All posts by Will

Takeaways from CBA National Immigration Conference – Pt. 1 – IRCC’s Increased Focus on the “Client Experience”

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One of the highlights of the CBA Immigration Law Conference is that the Minister of Immigration speaks and talks about his government’s focus and priority moving forward.

In general, the Minister’s humility very much stood out to me. I think that being a former member of the immigration bar himself, a UOttawa grad (I threw that one in!), and most importantly a refugee who had to face the delays and uncertainly, added a certain humility to his tone.

There were some who were disappointed that the Minister did not take questions from the floor, as was done in previous years. I still remember Minister Alexander in Ottawa, two years back being asked about the sponsorship program given his own wife was a sponsored spouse.

I did believe that on a few questions, particularly relating to the major IRB delays that are really hampering the appeal process. On the flipside, I was very impressed by his apology for the issues with the portal not working very effectively over the past few weeks and his promise to do better.

The nice guy/gal approach was echoed by Dawn Edlund (Associate Assistant Deputy Minsiter, Operations, Department of Citizenship and Immigration) who spoke at the opening plenary. As summarized by my colleague Joshua Sohn:

Dawn mentioned that she had received feedback that some invitation letters (for example the Citizenship Oath) had felt too much like a summons to court for a parking ticket.  She acknowledged the challenges with the call centre and opening discussed the need to figure out strategies to streamline calls.

Ironically just the same day I received a bulletin from IRCC (that I had never received before) that was very well received on my end. The case involved a tricky procedural fairness letter to a concern initially raised by the overseas visa office. This email put both myself, and my client, at ease and we received the COPR just days later. I know the client was very eager to follow the helpful recommendations relating to settlement contained in the email.

Just today IRCC has acted on some of the frustration raised by those who have had spousal sponsorship applications sent back due to incompleteness by revising their spousal sponsorship checklists to make them clearer, cleaner and more intuitive.

Client experience

Overall, I am a big fan of this approach taken by IRCC to be better communicators with their clients. I don’t think we will ever run a visa system, particularly in this electronic day and age, that will allow individuals to physically speak to a processing officer in Canada, but one hopes that these steps are the next best thing.

I do think, however, that more transparency – particularly to more detailed reasons for refusal, great public access to Global Case Managing System notes for applicants, and faster streams for which to provide case updates – would go a long way. Right now, Access to Information Requests are a huge financial burden on government resources and a lot of litigation can be avoided by simply having clients know their application deficiencies at an earlier stage.

Tracing My Mainland Chinese Roots to Chinatown: A Personal Narrative

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Framing My Perspective

Over the past several months, I have had the unique opportunity of being part of a City of Vancouver Committee looking at Historical Discrimination Against Chinese in Vancouver from the City’s incorporation in 1886 to provincial franchisement in1947 and later to the granting of full municipal voting rights in 1949.

I am very consciously aware that (other than two amazing and brilliant civic historians who happen to be Caucasian), I am the only member of the committee without a common history from Southern China. Indeed, I am almost the youngest member of the committee by at least 15 to 20 years.

As I listen to the stories told in a room, like the one told during today’s second consultation session, I am conscious that I am outsider. I recognize the privilege I have now as someone who was able to call Canada my birth country in the years post-Charter of Rights and Freedoms. The stories of wives separated from their husbands for generations or two-years worth of income head taxed upon arrival, was not one I had to live through.

From a day to day level, I have never had to sit in the back of a movie theatre, because the front seats were reserved for whites only (Although, as one of my colleagues reminded us we, at an alarmingly higher than usual rate, often end up getting seats in the back corner or near the washrooms at many restaurants). I was able to be article and be called to the Bar of B.C. as a lawyer something Gordon Cumyow, son of Alexander Cumyow, was unable to do because he was not on the voter list in 1918. I am grateful for those that made this so. Brave Chinese-Canadian veterans who fought for Canada in World War II, returned, and argued for equality paved this pathway. Chinese-Canadian workers, demanding equal respect from labour unions, created their own employment organizations and forged worker movements that carved this pathway to try and bring and end to both the institutionalized and legally endorsed racism of the time.

It is also to be noted that I also do not speak Cantonese. My knowledge of Cantonese does not extend beyond the basketball court slang tossed around during my high school days. However, through what I can decipher, it is a language of energy and passion. I am reminded of my own dialects of Shanghainese (and increasingly Chongqinghua, adopted from my wife) that I have become accustomed to from spending time in both Shanghai and Chongqing. Much of the Chinese advocacy movement today is led by Cantonese-speaking youth, children of immigrants who came to Canada in the decades and, in some cases, generations before my own late father did. I commend them their activism and truly believe their language connection to their ancestors who themselves, were early advocates, is immensely important.

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What Chinatown Means to Me

Many of these stories that I have heard in the past months are centered around one, much debated, neighbourhood in Vancouver – our Chinatown.

I want to state at the outset that I appreciate that I am writing at a very sensitive time, with the 105 Keefer consultations currently occurring in the City of Vancouver. I am still working through the City staff report and do not feel informed enough to comment, nor do I feel commenting in this piece adds value to the story I want to tell.

I do hope, that those who read the piece below, and never been to Chinatown – hell, may be even be too scared or disgusted to go Chinatown and experience the markets, classic restaurants, and bakeries – give it a much deserved chance (or second shot).

Growing up in Vancouver in the early 90’s, there really was no choice for Chinese groceries, meat, seafood, and baked goods – other than Chinatown. T&T at this stage was non-existent. There was no Foody World, No Osaka Supermarket, no Empire Supermarket, and the other groceries that now line Bridgeport and No. 3 Rd in Richmond. Even Victoria Drive, which is now bustling with grocers, was “too far East” to us in those days.

Going to Chinatown was the weekly family trip. We’d pack into our family’s small Toyota Tercel and drive to Chinatown. Some days we ended up parking a few blocks away in Strathcona, to avoid paying the parking meter. Money was tight in those days.

We would easily spend three hours there on any given trip. We would do the usual shop tour, primarily focused around a supermarket, my late father used to joking refer to as “Laji Dian” or “Garbage Store” in Mandarin (specifically on East Georgia and Gore Street). What was trash to some was our treasure. The vegetables were cheap and there were always crowds fighting over the sale of the week. As an aside, this same store (albeit a little quieter), has now replaced T&T as my wife and I’s go-to for Chinese vegetables. Last week we bought a bag of peashoots for 99 cents (when they usually go for 3.99 or 4.99 a pound at most Asian grocers). You are missing out if you don’t go.

For me, however, Chinatown was all about the buns. Ironically, I don’t even think we even had the best ones back then. I don’t remember going to New Town or Maxims all that often, other than we needed to also buy birthday cake. We always went to the small counter on the corner of Main and Keefer (I think). These buns were cheaper and buying bulk saved money.

I loved the barbecue pork puns (and still do today). I don’t remember if it was because I was younger but I remember the filling used to be much meatier. They were so good. I would eat them while walking along the streets while my mother and father shopped.

I also now credit Chinatown for also turning me into a huge foodie. We would often order small blue crabs (my mom’s favourite), pig intestine, and duck feet. These were the protein of my childhood, and certainly a once a week delicacy. Occasionally, we would also buy salmon (tucked away in black plastic bags) from sellers (now I realize were likely First Nations) down the back alleys.

You also have to understand to, that for me, Chinatown was my China. I had only been to China when I was four for several weeks and had zero recollection of the place. I had few Chinese classmates in my early elementary years in the Westside of Vancouver. Chinatown was the only place where, now that I come to think of it, I felt… normal and at home.

I regret, looking back, not better understanding my surroundings in Chinatown. At that time, Chinatown was still so vibrant that I don’t think it dawned one me to recognize that the work was not easy, that the faces behind the counter were old. I could not have predicted, that just a few years later, we would all leave Chinatown for the “cleaner”, “air-conditioned”, indoor grocery complexes provided by T&T. Had I known concepts such as farm-to-table, organic, or even been to China and understood the role of the outdoor Cai Shi Chang (“Vegetable Markets”) I probably would have stayed.

