Reflections, Apologies and Moving Forward


My attorney recently learned of my blog from a rather surprising source: Justice Canada. Apparently I’ve said some unflattering things on here and (now that I’ve been re-reading them) I can see why he might be upset.

While it was a tense couple of days as we went back and forth (I won’t detail the conversations at this point, but I did learn that an attorney cannot drop a client easily, without the agreement of the client or permission of the Court.)  In doing this I realized that his criticism was actually correct – that I didn’t trust him.  This wasn’t fair to him, because the distrust wasn’t really appropriately aimed at him.  Rather, the distrust was really from my previous attorney.  Once I received the medical results back from CIC my old attorney said basically “sorry about this, too bad it won’t work out.”  Not surprisingly, I now realize this made me feel abandoned.  I’d picked my attorney precisely because he presented himself as being knowledgeable about GLBT immigration issues.  It turns out he wasn’t as comfortable pushing into this area.

So I did all the leg work necessary: coordinated with my employer to create the medical savings plan.  I already had a private insurance policy and with a bit more work I arranged to be covered by a group policy (with no medical underwriting because of the size of the group).  This provided 100% coverage, with overlapping policies – and the PHSP is a medical savings plan, so there’s no question that it by itself would pay.  But since the one thing I couldn’t do is identify the cost of the drugs, I didn’t want there to be any question that the coverage wouldn’t be sufficient – and it was external to me.

The damage was done by then, though.  I’d been forced to be self-reliant and learn a distrust of my old attorney.  But carrying that into the relationship with my new attorney was unfair to him.

So I will say this.  I think my current attorney has done a very good job.  At one point I told him:

I think highly of your work.  I have recommended you to
several others already and I know at least one of them has engaged your for representation.  I would not have done that if I did not respect your abilities.

I do think this fairly summarizes my objective opinion of him.  I have apologized to him personally and I now do so publicly.  My comments were coloured by my bias and unduly harsh.  There really is no one else who would have done a better job of representing my case before the course.

I’m writing this after a very tumultuous 10 days or so, trying to capture the important essence now before it fades from my memory.

I think the attorney for Justice Canada has done a professional job on behalf of her client.  While I will never know, based upon my review of what has happened now that the dust is settling and I’m regaining some objectivity, I get the sense that when she reviewed this case she knew that her client had “screwed up” and she was going to have to do some work to prevent them from getting egg on their face.  I made her job easier, with the spousal application, because it gave CIC an “out”. She would have been well aware of the case law: Hilewitz, Sapru, Companioni and Rashid.  CIC lost three of those four cases.  When I read Sapru I thought “wow, this is my case except the visa officer didn’t even bother to try and backfill the rationale”.  In some ways I have sympathy for the visa officer – the medical officer really did hang her out to dry by not giving her much.  Then again, the visa officer probably should have pushed back. Maybe she was assuming I’d just give up and walk away, as I’ve talked about and I suspect most people in my situation would have done.

For the Justice Canada attorney, I’m sure none of this was personal.  She was doing her job.  Perhaps I’ve made it a bit more personal by some of the things I’ve said, but I suspect that she knows someone in my position isn’t going to be terribly objective.

So, I apologize to my attorney – he was not deserving of my lack of trust.  And if I have offended CIC’s attorney, I apologize as well, because in the end my read is that you’ve pushed for a good outcome for both parties, which is ultimately the objective.

I’ve made my decision, by the way.  After discussions with my attorney I concluded that there wasn’t enough to gain by moving forward.  He discussed the situation with CIC’s attorney and she inquired as to the status of my new application and the word relayed to me (from LA) was:

All statutory requirements have been met as of September 12th. We cannot speculate as to when the final decision will be rendered but as nothing else is pending, the file is expected to be concluded shortly.

With this, and the discussion with my attorney I agreed to discontinue the judicial review application.  The docket for my case is truly an unusual one, far outside the norm, but without a decision it’s not one that anyone else will ever study.  I don’t think that’s a bad thing, honestly.

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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.