Passport Request Recieved


So, September 26, one day after the conversation with my lawyer and CIC‘s attorney about the spousal application, my spouse received an e-mail from the immigration section of the Canadian Consulate in Los Angeles requesting that I submit my passport to them for issuance of my IMM 5292 (“Confirmation of Permanent Residency”) form.  The letter said that I must submit it within sixty days.

For me, this marks the real end of the journey.  Initially I was surprised by receiving this e-mail so quickly – one day after my attorney had relayed the conversation with CIC’s attorney (at Justice Canada).  But upon some reflection I wonder if she had been pushing to have it done in time to present this as an argument to the court: “his application for spousal sponsored immigration has been approved, so this issue truly is now moot.”

I’m reasonably certain it has been pushed.  I monitor a number of online immigration forums and I’m the first person in the “March 2012” group to receive a passport request, although several have gone into “In Process“.  I will note that my application probably didn’t require a huge amount of review – I’d already been thoroughly reviewed for the previous application, so a security review by CSIS should have been simple, particularly since I’ve been legally living in Canada for several years now.

Upon reflection, I suspect this is as close to an admission that my JR application had merit as I’ll ever receive under the circumstances.  But no one would have pushed my spousal sponsorship application had there not been at least some merit to the claims in the JR application – thus, CIC gets rid of a troublesome case and I achieve my own ultimate goal.

I don’t really think I’ve “sold out” here.  Legal actions routinely settle all the time, with the parties agreeing to a resolution that leaves each with something they want.  It is nothing more or less than compromise.

If I had been successful with the JR application (as seemed likely) the outcome would have been to send the case back to CIC for reconsideration.  I’d have gone through the same process all over again – medical examination, review of my current health, determination I might be medically inadmissible and then a fairness letter, a fairness response and a second decision.  I cannot honestly say that I wanted to spend another 18 months going through that all over again.  At some point I’d realized the most reasonable thing to do if I had received JR would have been to withdraw the application.  Then instead of “refused” it would have been “withdrawn” and thus not subject to the same level of scrutiny.

But that became moot on September 26th.  CIC has made their determination that I do qualify for immigration in the spousal class, even with the prior rejection in place.

So now my new scramble: to get the passport to CIC in time for them to complete the paperwork and get that passport back to me in time to head to the US in mid-October so that I can testify at trial in the US (“work”).  The process was a bit odd: the only expedited processing they will do is if I sent a USPS Express Mail envelope with a US return address on it.  But I’m in Canada.  Further, I cannot leave the country right now because I’m on implied status, with my work permit renewal in process – so if I leave, my work permit application must be processed at the border or I have to take a VR to return to Canada (preventing me from working).  So instead I sent someone else down in for me; he bought the overnight envelopes, addressed them  and sent the return envelope along with my passport, the completed height and eye colour chart and two photographs of me.  I also enclosed a copy of my travel itinerary showing that I had to leave for the US in mid-October, and requested they return my passport prior to that time.

The return envelope is actually addressed to go to my company’s office in the US.  THEY have no problem sending it to me wherever I am (including Canada) via FedEx.

They had the entire package in LA on Friday 28 September 2012.   I’m going to try to only check once per day (in the evening) to see if the return envelope has been presented.  I don’t really expect anything to happen before the end of this week – I’m hoping it will be done by the end of NEXT week, so that I have the entire bundle of paperwork ready to take with me to the US in mid-October.

If I get it back before mid-October, I’ll probably drive to the border, ask the US side to stamp my passport on entry (I’ve been told they need that on the Canadian side for some reason) and then loop around to head to the Canadian side, have them ask me about my expired work permit and get sent in to secondary inspection, where I can present my COPR and complete the landing process.

If I don’t get it back before mid-October, I’m hoping I’ll have it before I return to Canada on October 27th, so that I can complete the formalities after I land in Canada.  Otherwise, I’ll be back in the “must renew the work permit at the border” case – which I will need to do because I have work meetings in Canada in early November.

So, assuming all goes well, this part of the journey will be ending for me by the end of this month.

Indeed, what a long strange trip it’s been.

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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.