Like many, during my later elementary school years (this would have been the late 90’s for those keeping score), I rarely went to Chinatown. I avoided it. I think my family did too. This was probably around the time too, that the Downtown Eastside became more of a social issue and for a Chinese family growing up there was a proximity issues. Drugs were taboo. They were done by bad people and that being close to them we would somehow be exposed. Had I known what I later would know from volunteering in the Downtown Eastside, I again, would have changed my perception and fought against the underlying assumptions around Chinatown.

I remember a few key moments – in between where I went back. In high school, we did a photo project, where I recommended that our team do a project in Chinatown. I took a photo (poor quality), but I remember at the time thinking that the individual cleaning beans reminded me of a man panning for gold. We titled it “Picture Worth a Thousand Words.” Entirely, an oversell but something I still remember today.

In undergraduate (around 2009 I believe), I had the opportunity to go Singapore with Dr. Henry’s Yu’s class to study their Chinatown. Prior to that trip, we began by studying our Chinatown. Our group created a concept for an empty lot (again not trying to draw 105 Keefer references). At the time, we probably thought we were being global – trying to draw Singaporean Hawker influences and Seattle architecture. What we really should have done is looked inward. Chinatown is now a national historic site (long overdue) and we are hoping with this Apology and pronouncement on action times that there will be more history to come.

Just last week, we were buying ginseng in Chinatown and had a great conversation in Mandarin (the shopkeepers were fluent in both Cantonese and Mandarin). They expressed to us the challenges, day to day, of ensuring that they would not be subject to theft. One can only imagine, that given the reduced traffic, a handful of high quality ginseng or dried sea cucumber could put a dent in business.

I am glad I have been able to introduce my wife to Chinatown. At first, she too thought the cash only nature of the stores, the walking distance, and the cleanliness were an issue. Now, we realize, that we easily save $50 dollars a week shopping in Chinatown and that it is entirely worth the commute. We have also re-discovered New Town bakery which has become the River Rock Casino of my tummy (interpret it how you will).

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 Conclusion

Chinatown, to me – a Canadian with Mainland Chinese roots, zero Cantonese language abilities, and only a brief, emerging window into the historical value of the streets – is still important. I would suggest it can be important to you too, regardless of your ethnocultural roots. I know personally, I’m going to make it my mission to move beyond seeing Chinatown as simply a land asset or (in my case) a provider of sustenance and into a centre of human capital. The popo’s and shushu’s here have been through times in this City that I would argue, would have taken us all down. They have paved the way for us to be able to have influential voices in influential areas in this city. The well being of their rest of their lives on this planet, simply transcends any dollar value.

Politics aside, some of the love and identity that I used to put in Chinatown as my China has now been partially filled by China. I have visited my own grandfather/great-grandfather’s ancestral village in Shaoxing. I have visited my wife’s ancestral hometown in Kaixian, Chongqing. I can tell you one thing about these places – the elderly are revered. They sit at the heads of tables. They are consulted on important family matters. Yes, this too, is being negatively affected as China faces it’s own challenges with capitalism. In these cities, and major cities in China, the ancestral home of a patriarch and matriarch is a gem. I would absolutely hate to see Chinatown, as the ancestral home of Chinese in Vancouver and arguably of Canada proper, lose it’s glimmer due to our neglect.

How to address the dreaded “Probability of Success”? – From a Client and Advisor Perspective

I have been on a bit of a campaign (that I am now sharing publicly by way of this blog post) to eliminate the using, asking, and advertising of “probability of success” and “guarantees.”

Unfortunately, I tag this to the commoditization of visas (worldwide) into a product to be obtained, rather than a legal service or system to be professionally navigated. Flip open any newspaper and you will likely see an immigration company advertising their 98% success rate or “guaranteeing the maintaining of permanent residence for someone who has never spent a day in Canada”, as one translator lamented to me today outside of CBSA.

I am very glad that IRCC is publicly attacking the idea of a guarantee and the practice of ghost consulting or the “disappearing advisor.”

I think part of fighting this is educating potential clients into the type of questions to ask and to give insights into the type of responses one should expect. I wrote a post, that I received some positive feedback for in January of last year where I talked about the value of a consultation. I hope to work along similar lines here.

In this piece, I want to give both clients and their representatives some strategies to avoid asking and respond in asking that dreaded question – “what is my probability of success?…. can you guarantee success.”

From the Client Perspective

My first “cautionary” note is that anybody who guarantees success without seeing a single document or on the basis of a short email introduction is probably indicative of the fact you are going to be duped.

Regardless of my historical success on any type of application, as an immigration representative, I know that cases turn on facts. Facts, take time to establish and hours to put together. In order for any advisor to even indicate a confidence in your case, they need to know the inside outs of that area of the law and be able to provide tangible experiences suggesting they have helped a client in a similar situation or have the know-with-all to do the same.

Too often I see the question “please advise me on your fees and success rate” as a first question that client’s pose. I would suggest a few more effective questions can be (1) are you an authorized immigration representative and can I see your ICCRC/Law Society number? [if you have doubts, but do your research], (2) have you handled cases of this nature and provide some initial thoughts on my case, and (3) would we be able to set up a consultation to discuss your assistance on my matter. Having someone provide either a deceiving low rate or incredibly high fee quote with a made-up percentage really does a client little to no good.

On a second point, when it comes to success rate, I would be very cautious of any “company” that offers a “money-back guarantee” on immigrations applications. Many of these consultancies (who primarily do this) justify this by taking a heavy up-front retainer sum and then apply, knowing that when the decision is eventually made (several years later), they have had enough time to flip your money into additional funds to pad their pockets. Be very cautious – and ask questions such as (1) where do the funds go? – does the individual operate a trust account; (2) Can you bill me implements? – so they do not take all the money and bill it up front; or (3) Can you handle my file on an hourly basis? While it may appear that your engaging of a representative on an hourly basis does not give you any guarantees. it does provide a lot of accountability in terms of work performed. In the end of the day, when you engage a professional it should be for the efforts they input into the case, which in turn you hope will maximize your results. Consider time dedicate to your case as the value of your fees rather than the overall end result.

Finally, be careful of false advertising. Immigration is an area of law that is far too-easy to oversell. Clients are often at their most vulnerable and desperate when they come see you. They often have little knowledge of the rules and regulations other than what they have read on forums or heard from their neighbours.

There is nearly no regulation (especially in languages other than English and French). If you start reading advertisements that purport to sell you a job, or LMIA, or guarantee to take care of everything due to connections to immigration officials, it is probably time for the fraud radar to go off.

From the Advisor’s Perspective

So, how do I handle the question: can you guarantee success?

I usually start by giving the spiel I described above. Anybody who guarantees success without reviewing a client’s file thoroughly (review of ATIP, review of previous work/background, and the law) is probably doing a disservice.

I also note that my value add as a lawyer is to utilize my knowledge of the law and my understanding on concepts such as Officer discretion, administrative law, and my work reviving back-end refusals to give a client the advice they need on the front end. I am also a fan of immigration pathway planning where in the event success cannot be achieved on Plan A, we always have a Plan B. In the words of my best friend, Dav, “always enter, with an exit strategy.”

I am also very honest about how many years I have been doing immigration and my experiences in certain areas. I tell client’s where I know the law but may have limited practical experiences and that they can trust me to do it or I can refer them to a colleague who has expertise in their area. I highlight stories of success, as parables, but caution that every case depends on it’s merits and is subject to discretion and interpretation of law.

I also am very realistic about timeframes. Right now, with IRCC putting up bulk numbers (12 months) for all visa offices for family sponsorships and real uncertainty around paper-based processing  (especially implied status applications), any randomly-generated number would be a stretch. I can only utilize examples where I can a sample that I can choose from. I always caution any estimates I give based on previous experiences as not necessarily being representative of any particular case.

Being Honest is  Not Underselling

Particularly in today’s competitive environment, where there are literally thousands of practitioners who are able to do what you do to some degree of proficiency, it is important not to get into the business of overselling oneself. Ego-driven practices do not help a client, who often needs a practitioner who can bring the law and the experience to their level of understanding, and it certainly does not help the health of a practitioner, focused entirely on results as a validation of success. You talk to some of the best immigration lawyers (I won’t name names because I will inevitably forget many good ones), and you will notice they lose their fair share of very challenging cases. These losses, like scars, eventually strengthen the outer shell and deepen their knowledge of the law.

