Received Fairness Letter......Seeking guidance for reply

[shemrock]

Thanks leon

 

[Shaja]

Thanks for this very detailed explanation computergeek.

You are already covered by MSP. Thus, your best option would be to have the condition resolved as part of your response - if it had already been repaired, she wouldn't be inadmissible (assuming that only routine costs associated with such care were required).

Could you please explain this? How could my MSP coverage help my daughter's medical condition. It's my dependent who has medical inadmissibility and she is still in our home country.

If doing it in Canada is an option, I don't see why you wouldn't do that. Again, the fairness analysis is a forward analysis and as long as there are no future costs in your case, it would not represent excessive demand.

Do you know any cases who were approved based on H&C consideration? In case the surgery is performed in our home country and portion of it will be shouldered by social services do you think this will have a negative impact? The surgery is really expensive.

In addition, though, you might be able to argue that the cost does not constitute excessive demand. To do this you would need to show that the cost over the next 5 (or 10) years would not exceed $6327 per year (the excessive demand number as of June 2014). That's a total cost of $31635 over the next five years. If the doctor states that in his professional opinion the costs will not exceed that threshold, then the onus will be on CIC to argue to the contrary.

In my letter, they only pointed out 5 years, do I need to still provide a mitigation plan for the next 10 years? Our specialist could help us with this he said.

Thanks for the additional arguments and links you've provided. It was a big help. I would really need to extend it in case the surgery will be done in home country cause I would need to go home. Would you be able to guide me with this request?

 

[Shaja]

You can also ask for H&C considerations. In any case, I would advise you to request that you be considered for a TRP (Temporary Resident Permit). H&C grounds could be argued (e.g., these medical services are not available to her in her home country so a refusal is a veritable death sentence by CIC). In my experience, CIC ignores such requests, but the Courts have ruled that a failure to do so is grounds for overturning the refusal.

Will I explicitly request for TRP in my response? In case this will be granted, are we not entitled to MSP anymore? MSP is not free in B.C. I am paying $69.50 every month unlike in AB, it's free I guess.

 

[computergeek]

Could you please explain this? How could my MSP coverage help my daughter's medical condition. It's my dependent who has medical inadmissibility and she is still in our home country.

Ah, my misunderstanding. I'd assumed she was with you in Canada (in which case she would be covered). Well, then that option is certainly not viable.

Do you know any cases who were approved based on H&C consideration? In case the surgery is performed in our home country and portion of it will be shouldered by social services do you think this will have a negative impact? The surgery is really expensive.

I've never heard of any cases being approved on H&C considerations. If you have the surgery performed and her prognosis is good (so she won't require further treatment in Canada) then it would be a positive impact on your case as CIC is only evaluating likely future medical costs.

In my letter, they only pointed out 5 years, do I need to still provide a mitigation plan for the next 10 years? Our specialist could help us with this he said.

They have the option of 5 or 10 years. If they only specified 5, that's all you need to defend.

Thanks for the additional arguments and links you've provided. It was a big help. I would really need to extend it in case the surgery will be done in home country cause I would need to go home. Would you be able to guide me with this request?

"Dear Officer X: I am in receipt of your request for a response prior to 22 October 2014. Due to the nature of this case and the need for me to return home in order to facilitate further evaluation of my daughter by qualified medical personnel, I request an extension of time to respond to your fairness letter until 22 January 2014. Because it is vital that I move this plan forward, if I have not heard from you before 15 September 2014, I shall assume that the extension is granted and proceed accordingly. Warmest regards, Shaja"

 

[Shaja]

Search for "privacy act" on the CIC website. That will link you to the information about ordering case notes. In your case you want the electronic case notes and the medical file/notes. That means two requests. Since you are inside Canada, it is a "privacy act" request and there is no fee for requesting this information.

I've just finished ordering case notes via ATIP online tool. There's no option for the medical notes in there. It just states Electronic Case Files, should I write a letter requesting medical file notes and include as part of the attachment? Or I need to request the medical file notes from the visa officer?

What I did was to attach a copy of my work permit and the justification letter from CIC. Please advise.

