in fairly short order, since all other criteria were satisfied.)  As I have mentioned before, there is a certain level of notoriety with a successful decision.  I’d have to expect an affirmative decision in this case on broad grounds would be exactly that sort of notorious decision.

Over the next few weeks I’ll see what I can do to capture more information about some of the arguments presented and the rationale used.

March 30: Respondent’s deadline.  I expect them to respond and disagree with our position.  I give a small chance to them assenting to the first points and disagreeing with the latter few points.  If they do the latter, it would be tactical – assenting on the first few points could lead to a decision in which the judge remands the case back to CIC based just upon the written pleadings (and thus side-stepping the Constitutional and Charter arguments.)  I’m not familiar enough with Canadian Jurisprudence to know if this is even a reasonable possibility.

Sponsored Application: Sent


So after spending the past couple of weeks traveling all over (mostly for work) I’ve now ended up at home (just in time to celebrate my birthday with my family!)  My goal had been to submit my application prior to my birthday.   Sunday and Monday were spent going over everything one more time.  I split apart my overview letter into a series of discreet documents.  I went through the checklist to make sure I had everything and to organize things.

The final application was likely a bit over-done.  Every page was inserted into a sheet protector.  These sheet protectors were in turn included in a 3″ binder.  The front of the binder had both our names and pictures on it.  Each critical section of the application had a separate tab, independently labeled to make it easy to find each document.  I also included a complete copy of everything in the application in a separate envelope – no staples, no paperclips, nothing.  Just in case they don’t like the binder approach to things.

Receipts for the fees are included (application fee plus right of permanent residence fee.)  Completed original applications, supplementary materials, original IMM 1017 EFC form (as completed by the DMP) and my original FBI clearance letter (which is printed on a special paper that when copied exposes a watermark saying “unauthorized copy” on it.)

The entire package was 5.2kg (11 lbs).  It was shipped out on Monday March 5, 2012 right at the wire – 4:45 pm (cut-off time.)  It was delivered on Tuesday March 6, 2012 at 10:35 am to the mail room of the Case Processing Centre in Mississauga, ON.

Currently, the CIC website indicates that it takes 55 days before they open a new application after receipt (8 weeks) although that’s certainly subject to change.  But assuming that schedule, they should open the application around May 1.  Hopefully we will hear that the sponsor has been approved by the end of May and the file then transferred to Buffalo, NY.  So, let’s hope they log it in by the middle of June.

In parallel, the judicial review should be moving forward.  Decision on whether to grant review or not would be due in roughly the same time frame: early to mid June.  At this point I’m not expecting review to be granted (it seldom is) and if granted a positive determination seems unlikely (looks like about 20% of review cases result in a determination for the applicant.)  So, 20% chance of being accepted review and a 20% chance of success would yield a 4% chance of success this way.  Not outside the realm of possibility, but not the kinds of odds on which one should base one’s life.