Just recently, I lost a Federal Court case that did not get Leave on. I put hours into drafting my memorandum of argument, hours more into the reply. I produced arguments for an area of law that has never been tested at a judicial level. The Federal Court decided not to hear it and to deny leave – likely following a strict interpretation of the law and the limitations of the reasonableness standard. While disappointing and not a “success”, I feel empowered by the time spent engaging and interpreting a provision of law and I am confident that the next case I can reframe in a more effective way. The client, though disappointed, appreciates my honesty and appreciates the fact that I will stick with them because we foresaw the possibility and will need to re-calibrate our options.

I think if we all re-think “success”, we will better serve our clients and be better “trusted” representatives to our clients.

 

 

 

 

 

 

New Commentary on the End of Conditional PR for New Canadian Media!

Hi VIB Friends:

I have been super busy recently with several interesting engagements – including talking at a global conference in Vancouver earlier this month. I am going to San Francisco tomorrow for two days to speak to international students at HULT International Business School and am very ecstatic about that! San Francisco is a beautiful city and I am sure I will be reliving some nostalgia from my first trip with my father, mother, and then baby sister many, many years ago.

In the meantime, I wanted to share with you my latest piece on Conditional Permanent Residence and why I am happy it has been culled from Canadian immigration law as April 28th.

See here: http://newcanadianmedia.ca/item/41217-shifting-our-conversations-from-marriage-fraud-to-marriage-breakdownhttp://newcanadianmedia.ca/item/41217-shifting-our-conversations-from-marriage-fraud-to-marriage-breakdown

I hope every has a great two days! Crossing my fingers for a clean border crossing via Nexus! 😀

Will

Why Canada’s Punishment for Inadmissibility for Misrepresentation Needs to Be Both Tougher and Softer

Within the realm of Canadian criminal law there is a fundamental principle that the punishment should be proportional to the crime an individual convicted of. Under Section 718.1 of the Canadian Criminal Code it is written as follows:

Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

There are are also various sentencing principles meant to guide the discretion of decision-makers to ensure that the sentences are properly set down. These include factors such as potential rehabilitation and whether the punitive and societal aims of the proposed sentence are met.

During the previous government’s tough on crime focus, this led to the introduction of the Faster Removal of Foreign Criminals Act (FRFCA) which clearly was introduced with deterrence in mind when it came to punishing foreign nationals and permanent residents for misrepresentation. In my assessment, I believe that not enough attention was paid to the overall requirement of proportionality.

The Regulatory Impact Assessment Statement issued in support of regulatory changes states (my emphasis added):

1. Misrepresentation

An examination of the effectiveness of the IRPA’s current misrepresentation provision — that is, the two-year period of inadmissibility that bans a foreign national from entering or remaining in Canada because of directly or indirectly misrepresenting or withholding material facts that cause an error in the administration of the IRPA — determined that it is not sufficient to deter fraudulent applications, particularly for permanent resident applicants, as processing times in this stream can be in excess of two years. In those cases, permanent resident applicants who have been found to have provided false information can simply reapply almost immediately and wait in the processing queue for the two-year inadmissibility period to be completed. In practice, there is little or no consequence for these applicants.

Increase consequences for misrepresentation

Amendments to existing regulatory provisions related to misrepresentation would support legislative changes that provide a stronger disincentive for applicants to provide fraudulent information on their immigration applications. The changes would also help ensure that the processing of legitimate applications is not delayed by fraudulent permanent resident applicants who reapply and wait out their period of inadmissibility in the processing queue.

In addition, the increased consequences for misrepresentation would make Canada less vulnerable to immigration fraud by bringing consequences in line with Canada’s like-minded international partners. A stronger deterrent for misrepresentation would benefit Canadians by ensuring travellers and immigrants admitted to Canada meet the criteria established to support Canadian immigration objectives, and would increase public confidence in and support for Canada’s immigration program.

The two-year penalty is shorter than those imposed by Canada’s like-minded international partners, which makes the Canadian immigration system more vulnerable to abuse. Other countries appear to have more severe penalties, for example:

  • Australia: three-year ban on visas where false or misleading information is provided;

  • United Kingdom: 1-, 5-, or 10-year ban on re-entry (length of ban depends on severity of false representation); and

  • United States: lifetime inadmissibility (i.e. ban on entry) for visa fraud or misrepresentation.

See: http://www.gazette.gc.ca/rp-pr/p1/2014/2014-06-07/html/reg1-eng.php

I think one of the challenges is equating all of those caught under s.40 IRPA misrepresentation with fraudulent permanent resident applicants. There may be (and I have seen many) individuals who made genuine mistakes in misrepresenting themselves (or hiring the wrong person who misrepresented for them), when in fact they often had recourse to other routes such as their bona fide permanent resident applications.

Essentially, what you have amounts to a very broad provision under the immigration inadmissibility for misrepresentation (s.40 of IRPA) [separate from the immigration offense of misrepresentation under s.127 IRPA] which can cover several non men reus incidents such as unknowingly withholding material evidence or having a third party indirectly misrepresent on behalf of an unknowing applicant who has paid for the services.

In an overseas foreign national applicant’s situation, they can be issued a five-year ban in writing. This takes places, a majority of the time, after a procedural fairness letter is issued giving them the opportunity to make representations and supplements the refusal letter

In an inland situation, a foreign national applicant is written up for misrepresentation and referred to the Immigration Division who are usually bound to enforce the order. The first stage of this reporting process takes place at the Port of Entry or with the help of Inland Enforcement as coordinated by Canada Border Services Agency (“CBSA”).

Generally speaking CBSA is bound to pursue the misrepresentation allegation, but I have been successful in a few occasions to have them “commuted” (so to speak) to lesser non-compliance findings that can carry a one-year exclusion order. I strongly agree with this practice, but again I think without anything written down on paper to support it, it becomes a remedy that is difficult to ultimately rely on or seek – Good in effect, but not effective in law.

The Consequences of Misrepresentation are Heavy

As per A40(2) and (3) of IRPA, the inadmissibility period is five years. The FRFCA announcement added a five-year bar to applying for permanent residency.

Currently, there is a lack of clarity on whether IRCC has the discretion to ARC back a misrepresentation client as a permanent resident or only as a temporary resident. I have heard from various individuals in private practice that this is done but ultimately with some inconsistency.

I am currently in the process (by ATIP and coordination with various Immigration, Refugees and Citizenship Canada (“IRCC”) Offices/Officers to seek some clarity).  I believe there is some incongruity to allowing the ARC back of a temporary resident (a visitor or worker with a bona fide purpose), but not a permanent resident who may have been part of a genuine relationship unrelated to the misrepresentation.

I will not get to it in this piece, but there are also quasi-criminal, regulatory, and criminal punishments for misrepresentation that could render an individual inadmissible to Canada for criminality in addition to misrepresentation.

 

Why I like the U.K.- style Approach Better to Misrepresentation

I think applying a five-year inadmissibility and five-year bar on PR for misrepresentation is both too light and too heavy, all at the same time.

I am in favour of strict punishment of mens reus perpetrators of misrepresentation. Those that purposely committed or instructed the commission of fraud in order to seek entry or status in Canada. Individuals who are part of larger efforts to defraud fellow immigrants (in addition to being punished regulatory wise) should face the highest form of punishment.

However, there are simply too many cases where it really is the unfortunate promise of a purported “trusted immigration representative” or even cases of ignorance, albeit willful blindness, of Canadian law. I believe CBSA should have some legal recourse, written in legislation, to provide these individuals with a two-year bars or even a five-year inadmissibility period, but a waiver of the five-year PR bar.

I think the way to handle the issue of “discretion” is to make is clear that the Immigration Division/Visa Officer/Immigration Appeal Division’s decision is not subject to appeal in the case of a foreign national and that they have a broad ability to determine the reasonableness of the ban.

How would I re-write A.40(2) and (3) 

Disclaimer: this is not the law and merely my legislative rewriting for the purposes of this piece. Changes in italics.

  • Application

    (2) The following provisions govern subsection (1):

    • (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of between two and ten years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced. The sole discretion in determining the length of misrepresentation will fall to the Immigration Division or an overseas visa officer, in the case of a foreign national, or the Immigration Appeal Division, in the case of a permanent resident, and is not subject to the right of appeal.

