All posts by Will

Why New Zealand’s Interim Visa Might Be Canada’s Next Adopted Policy

Implied Status can be complicated.

During the COVID pandemic, I have heard from both employers and employees that understanding when a worker can or cannot work is confusing, and leads to legal risks. Many employers have taken a more conservative approach that has left workers who have authorization to work and are awaiting a renewal, unable to engage in work.

Implied Status has also created the potential for abuse, specifically many unscrupulous agents and consultants will claim to have assisted on helping, even going so far as to fabricate Acknowledgment of Receipts (“AORs”) or other type of correspondence.

A third ‘challenging’ element I have found many applicants have is either when they are switching between different types of permits (study permit and work permit to visitor) or have multiple applications in process.

I recently was part of a consultation with IRCC, where it was hinted that there was going to be a development in implied status possibly coming before the end of the year.

Armed with this knowledge, I recently had a conversation with my mentor Steven Meurrens about what change he might expect in this area. He said to look into the New Zealand model. This is what I will do this post.

Standard disclaimer: I am not a trained New Zealand immigration lawyer. I also do not have direct knowledge of what IRCC is doing. This post is merely speculative. However, as you know from my past work to speculate (and in the process, shape) Canadian immigration policy is what we are all about. 

Before I begin, we should know Canada has a history of borrowing from New Zealand. An Express Entry-style system was in place in New Zealand in 2004, before being adopted by Australia in 2012 and Canada in 2015 (see here for some historical context).

How Does New Zealand’s Interim Visa Work?

New Zealand issues interim visas for those with expiring visas, for a period of six months while their new visas are being processed. Note that New Zealand calls them ‘visas’ whereas they would be more equivalent to permits in the Canadian context.

My brief reading shows that this works much like implied status does in Canada, but importantly does provide clear proof and documentation. It is granted electronically and automatically. Conditions depend on type of permit previously held. From initial appearance, it does seem easier to change conditions on a permit in New Zealand, something I would strongly suggest for Canadian immigration which does require a new extension application rather than a quicker/simpler request model.

I highly suspect Canada will do a similar thing and issue a confirmation of extension through an interim visa which then could be utilized and provide clarification to employers of a worker’s ability to work. However, it will be interesting to see how the system adjusts for those who submit multiple types of extension applications. For example, spouses seeking an open work permit on implied status, may also choose to submit a visitor to guard against a returned application and loss of status. Another example of where this is commonly implied is where a student is applying for a post-graduate work permit but has eligibility concerns and simultaneously wishes to extend as a visitor or as a student. IRCC will need to do a good job in clarifying in publicly related material or a info guide that accompanies the permits, a clearer information guide. Right now, the IRCC website instructions on implied status lack a few crucial details and case examples. The New Zealand immigration website could certainly be a model in this regard.

A portion of the instructions from NZ Immigration site (https://www.immigration.govt.nz/new-zealand-visas/apply-for-a-visa/about-visa/interim-visa#https://www.immigration.govt.nz/new-zealand-visas/already-have-a-visa/your-visa-conditions/interim-visa-conditions/slider)

Finally, the great thing about the interim visa is that if it is declined or withdrawn there is a 21 day period to leave New Zealand. In the context of a Canadian temporary resident extension, should an individual be rejected, they would lose status immediately and become inadmissible and possibly deportable. A 21 grace period (for both extension and withdrawals would definitely input a much needed buffer between admissibility and inadmissibility. That being said, I don’t see the Canadian system going this way.

What I Hope is Different with a Canadian Interim Permit

With all the praise I have showered the New Zealand interim visa, there are certainly some flags as well that should be mentioned.

According to the website, New Zealand does refuse a visa if a decision on an interim visa has not been made in six months. That would be highly problematic, from my perspective, in cases that do require further review. Several clients have recently contacted me because their extension applications are in the 8th and 9th month of processing due to some further review or complications. Refusing someone due to IRCC administrative delay would be problematic.

The other major flag I would put on such an interim visa would be to try and ensure that this visa does not become an algorithmic way to refuse applicants earlier in the process. Right now, one of the big limitations of decision-making are the application forms themselves, which from my understanding flag but still require further triaging for decision-making purposes (for example on criminal inadmissibility, misrepresentation, and not-actively pursuing studies). If algorithmic decision-making leads to instant/quick refusals on interim visas, this process needs to be done as transparently as possible to ensure not only consistency but procedural fairness.

What do you think about interim visas? Should IRCC adopt them? Is this the anticipated change or do you think it is something else?

Get at me – will@edelmann.ca or write me – perhaps we can guest blog feature you.

Why Rain is Right: There is No Principled Reason for Why A Canadian Temporary Resident Should Be Denied the Right to Change Their Legal Gender

Rain Edmond, a third-year political science undergraduate student, recently wrote an op-ed for her university’s Memorial University Gazette that raises an important question about a policy gap disproportionately affecting the intersection of the transgendered and temporary resident communities.

In her piece, Rain, an international student, highlights the challenges she has had in changing her legal gender in Canada as a result of her immigration status, a plight not shared by Canadian permanent residents and citizens who are able to request Verification of Status (“VoS”) documents in Canada to change their legal gender. She writes:

 “Individuals like me who are labelled international students and foreign workers live in, work for, and contribute to communities all across Canada. There are also people who come to Canada seeking a safe harbour, waiting for a decision on their asylum applications.

 We are labelled temporary, and relegated to second-class status. Our legal documentation reflects an identity which is not ours, and which we cannot correct.”

 IRCC’s policy (with an emphasis that this is policy and not enshrined in legislation or regulation) is that temporary residents – international students, temporary foreign workers, and even refugee claimants are unable to change their legal gender from what is listed in their passport.

This creates obvious illogical complications. Many temporary residents come to Canada from situations, where for political, religious, and familial reasons, they are unable to change their legal gender or claim non-binary gender on crucial original documents such as passports and birth certificates. We saw an example of this with Naomi Chen, the transgender refugee claimant from Hong Kong who was forced to make her refugee claim as a man, when the very basis of her claim was on the basis of persecution because of her identification as a woman

For some reason, the Canadian immigration system attaches the ability to legally change gender on the successful granting of permanent resident status or recognition as protected persons, as if it only when they cross the threshold of welcome mat are they able to shed the very painful weight and barrier that may be keeping them from entering the door in the first place.

There are of course the practical implications. You think of the international students, who must fill in countless forms from registration at universities to providing proof of their identity. You think of temporary foreign workers who are already discriminated against when they are applying for jobs, who now in disclosing their status and work legality to potential employers must provide further explanations around gender discrepancy.

What is the fear if we allow temporary residents to change their legal gender?

Whatever floodgates/system integrity argument upholding needs to be tempered by the recognition that legal gender is at the fundamental core of a too-often stigmatized identity. The Human Rights Tribunal of Ontario in XY v Ontario (Government and Consumer Services), 2012 HRTO 726, [2012] OHRTD No 715 [XY] stated:

“it is beyond debate that transgendered persons […] are a historically disadvantaged group who face extreme social stigma and prejudice in our society”, while noting at paragraph 215 that the former requirement “is based not on transgendered persons’ actual characteristics but on assumptions about them and what they must do in order to “be” their gender”.

