FSW: should i apply alone?

[starinthemorning]

i'm planning to apply as FSW in january, though married, i want to know if its ok for me to apply alone because my husband is about to start the process of his application for work permit? our daughter will be the only dependent coming with me. I think it would be more feasible if he'll apply separate from us, firstly, it would be cheaper; secondly,the proof of funds that we need to present would be a little less. i'm also hesitant to apply bec of present medical condition,queries re: that mentioned in my other posts. that's why i thought its wiser to apply alone.

 

[computergeek]

i'm planning to apply as FSW in january, though married, i want to know if its ok for me to apply alone because my husband is about to start the process of his application for work permit? our daughter will be the only dependent coming with me. I think it would be more feasible if he'll apply separate from us, firstly, it would be cheaper; secondly,the proof of funds that we need to present would be a little less. i'm also hesitant to apply bec of present medical condition,queries re: that mentioned in my other posts. that's why i thought its wiser to apply alone.

No. You cannot apply alone if you are married. That would be misrepresentation.

You can apply as married and indicate your spouse will not accompany you - you will need to sign off an affidavit that acknowledges you understand your husband will not be a member of the family class and thus you cannot ever sponsor him in the future. Don't think about divorcing and re-marrying. There's a "dissolution of convenience" problem for ex-spouses, especially if your spouse is not eligible due to a medical issue.

I CAN answer questions about medical inadmissibility (been through it myself, know that issue). But please don't lie to CIC - that can lead to a 2 or 5 year ban on coming to Canada under any class.

 

[starinthemorning]

thank you so much. i just thought of it since my husband will be in the process of getting his work permit. But you made me totally change my mind. It is perhaps better to apply as a family.

Please enlighten me regarding my inquiry, will they consider me inadmissible because its just only 8months that I am in remission? It would take 5 years to be in remission for me to be considered cancer free. Right now, I visit my oncologist every 3 months for pap smear. That's about CAD103 annual medical expense for the professional fee and the laboratory. My other oncologist doesnt even ask me to have pap smear. Instead, he asked me to have x ray once this year.

 

[computergeek]

thank yonlighten me regarding my inquiry, will they consider me inadmissible because its just only 8months that I am in remission? It would take 5 years to be in remission for me to be considered cancer free. Right now, I visit my oncologist every 3 months for pap smear. That's about CAD103 annual medical expense for the professional fee and the laboratory. My other oncologist doesnt even ask me to have pap smear. Instead, he asked me to have x ray once this year.

Of the issues that are litigated with CIC regularly, I would have to say that medical inadmissibility seems to be the one on which CIC loses more often than not. For an applicant, spouse or dependent, CIC loses in court about 75% of the time (they do better with parent/grandparent cases). This is a stunning number given that their track record in court is to win about 80% of the time.

The issue is all about projected cost, either in the next five or ten years. Thus, there are two aspects to this:

- The medical prognosis and potential cost of treatment
- The portion of that cost that the applicant will bear

So the first point will be a function of the cost of treatment adjusted by the possibility that you might require such treatment. If your doctor says that at this point you have a 10% chance of recurrence and the treatment cost in case of a recurrence is estimated at $20-30k over the next five years, then it would seem you would not rise to the level of excessive cost (~$6100/yr x 5 years). This isn't absolute certainty, this is "balance of probabilities".

The second point is that the amount covered by your province will depend upon the policies of that province. I will note that in my experience, medical officer's at CIC do not have a good understanding of provincial health policies so they tend to perform a "worst case" analysis.

The medical offers is required as a matter of law to make an individualized assessment of your case. My personal experience - and reading numerous other cases - this often does not happen, which is why CIC runs into trouble when the decision is challenged. What this means is they cannot base their decision upon the condition ("this type of cancer costs $x to treat") it must be based upon your specific condition, your expected treatment, and your personal resources.

The key decision here is known as Hilewitz: http://canlii.ca/t/1lsvm

David Hilewitz applied to come to Canada in the investor class. He had a developmentally delayed child and was ultimately refused a visa. Even the original Federal Court decision overturned the refusal ( http://canlii.ca/t/k0p) but then the Federal Court of Appeals overturned the original FCC decision and upheld the refusal (http://canlii.ca/t/1fwzx)

The rationale in Hilewitz has been extended to medical cases as well (Companioni http://canlii.ca/t/2795j and Sapru http://canlii.ca/t/2flwr).

Companioni expressly says that normal/routine monitoring costs are not considered to be excessive demand, so your periodic check-ups would not qualify for excessive demand.

Sapru is about providing clear reasons for a decision. Even now I remember the first time reading Sapru, because my own case was similar, except the visa officer hadn't even bothered to try and fill in any of the rationale in my own refusal.

What does this mean? It means the outcome of your application would be determined by consideration of your actual condition, the likelihood of incurring costs, the prospective costs, and how much of that cost would be born by the provincial health plan.

Long before you are refused, you will know if there are any problems. You will have your physical examination. The DMP may have questions for you, and you may refer her or him to your own doctors, or provide written summaries of your condition to the DMP. Ideally, the DMP will include that in your report and indicate that in the DMP's opinion you are not excessive demand.

The medical officer reviewing your case may want additional information, in which case you will receive a sealed letter from the visa office that you take to the DMP for follow-up. This may involve additional tests or additional information from your doctors. This information is then forwarded to the medical officer for review. If the medical officer thinks you are medically inadmissible, the visa officer will be advised and a "fairness letter" will be written and sent to you.

At that point, you would order a copy of the medical case notes, which would include the rationale of the medical officer. You would likely also request an extension of time to respond to the fairness letter since they normally only give you 60 days which is likely not enough time to put together a complete response.

