All posts by Will

A Tribute To Anthony Bourdain

Like many, I woke up this morning to the shocking and devastating passing of Anthony Bourdain.

anthony-bourdain-twitter_625x300_1528458776361

I never met Anthony Bourdain in person, but like many, I religiously followed his shows, read his books, and planned countless travel itineraries (including busing hours) to visit spots that he had been to. Because of him, I was inspired to go to Singapore, to the Philippines, and most importantly, to better understand my own roots and Chinese origins.

He was one of the first writers to truly put everything on the line – cut all of the bullsh*t and tell us how he really felt. That honesty, I feel, by osmosis, landed into my own life. His ability to tell stories, his verbage, and “Bourdanisms” morphed into my own vocabulary. I write, speak, and talk like Anthony did.

While he inspired me to get up and go, he also inspired me when I was at lowest points. Challenging days at the office or at school would often be solved by late night time with a rerun of No Reservations that I had probably watched a hundred times. I would re-read passages of Kitchen Confidential and Medium Raw as a way to get a better night’s rest. He was a cure to depression for many of us in ways I wish we could have only told him now.

I am a foodie – because of you. I wandered into the unknown – including to Chongqing, China where I met the love of my life – because of you. I appreciate my city more and use your storytelling tips in my everyday work – because of you.

Thank you. May you find peace, adventure, and what you are seeking in the afterlife. I trust God to take care of your family and the rest.

Clarification Needed: Why the IEC Work Permit and Implied Status Problem Needs Fixing

Other than the permanent resident delay problem, the surprising #2 line up outside my door question this late spring/early summer has been about International Experience Canada (“IEC”) Work Permit Extensions. Several individuals hold IECs and are now asking about obtaining Bridging Open Work Permits and Spousal Open Work Permits, hoping to rely on implied status to transition from to the other.

This Moving 2 Canada post (I am not sure if they are qualified immigration consultants or not so I will just throw up big disclaimers here) captures well the uncertainty, confusion, and problem with how the law/regs often interfere with policy.

Source: https://moving2canada.com/iec-implied-status/ 

I also found other examples of where IEC’s FB appears to condone implied status with the arbitrary 30 days before expiry rule – that also isn’t a “must” under law (?).

Capture - IEC implied status

Even as late as earlier this week I had an individual walk in my door stating that the call centre agent was adamant that they could not extend an IEC work permit/seek implied status.

IRCC’s website doesn’t provide a clear cut answer either but leans towards the possibility of protecting your legal status by extending to another work permit:

Extend IEC work permit 3

Legally – No barrier to IEC Implied Status

Here is the scene: Canada has signed several agreements with countries and organizations under the #IEC. Under these agreements, there are written in rules that limit the duration of stay to no more than 12 months. This extract is from our Youth Mobility Agreement with Slovakia.

Shall Not Exceed 12 months

Source: http://www.treaty-accord.gc.ca/text-texte.aspx?id=105237

However the relevant regulation, R.186(u) of the Immigration and Refugee Protection Regulations does not provide any qualifications on implied status or working on implied status:

No permit required

 A foreign national may work in Canada without a work permit

……

(u) until a decision is made on an application made by them under subsection 201(1), if they have remained in Canada after the expiry of their work permit and they have continued to comply with the conditions set out on the expired work permit, other than the expiry date;

Regulation 201 states:

Application for renewal
  •  (1) A foreign national may apply for the renewal of their work permit if

    • (a) the application is made before their work permit expires; and

    • (b) they have complied with all conditions imposed on their entry into Canada.

In short, other than the international commitments made to other countries through these youth agreements, there is nothing in IRPR stopping implied status UNLESS someone it was made a condition of the work permit that it was not extendable (#IRCC, please don’t get ideas). It seems to be a Government website wanting to not advertise it as an option in light of it’s other written commitments.

So far I’ve run into no push back but if there are cases of refusals, I query…..

  • Will this implied status period count towards permanent residency work experience?
  • Can someone be removed from Canada per s.41, s.29(2) for working on implied status?

Remember – implied status does not work the other way (for certain!). An IEC work permit is an application made outside Canada and therefore you need to physically obtain a WP approval letter before heading to the Port of Entry and/or applying at a foreign visa post!

IRCC could use some clarifying policy on this! Applicants are getting confused.