 

British Columbia and the Optional Nature of Health Care


 

Chopped Care CardSince my surprise on Friday I’ve spent a bit of time going over various materials.  One large project I’ve undertaken is to start reviewing all the relevant case law.  I’m doing this by researching the various decisions, including the Supreme Court of Canada (one decision), the Federal Court of Appeals (three decisions), and the Federal Court of Canada (100+).  This is a lot of material to review, so I’m not really ready to start covering it here, but I will be – if for no other reason than to provide those who follow with a bit of a starting point in analyzing the material.

I also looked through the copy of my “immigration file” and found an interesting piece of e-mail recorded within the computer notes.  To be honest, it probably should not have been included, because it looks to be privileged communications (attorney/client).  However, the ATIP folks review everything before they send it out, so someone reviewed it and decided it wasn’t sensitive.

The applicant identified above has filed a judicial review application challenging the refusal to grant him a PR status on the basis of his medical inadmissibility. He is challenging this finding suggesting that fairness was breached in that his case did not benefit from a personalized assessment as established by Hilewitz . Could you please look at the attachments and confirm that the documents he has now introduced in his application before the Court, were also provided in support of his application for PR .

Your comments are appreciated. Of particular interest is whether or not he presented evidence to demonstrate that he could opt of British Colombia‘s publicly funded Medical plan.

It was this last paragraph that caught my attention as I was reading through this, because indeed, we did not present this information to the visa officer – why would we?  Based upon the fairness letter, they asked about costs, not about BC’s coverage of those costs.  While my attorney wrote up the letter to CIC regarding my case, I’m the one that had picked him based upon my own reading of the Companioni decision – I essentially used this as a check list for a well-formed plan.

Had the original fairness letter stated “Alternative payment plans will not be considered because BC pays 100% of the cost…” I would not have wasted my time presenting a plan to provide 100% coverage of the costs.  instead, I would have argued “BC does allow an opt-out scheme”.  The government will argue that the judge should not consider this because it was not before the visa officer at the time of the decision.  However, it does underscore the fact the fairness letter itself was deficient because it did not clearly establish this concern of the officer.

At any rate, after thinking about it for a while i realize the government is in a trap of their own construction.  By noting that they are aware of BC’s policy for payment for this particular class of drugs, which is not described on the BC MSP website or the Fair PharmaCare website, it would suggest they are familiar with subtle nuances of the BC medical services plan.  Yet now they seem to be arguing that they don’t really know much about the provincial health program and it was my obligation to educate them about their own program.

How can you both be responsible for administering a program and simultaneously arguing you are not responsible for being knowledgeable about it?  That would seem to run counter to natural justice – CIC is only responsible for knowing those bits of policy that allows them to reject you, particularly if you are someone with a disability.

The original letter doesn’t mention British Columbia’s policies at all.  To pull this out at the end as part of the final rejection is indeed unfair because it never gave me an opportunity to respond.

It does seem to bolster the separation of powers argument as well.  It is not good policy to allow CIC to “cherry pick” which parts of provincial health policy they have to understand.  In Deol [2002 FCA 271] the court rejected the idea that CIC had to advise an applicant of a program that might have been beneficial to the applicant:

As for the visa officer’s alleged unfairness in not drawing Mr. Singh’s attention to Manitoba’s bonding program, Muldoon J. noted that visa applicants have the burden of establishing that they meet the qualifications for admission. Accordingly, the visa officer was not under a duty to advise Mr. Singh how he might overcome the “excessive demands” hurdle by drawing to his attention a program offered, not by Citizenship and Immigration Canada or any other federal agency, but by the Department of Health of the province of Manitoba. He also noted the paucity of evidence about the program, including its availability to Ms. Deol.

This does not say the visa officer was not under an obligation to understand the laws of the province, although it does imply this.  But it does help strengthen the separation of powers argument – if CIC isn’t required to understand provincial health care law, why are they making decisions based upon it?  How is this fair to the applicant?

I am feeling somewhat upbeat at this point.  It would seem that CIC does not have a good track record when it comes to medical inadmissibility cases.  I don’t have a complete number yet, but by the time I’m done I will.  Right now though it is clear that CIC loses more cases than they win in this area – the Federal Court often finds their decisions come up deficient.

I’m hoping to tip that count a bit more.

