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

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.

BC Health Care revisited


 

BC Care CardBack in April I mentioned a Huffington Post article about a woman here in BC who had to give birth in a hotel here rather than in hospital because she was not yet eligible for provincial health services.

Since that time I have learned that in fact this really wasn’t the case and that in fact BC really is quite generous when it comes to granting medical care to those with PR applications in process.  Since I found this to be useful information, I’m going to capture it here as well in hopes that it will be useful to others in the future.

Bottom line: the spouse of a BC resident living with that resident in BC is normally eligible for coverage as well according to documents on the BC MSP website:

Most immigration documents, when submitted with the required MSP form, provide sufficient information for MSP to determine whether a person qualifies for benefits. There are circumstances, however,  where additional documentation is required. If, for example, a spouse/child has visitor status in Canada and his/her papers do not state “Case Type 17” or provide any other indication that permanent resident status has been applied for, the MSP form should be submitted with copies of as many of the following as possible:

  • a photocopy of any immigration document he/she may hold
  • any relevant letters issued by Citizenship and Immigration Canada (CIC)
  • proof that the application fee for permanent resident status has been paid to CIC online or through a financial institution
  • the identity page of the spouse/child’s passport and any other pages stamped by CIC or the Canada Border Services Agency
  • a copy of the spouse/child’s birth certificate if he/she is a United States citizen.
  • pages one and two from the CIC e-Client Applications Status website (www.cic.gc.ca) showingthe receipt date of the application. (On that website, click on Check Application Status.)

The above helps confirm that CIC considers the person to be an applicant for permanent resident status, and helps MSP determine when, if appropriate, coverage should begin.

Thus, it would seem that had that woman submitted evidence they had submitted the application (payment receipt, evidence that it was received in Vegreville, AB) she likely would have been eligible.  Instead, the original point of the article was that she wouldn’t qualify until such time as she was granted AIP (initial approval).

I’d been looking at this recently in any case, because of the opt-out provision of the BC provincial plan (as far as I can tell, only BC and Alberta have such a provision, although hopefully if there are other options for other provinces someone will tell me and I can update this information).  For me that was important because it demonstrated one possible way out of the excessive demand argument and indeed, had there been [b]any hint[/b] from the visa officer that no amount of insurance would overcome the BC policy, I would have offered to opt-out.  All I received was a generic form letter – and the only text in the medical officer’s opinion that deviated from the standard language that provides no insight into the rationale of the officer was “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.”

Previously, this same medical officer (in a different case, with the same medical condition): “Admissibility is dependent on the visa officer determining if the clients will have access to private or employer based insurance”.

Thus my point – I’ve investigated insurance alternatives.  It’s not easy to [b]get[/b] insurance with a pre-existing condition but it isn’t impossible – there are actually brokers who deal with that sort of thing (albeit with restrictions).

Of course, now that’s a moot point – CIC didn’t communicate clearly, so there was no effective way for me to respond back to them.

 

 

 

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%).

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.