Canada’s Minor Children Custodianship Crisis – IRCC Needs to Step In

I read a recent piece quoting my mentor Richard Kurland and his prediction of Canada’s Express Entry system being flooded by international students who come to Canada in their K-12 years. In it, he predicted that they will then go on to attend college and university and are therefore will very qualified and achieve high eligibility under our existing permanent residency rules.

Clearly there is a bottleneck issue that must be addressed sooner rather than later to ensure that there is not a challenge with these graduates in the job market and later applying for permanent residency. This could put additional strain on our humanitarian and compassionate grounds – permanent resident stream as well, if not properly navigated.

I wanted to focus on a related spin-off issue involving minor children. This piece is on a practice that has come to my attention recently that IRCC needs to urgently investigate and with priority.

Currently, there is a major trend of global educational consultants and families working directly with public and private K-12 institutions to facilitate study permits for minor students whose parents do not accompany them or accompany them as a visitor (i.e. without work permit/student status themselves). In these cases, a custodianship form – IMM 5646E is required. They need a custodian in order to study in Canada.

The Problem with Custodianship in Immigration

Custodianship is defined by IRCC as follows:

“A custodian is a responsible adult (Canadian citizen or a permanent resident) who takes care of and supports the child.”

The problem with this term is it is a Canadian immigration definition, not grounded in family law and the more significant and onerous term “guardianship” and thus creates a major knowledge gap in what the custodian can and cannot do, and the minor children (and their parent’s) ability to intercept. What happens also when a custodian is unable to fulfill their duties or a student needs to switch custodians. Are there any legal requirements other than PR/Citizenship to become a custodian?

Where this becomes particularly problematic is in the environment now where you have schools and their administrators/staff/teachers/related agent parties serving as said custodian. Indeed, recently I learned of individuals being custodians over 300 students at some elementary/secondary schools. To me, this is a recipe for disaster. Putting one individual in charge of over 300 students for their “care and support” in any context does not make practical sense and opens up a whole can of legal worms.

Worse yet is the relationship between the agent and the school or the staff and the school. Should the minor child (let us use the example of a high school student) have a conflict with the school – for example academic challenges, breach of school rules, etc., there is arguably no incentive to seek any care and support for the child .

In fact likely an incentive to seek the student’s immediate return to their home country. Adding to the fact there are major barriers to language and communication between parents and the minor student – often times beyond the abilities of the custodians, it is unclear how these disputes are to be resolved.

I was recently contacted on a case where the custodian (rep from school) was prepared to drive the child to the airport to facilitate their return from Canada, without their parent or the minor’s permission. They allegedly prevented the student from obtaining a phone and created other restrictive barriers – all, likely, for the interest of likely protecting the school rather than the student.

Minor children should not be the poker chips in the process. It is not clearly transparent what limits there are on custodians receiving fees from minor children and their families and limits of what they can and cannot do with respect to the security of the child.

What can IRCC do? I have a few suggestions:

  1. Clearly define custodianship vis-a-vis family law definitions of guardianships and require more than a two page signed form in English to formalize this agreement;
  2. Clearly set a limit on how many students one custodian can be responsible for the care and support of;
  3. Set an obligation for full disclosure to the parent/child where there is a existing relationship with the educational institution OR ELSE bar individuals with said relationships from acting as custodians.
  4. Consult with experts in the field such as Justice for Youth and Children (http://jfcy.org/en/);
  5. Ultimately create a set of much more detailed guidelines setting out where additional fees can be charged, the rights of the child, etc.

I hope this issue can be solved before it becomes worse. With the numbers of minor students coming to Canada without parents seeking study permits, I do worry that it may only get worse before it gets better unless urgent steps are taken now.

With the more restrictive issuance of study permits at a post-secondary level and the penultimate demand for minor student study permits – now would be a great time for IRCC to proactively tighten the rules and clarify the policy.

 

R. v. Eustaquio, 2018 ABPC 55 – Lessons Learned About Misrepresentation as an Immigration Offense

This case comes from the Provincial Court of Alberta, with the judgment having been released in March 2018.

Ms. Eustaquio  (“Ms. E”) is a 60-year old Canadian citizen with no criminal record. She has two elderly parents who are in their mid-to-late 80s. The deterioration of Ms. E’s father led to Ms. E supporting her niece. Mari Ann Gantuangco (“Ms. G”) to apply for a work permit.