Cited by Justice Martineau in Chédor v. Canada (Citizenship and Immigration), 2016 FC 1205 (CanLII), at para 14.

We know that in the context of sexuality in the refugee determination processm (especially bi-sexuality and homosexuality), that the perceived lens of heterosexuality and normativity burdens refugee claimants trying to establish their identity and prove one’s persecution (see: Dr. Megan Gaucher in her seminal book A Family Matter: Citizenship, Conjugal Relationships, and Canadian Immigration Policy [UBC Press, 2018] at Chapter 3 (see especially paragraphs 76-94).

Harsha Walia, now Executive Director of the British Columbia Civil Liberties Association, in the quote that prefaces the Chapter and the numerous case examples provided by Dr. Gaucher, that “this most impacts queer and trans-refugees.”

The number of published, transgendered-based immigration tribunal and Federal Court judicial review decisions still is relatively limited and provides only pockets for legal analysis. This is understandable as the Immigration and Refugee Board (“IRB”)’s Sexual Orientation and Gender Identity and Expression (“SOGIE”) Chairperson’s Guidelines, are only a few years old, having been introduced in 2017. Members are still in the early stages of interpreting and applying this guideline to their decision-making.

There have been some positive decisions. To draw just one example, in Pirmousaei v Canada (Citizenship and Immigration), 2019 CanLII 130750 (CA IRB), the Immigration Appeal Division (“IAD”) Member allowed the appeal of a transgendered Iranian woman who failed to meet her residency obligation because her family tricked her to return to Iran, stole her travel documents, and did not accept her transgendered identity. The Member took no issue with credibility, commenting simply:

[9]               There is no dispute, there is no evidence before the panel to doubt that the

Appellant arrived in Canada as a Convention refugee. The panel also have no doubt to believe that she is a trans-woman from Iran.

I would offer, on the end of the spectrum, the Refugee Appeal Division (“RAD”)’s decision in X (Re), 2019 CanLII 120788 (CA IRB), where the Member found a misgendering concern raised later after the RPD and the lack of documentary evidence in transgendered persecution, fatal in dismissing the appeal

The RAD Member’s criticism towards the Claimant for not raising the misgendering issue earlier at the Refugee Protection Division (“RPD”) hearing reveals the legal impact of not offering Claimants the clear ability to change their legal gender prior to the process.

The Panel writes in rejecting the Claimant’s argument that misgendering was a ground for appeal:

[54]           The RAD notes that the Appellant testified at the RPD hearing that he was raised as a boy by his parents, and that this is why he continues to dress as a male. The RAD, in its review of the audio recording, finds that the RPD asked the Appellant which gender he would identify himself if requested. The Appellant testified that he would identify himself as a woman. The RAD finds that the RPD could not be expected to anticipate that the Appellant would allege, post rejection of his claim, that he was misgendered or that he suffered from trauma which impacted his ability to present his claim. The RAD finds that the Appellant and his counsel bore the responsibility to raise this issue with the RPD at the hearing. The RAD notes, as previously discussed, that the Appellant tendered an affidavit from his counsel, in which he states that the Appellant did not present with any overt symptoms of trauma. As well, the RAD has noted that the Appellant showed little signs of trauma or impairment of his ability to present his claim.

(Emphasis added)

 In this same case, the RAD Member also criticizes the scarce documentary evidence corroborating the Claimant’s arguments of persecution on the basis of gender. This repeats a common theme as well in sexuality cases. As Dr. Gaucher highlights in A Family Matter, at page 85:

 “This suggests that country documentation can potentially trump claimant testimony should the two disprove each other. Claimant testimony is arguably considered well-founded so long as it corresponds with adjudicators’ preconceptions of sexual orientation and external documentary evidence.”

 In the X (Re) 2019 CanLII 120788 decision, the RAD Member writes a decision that mirrors this line of analysis:

[111]      The RAD finds in its review of the record that the Appellant has not adduced any evidence that he faced any of the problems described in the documentary evidence through his identity as a Hazara male. [112]      In respect of the Appellant’s targeting by a classmate, the RAD notes that the Appellant stated that he successfully avoided any further contact with XXXX following the XXXX XXXX, 2016 episode. As much as the Appellant alleged that he received telephone threats two days following the episode, he addressed the problem by removing the sim card from his cellular phone. The RAD notes the Appellant alleges he remained in Afghanistan for two months prior to fleeing the country without any further interaction or problems from XXXX. The RAD finds the Appellant has advanced insufficient persuasive evidence to indicate that this individual would pose any sort of risk to the Appellant over three years later. [113]      The Appellant has argued that an individual with a transgender identity could simply not exist in Afghanistan and that this is confirmed by the Appellant’s own experiences of being targeted by a classmate for rape and murder. The RAD has addressed this concern and found that the Appellant has not provided sufficient credible evidence to support his allegation that he would face a risk of persecution or harm, should he return to Afghanistan. His argument must fail.

With such evidentiary barriers already embedded in the refugee determination process that we know will make Transgender claims more difficult to present and adjudicate,  I would suggest eliminating front-end barriers such as misgendering and the inability to choose one’s legal identity becomes of even greater significance.

Finding an Accessible Solution

For all temporary residents, especially those on the pathway to permanent residents, it is due time to provide a non-medical procedure, such as a sworn affidavit and a private and secure application process, to facilitate this fundamental human right to identify as one’s preferred gender. The fact that Canadian permanent residents and citizens can do so with relative ease, makes in my perspective, this policy limitation directly counter to the Charter language of s.15, and ripe for future litigation.

This is where we are. We can either be proactive about Canada as a Trans rights-protecting nation or continue to let our public and Government institutions, tribunals, and courts impose unnecessary trauma and harm on Trans communities, over what should be an administrative step.

I hope that IRCC changes their policy soon, on behalf of Rain and so many other folks, seeking solution and action.  I hope that Canada can provide Trans migrants, regardless of their ultimate interest in permanent residency or citizenship, what asking for – a greater sense of safety, of belonging, and value of their personal identities.

 

Yes, I Review Spousals – But Here’s What You Should Know (6 Points to Consider)

LearningLark / CC BY (https://creativecommons.org/licenses/by/2.0)

More and more I have been approached by spousal (spouses and common-law partner) sponsorship Applicants and Sponsors asking me to provide a review of their materials in lieu of full representation. While I still recommend those that can afford it to pursue full representation if possible, I understand the benefit of hourly review during these times.

Yet, many lawyers and law firms I know are unwilling to do hourly review because of the risk and uncertainties this work poses. Many are afraid that having an incomplete picture that can lead to incomplete advice, and create liability problems down the road.

I believe spousal reviews is not only a necessary part of my practice but good for access to justice. However, because of the misalignment between the clients seeking the services and the lawyers willing to offer it, many times confusion is created.

In this piece, I put forward six points that will make it easier for self-represented applicants to approach lawyers and work through the review process.

