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.

And Sometimes I Overthink The Problem


 

The ThinkerAt times I am guilty of “over-thinking” the problem.  Spending a bit too much time looking at the evidence and attempting to speculate on the “holes” in the evidence.  It would appear that I have done just that with respect to the recent oddity in the Registry record.  On the other hand, it turns out I was right in at least one important speculative aspect.

At any rate, the Registry has now updated and there are a number of records.  I followed up by requesting copies of the materials submitted by the government from my attorney’s office, as my attorney is out of the office this week.

The Respondent’s council conveniently enough noticed the omission of the medical file in the “certified tribunal record” because it was missing the medical file.  Conveniently enough she happened to have a copy of my medical file, which she submitted to the court and apologized for the oversight.

Just for the record, there is a reasonable sized section in ENF 9: Judicial Review which is the CIC document describing the process, with particular emphasis on the responsibilities of CIC to comply with the legal requirements.  Dry reading, I’m going to reproduce the bulk of it here because it will help establish context for my comments:

The order granting leave for judicial review constitutes an order pursuant to Rule 17 of the Federal Court Immigration Rules whereby the tribunal (decision-maker) is required to produce the tribunal record within the time frame specified in the Court order. In cases where the Minister or an officer designated by the Minister is the decision-maker, the Rule 17 order will be directed to the CIC or the CBSA office responsible for making the decision.
Upon receipt of the order granting leave, the decision-maker or the official assigned to the task must immediately prepare and send two certified copies of the tribunal record to the Court Registry and one certified copy to each of the parties (the applicant’s counsel and the Department of Justice). The tribunal record will consist of the following documents numbered consecutively:
(a) the decision or order that is the subject of the application and the written reasons, if any, or a notice that no written reasons were issued;
(b) all papers relevant to the matter that are in the tribunal’s possession or control;
(c) any affidavits or other documents filed or considered during the course of any hearing, interview or process that resulted in the decision or order; and
(d) a transcript if there is one of any oral testimony given during the hearings, interviews or processes that led to the decision or order.
It is imperative that the tribunal record is produced as aforementioned no later than the date specified in the Court order. All papers relevant to the matter specified in paragraph (b) above refer to all the file material that the decision-maker referred to, considered or relied upon before making their decision. Such material would normally include the officer’s summary report or interview/review notes, submissions and any documents submitted by the client and or counsel and any other file material referred to or considered by the decision-maker, including FOSS or CAIPS notes. Any material or file information that was not considered by the decision-maker or postdates the decision date is not required and should not be included in the tribunal record. The person preparing the tribunal record should consult with the decision-maker where there are doubts as to what material was considered in making the decision that is being challenged.

There are a few key points here: first, the tribunal record has to be prepared by the tribunal (CIC in this case) and not casually submitted from materials that just happened to be sitting on the desk of legal counsel.

Second, it’s a certified copy – how can counsel certify that these are the materials that were reviewed by the officer in rendering her decision?  This seems dubious at best.

Third, the medical records included – as I suspected they would – material that would not have been considered in the initial rejection (e.g., the medical that I had done in February for the new application.)  Indeed, CIC’s counsel wasn’t even discreet about including it as it is the first material one sees when one opens up the supplementary materials.

Of course, this is the same barrister who argued in previous filings that we had inappropriately submitted materials that were not before the decision maker.  Indeed, I just commented on this fact in the CAIPS notes.  Perhaps I have a delusional sense of fairness, but I would think that the government cannot both argue we are barred from submitting new material at the same time they are submitting new material.   Of course, the court should not consider the new material – but the government has certified that this is material considered in making their decision!

I cannot imagine the Court won’t notice this poorly executed legerdemain.  I would think there are two likely outcomes: either refuse to consider any of the new material, which seems to make sense but for which I have not yet found supporting case law, or all the new material will be considered.  I suppose there are other options: basically various forms of sanction.  I’ve never read of a case in which CIC submitted new materials to the Court.