In 2015, Ms. E supported Ms. G’s permanent residence application as part of the live-in caregiver class per s.133 of the IRPR. Ms. E supported the applications through an employment letter – signing a statutory declaration and declaring hours of work.

In reality, Ms. E’s representations were not true. Ms. E’s parents were out of Canada in the Philippines for six months and the United States for thirteen days, contrary to what was stated on the employment letter.

In this matter both Crown and Defence supported relatively lesser penalties, with Crown suggesting a suspended sentence (with probation0 and the Defendant’s counsel suggesting an absolute discharge was appropriate.

Justice Fradsham reviewed several recently cases (nationally) from 2013 to present day and as well looked the appropriateness of a conditional/absolute discharge.

Notwithstanding the personal circumstances of Ms. Eustaquio, which covered several difficult personal circumstances, Judge Fradsham determined that a conditional sentence was not consistent with the general sentencing provisions of the Criminal Code. He writes:

[71]           I am of the view that when all the factors are considered, it would be contrary to the public interest to grant a discharge to Ms. Eustaquio.  A discharge, in the circumstances of this case, would unduly undermine the immigration system as it relates to those seeking permanent residence status.  A discharge on the facts of this case would prevent the attainment of the sentencing objectives of general deterrence and denunciation.

Judge Fradsham also chooses not to follow Crown’s position and instead imposes a $1000 fine (with CDN $750 reduced due the 55 hours of community service performed.

Why this is important?

With auditing of Express Entry applications and other employer-based support letter becoming more and more frequent, it is foreseeable that there will be more cases of employers (especially where family or closely-held business) being scrutinized. While a majority of these cases will likely result in misrepresentation against the immigration applicant as the end of the enquiry, particularly where the employers are comprised of Canadian citizens and in order to denounce and deter this type of conduct, I do suspect more cases to be brought forward. Ms. E was on the generous end of sentencing – she did not seek to do this primarily out of financial gain but instead to help a family member. I don’t see as much generosity being shown where an Employer is actively reaping benefits from an individual (e.g. some sort of payment in lieu of work).

See the case here: http://canlii.ca/t/hqtzb 

Snapshot Thoughts on the Canada British Columbia Immigration Agreement 2015 – Foreign worker protection (Annex B, section 9.4)

First of all, the intention is good. It carries out an obligation from 2015. Foreign nationals in B.C. who hold an employer-specific work permit for an employer or who are authorized to work without a permit per IRPA  or IRPR now have access to foreign worker protection in the case of a real and substantial risk of physical, sexual, psychological, or financial abuse.

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/british-columbia-agreement.html#definition_of_abuse 

With stories of these abuse being well-documented, especially for low-skilled and precarious workers, providing a six-month open work permit to allow the facilitation of a new LMIA-based work permit or employer is a positive step compared to the usual, tedious and challenging process of trying to obtain a TRP inside Canada.

Foreign workers caught in this situation are advised to either directly contact enforcement agencies, seek the support of an approved settlement service agency (I have provided screenshots of the Vancouver ones below), or the worker can themselves approach IRCC (Vancouver) to self-report.

Vancouver Risk assessorsVancouver Risk assessors 2

Interviews with IRCC can be arranged directly with the settlement service providers.

Possible Challenges

I have to admit that the first time I read the updated instructions I read them wrong. I thought that if an agency is approached by a foreign worker in an abusive situation that they should refer them to an enforcement agency as/opposed to vice-versa. It is enforcement agency that, in practice, should be referring. It would be useful to make this abundantly clear and set out much clearer guidelines than those currently in play. Having these in additional languages (especially where we know much of the abuse occurs in the ethnic economy) would be additionally helpful.

Ironically, this type of approach reminds me a lot of the recently retired conditional permanent residence (https://www.canada.ca/en/immigration-refugees-citizenship/news/archives/backgrounders-2012/backgrounder-conditional-permanent-resident-status.html) where individuals were similarly stuck between the “to report or not to report” conundrum.

Given the complexity of provincial and federal laws around employment and human rights, even the grey-ing discussions around human rights legislation (the legal responsibility of employers over their subcontractors, etc) this could create a lot of complicated legal scenarios. I wonder personally how IRCC plans to train the authorized service providers and how the authorized service providers plan to coordinate or add capacity in these areas of law prior to making the referral.

