Finding Others

Flag of British Columbia
I’ve been fortunate to speak with others about this issue at length, including people who have been successful – although against long and difficult odds.

One person with whom I spoke recently had an amazing story that provided me with quite a bit of insight.  For the purposes of this discussion I will call him Alexander. He is an American citizen but his partner is from the EU.  US immigration policy does not recognize same-sex couples, so the partner in such a case must seek to either win the immigration lottery or seek economic immigration (tied to having valuable skills.)  For whatever reason, Alexander’s partner did not qualify for economic immigration. They survived for quite some time by having his partner just leave the US periodically (e.g., by the expiration of the usual 90 day visitor visa granted to people from the EU.)

Of course, that eventually didn’t work ask well, as the US immigration folks eventually do realize that the visits are rather frequent.  So they had to find an acceptable alternative and settled on Canada.

At any rate, Alexander had a highly valuable set of professional skills and had his company transfer him to their BC office (via the NAFTA intra-company transferee category.)  This allowed his partner to come along with him and they started the permanent residency application process.

Much like me, he found out his medical issue after his immigration physical.  Of course, being in BC on a legal long-term work permit, he qualified for BC’s medical service plan, and thus was eligible (prior to PR) to take advantage of the medical services available in BC.  His company also had private insurance and crafted a plan that would ensure the province did not need to pay for his medical costs.

After submitting his proposal, it was rejected by CIC due to the excessive cost rationale. At that point his local attorney seemed a bit out of his zone of comfort, so he worked with another attorney in Toronto (another medical inadmissibility expert) whom I’ve heard others recommend in the past.  They put together an application for judicial review, which was rejected.  Thus, there was no court review of the decision.

At that point he started working on a Temporary Resident Permit (TRP) with the Toronto lawyer.  It was around that point that his attorney said that the filing was strong enough on its own that it would be worth filing again with the additional information.  This time they filed under the provincial nominee program, documented that his skills were in high demand (letters from his employer, for example), ensured that the company’s insurance coverage would apply, started taking the drugs and demonstrating that the insurance was paying for it, obtained a letter from the head of the BC clinic stating that the government was not paying for his meds and with all of this in hand was able to convince the immigration doctor (“DMP”) that while he had a medical condition, it would not be a financial burden on the province.

This time, his application was successful.

The total process required five years and cost around $50,000.

I found the conversation very insightful and oddly comforting – others have done this and been successful at it.


The immigration physical again

Designated Medical Practitioner

The Immigration Physical

So today I did my immigration physical – again.  While it is not unheard of to perform an immigration physical a second time, it does seem to be a bit unusual or out of the ordinary.

It was almost as mundane this time around and previously, although I was interested in the rather small list of things for which they seem to delve.  There are only three blood test components (syphilis test, HIV test, and liver function test that is requested under certain circumstances.)  The rest is a health history and a quick physical examination (check reflexes, looked down my throat, checked in my ears.)

I actually received more counseling this time than I did the last time about the perils of HIV.  I interacted with the doctor quite a bit.and she was quite nice (it was not the same doctor that I had last time, although it was the same office.)  We wrapped everything up, I paid my bill ($315) and took my order for a chest x-ray.  I walked home (my apartment being between the doctor’s office and the x-ray clinic), walked my dog, and then continued down the street to the clinic.  Without an appointment I walked in, gave them my form and went to sit in the waiting room.  Two minutes later they called me in, had me stand in front of the chest film, shot the pictures, and then sent me back to the waiting room. Five minutes after that the technician told me I was free to go (so she had enough time to check and ensure that the film was of sufficient quality.)

The radiologist will read the X-ray and report the results back to the doctor; the doctor’s office will then send the entire medical report to Ottawa, likely sometime in the next two weeks.

Spousal immigration physicals are reported on a different form (in this case the IMM1017 ECE).  This is the “excessive demand exempt” form, which means that unless I come up with a medical condition that constitutes a public health issue (tuberculosis is the best example I have at the moment, and that is the purpose of the chest x-ray) my existing medical condition will not be grounds for refusing permanent residency.

From what I can tell, this is the only disqualifying factor for permanent residency that does not need to be mitigated or changed when comparing the reasons for inadmissibility between the Federal Skilled Worker program (my original program) and the Family Class (Spousal) program.  Of course, as I previously pointed out, the CIC website itself says that one cannot apply for permanent residency in this class unless the original cause for inadmissibility has been resolved.  If I end up with an immigration officer that decides my inadmissibility must be resolved before the application is allowed, then we’ll be in court asking for judicial review.