 

[Shaja]

Ah, my misunderstanding. I'd assumed she was with you in Canada (in which case she would be covered). Well, then that option is certainly not viable.

I've never heard of any cases being approved on H&C considerations. If you have the surgery performed and her prognosis is good (so she won't require further treatment in Canada) then it would be a positive impact on your case as CIC is only evaluating likely future medical costs.

They have the option of 5 or 10 years. If they only specified 5, that's all you need to defend.

"Dear Officer X: I am in receipt of your request for a response prior to 22 October 2014. Due to the nature of this case and the need for me to return home in order to facilitate further evaluation of my daughter by qualified medical personnel, I request an extension of time to respond to your fairness letter until 22 January 2014. Because it is vital that I move this plan forward, if I have not heard from you before 15 September 2014, I shall assume that the extension is granted and proceed accordingly. Warmest regards, Shaja"

This is awesome!!!! Thanks a lot computergeek

 

[computergeek]

Thanks leon

Your mailbox is still full - I've actually stopped answering your PMs because they all bounce.

As to your last question (landing in Montreal) you may land in Montreal. Since you have evidence of onward travel, the fact you do not have a CAQ will not be an issue. Many people have successfully landed in Quebec even when they were heading towards a different province ultimately.

 

[jen3014]

I have never seen such statistics. Based upon my personal (small) sample size, it would seem that it's better than 50% for people who submit a credible response - CIC knows this is a swamp and thus they try very hard to avoid getting into it.

The Companioni decision established that insurance could be used as an important factor for mitigation (though in their specific case they didn't have the insurance yet and thus the plan was "inchoate"). I presented 100% coverage (two employer provided plans, one of which was a PHSP that is a non-discretionary health savings plan that pays any medical expense as defined by CRA, and one private plan - that was paid for via the PHSP) with a total coverage level of ~$68k and was still refused. Then again, when we challenged in Federal Court the court granted the application for leave (which means they agreed to hear the case) and the medical officer was left making up post facto explanations for why she ignored the insurance entirely ("I was not convinced that it would cover in this case"). That's probably why my second application was granted so quickly.

I worked with an attorney who indicated to me that he routinely was able to assist people in obtaining a reconsideration of a fairness letter. Indeed, he was shocked when I was refused, as I had an extremely strong mitigation plan.

From what you've said you do have a strong case. You should submit it. But if you want to reserve the ability to challenge a negative decision, I'd suggest working with an attorney specializing in excessive demand medical inadmissibility because they can also frame information that would be suitable for legal arguments.

If you have 100% employer funded insurance and sign off on the declaration of ability and intent there is no reason for them not to find you admissible.

Thanks Computergeek for all your help and information. We submitted our reply last week and in addition to our own information, the PNP issued a letter of support sent directly to the Minister of CIC. I hoping that will the info we have and a request from the provincial immigration minister that we will be granted PR. I'm just hoping we don't have to wait too long for a decision to be made.

 

[computergeek]

Thanks Computergeek for all your help and information. We submitted our reply last week and in addition to our own information, the PNP issued a letter of support sent directly to the Minister of CIC. I hoping that will the info we have and a request from the provincial immigration minister that we will be granted PR. I'm just hoping we don't have to wait too long for a decision to be made.

I've seen people get responses within 2 months; then again, I've seen it take almost a year. There's no real pattern to it. Having direct PNP support does help - I know someone who was able to overcome a prior refusal via PNP with strong provincial support - it also strengthens a challenge to CIC because the Provinces have the exclusive right to govern health care. CIC only makes decisions on behalf of the Province (under Federal/Provincial agreements) - so overruling a Provincial decision isn't actually something they have the legal right to do (ah, but that's an argument, not a foregone conclusion).

Good luck!