A challenging scenario could exist in the potential following fact pattern: sex worker (who does not disclose this is her line of work – and let say says he or she is in the make up/massage business) seeks help from a settlement agency. The Settlement Agency, confused by the written instruction, makes a referral to CBSA or contacts the RCMP (assuming this policy is in play) rather than IRCC. The resulting consequence is that CBSA investigates, uncovers the sex work, and issues an s.41 IRPA) non-compliance order (per s.29(2) IRPA) and a referral is made to Immigration Division before the individual is even able to contact IRCC.

A second scenario: worker is is being debt-bondaged at work and wishes to make a claim against a recruiter/agent. The individual, because of this policy, goes to IRCC Vancouver to complain. His expectation is the instructions (and the advice of his fellow workers) that there is a provision to give a work permit to abused workers.  He does not realize that he has never seen a single copy of an immigration form filled out on his behalf. At the initial interview, IRCC uncovers that there was a failure to disclose a previous U.S. refusal on his work permit application or disclose a drunk driving offense. IRCC makes a referral to CBSA to begin the inadmissibility process.

Ultimately, putting such big responsibility in the hands of these authorized service providers or foreign workers who believe this is a clear-cut solution is going to be a challenge. If I was one a authorized settlement agency, I would be building a strong team of outside advisors and brushing up on the s.91 IRPA do’s and don’ts with respect to immigration advice.  While they are not receiving a “fee” per se, their very funding by the government or private donors (and “payment as settlement employees” could indirectly constitute immigration advice in some circumstances.  Do all these organizations now need lawyers and RCICs?

Also – what happens with this advice goes wrong? – would an individual who was removed from Canada turn back and try and sue a settlement agency. What kind of agreements or waivers are in place before the referral to IRCC (or accidentally to CBSA) is made?

What I know this move does, and as someone who has been pushing for foreign worker rights I fully support, is create the need for more expertise in the intersection between employee-side employment law, human rights, criminal law, and immigration law. Ultimately, I think we do need to create one independent think tank (be it the Migrant Workers Centre or elsewhere) to monitor this program in B.C.. Ultimately, an independent referral agency (as opposed to the settlement agencies) may be needed.

Overall Thoughts

Purely on intent, I like the idea (in theory) of providing an option for workers to safely obtain a new work permit in cases of abuse. I hope that advisors for these foreign workers do not abuse the abuse provision.

This program and it’s pilot nature (expires April 2020) is fascinating from my perspective. How does it work? Will it become a model adopted by other Provinces? Time (and trial and error) will tell.

I do hope an organization like the CBABC creates manuals and other resources to help direct what is sure to be a very complicated process.

The Immigration Consequences of ‘I Just Got Fired’

One of the major impetuses of my decision to switch practices and move to a new law firm was to shift my practice from providing advice mostly to employers to being able to provide advice to primarily employees and educational institutions that will grow future graduates.

I believe it is absolutely crucial for all temporary-foreign workers (“TFW”s) whether they are working on an open or a closed work permits in Canada to have access to independent legal advice as it pertains to their Canadian employment.  There are several benefits to this. First, I find many TFWs are not fully aware as to their different pathways to permanent residence. Many, erroneously, assume it is entirely dependent on their employer when in sevearl cases it is not. Still others are kept in the dark as businesses make plays and decisions that have direct impacts on their future in Canada. They are merely asked to sign forms and renew permits – steps that without context could lead to a lack of a full understanding of their legal rights and future opportunities.

Among these major decisions with major consequences is the termination of employment while an individual is in the process of applying for permanent residency, the issue I will examine in this article.

Two of the most common permanent residency pathways that termination of employment could affect are the (1) the Express Entry route, where there is a qualifying offer of arranged employment; and (2) the Provincial Nomination route – which in some provinces is either operated in conjunction with Express Entry or else is a separate process involving a paper-based Permanent Residence Application sent to Sydney-NS that can take a year to several years to process. For the interest of space and due to my own personal familiarity, I will deal with only the BC PNP context. Each Province may have different processes and I would encourage you to familiarize yourself with these internal workings.

Express Entry – Qualifying Arranged Offer of Employment – What Happens When I Get Fired?

One of the first things to avoid is the ‘panic.’ Too often mistakes are made when fear takes over – and inquiries are made to Immigration (especially via the call centre) or even CBSA/border officials without a plan in place.