Point 1: Understand Our Mutual Limitations and Constraints

The main constraint of the self-represented applicants seeking my assistance in hourly review is cost. They are unable to pay a full set fee, have exhausted public information (from forums, blogs, etc.) and now need help on specific pieces of their application. Most often times these specific issues include inadmissibility, letters of explanation, police certificates, etc.

From the lawyer’s perspective, the constraint is usually more based on risk. With only incomplete or piecemeal information, how can a proper job of assessing a file be done?  Is the time spent on this particular issue (usually clients will want reviews to be done in 2-3 hours or less) worth the possibility of not being able to see the application, the whole way through.

First, in order for this process to worth smoothly, an immigration lawyer must prepare a clear retainer that indicates the scope of work (limited scope retainer) and in subsequent emails continue to set and establish the expectations of both sides. Applicants and Sponsors should be aware that a full cover to cover review does take several hours (ideally 4-5 hours +) and limiting the budget of a review to only 2 or 3 hours may not allow for all the details to be adequately looked at.

In some cases, this will be fine as your issues are limited to particular areas. In a limited review, it is my practice to clarify with you both at the outset of my review and as well after providing my comments and recommended changes, that I did not see the full application and cannot be responsible for issues such as incompleteness.

This is a risk the Applicant must bear in a limited review, but ultimately where the cost savings also occur.

Point 2: Organize Your Files: Personal Checklists and Electronic Files

It is my practice to send a cloud-based link to my clients so they can upload the files they want me to review.

I can advise that from a time/cost-saving perspective, when these files are all over the place and not in the order of a personalized checklist or even the document checklist, this adds time to my review. I often see this manifested in things such as uploading relevant documents as unnamed jpegs and single page pdfs.

One of the best ways to save on costs is to put everything in your file into one very organized bundle or at least electronic subfolders that guide me into what I should review and in what order.

Point 3: How Do You Want to Structure Your Review?

Some lawyers prefer (and I prefer) at least a check in during the beginning prior to preparing the materials. It is so crucial to spend an hour at the front end going through materials to make sure everyone is on the same page.

I point out usual traps and where clients often make mistake, introduce standard form content for support letters, the importance of a photo essay, how to document shared finances, or cohabitation, etc.

I prefer these reviews because I am able to first give instructions and then meet the clients when their documents are drafted. Some add a session for a first draft and then a final draft.

I am bigger fan of more check in points on these hourly reviews as it usually makes the final review of the combined pdf package or paper package, much more effective and efficient.

Point 4: Do You Want to Disclose My Assistance?

There are mixed perspectives on whether an IMM 5476E – Use of Representative Form is required where an Applicant seeks legal advice but where counsel does not act as an authorized representative.

Currently, the IMM5476E form is only required to be signed by a paid authorized representative. Where only review takes places (especially partial review), many practitioners do not consider themselves as the authorized representative on the file. You will likely see this language in both retainers and as well on any advice letter you may receive.

My advice for clients is to choose for themselves whether they wish to disclose my assistance. For those that do request, I usually provide a letter at the end of the engagement confirming my assistance and services provided as counsel but not as the authorized representative for the file.

I do hope there is a fix down the road, where IRCC creates a form for the disclosure of assistance received. I do believe it is problematic that many unauthorized representatives are able to ‘ghost’ applications, but at the same time requiring all authorized representatives to be disclosed by self-represented applicants who may have sought piecemeal advice from various lawyers, seems also unsuitable.

On that final point, always ask to have direct communication with the individual behind the scenes – if it is a lawyer, or consultant. Check their name against the ICCRC consultant registry  or territorial/provincial law society lists. Always make sure to have direct contact established with the individual who is listed or authorized to provide immigration advice.

Point 5: When to Convert to a Set Fee

Depending on who represents you, this conversation may come up. Sometimes it will be a sales pitch, but in my practice I really do ensure to let the clients know when a file is of a significant enough level of complexity OR if what I am seeing in drafts is so poor that full representation is the ideal solution.

Make sure to ask (at the front end ideally) how it works when that switch occurs. A representative who is transparent and client-focused with their work will give you some sense of this at the front stage of an hourly retainer or else take some credit for time spent when quoting that set fee.

Point 6: Discuss How Follow-Up Would Work

Once the application is submitted, there could be other steps. In other cases, it might be the stage you decide to go it your own as the remainder of the application is simply administrative until a fire arises.

It is good to signal to your lawyer how you want to work moving forward. Perhaps you want to leave a small amount of money in trust for follow-up work? It is best to clarify these things in advance so there is not a last minute, unexpected request when something goes wrong, without certainty of when these steps might occur and capacity to step in to put out those fires.

 

Transparency is Key. That is Why I WRote This Piece.

I hope in reading this piece, it is not looked at through the lens of me marketing my services. Indeed, some within the lawyer-side of the industry would wonder why I would discuss in so much detail my thought processes and ways of work. For me, at the end of the day, it is about ensuring those who contact me know they are getting into.

We have had remarkable success to date on hourly review files that have saved both client fees and obtained the end results, while providing the key knowledge and training needed to complete the tasks. Again, this will defer, from client to client. Some will need extra hand holding. Some will have more complicated fact patterns and legal issues that require full representation as authorized representation. Yet, there is a very large demographic of clients that can seek just enough advice to keep costs affordable without compromising end product that I hope will learn a few things from this article.

What’s Happening in October?

Signing off until the end my tribunal matter tomorrow. October will be a crazy month of presentations and personal changes and I am really looking forward to sharing all of the news and updates with all of you. I have also working on a few legally technical/substantive pieces that I hope will you will enjoy!

Five Ideas to Improve the Outland Sponsorship/Temporary Resident Visa Problem

I want to begin this piece by stating that in a very purposeful way, I have not spent a significant time reviewing the different proposals to the problem I will be discussing today. I have been in touch with numerous stakeholder groups who have pointed me at different ideas. I am sure if I were to read those ideas I would agree many of them, but I wanted to first tackle this from my own perspective and my own experiences and understanding of the law/practice. There are certainly academic journals to be cited, research to be relied upon, but this piece is about the nitty gritty. Solutions I feel could be implemented to make a broken process better at this ever-so crucial time.

The problem we are talking about is the growing challenge being posted by outlandish (read: extreme) delays in processing outside of Canada (what I will refer to as “outland” or “outside Canada”) Sponsorships and how families are being separated because they are unable to obtain temporary resident visas and other permits to temporarily reunite with their family members pending processing. This processing is in many cases taking years.

This challenge has been exacerbated by COVID, where precarious work and travel options make leaving Canada impossible for the Sponsor. In this problem scenario most Sponsors are residing in Canada (as permanent residents or citizens) and their partners (common-law spouses, conjugal, and married) are overseas. Because of COVID, closure of visa offices, backlogs of biometrics, and general reticence to processing paper-based applications abroad – families are now at a breaking point.

For full disclosure, I was contacted by one advocacy group (of about 15 families) and told there were many more. Many of my own clients are in the same boat right now. This has prompted me to write on an issue that frankly we’re not talking enough about – a major consequence of the pandemic.

