The importance of a credible plan


Cerebal PalsyPeriodically I read decisions as they come out of the Courts regarding medical inadmissibility.  This case (De Hoedt Daniel) was heard here in Vancouver – I wish I’d been there to hear the arguments.  While the finding of excessive demand medical inadmissibility was upheld, the judge had some unusual words to say.  For anyone dealing with issues of medical inadmissibility there are valuable lessons in this case: be prepared, present a credible plan.  The shape of a possible plan just isn’t enough.  Indeed, this is the same lesson as Companioni – your plan must be real enough to convince a CIC officer.

Of course, even so, such a plan is not a guarantee of success.  They turned down my plan – even though it was a real, in place plan.  The final rationale offered for rejecting my plan (“we weren’t convinced that the plan would work for medication available for free from the province”) was created after-the-fact and failed on even a cursory analysis – the plan included a non-discretionary plan.  I also verified that the insurance would cover the medications by actually filling prescriptions – although that was done after the rejection.  Had the visa office expressed that concern, it would have been easily addressed. They didn’t do so however – they just rejected.

Here is the interesting comment at the end of the decision (an obiter dictum):

It is recommended by the undersigned that the number of well-intentioned individuals, organizations and entities, having come forward to assist the Applicant with the care of the said child, begin the process again and that the Canadian authorities give priority to that process, recognizing the time and effort that has already been given to the voluminous documents accompanying the application for permanent residence by all involved, including the specific individuals and entities in Maple Ridge, British Columbia.
It would seem that a viable plan requires the preparation of a practical commitment on paper to ensure that it is acknowledged and understood as such by the authorities who would then make their decision thereon.

This is an essential point for anyone involved in a fairness response: your plan needs to be real, it needs to be concrete and it needs to be clear to the decision maker that it overcomes the initial concern of excessive demand.

I cannot stress this enough: you must have a credible plan.  It needs to be in-place, workable and it must address the cost concerns – remember, this is all about money. That’s the issue you must address.

Ideally, anyone in this situation (dealing with a fairness letter regarding medical inadmissibility) should keep this point in mind: have a clear plan.  Make it concrete and real.  If it is hypothetical or the visa officer has any doubts about the viability of the plan, it will likely be rejected.  Better to do the up-front work and overcome the objection before it makes it before the court.

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Revisionist History


 

Yesterday was the deadline for the government to file any remaining affidavits in the case and they availed themselves of the opportunity by filing one.  Today I had an opportunity to read the actual affidavit, although I am waiting for copies of the exhibits attached to the affidavit.

In this case, it was the medical officer.  On first reading, I must admit, it was actually somewhat convincing that she had actually done some real thinking before reaching her decision.  Admittedly, there are some flaws in that rationale, but after mulling it over for some time, I realized that there’s one thing missing from all of this: what she’s saying isn’t supported by the written record.  Thus, she is now supplementing her original written decision.  That’s not supposed to happen.  I have read numerous legal decisions and I’ve never read one in which it was the government adding new material to the record.  I have read decisions in which the judge pointedly ignores new material submitted by the applicant, precisely because it is not material that was part of the original decision under review – and hence irrelevant.  Thus, I would think the government cannot correct the record “after the fact” any more than I could do so.  This is especially galling since they refused to consider information I actually submitted before they made their decision – “oh, sorry, we didn’t get that.”

So, she provides a nice rationale about how she thought insurance companies wouldn’t pay for medication when they found out that the provincial government had a program for doing so.  She doesn’t offer any evidence of this, merely just her theory.  While that sounds great, I realized that even if you accepted that rationale, it doesn’t explain her rejection of the private health care reimbursement program – known as a PHSP – which (at $20,000 per year) would still have been more than sufficient to pay the anticipated drug costs and which isn’t an insurance company – it’s an employer sponsored expense reimbursement plan.

Had she come back and expressed these concerns, we could have provided her with further evidence.  I could have offered to opt out of the provincial health care plan, which in turn would then have made me ineligible for the very coverage she used to ban me.

Then I can see the clear influence of the government’s attorney – the medical officer claims she signed off on the new medical opinion, and that – voila – i am no longer medically inadmissible.  Of course, she fails to mention that the medical opinion upon which she bases her decision is not even valid for my original case and cannot be used to make the decision in my case.

However, the fact the government is playing this game does tell me one thing: that for whatever reason, the government is actually worried they will lose on the merits.  This nonsense about alternatives and what-not have no bearing on the original decision, they are red herrings intent upon distracting the Court.

My expectation is that the Court will see through this ruse, step back and say “this is all interesting, but it doesn’t repair the original decision, which is defective.”  Even if you accept the affidavit from the medical officer, it says there were hidden concerns that were never expressed.   That would mean the fairness letter wasn’t detailed enough for us to successfully address the concerns.  That would violate the natural fairness required by the process.

That’s giving her the benefit of the doubt.  What seems more likely is that the medical officer is trying to cover her tracks after the fact.  I suspect she just looked at the material and said “none of this changes the medical diagnosis, so I don’t really care.”

We’re now just 1.5 months away from the hearing date.  We will find out after that.