Before packing one’s bags, it is important on a short-term basis to determine (a) whether you still have the ability to work; and (b) is there a need to obtain work in the near and immediate future vis-a-vis the Express Entry PR application.

Much of this may depend on where you are at in the PR process. For starters, if your Express Entry score is not relying on an arranged offer of employment, your termination likely means very little to your application. Your score will not be negatively affected assuming it was locked in previously at the time you made your application. There is no need to actively work while holding a work permit. Even if your work permit is tied to a specific employer your main question may be whether to try and obtain a new work permit, stay in Canada on the work permit and not work, or else apply for a visitor record so as to clearly indicate you have no intention of working and are abiding by the conditions of your temporary stay.

Several individuals who transitioned off previous work permits have access to a bridging open work permit or otherwise may be on some sort of open permit such as PGWP or an accompany spouse of a student/skilled worker. An open work permit that is not employer specific of course provides flexibility in finding new employment in the event of termination.

If, you are relying on the arranged offer of employment and it’s 50/200 points, you arguably will have to take proactive steps. Indeed, it is my more conservatively-based strategy to update IRCC within a reasonable time on the change in circumstances.

I take this strategy because of my strict interpretation of s.29(3) of the Ministerial Instructions respecting the Express Entry System (17 October 2017) to require ongoing updates. Similar to where a provincial nomination is revoked (we’ll discuss this shortly), the MIs state as follows:

Loss of offer or inability to perform duties

(3) If the offer referred to in subsection (1) is revoked or ceases to be a qualifying offer of arranged employment or if the foreign national is unable to perform the duties of the employment or is unlikely to agree to perform them, the foreign national is no longer entitled to the points assigned under subsection (1) in respect of that offer and the total number of points assigned to the foreign national under the Comprehensive Ranking System is to be adjusted accordingly.

How the adjustment is made is very material. You have to determine how your points are affected. Your example you may have been an individual selected with a draw score of 490 (50 points for arranged employment) during a draw where the minimum score was 432, for example. The 50 point subtraction in your score will have no affect on your selection. However, it is still my practice to update them proactively so as to avoid a misrepresentation finding of not disclosing a factor that could affect an Officer’s assessment. It is not my practice to gamble with the legal interpretation of ‘materiality’ of an omission where proactive disclosure would have no negative consequences.

If the score is brought below the invited score (let us assume that the individual only has 460 after the 50 point deduction), I would consider whether a withdraw can be facilitated and whether there are other points gained or that can be gained that would negate the loss and facilitate a new profile, selection, and application. Before requesting a withdrawal, it may be worth figuring out the ultimate timing of the matter. For example, I have seen several cases where the loss of employment occurred after a final eligibility decision or after approval in principle/passport request that were not actioned by IRCC even following proactive disclosure.

BC Provincial Nomination Program –  What Happens When I Get Fired?

In a BC PNP-Express Entry context, there is a similar provision to s,29(2) found in s.28 of the MIs which talk about the effect of a revoked or declined nomination.

Points for provincial nomination certificate

28 (1) Six hundred points may be assigned to a foreign national if they are named in a nomination certificate referred to in paragraph 87(2)(a) of the Regulations that is issued by the government of a province referred to in paragraph 2(d) of these Instructions and the nomination has been

  • (a) verified by the province; and
  • (b) accepted by the foreign national.
Nomination revoked or declined

(2) If the nomination certificate is revoked by the province that issued it, or if the foreign national declines the nomination, they are no longer entitled to the 600 points under subsection (1) in respect of that certificate and their the total number of points assigned to the foreign national under the Comprehensive Ranking System is to be adjusted accordingly.

BC PNP nominees are currently given documents upon receiving their nomination that clearly set out their responsibilities, including updating BC PNP upon any loss of their employment.  Failure to do so could lead to revocation of the nomination.

BC PNP work permit holders who are doing paper-based applications that can take over a year and often times multiple years can often be particularly susceptible to loss of employment. Companies make a lot of decisions over a year that can affect the allocation of staff and, in particular, the future of their foreign workers.