I am also someone with personal lived experience that combined with my professional experiences, gives me some authority to share. I was able to get a Temporary Resident Visa (TRV), then a study permit for my spouse (then girlfriend/fiancee), eventually choosing to apply outside Canada while she was residing with me in Canada – often times the best scenario, but unobtainable for so many. I am very cognizant that this was also a matter of luck – had my partner been from a different country – the Philippines, India, Nigeria, Iraq – just to name a few, I would likely have had to either marry abroad and have several years of long-distance.

Because of these overseas delays, I have also seen a great number of families choose to go inland – forgoing appeal rights, for the benefit of implied status provided by the Open Work Permit. Effective overseas processing has been a staple of Canadian immigration, yet due to delays – particularly from visa offices located in Global South/Middle Eastern/African countries – we’ve created an overburden on visa offices to assess complex and unnecessary visitor visa applications overseas and inland applications here here in Canada.

Which leads to my first idea for how we can fix things…

Idea 1: Seek to Reduce/Eliminate the Discrepancy Between Visa Office Processing Times Based on Country of Application/Origin

It used to take less time in a majority of a visa offices to obtain approval in an outland sponsorship than it did inside Canada with an inland application. In order for the overseas system to function effectively, as the Government would like it, this has to return to being the case in the majority of overseas visa offices.

Furthermore, in the past  it would take an American citizen 4 months to obtain an approval and land but take applicants from Africa several years.  Given the move to virtual processing, and as my colleague Steven Meurrens is pushing for – a move away from paper-based assessment to online assessment (see idea 5 below), perhaps files do not need to be referred to local visa offices unless there is a significant flag requiring local expertise. Having more processing of sponsorship across visa offices (by capacity) can serve to speed things up and reduce processing times.

If overseas sponsorship processing can be reduced to 6 months in 80% of the cases like an economic immigration file used to be in the years before, you will see a drop in the number of applicants seeking to first come to Canada to apply inland, given a Spousal Open Work Permit can take about the same amount of time to receive and processing times to be at least a year to often a year and a half.

There’s a certain point of time, where even the generally discriminatory process of visa processing becomes too discriminatory. If any Government program inside Canada were to operate where individuals from certain countries or within certain subsections of the population were being processed at a much slower rater than individuals from another region, there would be human rights complaints. I do understand the need to vet for security, misrepresentation, etc. – but centralizing processing at least ensures we are not sorting entire populations through these processes.

I would call on the Government to try and centralize processing and be transparent with data on  such things  DNA requests, interview requests, security check backgrounds, to ensure that it is not disproportionately applied to Brown and Black folks, which all  current anecdotal evidence suggests it is. This would greatly ease the burden of Applicants and also alleviate the pressure on having to apply for TRVs to reunite.

Idea 2: Create a Designated Category of Spouses that Are Able to Obtain TRVs Upon Acknowledgment of Receipt and Allow Most Spouses to Reunite After First-Stage Approval Based on Dual Intention;

While I understand IRCC’s interest in vetting genuineness of relationships at an early stage, it is clear that there are relationship involving Canadian children currently in Canada and common-law partnerships/marriages of a significant long duration 2+ years)  where a TRV should be granted immediately, not withstanding R. 183(1) and (2) and the need to leave Canada at the end of their authorized stay. Dual intention should be made more clear to Applicants. A standard form could be generated for Applicants to provide their plans to leave Canada in the event of the refusal of their sponsorship application and loss of status. My suggestion is that this TRV is issued within acknowledgment of receipt which should take 2 months rather than the current 4-5 (note: COVID has pushed this even further).

For other couples, a TRV should become available upon first-stage approval (finding that the relationship is genuine, which ideally happens at the 4-5 month mark). However, IRCC could certainly introduce measures such as the need to convert the application into an office with longer processing period inside Canada IF and only if, they are able to keep shorter processing times overseas as an incentive to await full processing there. Again, it is my perspective that a family class sponsorship can be done in 6  months, if an economic class application be done in the same time and an applicant from the United States could take four months.

Finally, IRCC could issue shorter term duration visitor visas, tied to the processing of the sponsorship file. Should the sponsorship file breakdown, the Applicant would then lose status or have 90-days to restore themselves. This 90-day restoration period could be accompanied by the options available for Temporary Resident Permits (TRPs) for family class members who did face abuse leading to the end of their relationship.

Idea 3: Eliminate Primary Purpose Assessment

One of the reasons applications take an increasing amount of time to process is because of R.4s [Regulation 4 of the Immigration and Refugee Protection Regulations] specifically on the second primary purpose assessment.

Once a relationship is genuine, from my perspective, it does not need to matter how much immigration is or is not the primary or a secondary/tertiary purpose. If there are issues with intent, these will invariably affect the genuineness of the marriage and possibly be caught through misrepresentation. Stricter misrepresentation penalties (i.e. life-time bans instead of five-year bans) can themselves serve as disincentives for marriages of convenience. The current tests blurs and complicates the reality that a genuine marriage may only be able to sustain itself through immigration that reunited a couple.

Clarifying the test so the focus can be on genuineness can clear up processing and reduce the number of interviews needed. This would help shorten processing times and reduce the need to make TRV applications for those couples who want the quickest processing and landing as permanent residents.

Idea 4: Have Concurrent Processing of Medical/Security at the Front End – a Return to the Old Ways;

While IRCC has in recent years moved the  medical exam from the front end to the back end, perhaps having this request at the beginning alongside the biometric request and the police certificates could allow better vetting of the majority of clients that do not pose  security or inadmissibility risks. Those clients who do could be informed earlier on that they are facing further processing and then make required arrangements to possibly relocate.

The way the current process works with delays at certain visa offices really puts the 90% of non-problematic files in the same queue and position as the 10% that may create challenges, something that has net negative effects for family reunification.

Idea 5: Move Sponsorships Online and Utilize Tech Solutions to Make TRVs Easier to Apply For

One of the major challenges with sponsorships is that the entire process is paper-based, where as the majority of IRCC processes have moved online. As such, things such as original signatures and the mailing of documents between spouses living across the world from each other, add unnecessary cost, time, and stress to the sponsorship process.  There should be ways to make the entire sponsorship process (like the Express Entry process) accessible online to those that are able to navigate online forms. For Outside Canada applicants, the online system should allow for a TRV application to be generated right alongside an initial Sponsorship. This application can be held in abeyance, but tied to the Sponsorship in the same way an open work permit is tied to an Inland Sponsorship. When it hits a certain stage it is processed to presumed approval.

The form itself can be automatically populated with the same thing content/information on the inland sponsorship making the issue of discrepancy and misrepresentation due to error, less likely to occur.

Finally, rather than assuming clients have an understanding of the complexities of dual intention under A22 of the Immigration and Refugee Protection Act and these IRCC guidelines, this question could be directly assessed on the form with the requirement for a plan presented in the event of a refusal, to leave Canada. Officers could satisfy themselves where an Applicant and Sponsor agree (and can put in writing) that if the application is refused that they will leave Canada and re-apply. While it may hold limited legal weight (and intentions can change), it is something that can be brought up on enforcement if necessary.