    • (b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility.

  • Marginal note:Inadmissible

    (3) A foreign national who is inadmissible under this section may not apply for permanent resident status during the period referred to in paragraph (2)(a), subject to the discretion of the Immigration Division, in the case of a foreign national, or the Immigration Appeal Division, in the case of a permanent resident, to waive the requirement due to the Applicant’s mitigating factors.

  • (a) Mitigating factors can include, but are limited to:
    • (i) demonstrable evidence of the Applicant’s remorse;
    • (ii) demonstralve evidence of the Applicant’s efforts to come forward proactively with their misrepresentation;
    • (iv) demonstrable evidence that the Applicant has rehabilited themselves of the factors that have caused the misrepresentation and will not commit future misrepresentations; and
    • (v) demonstrable evidence that the Applicant’s misrepresentation is not related to the grounds by which they end to 
  • (b) The decision of whether to add section (3) as a term of the period of inadmissibility under section 3(a) will fall to the Immigration Division or an overseas visa officer,in the case of a foreign national, or the Immigration Appeal Division, in the case of a permanent resident, and is not subject to the right of appeal.

I think such a system would create a much more rehabilitative process for those who have made mistakes and are willing to correct them, yet at the same time can be used to punish those who have committed egregious misrepresentations.

What are your thoughts on this? Do you agree or do you like the one-size fits all, easy come easy go approach, that is currently written in law?

Being Careful About PR Card Extension Applications – Five Common Frauds/Misconceptions

Increasingly, in my practice, I have begun to see clients who are having permanent resident (PR) card renewal problems.

Generally, these individuals can be classified into a few categories:

  1. Individuals who were not diligent in preparing their PR card extension applications and made errors/omissions;
  2. Individuals who put their PR card extension applications in the hands of someone they shouldn’t have.

Today’s post will focus on those under group 2. As I have re-iterated in several previous posts, s.40 IRPA – misrepresentation can rear it’s ugly head in many forms. Initially,  at the stage of a PR who’s application is being investigated. Immigration, Refugees, and Citizenship Canada (“IRCC”) may launch an investigation and eventually this can lead to the issuance of an s.44 inadmissibility report and, eventually, a referral to Immigration Division for misrepresentation.

While the citizenship revocation process is still being dealt with at the Senate and (later) House of Commons level, citizenship can also currently be revoked on the grounds of misrepresentation for individuals that declared false dates on PR card applications and later used those dates as the basis for claiming their meeting of the citizenship residency obligation.

In this post, I will look at some of the recent permanent resident card fraud cases and hopefully my readers can arm themselves and ensure the individuals/representatives they are working with on their PR card applications will not put them at risk for misrepresentation.

Fraud/Misconception #1 – Passport Stamps are Not the Only Proof of Travel History

One of the common strategies I have seen some of the unethical practitioners take is recommend that their clients apply for a new passport with clean stamps and then claim no travel history. Individuals end up with new passports every few years to use to try and enter Canada on the basis of.

This is problematic in many ways. Passports are often, in reality, the least effective evidence for proof of travel history. From publicly available I-94 records (https://i94.cbp.dhs.gov/I94/) to Canada Border Services Agency (“CBSA”)’s own ICES Travel History to now increasing information-sharing powers with U.S. immigration authorities and Canadian tax authorities, there are so many avenues by which conflicting address history can be easily accessed.

Furthermore, should you be entering at a port-of-entry and subject to a flag or even raise concerns by your presence, the search and seizure of mobile devices and a review of your texts and emails would almost instantaneously give away your location. It is also not uncommon for CBSA to seize an individual’s passport and subject them to investigation at which time further cross-references will be made.

The only person you can really “trick” may be the Case Processing Centre-Sydney processing officer in issuing you a new card (if they don’t perform a diligent review on that present application), but your address history declarations will follow you on future applications.

On this note, be very careful as well with the provision of your passport to representatives. Ensure only to provide what is necessary (many times passport bio-data page and copies of stamped pages). Ask to see a copy of all material before it is submitted. It is a common fraud for stamps on passports to be altered or inserted. We have even seen this done, if you can imagine, on copies of passports. This, again, adds grave consequences to one’s application and ultimately will be uncovered sooner rather than later.

Fraud/Misconception #2 – Filing Canadian Taxes, Owning Canadian Property, or Taking “Employment” from a Canadian employer will resolve your residency issues

One of the common things I am told in consultations is that advice was received to “always file Canadian taxes” and that this would serve as some sort of shield against the residency obligation. Again, this is not correct. The filing of Canadian taxes is at the end of the day a voluntary driven process. Individuals can be deemed to be tax residents or clearly be tax residents, but it is ultimately up to the tax payer to file taxes in the right amount (or face CRA penalties). There are also very plausible situations where an individual meets the residency obligation by living in Canada for their first two years of their five year obligation, and then moves abroad and becomes a non-resident. Again, tax residency does not equal permanent residency.

The filing of “bogus” taxes many times can hurt rather than help an application. This is particularly true in the case of the “assignment abroad provision.”

Under Canadian immigration law, there is an exception that allows for a Canadian permanent resident to claim days outside Canada employed overseas while on a temporary assignment from a Canadian company as days in Canada. The legislative provision is written somewhat broadly, but in practice (and by Federal Court interpretation) the provision has been interpreted very narrowly. Needless to say, situations where an employee is maintaining their own employment or working in multiple positions overseas, while claiming that they are doing this on solely and on a full-time basis on behalf of a Canadian company that they have only ‘contracted’ with is unlikely to work for the purposes of renewing a permanent resident card. Indeed, even major companies that transfer their employees abroad (with no set term to the transfer) are cognizant in not over-promising that the transfer will work.

From a humanitarian and compassionate considerations perspective, trying to cover one’s trail with employment that is not legitimate will not serve well in either a residency obligation/removal order appeal and arguably can even be used as the basis for misrepresentation findings down the road.

Eventually, if you do go to appeal, Canada Border Services Agency hearing officers will usually do a pretty thorough job of sussing out your individual history. Claiming low income in Canada, while maintaining a millionaire lifestyle abroad will affect the Immigration Appeal Division’s assessment of factors such as establishment and efforts to return to Canada at the earliest time. Negative credibility assessments may be drawn against the Applicant affecting their overall chances of success.

That is not to say that there is not an exception. I have helped several clients navigate the exception, but it must be done with a collaborative effort (with the Employer) prior to the assignment and ideally when the permanent resident is currently working in Canada. The contract must be drafted very carefully and all parties must know the temporary nature of the transfer, and in most cases set a clear pathway for the permanent resident’s return to a local position.

Fraud/Misconception #3- My Friend’s Address Can Be My Residential Address

A residential address is supposed to be the address that an individual resides at. It is not supposed to be a mailing address. It is not supposed to be the address of friends who can serve as your “Canadian address.” Claiming a residential address in Canada while one is physically abroad creates major contradictions. The way the PR card form requires both travel history, address history, and work history creates three ways of cross-referencing addresses.

Creating too many false addresses (particularly where one is not aware of the addresses) is tantamount to putting unknown items of unknown providence into one’s luggage and attempting to fly to another country. Simply: don’t do it.

Fraud/Misconception #4 – Discretion/Humanitarian and Compassionate Grounds Don’t Exist

It is common for agents abroad not to advise on humanitarian and compassionate grounds. One of the reasons is these types of applications require a lot of preparatory work – explanation letters, supporting evidence, also occasionally case law. However, in many cases (particularly where there are Canadian children involved, major health issues in the family, or even genuine and honest mistakes, there may be some leeway. This leeway should always be pursued at the earliest instance (be it to the CBSA border officer writing up the s.44 report at the Port-of-Entry or to the IRCC upon a residency obligation review). There is a decent amount of discretion at the inland/IRCC level, if sufficient evidence exists. Waiting potentially years later (when much of the hardship dissipates or is backward looking) may hurt an overall application,

Fraud/Misconception #5 – My Children Can Always Save Me

Best interests of the child are required to be considered and to be given substantial weight. The Supreme Court in Kanthasamy and case law dating back to Baker, make this clear. However,  a child is not a panacea for humanitarian and compassionate grounds. For children that are very young, IAD members have made decisions suggesting the hardship on the child’s return to their home country may be limited. For children that are older (and close to exceeding dependent age), IAD members may suggest they are independent enough to pursue their own immigration routes. If illness or circumstances requires separation from Canadian children, ensure that all efforts continue to be made to care for and follow the progress of the child in Canada. With the growing trend of younger international student applicants who study in Canada while their parents work abroad, it is easy for a Canadian permanent resident to be classified along the same lines.