 

[Shaja]

The Companioni decision established that insurance could be used as an important factor for mitigation (though in their specific case they didn't have the insurance yet and thus the plan was "inchoate"). I presented 100% coverage (two employer provided plans, one of which was a PHSP that is a non-discretionary health savings plan that pays any medical expense as defined by CRA, and one private plan - that was paid for via the PHSP) with a total coverage level of ~$68k and was still refused. Then again, when we challenged in Federal Court the court granted the application for leave (which means they agreed to hear the case) and the medical officer was left making up post facto explanations for why she ignored the insurance entirely ("I was not convinced that it would cover in this case"). That's probably why my second application was granted so quickly.

Hi computergeek,
Could you please guide me how did you get the health insurance plans and what does PHSA means?

As per evaluation of my daughter's laboratory exam results, her condition is a high-risk and could no longer be corrected in our home country. Doctor said not to perform any surgery for her as it might risk her life. Now I don't know what to do. I've talked to an immigration lawyer who is also expert in appealing for H&C considerations and she explained to me that it's very hard to get approval based on that especially with my case.

Does anyone know of any mitigation plan that covers heart surgery? Kindly help....

 

[computergeek]

Could you please guide me how did you get the health insurance plans and what does PHSA means?

I just applied for one (individual plan) via Manulife when I first came to Canada. The second was a group plan for a company that I own (because the group was large enough, there was no medical questionaire). The PHSP (Personal Health Savings Plan) is something I set up with the aid of my employer. These plan work by contributing funds to them and then the plan pays eligible medical expenses. The third party administrator reimburses all legitimate medical expenses (as long as there are funds in the plan) and charges a fee (5-10%) for their services.

There are plenty of companies that manage PHSPs.

As per evaluation of my daughter's laboratory exam results, her condition is a high-risk and could no longer be corrected in our home country. Doctor said not to perform any surgery for her as it might risk her life. Now I don't know what to do. I've talked to an immigration lawyer who is also expert in appealing for H&C considerations and she explained to me that it's very hard to get approval based on that especially with my case.

I'm assuming you can't bring her to Canada now (under the terms of your current work permit)? Because she'd be covered as your dependent, she would have coverage and the problem would be repaired - and once repaired, it's no longer an issue for PR.

My understanding is that the fact it cannot be corrected in your home country actually might help. But you'd also need to show how you plan on paying for this in Canada (perhaps some charitable organization would be willing to assist) and show that it would not negatively impact provincial health services. This is outlined in OP 20. As part of this evaluation, they would consider the lack of options for her in your home country.

Does anyone know of any mitigation plan that covers heart surgery? Kindly help....

The plan would need to pay the costs of such surgery, to the extent they exceed the excessive demand threshold. That could be through a charitable organization, insurance, or other third party willing to pay enough of the costs to bring it below the excessive demand threshold.

Thus, I will reiterate my earlier suggestion: find an attorney that is experienced in excessive demand cases. Your case is actually a good one for a legal challenge, but doing so requires the right attorney - and that's going to cost close to $10k. The attorney that told you it's "very hard to get approval" was being truthful with you.

If you cannot have your daughter join you in Canada (where she would have coverage as your dependent) then you should ask for a TRP (temporary resident permit) for you and your daughter to overcome the inadmissibility determination. In that case you'd be arguing H&C grounds: that refusal of the TRP would be a death sentence for your daughter (due to the unavailability of the necessary medical treatment) and that would violate Canada's obligations under the UN Convention on Rights of the Child (http://www.ohchr.org/en/professionalinterest/pages/crc.aspx) and the UN Convention on the Rights of People with Disabilities (http://www.un.org/disabilities/convention/conventionfull.shtml). Having additional information from the province stating that her treatment would not burden the provincial health service is certainly quite helpful as well.

Otherwise, I would expect the medical officer will issue a final decision that your daughter is medically inadmissible. Because you are part of the same family unit, you are thus also medically inadmissible.

 

[Shaja]

I just applied for one (individual plan) via Manulife when I first came to Canada. The second was a group plan for a company that I own (because the group was large enough, there was no medical questionaire). The PHSP (Personal Health Savings Plan) is something I set up with the aid of my employer. These plan work by contributing funds to them and then the plan pays eligible medical expenses. The third party administrator reimburses all legitimate medical expenses (as long as there are funds in the plan) and charges a fee (5-10%) for their services.