On the note of interviews, in this day and age of digital contact, I do not believe there should be the need for in-person interviews or at the very least this can be a choice depending on the seriousness of the matter.

Indeed, virtual interviews allow for the partners to be together to attend the interview together, for the Officers to gauge the relationship on the basis of their attendance together. If  spoual appeal hearings can go virtual, there’s no reason interviews must stay in-person. Indeed, in most refusals it is the stressful nature of an interview at the Government office that leads to the refusal (often forgetfulness due to stress) rather than the actual non-genuineness or primary purpose.

What Do You Think About My Ideas? What Are Yours?

Perhaps you may have other ideas. I have heard some around TRPs being issued and waiving certain IRPR provisions. What is key to remember here is that family class sponsorship has been the staple of Canadian immigration for many years and before our Express Entry system and the Government focused shifted to economic immigration, it was the crown jewel. We had a system that allowed sisters and brothers to reunite, families to grow organically, and communities to develop from that. We have largely limited the pie, and even today made parental sponsorships more difficult. If we can do anything to make family class sponsorship easier for partners and spouses – we should do it. The ability to remain unified during stressful times (which COVID has revealed) is essential and at the very least needs to elicit the same kind of urgency that we have placed in other areas during this pandemic.

 

Exclusive VIB Preview: Latest Blog for Edelmann on Non-Discretionary Travel for International Students

This blog will be going up shortly on Edelmann and Co’s Law Blog. I thought I’d give VIB readers a sneak peak!

On 2 September 2020, Immigration, Refugees and Citizenship Canada (IRCC) released new instructions which help to further clarify that Canada Border Services Agency (CBSA) and partner Airline companies, would be responsible for ultimately determining whether international students would be able to travel to Canada to begin/resume studies as a result of COVID-19 travel restrictions.

This is welcome news, given IRCC’s instructions previously did not clarify or advise on CBSA’s own criteria, leading to issues for international students at Canadian Port-of-Entries and general confusion around the ability to return or move to Canada to begin studies for the Fall semester.

The updated Program Delivery Instructions (PDIs) now indicate:

Border services officers will assess the circumstances surrounding the student and their accompanying family members’ travel and may consider, for example, whether any of the following apply:

  • they are established, residing and studying in Canada. If they are established in Canada, their return is non-discretionary
  • they expect to begin studying upon arrival after completing their quarantine
  • their presence in Canada is necessary for their continued participation in the program (such as in laboratories or workshops)
  • pursuing online studies is not a reasonable option for their school or program or is not possible from their home country
  • the semester has been cancelled or the person will begin studying later in the year

I want to focus this piece about what I perceive as the challenge with the requirement to prove establishment in Canada to gain entry as an international student.

That is not to say the other criteria set by CBSA do not themselves create barriers.

For one, educational institutes will largely be pushing for students to return, yet, I worry that without adequate evidence or strong supporting documentation that many DLIs are not offering, questions will remain about the necessity of in-person ‘laboratories or workshops.’ With CBSA’s past application of discretion around issues such as the ‘actively-pursuing studies’ requirement and with Port-of-Entry Post-Graduate Work Permit (PGWP) determinations, one often saw very inconsistent reviews of transcripts, program structure, and technical details. Many times, in the name of enforcement, Border Service Officers took on the duties of academic counsellor, in ways I believe Immigration never intended them to. The COVID discretion for international students raise the same concerns.

Second, it is unclear how the argument that online studies are not possible from the country in which international students reside will factor in. We know and expect that these arguments will largely come folks from technology-challenged Global South countries or other countries that may limit free access to online materials. I expect international students who may have been successful in obtaining a study permit, still largely uncertain and unequipped to address Border Services Officers on these points.

Looping back and framing the discussion of establishment, another concern is that IRCC apparently has apparently stated that they do not want to, or need, to see the argument for discretionary nature of travel in study permit applications.

They have written on their instructions:

Travel will be deemed discretionary or non-discretionary depending on individual circumstances. IRCC case processing officers will not assess whether the applicant is exempt from the travel restrictions when processing a study permit application.

Yet, the Program Delivery Updates (PDUs) announcing the updated PDIs seem to paint a different picture.

September 2, 2020

The instructions have been updated to provide additional guidance on the issuance of study permits while travel restrictions are in place.

Clarification has been made to the non-optional and non-discretionary guidance to include factors taken into consideration by the Canada Border Services Agency when assessing whether students are permitted to enter Canada based on the current travel restrictions.

The updated instructions will assist officers in applying the 2-stage assessment process for study permit applications, including refusals, following the stage 1 preliminary eligibility assessment. (emphasis added)

From the above, it looks as if IRCC will consider how the Applicant’s situation (while not considering the travel exemption itself) may factor into the 2-stage assessment process to approve a study permit.

Establishment, then becomes a tricky point.

A bona-fide temporary resident to Canada has to demonstrate that they can leave Canada at the end of their authorized stay (Immigration and Refugee Protection Regulations at R. 183(1)(a), R. 216(1)(b);). While there are provisions for dual intention under the Immigration and Refugee Protection Act at S.22(2), it can be a difficult argument to establish without both pointing to significant ties in the country of residence/citizenship AND being able to credibly present a plan for permanent residence – increasingly difficult for students on future PR pathways. Generally, potential students or renewing students who show too strong a tie to Canada (i.e establishment) in their overseas applications can be refused on study permit applications.

Yet, this very establishment is what CBSA would like to see to authorize entry pursuant to their interpretation of the COVID-19 travel restrictions. This proof of establishment could presumably come from demonstrating that they have a home, job, bank accounts, lease, partners, family members, future plans to stay, etc.

Should a study permit applicant put this proof in a study permit application to seek approval and explain why they are applying now – and at the same time risking refusal by the overseas visa officer?

Should that same student, who did not include this proof, suddenly approach their entry to Canada or the time between approval and their entry to Canada – with these documents which may contrast and contradict with what was in the study permit application. Will this lead to the possibility of misrepresentation or the reassessment of study permit eligibility down the road?

I do not know and if I do not know as someone who has practiced in this area for over five years, I do not expect international students to know.

The root of the problem is, and has been highlighted time and time again in the field of immigration law, is that the left of IRCC and the right hand of CBSA are not coordinated. We have seen this play out earlier in COVID-19 with the cases of family members seeking reunification.

The best case scenario is that CBSA lowers the threshold for establishment or does not hold it against applicants who now have proof of establishment when that proof may not have been disclosed on an application.. Furthermore, it would be beneficial for IRCC to clarify what it means by taking into account the updated instructions regarding travel restrictions when deciding the study permit application, but not considering the application of the travel restriction itself. This seems contradictory and at the very least confusing to the reader.

Finally, we have to consider the overall picture and potential of the time. Eyebrows would raise (and litigation would likely follow) if the two-stage study permit application process turns into one where students were consistently approved to study overseas during the COVID-restrictions and then refused on second-stage assessment preventing them from ultimately seeking entry to study. There is nothing in the instructions to suggest a re-assessment of basic eligibility could not change, which would be the unalleviated fear.