So, bottom line: there was no second court order, it was just fulfillment of the first order.  However, CIC’s counsel did manage to “sneak in” the new medical, thus reinforcing the idea that this is all just a waste of time for the Court.  Thus, I am guilty of over thinking the problem.  It is an easy mistake to make while caught up in this imbroglio.

I’ll find out more next week when my attorney returns, because it really is up to him on how to deal with this latest development.

 

Judicial Review: Leave Granted


This afternoon I repeated my usual habit of checking the Federal Court Docket.  To be honest, I did it this morning as well, and there was no update.  This afternoon however, there was an update in the docket system (including information that my attorney acknowledged receipt, even though I haven’t heard a peep from his office.)

Of course, this now has me going back and thinking about all the issues I’ve previously mentioned: what will the impact of this becoming public information: how will it impact me and my family.

The hearing is scheduled 90 days from today (the maximum allowed by the rules here) so it will be 17 October 2012.  Ironically, I’m not 100% sure I will be able to attend the hearing, as I’m currently blocked for the same period for a trial in the US (in which I’m serving as an expert witness).  I’m working to find out now.

I will go to the local registry and order a copy of the actual order tomorrow (it’s too late today, as it was issued in Ottawa, and that means I had to get to the Registry by 1 pm here on the west coast.)  But it should just confirm what the online system says:

  • review granted, hearing date on October 17, 2012
  • tribunal (CIC NYC) record on or before August 9, 2012
  • applicant’s affidavits (that’s me) on or before August 20, 2012
  • respondent’s affidavits (CIC) on or before August 29, 2012
  • cross-examination on or before September 10, 2012
  • applicant’s further memorandum of law on or before September 18, 2012
  • respondent’s further memorandum of law on or before September 28, 2012
  • cross-examination transcripts on or before September 28, 2012

Of course, this also means I have to pay my attorney his supplemental fee (which, to be honest, cannot possibly cover the amount of time involved in this sort of case.  Either that, or I’m too used to working with expensive patent litigators!)

In addition, it is possible that some parties might be interested in participating as well (“intervening”).  This certainly isn’t guaranteed.  I expect I will learn more as the case proceeds.

Bottom line: this is good news.  My case will gain a hearing.

Eight Weeks and Counting:


8 Weeks

While 8 Weeks is enough for optimum health, it isn’t enough for the court to make a decision.

It’s been quite a while since I posted anything on this blog. It isn’t because I haven’t been busy – I know I’m spending more time in various online forums reading and answering a broad range of immigration questions and constantly marveling at the inane and dehumanizing nature of the process.

No, I haven’t been posting anything because I’ve been both busy working and patiently waiting, thinking that I would be seeing a decision – on pretty much anything – at some point soon.

As of today it has now been eight weeks since the Registry first forwarded my file to the Court for disposition.  The Court rules say that the handling will be in a timely fashion but they never bother to define what that means precisely.  Certainly, at some point it will reach a stage at which it is ridiculous – is that six months or a year?  Presumably, at that point a separate filing (to the Appeals Court?) for a Writ of Mandamus would be a potential option, but I’m certainly not expecting it will take that time.  I read an interesting case yesterday of someone who has been waiting since 2006 for completion of the processing of their family class (spousal) sponsored permanent resident application.  That person even had a letter from CIC saying “Therefore, it appears that this application is proceeding normally with no unexpected or unwarranted delays“.  It reminded me that Mandamus is always an option, provided that one can reasonably argue it’s been “too long”.  Two months, while annoying, isn’t quite in that camp.

I suspect, but cannot confirm, that the issue is there’s real substance to the arguments, which means the case cannot be summarily dismissed.  In addition, the Court rules state that if a decision to grant review is made, the hearing date must be between 30 and 90 days from the date review is granted (at which time a scheduling Order is entered).  Thus, to issue a positive determination, they must have a courtroom and a judge.

At any rate, it’s more of the same: hurry up and wait.  Eight weeks might be enough to get to Optimal Health, but it isn’t enough to get to a Court decision.  Not yet at any rate.

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.