There really weren’t any surprises this time around.  I was up front with the doctor about my medical condition and she provided me with the obligatory counseling. Of course, unless they find some sort of problem, I won’t hear from the doctor’s office again.  I might hear from the CIC in Ottawa asking about my prognosis, treatment plan, etc.  But even that isn’t likely.

Time will tell.


Canadian Court StructureSapru v Canada

Canadian Court Structure

I’ve been reading case law again.  This time I read a recent decision (one year old, in fact) called Sapru v Canada [2011 FCA 35] once again (another thing I’ve found – I often notice interesting bits when re-reading cases.)  It was eerie as I was reading the text of the decision, because it mirrored my own experience.

At any rate, the first thing the court did was attempt to “frame the issue” to make it clear to the reader the question that was being considered by the court.  Keep in mind that appellate courts are generally only interested in issues of law (or procedural fairness).  Thus framing the question is an important part of motivating the decision.  Here is the court’s opening remark in the decision:

[2] The questions arise on an appeal from a decision of the Federal Court: 2010 FC 240. The Judge of the Federal Court certified as serious questions of general importance the following two questions:

a. When considering whether a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, is a Medical Officer obligated to actively seek information about the applicants’ ability and intent to mitigate excessive demand on social services from the outset of the inquiry, or is it sufficient for the Medical Officer to provide a Fairness
Letter and rely on the applicants’ response to that letter?

b. Is a Medical Officer under a duty to provide adequate reasons for finding that a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, which is independent from the Visa Officer’s duty to provide reasons and which is therefore not satisfied by the Visa Officer providing reasons that are clearly adequate?

The Court quoted directly from the tribunal record (also known as the “CAIPS” notes) to describe how the medical officer made her decision:

In the Procedural Fairness assessment the medical officer listed the additional documents she had reviewed in the Fairness Response. She then wrote:
I have reviewed our medical file for the above-named Foreign National along with the additional material listed above and it is my opinion that no information has been provided which would indicate that the original immigration medical assessment was incorrect. Therefore there is insufficient evidence to support a change or reevaluation of this Foreign National’s medical assessment at this time. Hence remains M5.
[13] The tribunal record contains no letter, note, e-mail or other writing that explains how the medical officer analysed the information provided in the Fairness Response or her basis for concluding that the Fairness Response contained no information that would lead the medical officer to the view that her original assessment was incorrect.

It struck me that this is very similar to the contents of the notes in my own file (which we received at the beginning of the week).  It provided an enumerated list of the items that we sent along and then concludes:

I reviewed the new information submitted as well as the entire medical file on this applicant and I am of the opinion that the new material does not modify the current assessment of medical inadmissibility.
This applicant’s medical condition is likely to require treatment that is expensive and publicly funded in B.C. Although he has private insurance, antiretroviral medications are covered 100% by the provincial drug plan in the Province of British Columbia with no payment from private insurance.

In other words, “sure, you have insurance to cover these costs, but since the government also makes these drugs available, I assume you are a liar when you say that you won’t use them.”

Under this reasoning, nobody who is HIV positive could immigrate (outside the exempt class) to British Columbia – because British Columbia makes antiretroviral medications available to everyone who is HIV positive.

If that’s the case, why did they waste my time in providing a fairness letter?

At any rate, this language mirrors the language in Sapru – and there are no other notes as to how the medical officer interpreted any of the other information.  I’m frustrated that my own document (providing my basis for avoiding using these “free” medications in any case) was entirely ignored in this decision process.

Of course, I suspect some of the similarity is because these are all based upon standardized forms.

In this case, the Court decided that the medical officer did not provide sufficient rationale to demonstrate that she had met the requirements of Hilewitz:

[51] As the Judge recognized, the medical officer’s statement in her reasons to the effect that she had read the Fairness Response was insufficient to render her reasons adequate. Little weight can be given to such a generic statement that is silent about what the medical officer did, and whether the principles articulated in Hilewitz were applied.

At that point, everything else comes unraveled.  Bottom line is that is what it appears the medical officer did in my case: said “yup, I looked at all this stuff and I wasn’t convinced because BC gives these meds away.”

Rule 9 Letter Sent


Supreme Court of Canada

Supreme Court of Canada

The first step in the review process is that the court issues a letter under “Rule 9” requesting the written reasons for a given decision. In the case of immigration decisions, this means the contents of the actual immigration file and the reasons for the decision . While this should include everything in the electronic case notes, it can also include additional materials produced by the medical officer and visa officer with respect to the actual decision. Once this is received a brief arguing the points must be submitted within 30 days.