While such a plan/strategy would short-term serve institutional cash injection through COVID’s potential second wave in Canada, it wouldn’t serve the opportunity Canada currently has, facilitated by questionable approaches taken by other Five Eyes countries, to recruit the world’s brightest international students and support them through enhanced permanent residence pathways. I hope we take the right steps moving forward on the issue of facilitative, and safe, border entry for international students.

New Post (via Edelmann Blog), Some Updates, and Some Thoughts

Hello VIB Readers:

I have been on a bit of a summer hiatus with writing new posts. I am currently teaching two courses and as well winding down a third job supervising law students at Allard’s Law Students Legal Advice Program.

I am going to be shifting my attention back (hopefully) to trying to get a grasp on how to shift my practice more sustainably in the new digital-COVID age and as well pick up a few more tools in my toolbox (a proper critical race theory lens/possibly opening up a few more economic streams to balance out the heavy litigation/H&C work). I am looking forward to it. I have always been ‘busy’ for the sakes of being busy, so it is quite difficult for me to to try and carve out time to just think, but it is that time that I believe is so precisely important for me right now.

August and September are also panning out to be very busy on the appeals front with a few matters coming down the pipeline.

In this post I wanted to share three things.

1) New Blog Post;

First, I wrote a new blog post. I have been thinking a lot about judicial reviews recently and dissecting my own experience in the recent case of S v. Canada (Public Safety and Emergency Preparedness), 2020 FC 718. I read Justice Favel’s decision in Ouansa v. Canada (Citizenship and Immigration),2020 FC 632.

The post is available here.

2) News About Vancouver Immigration Blog

After 5+ long years, I am finally doing a major revamp of Vancouver Immigration Blog. I am working with a local website/business development company to rebuild my site, make it more navigable and more accessible. It is probably the biggest investment I have made in my online presence since starting the blog so I am excited for it and hoping it inspires more creative content;

3)  On Laws, Regulations, and Enforcement

I have had a very interesting long weekend. I went out to the Sunshine Coast for a little fishing. I did not realize how big the Filipino/Vietnamese/and Chinese diasporic and tourist communities are there. Fishing (it turns out) is a social gathering spot. There is a very interesting place in Davis Bay on the pier. Half of it is dedicated to swimming, mostly local kids jumping off incredible heights into the water. The other half is for fishing, mostly Filipino families gathering and sharing knowledge and stories. Recently, this place has come under some fire with efforts made by the local Davis Bay community to try and regulate an end to fishing off the pier.

Overfishing is certainly a problem. I witnessed some very bad practices – including fishers that took the lives of two shark as bait. Others openly defied the ban on crabbing after dark. I was grateful that a few local members of the Filipino community (who lived there) made sure to emphasize the regulations. At the same time, I could not help but think a total ban (mostly in favour of the non-POC children swimming and sending it off cliffs) also comes from a place of privilege. Several local (more affluent) community members own boats allowing them to fish and crab in the Ocean rather than use the pier. Yet, the pier was where I saw multi-generational families – young adults with their elderly grandmas and grandpas, share an activity together. Regulations that ultimately re-enforce privilege, from my perspective, turn into a sword rather than a shield, cutting apart communities of colour and re-asserting spacial dominance.

At the same time, I had another experience on B.C. ferries where every driver coming in was required to carry masks and there were several announcements of the requirement for all those not socially distancing within their cars to wear a mask. Other than one other Asian brother, I think I was the only mask I saw during the whole ferry boarding and ride. The staff themselves did not wear masks. No one was enforcing as a whole slew of non-POC gathered at the front of the boat, not socially distancing, and not wearing masks. Given where this regulation was coming from, I found it ironic that in this case it could be easily ignored or not complied with – with no consequences.

What type of society are we building where those that institute policy and regulations (often side-stepping the arduous process of needing to go through the introduction of instituting laws) don’t follow them and do not want to lose their own freedoms, but at the same time will institute the same policy and regulations to control the freedoms of others for their own benefit.

I am starting to really think we need a stronger race equity lens to be able to formulate the language of opposition, the language of pointing out the blatant double standards. To show that colourblindness has been leveraged against POCs to maintain white privileges.

Until then, we will continue to be in this situation where we are defending and enforcing against our own rather than challenging the foundations and improving them in a more equitable way.

Lots that I am chewing on – on this B.C. day long weekend.

Federal Court’s Decision in Lo and Three of My Interpreter/Interpretation ‘Best Practices’ at the Immigration Appeal Division (IAD)

The Lo Decision

In Lo v. Canada (Citizenship and Immigration) 2020 FC 684, Justice Elliot heard the judicial review of a Sponsor who received a negative decision from the Immigration Appeal Division relating to his sponsorship. The IAD found that the Applicant did not demonstrate on a balance of probabilities that his marriage was genuine and not entered into for the primary purposes of acquiring status under the Immigration and Refugee Protection Act [IRPA] also colloquially known as a ‘R.4 refusal.’

The main issue in this case was interpretation. Mr. L argued that there was inadequate interpretation from Cantonese to English that led to a breach of procedural fairness thus leading the IAD to conclude erroneously that they were providing vague answers in their testimony (para 11).

Justice Elliot sets out the law for adequate interpretation citing the seminal case of Mohammadian v. Canada (Minister of Citizenship and Immigration, 2001 FCA 191  at paras 4 to 6.

Paragraphs 18-20 of the decision set out the relevant law in this area:

[18]  It is accepted that while interpretation must be continuous, precise, competent, impartial and contemporaneous it is not required to be perfect. Nor is proof of actual prejudice required to obtain relief: Mohammadian v Canada (Minister of Citizenship and Immigration), 2001 FCA 191 [Mohammadian] at paragraphs 4 and 6.

[19]  To ground a finding that there has been a breach of procedural fairness, the Applicant must show that there are serious, non-trivial, problems with the interpretation: Siddiqui v Canada (Citizenship and Immigration), 2015 FC 1028 [Siddiqui] at paragraph 72. The Applicant is not required to demonstrate that an interpretation error underpins a key finding if they can establish that there was a real and significant interpretation error: Mah at paragraph 26; Siddiqui at paragraph 68.

[20]  In Mohammadian, the principle or purpose of interpretation was acknowledged to be “linguistic understanding”, based on statements made by Chief Justice Lamer in R v Tran, [1994] 2 SCR 951.

Paragraph 21 of the decision is particularly important giving a precursor to Justice Elliot’s decision that linguistic understanding can still be found while there are problems with the interpretation:

[21]  An example of when linguistic understanding may be found, despite there being a variety of problems with the interpretation, is provided by Mr. Justice Boswell in Dhaliwal v. Canada (Public Safety and Emergency Preparedness), 2015 FC 157 at paragraph 67:

[67]  In my view, the interpretation was not as precise as it could have been. The interpreter occasionally interpreted in the third person instead of the first person; she paraphrased a lot; she sometimes added information that was not said; and she was sometimes mistaken. However, as the Supreme Court has recognized, interpretation is “an inherently human endeavour which often takes place in less than ideal circumstances” (Tran at 987). Despite the imperfections in this case, I think the Applicant always understood what was being said and was herself understood. There was linguistic understanding between the parties on the essential issues before the IAD. (emphasis added)

There are some strategic issues with the decision that I will not spend too much time delving into. The Applicant relied on an affidavit from the Applicant’s daughter who created an unofficial transcript to compare to the hearing transcript. I likely would have utilized a different third party (official interpreter) assuming costs were not an issue.