Hope the above was useful!

Again, if at all there are concerns about the competency or the ethical practices of your immigration representative, seeking a second-opinion is always an option.

 

 

Inspiration from the Kid’s Room on an Executive Retreat

IMG_3579

Greetings from Big White Ski Resort.  Specifically, greetings from the bottom bunk of the kids room on the bottom floor. Before you jump to conclusions, I did not get forced into selecting this room. There were more than enough rooms to go around and I could have chosen the Queen B. However, something about me (at the tender age of 28) being the youngest member of the FACL BC executive made it seem right that I take dibs on the kids’ room.

It has been a very reflective trip. For the first time in awhile, I’ve had time to listen and observe to other’s share their stories without needing to contemplate my own role as a lawyer (to my clients), or husband (to my wife), or son/brother. Although, l will have to admit to many here I do indeed feel like a younger sibling.

I have also been able to have intimate conversations with own mentors and colleagues who have experienced the hardships and challenges of being a young lawyer with mature responsibilities. One of the lawyers at this retreat has started two non-profits and is widely considered one of the most promising Asian lawyers in the country, a future L’Expert Rising Star, no doubt. Another, is in the midst of swimming against the current of traditional progression to pursue her own, independent God-directed journey. A third, is the face of success at what he does and still can share with me the seeds of discontent and the yearning for a more purpose-driven career.

To the young lawyers and students, the bottom of the bunk bed sleepers (such as myself), this is an important lesson. Even those who on the outside may emanate and define “success”, may inside be very much soul searching like you are. The reality is that life in law is not like the Super Mario games of your childhood where levels must be beaten to progress to newer worlds. Indeed, some levels, if played too many times without success can lead to the slowly diminishing of mushrooms, necessary for longevity.

How do we keep the proverbial flame alive particularly in a time when the economic pressures and forces are putting profits over people, product over process.

How do we commit to taking places meaningful to our visions for our legal careers (and further more, entire careers)? How do we make our mark in ways that we are proud of looking back and can positively influence others to build their own trails? How do we live a life that truly focuses on what is important to each of us individually rather than what others want us to believe is important?

Some questions I’m considering from my bottom bunk.

Responding to IRCC Procedural Fairness Letters – A Few Practical Tips

Introduction

For many individuals making Canadian immigration applications, the receipt of a letter from Immigration, Refugees and Citizenship Canada (“IRCC”) highlighting the insufficiency of the evidence provided or the potential allegation or misrepresentation is a very stressful moment.

For those that have received these letters, particularly applicants that are self-represented or sought the advice from a representative that “kept them in the dark” on their applications, this is often where hiring an immigration lawyer starts becoming a major consideration.

Especially in cases of misrepresentation, where the consequences of a five-year bar are so serious and the definition of misrepresentation so broad, this is where the response has to be timed very carefully, and I dare say it, near perfectly.

Before reading my piece, I would highly recommend pre-reading a few pieces from my senior colleague Steven Meurrens (here – on responding to procedural fairness) and (here – on extrinsic evidence). Steven does a very good job of highlighting the key principles taken from Federal Court jurisprudence.He is indeed a master of administrative law.

Some of Steven’s highlighted principles include:

  • the requirement that the Applicant knows the “case to be met” and that the Applicant has the opportunity to respond to extrinsic (i.e. third party) evidence;
  • that there are exceptions to the classification of extrinsic evidence, especially where the Applicant ought to have know that material would be consulted (i.e. company website); and
  • the idea that a procedural fairness letter cannot “bait and switch” – allege a set of allegations and concerns and then refuse on allegations that were not put forth to you; and
  • that if you would like to provide further information (that is pending) you will need to indicate this in your procedural fairness response.

I wanted to add to (supplement) Steven’s work a practical step-by-step analysis of how I breakdown a procedural fairness letter. DISCLAIMER: As with any example, it is not to be treated as overall legal advice. It is not also to suggest that I recommend going at it alone based on my experiences. What I want to do is to encourage a deeper level of thought before the immediate impulse to send back a response the next day stating “it wasn’t my fault for the mistake, it was the consultants” or writing a letter to immigration pleading them to give you leniency. I see these responses too often and often cringe when it is far too late for us to do anything about it (word of truth: there is often a point of no return).

In this piece, I will focus on a situation where an applicant is refused in the context of an economic immigration application (i.e. CEC) but I would suggest these principles are broadly applicable. I also note that much of the case law and jurisprudence, predated Express Entry which has very sped up the process of adjudicating applications. I will not get into the whole discussion of incomplete applications (subject of another post) in favour of discussing solely concerns over the merits and credibility of an Applicant’s application.

My Usual Process

1.Setting out Perimeters Prior to Submission of Application

My recommendations do not start with just the letter itself. Before submitting any application, it is wise to be aware that a procedural fairness letter or a request for further information is very common and more common in complex cases where the facts are messy.

For self-reps, this involves keeping a very good record of all documentation submitted. Scanning copies of all files prior to submission and keeping a running tally of issues you are concerned of can help prepare for the response.

If you are represented by a legal advisor, I stress this time and time again in my posts that you not should have but must demand access to all the materials submitted. I would set guidelines with my advisor to make sure anything submitted in final form is reviewed before it is submitted. You can also tell this advisor that you are aware of the procedural fairness letter process, that you are aware of the process of utilizing Access to Information to obtain a full copy of your file, and that you would appreciate timely passing on of all correspondence in original form. If you do not speak English, find a translator or interpreter to work on your side.  You can even use this opportunity to gauge the understanding of your representative of this process and their experiences. A lack of knowledge of these should be an immediate red flag. Make sure to retain your own copy of your immigration file and keep it in an accessible place. I recommend physical scanned copies too as forms often will revalidate or adjust and eventually serve as proof of anything other than an editable form.

I have heard too many horror stories of unlicensed consultants withholding misrepresentation refusal letters or putting in additional documents not at the request of the Applicant. These practices could have a devastating impact on your future application.

2. Studying and Breaking Down the Procedural Fairness Letter

The format of these letters usually follows a set pattern

  • The first paragraph or two paragraphs will be rather template language, alleging that you do not meet certain requirements of the Act on the basis of what you have submitted;

Procedural Fairness letter

  • The next few lines will (ideally) set out the specific nature of the allegation. Note that IRCC is not under the obligation to disclose entire transcripts of telephone verification calls or active investigations. The amount of negative evidence disclosed and the source of that evidence should be documented at this stage. IRCC has the duty of procedural fairness with respect to procedural fairness letters and content. Rather than try and explain it, I want to highlight a good summary found in Federal Court jurisprudence. In introducing the law of procedural fairness, Justice de Montigny writes in Chawla v. Canada (Minister of Citizenship and Immigration) 2014 FC 434:

14 It is well established that procedural fairness requires that applicants for permanent residence be provided a meaningful opportunity to respond to perceived material inconsistencies or credibility concerns with respect to their files: Qin v. Canada (Minister of Citizenship and Immigration), 2013 FC 147 at para 38, Abdi v. Canada (Attorney General), 2012 FC 642 at para 21; Zaib v. Canada (Minister of Citizenship and Immigration), 2010 FC 769 at para 17; Baybazarov v. Canada (Minister of Citizenship and Immigration), 2010 FC 665 at para 17; Hussaini v. Canada (Minsiter of Citizenship and Immigration), 2013 FC 289 at para 5 [Hussaini]). This entails that an officer’s reliance on extrinsic evidence without allowing an applicant the opportunity to know and reply to that evidence amounts to procedural unfairness: Amin v. Canada (Minister of Citizenship and Immigration) 2013 FC 206.

