All posts by Will

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.

Dear Anxiety – A Letter

Dear Anxiety:

I have a hearing in less than two hours. I am writing you to spill my heart and in hopes that I put you to a resting space in the very back of my head. You have occupied a place at the very front for too long. The only reason I have not talked about you is that this profession that I am doing and that I work in doesn’t embrace you, silences you, works through you. I have worked through you for five years now and done well. Why expose you? Well – because I see you in so many others. We’ve been in this together for too long, but talked too little.

By long, I mean probably since I was born. I would not have known it then. No tell tale signs other than a father who was an overworrier but that’s what good fathers do. He probably had anxiety too but never told me and we will never be able to discuss it anymore.

I probably noticed you first when I was in those math for exceptional students realizing how unexceptional I was. Struggling to solve problems, with the tutor and the rest of the class near finished. Heart racing, sweaty, stumbling and mumbling my way through being asked to explain my reasoning.

I noticed you again with piano. I had dreams one day of being a great pianist but one day (and wasn’t half bad), as I was heading to the last grade of my studies, my teacher told my father – he’s got skill, but he’s got an issue handling pressure. Perhaps that comment (or pressure) led me to quit. Escape always on the mind.

I noticed you in high school. Every time I was to recite a poem or perform Shakespeare in front of an audience, you would kick in. Stage fright. Lines, what is the next line. I thought about all the classmates judging me for my failures, my less than stellar grades (a result of exam anxiety) also leading my parents to judge me. Trapped. 

I remember in University, when I was to deliver an important part of a Fraternity ritual, I choked. I forgot my lines, in the darkness, my brothers in the room. I noticed you too when I was taking my driving test (one that took a few times to pass) I would sweat for days on in. In the back of my mind, this hearing, this case.  I avoided you. I took on paper-based classes, courses that allowed me to organize things and work with my hands, because I knew if there was an exam or some sort of ‘test’ I would be hooped. The power of prediction let me somehow pass and move forward.

You kicked in with the LSAT. I have not told people this but the reasons I had to take the exam three times and still only scored a 66th percentile is you were always holding me down. I cancelled my result the first exam. The second time, I left half-way through after a panic attack mid-way through where I ended up mis-aligning my scantron. I remember googling a career in the military that evening, giving up. I am grateful that I never did.

And law school – I put my hands up only a handful of times because of you. My swallowed saliva still hurting from the things I have never said. I almost failed a PLTC assignment because I stuttered introducing my name and lost track of what I was saying while saying it. It’s like an out of body experience I cannot explain.

Everytime I present I have to hold a piece a paper, or some notes, because without the blanket I feel like I’m without a cable suspending me, a seat belt holding me in place. When I speak, I often go too fast, mind whizzing faster than the words can catch up. With the words I have I could be an amazing orator, but the pressure usually failst he performance.

I remember you this morning, telling me again that today’s another big day. Lives are at stake. Don’t fail.

Whatever I do as a parent, in this next life, I will present failure in a different light than I was taught. Failure is beauty waiting to happen. Success’s first step.

It was not easy to put this on paper. I am more public than most about my life because I read each of the emails and messages I get from readers finding a piece of what I am experiencing in what they do. I do overpost accomplishments likely to veil the moments in between where I feel in constant flux.

For example, I have been trying to write and start a novel for a year, but the fear of investing time into something I do not feel accomplished enough to write, holds me back. Reading the work of others and admiring their brilliance has been my coping mechanism. Coping is everything.

You are also a beautiful feeling because you open doors to empathy. I see you in the clients I advise, who struggle with anxiety due to their pending hearings, their lives at the whim of Government decision-makers, the effects of separation. It takes one to no one.

Yes – maybe I have let my guard down. Maybe some future client, employer, political, or judicial hiring committee looks at this tomorrow or twenty years from now and goes – I don’t want to take on the risk and imperfection.

Today I declare my imperfect self. Behind all of that perceived success, happy clients, speeches, and talks there is an anxious kid. The same anxious kid that has occupied this body for 31 years.

He will never be calm. His anxiousness leads to amazing spurts of creativity and brilliance. But he suffers every day for it too.

I accept you.

WT

 

Recently quoted in CBA National Magazine’s: ‘The pandemic and the long-term impact on immigration’

Panellist Will Tao, a lawyer at Edelmann & Co. Law Offices in Vancouver, worries that international graduates or students have the most trouble advocating for themselves, and are unable to access the benefits on offer because their immigration status plays a role.

“I’ve heard from a lot of research assistants personally who had jobs and grants during the summer, and who had those unceremoniously cancelled because there are some of the stigmas around who are we helping in times of crisis,” says Tao.

Some students rely upon transfers from overseas accounts, says Tao. They may have been cut off, or can no longer get support from their families in the middle of their studies. They are now facing the challenge of extending their permits.

“Many of these issues are going to become more pronounced as we move forward, and these are almost not necessarily travel ban issues,” says Tao. “But they are things we will see the consequences of in the months and years to follow.”

You can read the rest of the piece: here.

I look forward to continuing the conversation at the CBA Conference this Friday at 10am PST (1pm EST)