Justice Elliot’s Decision 

Paragraph 38 of the decision highlights the common challenges in this area, reflective of the case law.

[38]  Keeping in mind that adequacy, not perfection, is the required standard for interpretation I find that the interpretation was adequate. I also find that any errors were not material to the outcome, therefore it is not necessary to consider the question of waiver. (emphasis added)

Justice Elliot then goes into three specific areas – a disagreement over the discussion of financial support by way of rent, pauses on questions related to compatibility, and information relating to the Applicant’s stepson.  Justice Elliot compares the two transcripts (the official and the unofficial) and finds that in many of these sections where concerns were raised, the transcripts said essentially the same thing. Justice Elliot did not see any differences as affecting the vagueness of the answers.

She concludes in her written decision:

[86]  As I have set out in these reasons, I am unable to agree that any interpretation errors were material or that they prevented the Applicant from having a linguistic understanding of the hearing or his ability to express himself. The interpretation at the hearing was not perfect but it was adequate.

[87]  The Applicant contributed to the difficulties experienced by the interpreter. The transcripts show that at several times during the hearing the IAD and the interpreter each had to caution the Applicant and remind him: (1) not to interrupt whoever was speaking; (2) wait for a question to be completed before answering and (3) use short sentences, with pauses between them.

[88]  The Decision was based on the Applicant’s answers. When an answer was not clear or was not detailed, either the Respondent or the IAD persisted with questions to clarify the answer or obtain more detail. By that process, any uncertainty or interpretation error that might have left a wrong impression was corrected. The Applicant’s failure to provide sufficient detail cannot be traced back to the quality of the interpretation at the hearing.

[89]  Notwithstanding the able and clear arguments of counsel for the Applicant, I am unable to conclude that the IAD hearing was procedurally unfair to the Applicant or that an unreasonable finding was made about the genuineness of his marriage. (emphasis added)

 

Three Interpreter Best Practices for the IAD

With the decision and case law being where they are, how does one prevent, if possible interpreter issues coming up at the IAD.

Below I will outline three tips I try to utilize in most cases

(1) Practice Oral Examination/Cross-Examination at least Once  with Certified Interpretation

As much as we or our office staff may speak the third-language of the appeal, we ultimately are not certified and many times can assume our questions asked are being asked the way we have framed them and the answers we hear are the ones we want to hear.

Ensuring that at least one round of examination/cross-examination is done with a third-party certified interpreter with no history of the case can provide at least a context or understanding of the way questions can be asked in a confusing manner and responses can often appear vague. It also provides the Applicant an opportunity to practice the very hard task of separating statements for which they wish to speak for a significant time into one sentence at a time. Trust me when I say this skill does not come easily, particularly with older clients who have poorer memories and require streams of thought to spur memories. It is also good to have the Applicant hear what other individuals are answering and be able to correct them on factual mistakes.

The cost of interpretation is often around $30-$50 dollars per hour. While it does cost an additional $200+ dollars is expensive, in the scope of how much legal fees are for appeals and how crucial it is to the client’s success, it is a necessary disbursement from my perspective.

(2) Find a Family Member/Friend as a Liaison Who Speaks Both English/Second Language of Appeal Fluently

Knowing certified interpretation is expensive but that most clients do need time to work on their testimony, I also employ the practice of having a trusted family member/family friend be part of interpreting until that final session. Many of my clients that I work with on appeals speak no English (ironically a factor that the Minister often tries to attack establishment with). I find that there are several benefits of having a family member/friend act as a liaison, particularly when they themselves are also involved as a witness and more clarity can be gained by hearing the principal applicant/sponsor talk about their situation. Remember though that as a result of their involvement, they need to be careful to separate what they knew before and what they knew after assisting. I find that time continuum/dates are a major issue in appeals and testimony congruity.

Remember also to seek the client’s written consent to bring the individual into preparation or assistance. In some cases materials shared made be very sensitive and by having the third-party in the room, it may affect the manner in which the evidence is received or responses are provided.

(3) Have Someone in the Room During the Hearing

One recommendation I always make is to have one of the family friends who attends as a witness be fluent in both languages. They themselves will not be a witness (allowing them to stay in the room through the proceedings). They will hear the interpretation

Ensure to let them know that they are not to interrupt the Member or proceedings with their responses/reactions during the hearing. Those reactions are not addressed positively.  Create some sort of code signal or utilize breaks to confer with them on interpretation. As counsel, you should not be afraid to approach the Member with your concerns.

It also is worth mentioning that in many law firms there are second language skills – either with support staff or with lawyers themselves. This is a good opportunity to allow support staff to get some practical experience of attending a hearing or for more senior lawyers to allow junior lawyers with language skills to showcase their litigation abilities. Being Mandarin-speaking myself I have attended several hearings for clients and in circumstances was able to step in to correct interpretation on the spot or ask for clarification.

One of the recommendations I gave in my paper titled Re-Centering the Resilience and Resistance of Migrant Women of Colour: Exploring the Potential of Intersectionality and Indigenous Approaches to Immigration Appeals  was the possible employment of community elders (particularly within one’s ethno-cultural community) in cases where appellants are unrepresented. This also may (if my recommendations are pursued in the future) be something that can be implemented.

What are your tips?

Share them with is and hopefully we can create more best practices to ensure our clients are able to put their best foot forward through immigration appeals.

 

Empty Tinfoil and Tenfold Erasure – A Poem

The streets have changed we last said hi. We didn’t even have a chance to say bye.

Abandoned blocks bursting with a newfound energy that most call a problem and sometimes even call the police on.

Usually I join in with the beats of the outdoor dance parties, today’s fog, however has created an unusual sense of serenity and solemnity.

His empty tinfoil sits in left hand, red and crevassed with pain and too much labour. Unappreciated labour. Unappreciated and erased history. You weren’t his saviour.

His right hand, acting as the delivery man – delivering this man into a deep sleep but one knocking on death’s door on the daily. He does not fear death for the concrete floor feels warmer and softer either way.

Rest easy for a minute, brother. You need to rest up for the struggle.

But where is rest (what is rest?). A block away another Black man is face down on the ground. Again. Surrounded by uniforms. His screams, I still can hear those screams, falling on deaf ears today made less audible by the protective person equipment worn over their two white masks. One masking their history of brutality, today all  masking their ability to speak in their usual codes and condescension. Who needs the extra protection today?

He screams, high-pitched screams, because he is again down, again down. They formed a barrier around him, shielding the view of passersby folk – pretty much everybody is passing by. Three cop cars, two ambulances, ready to strap him into the gurney today, maybe the grave tomorrow.