  1. Indeed, the Respondent’s own guidelines provide as follows concerning extrinsic evidence:

The applicant must be made aware of the “case to be met”, i.e., the information known by the officer must be made available to the applicant prior to the decision being made. For example, if an officer relies on extrinsic evidence (i.e., evidence received from sources other than the applicant), they must give the applicant an opportunity to respond to such evidence

Overseas Processing Manual, Chapter OP-1: Procedures, s.8 “Procedural Fairness”

  • If misrepresentation is a possibility this likely will be drawn into the language of the procedural fairness letter.

Procedural Fairness letter 2

The importance for IRCC of introducing this potential allegation, is that it can cover off potential credibility concerns. If no misrepresentation is alleged at this stage (in content), then it is likely an issue with sufficiency of evidence. However, my experience is that they will do both in most cases.

3. Performing a Background Review

One of the first things to do is order an Access to Information request for the full physical and electronic notes on file. My colleague out in Alberta, Immigration Lawyer Mark Holthe, has put together a good guide on this.

Generally, clients will retain us to go through their previous submission and as well the Electronics notes of the Officer to better understand the discrepancies. The Access to Information process can take 30 days or longer so at this stage you also want to determine when and how you can ask for an extension of time to file a response.

Generally, IRCC is pretty good about giving decent extensions (as this is an important part of procedural fairness). Do not be afraid to ask and certainly do not think that you responding on day 1 vs. day 30 will impact the success rate. While, it may speed up the processing to respond quickly, it could also very well speed up the refusal process.

At this stage, the material and notes you saved from your earlier work will be also very useful.

4. Determining the scope of allegations – insufficiency of evidence, credibility, or both

Start by determining what the alleged concerns are with respect to. In some cases, it may be that the application is insufficient due to documentary evidence. In this case, your goal is to supplement the material. In some cases, there will be credibility concerns over whether you indeed performed the tasks you have stated in an employer reference letter. In those cases, you will need to provide proof by way of additional positive support. In many cases, it is actually your mistake (administrative error, forgetfulness) that has triggered a procedural fairness letter. I like to start by laying out all of the Officer’s concerns and coding them accordingly. Many times they will be lumped into a longer paragraph in a refusal letter so it is important to read over the middle sections of these letters a few times.

5. Corroborating positive evidence and explaining deficiencies

The final step is determining who will be providing support and in what means. In the case of a negative employer verification call, you may need to go to the source for clarification and to seek a rescinded letter of support. You may contact work colleagues or other individuals (customers, partners) with knowledge of your situation. You may want to show proof of projects you were involved with or duties you performed by way of photo evidence. You may have evidence that was not initially submitted that would make a huge difference at this stage.

6. Possibly seeking legal counsel

At this stage, it may be useful to start engaging a lawyer to set out the appropriate legal framework. This is particularly true if the procedural fairness letter leaves something to be desired or appears to be a “bait and switch.” If you do not know the case to be met, you need to indicate this in your response letter and ask for additional procedural fairness. Here, a lawyer can assist in setting out parallel cases and drawing relevant legal principles (such as those Steven epoused in his blog posts)

I Received a Refusal … What next

For an applicant for permanent residence, there is no right to an appeal provided under IRPA or IRPR. The decision at this stage is between the following:

  1. Seek Reconsideration;
  2. Seek judicial review
  3. Seek a new application

On point 3, there obviously has to be a consideration of current eligibility. For many applicants, the processing time renders them no longer eligible (although with the new Express Entry system) this has somewhat changed.

Individuals (and representative’s) have different opinions on this but I like to pursue reconsideration only when there appears to have been a clear or relatively apparent communication error made by IRCC or made as a result of an IRCC request.

While specific to the H&C context I have used the below guidance when seeking reconsideration and was successful on several occasions.

Factors to consider when deciding whether to reconsider:

You must first determine whether a reconsideration of a previous H&C decision is warranted based on the information submitted. The onus is on the applicant to satisfy the officer that the reconsideration should be done. You should consider all relevant factors and circumstances to determine whether a case merits reconsideration. The following is a non-exhaustive list of factors that may be relevant to consider:

  • Whether the decision-maker failed to comply with the principles of natural justice or procedural fairness when the decision was made.
  • Whether the applicant has requested correction of a clerical or other error (e.g. a decision was made by an officer who did not have the delegated authority).
  • If new evidence is submitted by an applicant, is the evidence based on new facts (i.e. facts that arose after the original decision was made and communicated to the applicant) and is it material and reliable. Decide whether that evidence would be more appropriately considered in the context of a new application.
  • When additional evidence is presented that was available at the time of the original decision, consider why it was not submitted at the time of the original application. Determine whether that evidence is material and reliable.
  • The passage of time between the date of the original decision and the date of the reconsideration.
  • Whether there were any concerns regarding fraud or misrepresentation relating to a material fact, in the original decision or with the new submissions.
  • If there is a negative decision from the Federal Court after judicial review, you may refuse to re-open if there are no extenuating factors to warrant reconsideration.

I also very much like Justice Phelan’s analysis in Lim v. Canada 2016 FC 217 (see esp. paras 21-24) and try and fit it in wherever possible. As I have written previously as part of a successful reconsideration submission:

Justice Phelan

Judicial Review

Where I have been able to successfully challenge several refusals of PR applications is on judicial review.

My practice involves, as discussed above, looking closely at the Rule 9 Reasons and ATIP results to breakdown the Officer’s reasoning.

One of my favourite legal cases to cite is an old case, Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) 1998 8667 (FC), (1998), 157 F.T.R. 35. The principle that while not

¶ 16       On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.

¶ 17       However, the more important the evidence that is not mentioned specifically and analyzed in the agency’s reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact “without regard to the evidence”: Bains v. Canada (Minister of Employment and Immigration) reflex, (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency’s finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.

Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration) 1998 8667 FC at paras 16-17.

Your case may be one where the Officer has made an unreasonable decision by not weighing or balancing evidence that was positive and focusing only on small non-material details. These omissions are very crucial to challenging the overall reasonableness of the decision against the broad Dunsmuir threshold.

When an application is refused on the merits, there is generally no obligation to provide a running score. If the concerns rise from the Act or Regulations, you do not need to be given another opportunity to respond.

As per Justice O’Keefe in Vikas v. Canada (Citizenship and Immigration), 2009 FC 207 (CanLII)

[18]           First, the officer was not under any obligation to provide the applicant with a “running score” at each step or to stress all of her concerns which arose directly from the Act and Regulations that bind the officer’s assessment: Abanzukwe v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1181 at paragraph 11; Ali v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 7681 (FC), [1998] F.C.J. No. 468 at paragraphs 18 to 21; Ashghar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1091 at paragraph 21. The cases cited by the applicant are not applicable because they relate to concerns arising from extrinsic evidence, rather than the Act and Regulations.

However, if they do refuse you on the merits some assessment of the reasons for your refusal on the merits must be presented:

In the recent case of Singh v. Canada 2017 FC 132 argued by my mentor Raj Sharma, this was not done. In Singh, the officer had concerned about Mr. Singh’s qualifying work experience for the Federal Skilled Worker program. In response to the procedural fairness letter, the Applicant corrected his record relating to previously undisclosed work and provided substantial corroborating evidence. Justice Barnes found that the officer’s decision was unreasonable (emphasis added):

[8] Mr. Sharma contends that the Officer paid lip service to Mr. Singh’s response to the procedural fairness letter and that he failed to engage in a meaningful way with the evidence supporting his employment with M. Singh & Co. I agree with that submission. The Officer’s failure to refer to this evidence or to explain why it was insufficient to overcome the initial concern about Mr. Singh’s work experience renders the decision unreasonable.

[9] On its face, the evidence supplied by Mr. Singh was probative and corroborative of Mr. Singh’s declaration of prior work experience with M. Singh & Co. The evidence included a copy of the relevant employment contract, numerous pay stubs, the professional status of the firm, and, under company seal, Indian income tax records. These were the very things the Officer had requested to address his initial concern, and yet Mr. Singh was left to wonder why they were rejected as unreliable. Indeed, these documents carried all of the expected indicia of reliability and, therefore, required careful consideration.