Generally, when a skilled worker or international graduate is nominated, they are provided an R.204(c), T-13 -based work permit support letter from the Province. This can be used to support an employer specific work permit and/or work permit extension. The other option is an R.205(a) Bridging Open Work Permit (BOWP), but because of the timing of getting together a full permanent residence application and acknowledgment of receipt can be challenging, many opt for the safer first option. There is, of course, an underlying benefit to submitting a BOWP in that as an open work permit, transition to another employer (and perhaps even to another employer who can support a transfer of nomination certificate) would be easier in the event of termination. Working for an employer not listed on your work permit is an immigration violation that can lead to exclusion from Canada for a period of one year.

For BC PNP, the process is more facilitative if the Nominee is diligent in communicating with the program officer relating to the termination. Many officers have given ample time for a new employer to be arranged and for the nominee to figure out a new pathway. BC PNP also has been very supportive where a nomination/support is pulled by the employer late in the process.  is The validity of a nomination, the very basis of one’s permanent residence, is a very material and that termination would require proactive disclosure. I have had clients disclose prior to landing and while it does require a quick confirmation call between IRCC and BC PNP, where BC PNP indicates they are supportive of maintaining the nomination, this has created no issue.

Failure to disclose on the other hand could create challenges. Whether it be in a future sponsorship, PR renewal, support for a family member’s visitor visa, there would be more than a few places where one’s undisclosed termination could emerge to IRCC’s attention.

 

Seeking Independent Advice – Employment Counsel

I often refer my clients who have been terminated to also seek. There are cases such as Nishina v. Azuma Foods (Canada) Co. Ltd 2010 BCSC 502 where an employer’s conduct vis-a-vis immigration status affected damages awards. I have been involved in a few cases where the termination of an immigrant employee was wrongful. Some clients will choose to pursue their claims while others will pursue to focus on pursuing new employment. However, if a matter goes to litigation, it would be important for non-immigration practitioners (and the Court) to know the scope of the immigration consequences.

Why are Employee’s Post-Termination Immigration Options Increasingly Important?

With IRCC and the Federal Government now putting in resources into assisting foreign workers, I suspect that this will balance out an employer compliance regime system that does not, in my opinion, adequately involve the foreign worker. I would suspect that in addition to the possibility of increased civil litigation, remedies may be sought at employment and human rights tribunals. Increased penalties from Employer Compliance may ultimately go to funding some of IRCC’s efforts in protecting vulnerable workers or, I hope, resources to fund greater resource sharing so that employees know their legal rights prior to engaging in precarious employment.

Questions or comments? Recently terminated and wondering about your next steps? Email me at will@edelmann.ca

No Reason For No Reasons – Cruelity in the Case of In-Canada Spousal Refusals

A fundamental principle of natural justice/procedural fairness is that an applicant should have knowledge of the case against them, especially in the context of receiving reasons for refusal. Procedural Fairness requires that applicants know within a refusal why their application was refused and what sections of the law applied.

In my own practice, and at an alarming rate, I have started to see In-Canada spousal sponsorship refusals made often times several weeks/months after the initial interview that do not include anything other than boilerplate refusal language. Indeed, often times the boiler plate language does not even cover the full/actual grounds of refusal. No case-specific analysis is provided.

Several of these individuals have confided in me that during the interviews specific grounds of concern are never even raised and that they had no clue following the interview that credibility, evidence sufficiency, or even the bad faith provision of IRPA was even a concern.  While case law tells us there is no requirement for a “running score,” many times these sponsors and applicants have no clue what the score even is.

In an inland setting, Officers generally write longer refusal decisions than in typical visa office cases where often times a copy of the interview is merely inputting into Global Case Management System (GCMS). These decisions often span several pages and include interview notes highlighting the responses of both Sponsor and Applicant (who often are interviewed together), the Officer’s handwritten notes, and a final written decision. None of this, as Immigration’s general practice, is disclosed to the Client during the refusal process.

In various contexts, although I wish it weren’t that way, it makes sense that detailed/case specific reasons are not made available to Applicants in writing at the time of a refusal. For example, for the volume of study permits and temporary residents that some overseas visa offices process, it would be unduly burdensome for each to write varied, case-specific reasons into the decision. However, even in these cases there is often detailed reasons or else a checklist with boxes ticked off. This baseline reasoning is absent in a majority of the in-land refusal letters I am seeing.

The Applicant only has 15 days to file judicial review from the notice of a failed In-Canada Spousal Sponsorship on the basis that the decision made was unreasonable or not procedurally fair. In most of these cases where reasons are not provided, a judicial review becomes automatic because there is simply no clue as to why the application was actually refused.