The grave offenses of this society, the grave pain of those suffering. I stand between two struggles, stuck wondering whether my lack of Naloxone training and lax notions of proper witnessing make me just another culprit, another player, another tool of their society.

They paid me this month. They probably paid you double. They paid me to keep me away from troubles. Paid me to keep going through this life with a stumble, a mumble, fumbling to position myself properly at the intersection, the crossroads.

Between the man with the empty tinfoil and the tenfold erasure of the Black man being held down by an institution too often not held accountable to past and present wrongs.

I saw you. I shouldn’t have turned and walked away without saying hi. Or bye.

“Too Often Silent and Therefore Complicit” – A Poem on Anti-Blackness

Dear M:

I still call you my first Black friend. But having a Black friend ain’t never enough but an excuse to divert from the reality of anti-Blackness in my own life.

I can’t just give you daps while denying the fact that:

  • When I was a kid, I never pushed back against those who told me not to hang out with you or that your background would be a negative influence on me – based only on human bias and a lack of understanding;
  • When I was in high school,  took your music and turned it into my hobby, without initial acknowledgment of the music’s roots in the struggle;
  • When I was in college, I tried to tune out but said nothing when a friend of mine, also darker skinned but with light-skin passing privilege within his community, thought it appropriate to drop the words that has caused generations of pain – making it a point to sing out the word in every song we played cards;
  • To this day, I often stand idly by continuing to watch television shows where you are expropriated for comedic purposes or to illustrate flaws, wrongdoing, crime as if who you were did not matter. Characters in Blackface and constantly stating “I don’t want to be Black, I don’t want my skin to be Black.”
  • In my work, when I operate so blatantly in a system of Anti-Black racism that barred you from coming to Canada, and is still systemically ensuring you are kept outside of our borders and our detention facilities. Trying to always play saviour;
  • In my community, when I come into your circle as an other and speak as though my experiences trump yours, and it is my place to share my academic knowledge of our condition to demonstrate I should have a seat at the table – it’s not making a difference to the seat that you don’t have;
  • When I have privilege and voice and see Black sisters in the game, but I spend my time seeking approval from the white man and forgetting your existence;
  • When I can speak out, but when elders and loved ones in my community who do not know better nor and who I have not taken time to educate, demean your history and existence, and I say nothing. Once someone said your community should only have an alley and I just swallowed my disagreement. That’s not what allies do.
  • That I have benefitted from writing about Race and bringing a critical lens into my work, while Black sisters are doing the unpaid emotional labour, and both Black sisters and brothers are dying just on the basis of existing.
  • That I am often too-silent in the face of authority and whiteness.

I’m too often silent and therefore complicit.

My words and performative work mean nothing if I do not acknowledge past shortcomings and change them. Stumbling and all.

I cannot absolve my own responsiblities simply through #hashtags and rallies, quotes from Black scholars unreflected in my own very (in)actions.

I need to change my very approach, my brother, and I ask for your forgiveness as I find my way to better support your liberation.

Written in honour of the lives of George Floyd, Breonna Taylor, Ahmaud Arbery, and Regis Korchinski-Paquet and in acknowledgment of the anti-Blackness in my life and the outer and inner work I need to do.

CBA Immigration Section Founder’s Award Paper and Some Sharing of Gratitude

Hi Readers:

I have been relatively quiet of late, grappling, as many are with the  deaths of George Floyd, Breonna Taylor, Ahmaud Arbery, Regis Korchinski-Paquet, Chantel Moore and thinking about how my own work and positionality as a lawyer requires me to do more and say more with respect to Anti-Black and Anti-Indigenous racism. I have been working on drafting a response for an organization but even those words seem like they fall short, as I have.

It is with these complex feelings that I wish to share an award I received today, but I hope to divert attention from the award itself more to the paper I wrote, before drawing on a few Thank You’s.

 

Paper – Re-Centering the Resilience and Resistance of Migrant Women of Colour: Exploring the Potential of Intersectionality and Indigenous Approaches to Immigration Appeals

I have shared the paper below. It is shared with the permission of the Canadian Bar Association and I am grateful for their support.

WT – Founders Award Paper – FINAL

The reason I wanted to share this paper is that it represents for me a first major (academic/creative) deep dive into the issues of intersectionality, racism, and Indigenous approaches to Canadian immigration law. I have been thinking about these topics for some time, tweeting and blogging, but in this piece I tried to mold it into something more prescriptive. I also wanted to take a critical lens, something we often fail to do when we simply celebrate diversity and multiculturalism without seeing how it is working below the surface and in white spaces.

With organizations considering how they can respond to recent events, particularly in taking anti-Racist approaches, I do hope we can begin through looking at long-standing institutions/laws and how they may not be creating space for resilience, resistance, nor recognizing the experiences of migrants of colour.

I ask you to spend some time with my paper, particularly if you are a decision-maker or a Government official (particularly from the Immigration Appeal Division, for the purposes of this piece) with the ability to implement change. I do feel that this is an area where Canadians can demonstrate anti-racism is more than just a current rhetoric and to work towards past reparations by resourcing (read: paying/investing) for Indigenous advisors to help rethink our Immigration system. This is just a start, but I hope it sparks something or some ideas for needed reform.

I also wanted to specifically highlight that I was influenced by writer Gloria Anzaldúa’s Borderlands/La Frontera, The New Mestiza’ for the way she mixes literature and prose.

 

Thank You’s

I want to start by thanking the CBA (the Award’s Committee, Exec/Table Officers/Staff) for this award and the below generous write up. I do not do this work for the accolades, but to know others are watching is great.

I am continuously cautious of the effects of when organization’s difference you up and how that could impact your work and what you say. I am being very careful to not compromise for me the core value of living/practicing with authenticity and transparency at all times.

I would like to my mentors/colleagues at Edelmann and Co., including now-Justice Edelmann and my former mentor/colleagues at Larlee Rosenberg and Heenan Blaikie prior to that – as well as the University of Ottawa Faculty of Law for being such a beautiful place to learn the law and for supporting my work.

I would also like to thank my mentees who assisted on helping me review my paper and give me feedback. Specifically, Karen Jantzen, Tamara Yang, and Astitwa Thapa were instrumental for this particular piece. Chats with the exceptional Partner at my firm Erica Olmstead and the ideas of the brilliant researcher/thinker Leanne Dixon Perera helped shaped this piece as well.

I also wanted to thank those at the UBC’s Allard School of Law where I serve as a Supervising Lawyer for the LSLAP Clinic for inspiring me to look beyond the sometimes too-safe practice I do as part of my regular work.

Finally my best friend Davinder,  my Assistant Edris, my spouse, Olivia who supporting me through thick and thin, and my mother and sister. I did not dedicate the paper to my late father (he hated public attention), but I want to recognize his influence in raising me the right way.

I am taking most of today off to write (although some of it is for my case work). I hope to publish the piece on anti-Black racism and experiences in my circles shortly as I think that is the conversation we need to have today.

I hope you do not mind this short interlude.