[10] The Officer’s lingering concern about an overlap between Mr. Singh’s accounting studies and his employment was also misplaced. If the Officer had taken care to examine the relevant records, he could only have concluded that Mr. Singh’s accreditation studies required corresponding internship employment. The fact that he was studying and working at the same time was not suspicious – it was expected.

[11] The Officer’s failure to engage with the evidence presented in support of the application before him is fatal to the decision and the decision is, accordingly, set aside. The matter is to be redetermined on the merits by a different decision-maker.

 Singh v. Canada 2017 FC 132

In terms of procedural fairness, you want to make sure that any credibility finding or misrepresentation finding was put to you before a decision to refuse was made. There is good case law on situations where Employers or former employees (by way of extrinsic evidence) gave negative testimony and that the recantations or evidence provided in response by the Applicant needs to be examined. In order to determine that the Applicant had lied, there needs to be proof on the balance of probabilities suggesting that this occurred.

Note, however, that there is no automatic right to an interview by a visa officer. These interviews arise on the merit. As restated by Justice de Montigny in Chawla:

[21]           There is one further argument made by the Applicants that needs to be addressed. Counsel for the Applicants submitted that the Officer should have interviewed the principal Applicant regarding the credibility concerns after his telephone conversation with Mr. Naresh. There is no right to an interview in such circumstances, and the case law cited by the Applicants in support of their proposition goes no further than indicating that such a duty may arise where the credibility, accuracy or genuine nature of the information submitted by an applicant is the basis of a visa officer’s concern: see Ismailzada v Canada (Minister of Citizenship and Immigration), 2013 FC 67 (CanLII) at para 20, citing Hassani v Canada (Minister of Citizenship and Immigration), 2006 FC 1283 (CanLII) at para 24. The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways, in different situations. As long as an applicant is provided with an opportunity to respond and present his or her submissions, natural justice will be respected: Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 at para 33.

Conclusion

This is (as my post probably outlined) a very complex and often convoluted area of the law. Making sure initial applications are “judicial review proof” and pre-addressing any gaping holes is by far, the best strategy. Leaving a deficient application in the hands of an Officer can often take more work fixing than it originally would have taken to prepare a strong application in the first place.

I cannot emphasize enough that all Applicants (self-represented or represented) can no longer simply submit forms (or fill out the online eAPR form as it may be) and expect everything to explain itself. There are letters of explanation sections to Express Entry applications for a reason. Representative submission letters or covering letters explain for a reason. No Applicant or Application is ever perfect and the balance of probabilities, more often than not, turns on putting the proper preparation and time into the process and massaging imperfect facts into reasonable explanations.

New Can/Xun (Sunny) Wang and the Citizenship Revocation Process

The latest numbers show that Canada Border Services Agency (“CBSA”) is moving on the Xun “Sunny” Wang files. To date,  there have been 1632 Suspected New Can Clients and 503 Pending Investigations. The number of new cases has decreased and it is not expected that the total number will top 2500.

What is interesting now is the 219 citizenship revocation cases that CBSA has referred to Immigration, Refugees and Citizenship Canada (“IRCC”). IRCC is responsible for taking action on those files that they wish to pursue by initiating the citizenship revocation process. This is not in any ways unique, Similar citizenship frauds led to similar citizenship revocation proceedings in Eastern Canada in the past several years.

How the Revocation Process Works For These Types of Cases

Under the Citizenship Act, an individual can have their citizenship revoked for fraud, false representation, and knowingly concealing material circumstances:

Revocation by Minister — fraud, false representation, etc.
  •  (1) Subject to subsection 10.1(1), the Minister may revoke a person’s citizenship or renunciation of citizenship if the Minister is satisfied on a balance of probabilities that the person has obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances.

Worse yet, in the case for many of the 219 New Can/Xun “Sunny” Wang clients who fall under the fake employment to achieve PR category, if the false representation, fraud, or knowingly concealing material circumstances occurred in the context of obtaining permanent residence, the individual could fall under section 10.2 of the Citizenship Act. Under this section, the revocation proceedings could revert their status to foreign national.

Presumption

 For the purposes of subsections 10(1) and 10.1(1), a person has obtained or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances if the person became a permanent resident, within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, by false representation or fraud or by knowingly concealing material circumstances and, because of having acquired that status, the person subsequently obtained or resumed citizenship.

  • 2014, c. 22, s. 8.
Marginal note:Effect of revocation

 A person whose citizenship is revoked under subsection 10(2) or paragraph 10.1(3)(b) becomes a foreign national within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.

  • 2014, c. 22, s. 8.

At that stage, s.40 (of the Immigration and Refugee Protections Act [IRPA]) misrepresentation could be initiated, for which a foreign national would have no right of appeal to the Immigration Appeal Division pursuant to s.64 and s.65 IRPA. Misrepresentation, if confirmed by the Immigration Division, would then lead to an exclusion and a five-year bar on entry and re-applying for permanent residence. Dependent family members (sponsored by the misrepresenting party) would also be caught by that provision rendering them inadmissible as well.

Expect Some Delay in these Cases

Putting my predictive lens on, I think that there will be some delay in IRCC pursuing those 219 cases. Currently, there is class-action litigation being launched by Lorne Waldman, BCCLA, et. al to challenge the constitutionality of the citizenship revocation process under the Strengthening Canadian Citizenship Act that was introduced under the Conservative government. Cases that are added to that class action litigation are being stayed by the Federal Court pending resolution of the legal questions. These questions, focused on claims that the revocation process violates s.7 of the Charter, will likely go up to the Supreme Court, it could be several years before those cases are finally decided.

Specifically, the revocation process is being challenged as summarized in Monla v. Canada (Citizenship and Immigration), 2016 FC 44 (CanLII) by Justice Zinn:

[79]           In each of the Initial Revocation Judicial Review Applications, it is alleged that the revocation procedure provided for in the Amended Act violates the rights to liberty and security of the person in section 7 of the Charter, and the right to a fair hearing under paragraph 2(e) of the Bill of Rights.  These claims are premised on the fact that the citizenship revocation process under the Amended Act does not require that the Minister to disclose to the affected person all relevant information in his possession, does not provide the affected person with a hearing before an independent and impartial decision-maker, and does not guarantee an oral hearing in all circumstances where it is required.

It is important to note that the Government did not amend the revocation process in Bill C-6, and I do not think that new government legislation changing the Citizenship revocation process is likely.

As it currently stands, those individuals if issued revocation intention notices by the Government would likely join in on the class-action litigation.

Pursuant to the Monla stay order, any case added to the class action will result in the Minister being enjoined from taking steps to act on notices to revoke Citizenship.  This is set out in British Columbia Civil Liberties Association v. Canada (Citizenship and Immigration), 2016 FC 1223 (CanLII).

[5]               By Order dated January 19, 2016 [the Monla Stay Order], the Court enjoined the Minister from taking any steps or proceedings under the notice to revoke citizenship in eight specific applications for leave and judicial review until they are finally determined.

[6]               Following a case-management conference held February 5, 2016, with respect to the Group 2 Revocation Judicial Review Applications, the Court issued an Order dated February 23, 2016, that effectively enjoined the Minister from taking any steps to act on any future notices to revoke citizenship provided the affected person brought an application for judicial review of that decision [the Case-management Order].  Paragraph 3 of the Case-management Order provided as follows:

The Minister shall take no steps or proceedings under a notice to revoke Canadian citizenship issued under the Citizenship Act as amended by the Strengthening Canadian Citizenship Act relating to an application for judicial review that is now or in the future included in the Group 2 Revocation Judicial Review Applications, until notice is provided to the applicant and the Common Legal Issues have been litigated on the basis of the Lead Cases have been finally determined.

However, failure to join the class action case can be detrimental to an Applicant who seeks to make similar arguments (abuse of process, s.7 Charter) at this stage.

In Chabanov v. Canada (Citizenship and Immigration), 2017 FC 73 (CanLII), Justice Strickland upheld the Minister’s decision to revoke the citizenship of an individual who was found to have obtained permanent residence status, and subsequently Canadian citizenship, by false representation, fraud, or by knowingly concealing material circumstances. In Chabanov, the Applicant did not declare a previous criminal record when applying for permanent residence of his dependent spouse, the principal applicant.