The response may challenge the medical opinion. It may also provide a plan for mitigating prospective costs.

The medical officer should review both, and the visa officer should review at least the cost mitigation plan. If they still find you medically inadmissible then they would issue a refusal to your application.

If refused, you then have 60 days to challenge the refusal in Federal Court. You must first request leave for your application. If leave is granted, the Court agrees to consider your application for Judicial Review. If you convince the court (Judicial Review is granted) then the case is returned to CIC for redetermination. In recent years, 75% of cases that are granted hearing in economic class are granted JR. Many cases never make it that far because the applicant isn't rejected due to medical inadmissibility.

Much of the fairness response is done in a way that sets things up for an FCC challenge. It's best to work with one of the handful of attorneys with experience in this area, but it's not impossible to do it yourself if absolutely necessary.

I hope this helps.

 

[starinthemorning]

Thank you much for all your help! ;D I am amazed how you're able to know about all these info. By the way, there is a question in the application form regarding previous serious illness/operation. I intend to state my medical history, should I include in our application any certification or affidavit from my oncologist stating about my condition and the estimated medical cost I incur each year?

I guess will just worry how to prepare all the documents in time since the nursing occupation in the list gets filled up in just a matter of few days. :'( I plan to send our complete application in advanced to my sister in alberta using the current forms so that when the CIC starts to accept applicants in 2013, our application will be included for evaluation??? Please enlighten me. I was so disappointed last year bec I submitted our application in Aug, at that time i was checking the website if the quota has been reached, i saw that almost half has been reached, i still have a big chance to be assessed. But then it turned out that a friend of mine who submitted her application july 17, her papers also were returned because apparently the quota has been reached.

thanks!

 

[computergeek]

Thank you much for all your help! ;D I am amazed how you're able to know about all these info. By the way, there is a question in the application form regarding previous serious illness/operation. I intend to state my medical history, should I include in our application any certification or affidavit from my oncologist stating about my condition and the estimated medical cost I incur each year?

I lived through it. I had to educate myself on medical inadmissibility. I'm not a fan of the current Canadian immigration system with respect to medical inadmissibility. Frankly, neither are the Canadian Courts, since CIC loses quite a few cases in this area.

I wouldn't worry about including that information at this point in time. Get your essential application submitted in time. Then see how your medical exam goes when it's requested. Use the time from submitting your application to the time of your physical examination to collect that sort of information. Take it to your medical examination. Discuss the situation with your Panel Physician, and provide the information if she or he requests it.

Note: CIC just published new medical exam rules. They provide greater insight into what they are looking for: http://www.cic.gc.ca/english/resources/manuals/bulletins/2012/ob471.asp

 

[starinthemorning]

you've been of great help, computergeek!!! thanks and God bless! may i ask if you went through court/litigation re:your medical condition? I dont know if I will be able to handle the case on my own without any legal adviser if God forbid i will have to go through that tedious process. I'd would be too costly, I suppose.

 

[computergeek]

may i ask if you went through court/litigation re:your medical condition? I dont know if I will be able to handle the case on my own without any legal adviser if God forbid i will have to go through that tedious process. I'd would be too costly, I suppose.

Yes, but I used an attorney to represent me. There are a tiny number of lawyers that can handle this sort of case well. If you would like some names, PM me and I will provide that information to you.

It is expensive. My legal feels for the FSW application, fairness response, leave application, JR application and costs ran around $12,500.

You CAN do this on your own, although I'd only recommend it if you don't have any other option. It means you will spend a LOT of time educating yourself. Even with an attorney I spent a LOT of time researching and analyzing information; I was actively involved in the process with my attorney. Having been through it, I'd be more comfortable going through it again.

In my case, I dismissed my JR application on the same day that CIC requested my passport in order to grant me permanent residency. CIC did not admit to making a mistake, but it seems exceedingly unlikely they would have pushed my second application so quickly otherwise. Indeed, I had expected it to take until June 2013 (according to posted times) or more likely longer due to my medical inadmissibility issue.

 

[starinthemorning]

oh no! that is really expensive. can u please tell me the likelihood that our application will be thoroughly scrutinized due to my medical issue. we are here in the Philippines and I am not planning to hire a consultancy agency/representative. Thank you so much for all your help!

 

[computergeek]

oh no! that is really expensive. can u please tell me the likelihood that our application will be thoroughly scrutinized due to my medical issue. we are here in the Philippines and I am not planning to hire a consultancy agency/representative. Thank you so much for all your help!

Actually, medical analysis is completely distinct from the rest of your application. The Immigration Medical Service will review your medical records and assign you a medical assessment. You need M01, M02, or M03 in order to move your application forward.

Many people are successful moving their cases forward, but it does require additional work on your part to do so.

 

[itiswell]

thank you so much. i just thought of it since my husband will be in the process of getting his work permit. But you made me totally change my mind. It is perhaps better to apply as a family.

Please enlighten me regarding my inquiry, will they consider me inadmissible because its just only 8months that I am in remission? It would take 5 years to be in remission for me to be considered cancer free. Right now, I visit my oncologist every 3 months for pap smear. That's about CAD103 annual medical expense for the professional fee and the laboratory. My other oncologist doesnt even ask me to have pap smear. Instead, he asked me to have x ray once this year.

Please go to this link and click on "List of IMEs related to conditions of significance".
http://www.cic.gc.ca/english/department/partner/pp/index.asp
It will give u an idea of what exactly will be done during medicals in regards to ur case andgives u better understanding about the whole process

 

[starinthemorning]

Thanks once again, computergeek! It seems i would only need to prepare all my previous lab/biopsy results. I am positive you'll be of help when the time comes that I'll need more pieces of advice. God bless you! I just really hope, this time, my application will be received by the CIO in tym.