Frankly, from my read of Companioni, the question raised in that filing would be reasonable to re-raise in  my case as well, but we shall see what my attorney thinks.

The letter requesting the file was sent today (12 January 2012).


Canadian Flag Graphic

Canadian Flag Graphic

So, after thinking about various aspects of this journey for the past 25 months, I decided to start blogging my experience, both as a guide to assisting my own thinking process, as well as possibly assisting anyone who has to deal with the same (or similar) experiences.

Let me start by providing some basic background:

I’m a US citizen by birth.  My first visit to Canada was when I was still an infant, so I don’t quite recall that one so well.  My second visit was in 1976, when I traveled with my father and grandfather to a family reunion in Powell River, BC.  It was a memorable trip, and even to this day I can remember driving through Vancouver on our way to Powell River.  I came back to visit again in the summer of 1986 (Vancouver’s World’s Fair) but didn’t return again for another 14 years or so.  From 2000 to 2005 I made a number of visits to Vancouver and I fell in love with it.

In 2005 I purchased a one bedroom condo in a new building (“pre-construction”).  That was a three year process.  In the spring of 2006 I contacted an attorney about initiating filing for permanent residency as a “skilled worker”.  I paid his fee at that time and the proceeded to drag my heels for the next four years on the filing.  I did finally get the whole package put together and my attorney submitted it in June 2009.

My work has involved considerable travel over the years, so I had a number of opportunities to come up to Vancouver and check on the progress of my building – I still have a collection of pictures documenting the ongoing progress of the building.

My building was finished in the spring of 2008, and I formally took possession of my unit on August 6, 2008.   I stopped in a couple of times, and in October 2008 drove up to Vancouver complete with a U-Haul trailer of stuff, all the paperwork required at the border (using the “seasonal home” exemption from paying duty on all the stuff being imported.)  Over the following 10 months (late October 2008 to early September 2009) I spent as much time as I could in Vancouver, keeping track of the legal limits.  Simultaneously, I helped my company find office space in Vancouver and in September 2009 I obtained a three year work permit (under the NAFTA treaty as an intra-company transferee.)  That ensured I had legal status to remain in Canada.

My immigration file was evaluated and in mid-September the CIC office in Sydney, NS agreed that I qualified as a skilled worker and forwarded my application to the Buffalo, NY office.  All went quiet until April 2010, when Buffalo forwarded my file to the New York City Consulate.  In July I obtained a request for an updated FBI clearance certificate as well as my medical forms.  The same day my new fingerprint card and request were on their way to the FBI center in West Virginia and I’d scheduled my immigration physical in Vancouver (for August 11.)  From others who had gone through the process, I knew that this was normally the last hurdle before they grant permanent residency.

So I went to my physical on the 11th and sent the receipt and my $490 Right of Permanent Residence Fee to my attorney, who forwarded this to the New York City office.

On August 24, 2011 the medical examiner’s office called me and asked if I could stop by the next day to follow up on my physical examination.  My heart sank – I knew that this was irregular.

On August 25, 2011 I went and met with the doctor.  He advised me that I had tested HIV positive.  I sat there in shock and disbelief.  He had me sign documents, advised me they would draw blood, and told me his office would provide me with a referral to a specialist for follow-up.

Exactly two weeks later I went to the follow-up appointment (albeit with a nurse, not the specialist) where they repeated the tests, drawing quite a bit of blood.  They scheduled the meeting with the specialist for the following week.

Thus began my journey through the maze of “complications” with respect to Canadian immigration.  My journey is not over.

CIC requested an update on my condition in November 2010.  The specialist wrote his evaluation, which I in turn passed to the original medical examiner, who forwarded the whole thing to CIC.

In early April 2011, I received a “fairness letter” from CIC.  Basically it said “unless you can show us a reason why this is wrong, we’re going to refuse your application.”  At that time I changed attorneys, employing the services of Michael Battista in Toronto, a specialist in HIV medical inadmissibility.

I prepared my own response to CIC, as well as worked with Mr. Battista to prepare the legal response, which included consultation with an expert known to Mr. Battista.  A critical part of this was to present a plan for private payment – essentially to show how I would not be a burden on the health care system.

Everything in response was submitted by the end of July 2011.

My “Christmas gift” from CIC was a formal rejection letter.

After discussions with my attorney, we filed a request for judicial review in early January 2012.

And that is where we are now.

I know I’ve left out many details here.  I’ll try to work on filling them in as well, so I have a complete record.