 

 

Another unusual entry: medical file sent


 

 

Medical FilesToday’s surprise was two-fold.  It started simply enough – I decided to check the docket system and see if there was a new entry indicating that the “certified tribunal record” had been received by the Court, since yesterday was the deadline and my attorney indicated that he received a copy of the tribunal record.  His words were “there are no surprises here”.

However, I did not find the tribunal record notation.  Instead, what I found was a notation that said:

Copy OF APPLICANT’S MEDICAL FILE sent by [counsel name omitted] (COUNSEL FOR RESPONDENT) ON BEHALF OF CIC (OTTAWA) on 10-AUG-2012 pursuant to the order of the Court Received on 10-AUG-2012.

Once again, I find an unusual entry in the docket.  I’m uncertain what it means.  Oh, I also don’t see any indication that a copy of this order was logged by the Registry.  I likely won’t know the significance of this for a while – my attorney is gone on vacation until August 20th.  So I likely won’t hear anything about this until after his return, if even then.

I did go back and look through other medical inadmissibility files and, once again, I didn’t find anything equivalent in any of them.  If I take this at face value, someone in the Court is paying attention to this case – they looked through the tribunal record and did not find what they expected to see and thus ordered the government to produce it.  Since Ottawa is the regional medical centre, that this came from Ottawa makes sense as well.

Of course it is also possible that the Court requested my latest medical, not my original medical.  I really don’t know, since I didn’t see the order.  However, if I had to guess the Court just asked for my medical file – and if I were the government I’d send everything, not just the medical file that applies to this particular case.

One thing is certain: this case is not following the typical path.

Next deadline is the August 20, 2012 deadline for us to submit an additional affidavit, although my attorney indicated he did not see a reason to do so.

I shall strive to focus on enjoying summer here in Vancouver while I can and try not to worry too much about the case progress.

 

 

Time to Renew the Work Permit


 

Canadian Work Permit
As much as I had hoped I wouldn’t need to do it, the time has come to renew my work permit – it expires in September.  When I looked at the CIC website a few months back I was impressed to see that their processing times were only a few weeks for a renewal.  Some time in the past few months they must have been hit with a surge in applications, however, because they now require 55 days for a renewal application (or a mere 54 days if you submit it online!)

Normally I wouldn’t be too concerned, but of course with a negative determination on my FSW application, it seems likely that it is more likely to be subject to questioning.  Of course, the fact I have to cross the border on a regular basis does make this a bit more complicated – if I’d known the time to process was two months, I’d have submitted back at the beginning of May – when the time to process was just a couple of weeks.  Hindsight, as always, is much better than foresight.

In addition, the application form that one uses at the border has changed substantially – it now explicitly asks about all previous applications.  The inland renewal application asks about “serious medical conditions”.   Thus, either way I try to process a renewal it is far more likely I’m going to be subject to additional scrutiny.

My attorney has recommended filing via the inland renewal process.  My concern with that is that as the processing time is now almost two months (and seems to have slowed down by two days in the past week) I’m going to end up being forced to leave for work prior to the actual renewal – particularly if it is referred to a local office (here in Vancouver, no doubt) for additional processing.  My attorney has argued that the information I provided before (insurance coverage) should be sufficient to obtain a renewal. I’d expect my Canadian spouse to carry as much weight, to be honest, and I have to include a spousal declaration on my application in any case.

If I do have to leave Canada while an inland renewal is in process, one of three things will happen:

  • My renewed work permit will be issued prior to my return to Canada (in that case, I can just have someone forward it to me);
  • I can submit an application at the POE (Port of Entry);
  • I can request a “visitor record” for the period of time while they are processing my renewal inland (but legally I cannot work in Canada during that time.)

As long as I remain in Canada, I can continue working (“implied status”).

I sent everything along to my attorney for his review and I’m now waiting to hear back from him.  I will send in the inland renewal (this week) and then if I do need to leave the country I will make sure I have everything that I need to submit the application at the POE – the “don’t work in Canada” doesn’t work so well for my situation (the idea of a vacation does sound nice, but it doesn’t really work for me.)

Of course, I really hope that this is the last time I’ll have to renew my work permit.

 

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.