There are plenty of companies that manage PHSPs.

I'm assuming you can't bring her to Canada now (under the terms of your current work permit)? Because she'd be covered as your dependent, she would have coverage and the problem would be repaired - and once repaired, it's no longer an issue for PR.

My understanding is that the fact it cannot be corrected in your home country actually might help. But you'd also need to show how you plan on paying for this in Canada (perhaps some charitable organization would be willing to assist) and show that it would not negatively impact provincial health services. This is outlined in OP 20. As part of this evaluation, they would consider the lack of options for her in your home country.

The plan would need to pay the costs of such surgery, to the extent they exceed the excessive demand threshold. That could be through a charitable organization, insurance, or other third party willing to pay enough of the costs to bring it below the excessive demand threshold.

Thus, I will reiterate my earlier suggestion: find an attorney that is experienced in excessive demand cases. Your case is actually a good one for a legal challenge, but doing so requires the right attorney - and that's going to cost close to $10k. The attorney that told you it's "very hard to get approval" was being truthful with you.

If you cannot have your daughter join you in Canada (where she would have coverage as your dependent) then you should ask for a TRP (temporary resident permit) for you and your daughter to overcome the inadmissibility determination. In that case you'd be arguing H&C grounds: that refusal of the TRP would be a death sentence for your daughter (due to the unavailability of the necessary medical treatment) and that would violate Canada's obligations under the UN Convention on Rights of the Child (http://www.ohchr.org/en/professionalinterest/pages/crc.aspx) and the UN Convention on the Rights of People with Disabilities (http://www.un.org/disabilities/convention/conventionfull.shtml). Having additional information from the province stating that her treatment would not burden the provincial health service is certainly quite helpful as well.

Otherwise, I would expect the medical officer will issue a final decision that your daughter is medically inadmissible. Because you are part of the same family unit, you are thus also medically inadmissible.

Thanks for this reply computergeek. I already found a lawyer who could help me with my case but sometimes she's so busy and having a panic mode right now as we haven't gather any documents to support the case. Could someone please recommend an insurance company. I came across
Pacific blue cross where I could get $200,000 insurance for her but that is only for visitors visa. Do you think this is a good mitigation plan?

About the TRP, the lawyer explained that it is only for those who are currently within Canada. Those who are outside Canada will not be granted TRP.

Please help with other mitigation plans. Based on the doctor's opinion she might be a candidate for transplant which is not available in our home country.

 

[computergeek]

Thanks for this reply computergeek. I already found a lawyer who could help me with my case but sometimes she's so busy and having a panic mode right now as we haven't gather any documents to support the case. Could someone please recommend an insurance company. I came across
Pacific blue cross where I could get $200,000 insurance for her but that is only for visitors visa. Do you think this is a good mitigation plan?

Look for "expat" insurance. But the real problem is that no insurance company will want to write a policy to someone that is very sick.

About the TRP, the lawyer explained that it is only for those who are currently within Canada. Those who are outside Canada will not be granted TRP.

I respectfully disagree with this. While it is challenging to obtain a TRP, CIC does grant medical TRPs. Asking for one also provides a basis of winning in Court (visa offices usually ignore the request and the existing case law clearly says that failure to consider is grounds for overturning a refusal).

Note that the TRP manual is an "Outland Processing" manual! http://tinyurl.com/ne7gjjo

Please help with other mitigation plans. Based on the doctor's opinion she might be a candidate for transplant which is not available in our home country.

Are there any programs available to obtain the surgery that she needs?

 

[Pingguino]

This is for computergeek. I am very new to this forum and still have not figured out how to PM. We receiced Letter of Fairness recently and I have a question regarding lawyer recommendations. Would it possible you send me a message so I can seek your advice privately? Thank you.

 

[scylla]

This is for computergeek. I am very new to this forum and still have not figured out how to PM. We receiced Letter of Fairness recently and I have a question regarding lawyer recommendations. Would it possible you send me a message so I can seek your advice privately? Thank you.

You won't be able to send PMs until you have more posts on the forum. So for now, if you have questions, you'll have to post them on the open forum.