Justice Strickland set out early in his observation the following:

Preliminary Observation

[28]           In other, unrelated proceedings, the Revised Citizenship Act revocation process has been challenged on a number of grounds, including that it violates the Canadian Charter of Rights and Freedoms (“Charter”).  Eight of those challenges were heard together in Abdulla Ahmad Hassouna v Minister of Citizenship and Immigration (T-1584-15) on November 15, 2016, however, a decision has not yet been rendered in that matter.  In view of the challenges, this Court has also been proactively case managing applications for judicial review commenced by applicants who have received notices of intent to revoke citizenship under the Revised Citizenship Act, including the issuance of stays in certain circumstances.  In this case, citizenship was revoked pursuant to the procedure contained in the Revised Citizenship Act and prior to the filing of the application to review the revocation decision.  As the Applicant in this matter did not seek a stay, the matter proceeded (Monla v Canada (Citizenship and Immigration), 2016 FC 44 (CanLII); British Columbia Civil Liberties Association v Canada (Citizenship and Immigration), 2016 FC 1223 (CanLII)).

It is important to note however that in the same British Columbia Civil Liberties Association v Canada (Citizenship and Immigration), 2016 FC 1223 (CanLII)) that I cited from earlier above, Justice Zinn refused to issue an interlocutory Order staying the operation of subsection 10(1) of the Citizenship Act. The BCCLA had sought this order for the purposes of assisting those who had received a notice of intent to revoke citizenship and who did not commence an application for judicial review “either because they lack the knowledge, resources or skills needed to retain counsel.”

The order was barred in large part it appears from the fact the stay in Monla granted a way to avoid harm. Irreparable Harm is part of the tripartite test for a Stay.

Justice Zinn wrote:

[25]           Because the harm that may follow receipt of a Notice of Intent to Revoke Citizenship is now an avoidable harm, injunctive relief is not available and these motions must be dismissed.

Justice Martineau upheld a similar line of reasoning in a recent November 2016 decision in Al Madani v. Canada (Immigration, Refugees, and Citizenship), 2016 FC 1263 (CanLII)  where he dismissed a stay.

Ultimately, in the New Can group of cases should be prepared to receive IRCC’s  notice of intention to revoke and add themselves to the list of those cases where stays are being sought.

It does seem nonsensical, from a practitioners standpoint, that an individual who misrepresented and obtained permanent residence but not citizenship (who has the right to appeal on H&Cs) has more procedural rights than an individual who misrepresented, obtained permanent residence, and then applied and was granted citizenship who can become a foreign national simply by Ministerial action.

The Question of Intent in the Context of s.10(1) of the Citizenship Act

What will be interesting, irregardless of the outcomes in the class action suits, is how the Federal Court continues to assess the question of “intent” in the context of misrepresentation for Citizenship Applications.

This was one of the important findings by Justice Strickland in Canada (Citizenship and Immigration) v. Zakaria, 2014 FC 864 (CanLII) where a summary judgment motion was brought by the defendant seeking to dismiss the revocation action against two dependent children who argued that there was no arguable case against them. Justice Strickland dismissed the motion.

I strongly recommend reading this case, particularly paragraphs 55 to 84. The issue was whether any of the three heads of citizenship revocation due to false representation, fraud, and knowingly concealing material circumstances did not require “intent.” This is an important issue, as there are material differences between the wording of s.40 misrepresentation under IRPA which does not require intent by the use of the wording “indirectly.”

As you will note IRPA section 40 is written:

Misrepresentation
  •  (1) A permanent resident or a foreign national is inadmissible for misrepresentation

    • (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

Justice Strickland, disagreeing with the Minister’s position that intent is not part of false misrepresentation, finds that Parliament must have intended mental intent to be an element in all three (in the absence of language excluding intent from false misrepresentation).

However, he writes that this not preclude the fact false misrepresentation by a parent (who had requisite intent) could not be transferred to the child applicant, particularly where the Citizenship instructions appear to suggest they do. He writes:

[76]           I have some difficulty with this position.  It seems to lack logic that, if some but not all of these terms have been found to include intent by the Court, this demonstrates that Parliament would not have intended intent to be an element of the whole of the provision.  It seems more likely that if intent is an element of one of these terms then, viewed in the context of the object of the section in whole, intent would be an element of all of them.  I also note that none of the cases cited addressed this issue.  Further, section 10 reads: “…obtained…citizenshipby false representation or fraud or by knowingly concealing …” (emphasis added) which appears to group false representation together with fraud, the latter of which clearly includes intent.

[77]           In view of the foregoing, I find that sections 10 and 18 do include a mental element and, based on the evidence, that Sami and Karim Zakaria did not have intent in these circumstances.  However, this is not the determinative issue on this motion for summary judgment.

[78]           By way of section 5(2) of the Citizenship Act and section 4 of the Citizenship Regulations a parent is explicitly permitted to make an application on behalf of their minor child or children.  Therefore, it has to be assumed that the information contained in that application is and was intended to be provided by the parent.  In that event, the child clearly obtains citizenship based on that information, which is admitted in this case.  Thus, in my view, as section 10 states that where the Governor in Council is satisfied “that any person has obtained…citizenship… by false representation or fraud or by knowingly concealing material circumstances, the person ceases to be a citizen”, it must be understood to mean that a minor is “any” such a person and that any false representation or fraud or knowing concealment of material circumstances, regardless of whether intent is a requisite element, must be that of the parent.  Otherwise, the provision would read “that a person has obtained citizenship by…that person ceases to be a citizen”.  In this regard, I agree with the Plaintiff that the focus of the provision is on how any such person obtained citizenship.

It will be interesting to see how this case (and the others in the class action litigation) play out moving forward.

What Should New Can/Xun “Sunny” Wang Clients Do?

Obviously there are no blanket answers and each case needs and deserves its own individual assessment. Some cases will include individuals who misrepresented to get permanent residence while others will include only those who misrepresented to maintain permanent residence. Those latter individuals will likely still have a right to appeal when all is said and done.

What is important, and what is often overlooked by practitioners, is the decision of whether and when to do a mens culpa (i.e. assume responsibility) and how to put together strong humanitarian and compassionate grounds to facilitate a defense against the removal of Citizenship or permanent residence status, as it later may be.

Too many practitioners have gone in with a view that their client holds zero responsibility.  I would argue that this is a dangerous approach and that more care and thought needs to be put in at an earlier stage to properly chart out realistic outcomes for clients.

On the note of humanitarian and compassionate grounds, it is clear that best interest of the child and hardship need to be explored to a deeper level to avoid the possibility of a client’s situation being painted with the same brush as other New Can cases. Currently, the running tally at IAD is 4 cases brought before members, and 0 appeals allowed. More success, so far, as been obtained by those who CBSA has chosen not to refer.

I would suggest that there will likely be fact scenarios that do succeed, but that this will be determined by the efforts put in by counsel and Applicants to narrate the discretionary factors unique to individual cases.

What Her Weathered Eyes Tell Me – A Poem

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Her weathered eyes tell me she’s seen some things;
Her neatly knitted red hat each stitch each seam;
She speaks not it seems in complex phrases;
She could have been here three decades but to you she’s the same as;
That Chang that Chong, too many Wong’s its wrong;
Like her only place at the table should be slurping Wontons at Hons;
You worry about your own backyard, call her the product of an invasion;
You paint her with the same brush, like all calligraphy must be Asian;
She wants nothing more than to say hello and have you smile back:
She tired of you saying go home, like she’s a pre-1960’s black;
Her wrinkled hands washing white rice, but to you it’s crack;
But she ain’t going nowhere, homie I’mma assure you of that.

Cause her nose has smelled the burning of bodies on the street;
She’s been through so many medical treatments, she’s immune to all disease;
She knows the games you playing when you raise up all your fees;
She’s dealt with enough shit, from fleas to trynna flee;
She doesn’t need you debating whether she still a refugee;
All she needs is you to tell her that her presence fills a need;
That her picking up your cans, truly helping clean our streets;

You might never know her name, but her story can’t be washed away;
She’ll wake up every morning, cause every morning it’s the same;
Maybe for a minute stop and say how goes your day;
Cause tomorrow when she doesn’t show up for work, you’ll be regretting what you didn’t say.

“You are my family. Thank you.”