In an overseas spousal sponsorship, an Applicant could reasonably get a copy of the reasons for refusal through Access to Information. More importantly, there is a statutory right of appeal provided.

Other than the fact that there is no statutory right of appeal in an inland context, the other challenging factor is that many of these individuals choose inland because of some challenge maintaining status in Canada or a possible inadmissibility concern. One would think that in this context a heightened level of procedural fairness (per Qin/Baker framework) would require greater disclosure than what is currently being provided. Indeed, in an outside Canada spousal interview, there is usually a portion of the interview dedicated to the Officer putting a list of concerns directly to the Applicant near the end of the interview. I have seen this rarely followed in parallel Inland cases which mirror more a fishing expedition.

I call on IRCC to change their current practice/policy to ensure that all In-Canada Spousal refusals receive detailed reasons for refusal that allow them to properly consider actions of recourse: be it reconsideration, judicial review, or filing a new outside Canada sponsorship.  At the very least, the Officer’s detailed written decision should be attached – much like it is in the context of an H&C or PRRA decision. Procedural Fairness suggests that this should be the correct process. The expensive and burdensome process of litigation and ATIPs (in many of these cases) can also be avoided through more transparent decision-making.

*Ps. practice tip = Applicants and their counsel should and can follow-up to ask for written reasons from the Tribunal (decision-maker) in this context. Often times the written reasons will be sent/faxed shortly thereafter.

A Fresh New Start – Edelmann and Co.

First week officially in the books. I look around at my office, out at Victory Square through one clear and one not so clear glass window (there’s a story behind this – for another day, no less), I feel as if I have finally settled in.

IMG_6316

I am grateful to have landed in a place of compassion and learning. I love it here. From having a brilliant office manager who I can already tell is a special soul to the equally brilliant colleagues I have. Everyday is filled with discussions about the law and doing good.

This journey won’t be easy. I’m shifting from what I will readily admit to now, a “business man practicing law” to a “lawyer who happens to operate a business.” The stakes are also much higher now as is the level of knowledge and finesse required. The clients that I have started to and well be starting to see often find themselves in vulnerable places, subject to an immigration system that increasing feels turned against them. Every conversed word and every step must now be more calculated than every before – often with lives and families hanging in the balance. It is not enough to simply show a client meets the requirements of a certain permit.

Learning to push myself yet be patient at the same time will itself be a process. Beyond myself, I need to put my faith in God and those around me. My heart is ready and the mind is making it’s way there – it has to overcome.

Over the next little bit, I will revive this blog – with a little bit of law and lot of love. Like the elephant being held up by balloons that sits in my office room I hope to take the heavy burdens in stride and focus on how much support I am grateful to have.

To the mentors who helped me make this decision, I am very thankful to each and every one of you. Now – let’s get back to the grind and do it for the people.

Remorse Should Go Two Ways: Lessons Learned Fighting Immigration Fraud in Vancouver

Remorseful_Face

As a lawyer, I ultimately have two major loyalties. The first, to my client, to ensure to defend their interest to the best of my ability and legal knowledge. The second is to the public, to justice, to ensure that the actions I take are always above board, ethical, defendable and do not bring our sacred justice system into disrepute.

Balancing both those obligations I have some ideas on how we can combat immigration fraud and improve our system. For those who have read my previous writing, this may sound like a broken record. However, until someone listens and does something, I figure I will keep playing it.

When it comes to immigration fraud there is one predominant narrative. This is the painted picture of the capricious wealthy immigrant looking to exploit the Canadian immigration system, buy up all of the expensive houses to the populous is left homeless, and then off they go back to their home country to feed their cycle of deceit and fraud. Their practitioner, an often unlicensed overseas or domestic agent, aiding and abetting in systematic manipulation meanwhile making a handsome living on their own.

I do not disagree that these type of individuals do exist and this narrative happens. I have seen a couple that pass by for consultations from time to time. I generally do not like taking on their cases. Not because I do not believe everyone does not deserve equal representation but in a high-volume practice such that I have now, I prefer to help those who need my help the most and who gravitate to me for the right reasons. I cannot professionally take fees where I may have concerns over their originating source of the funds and I prefer not to take cases where I have credibility concerns as to the person providing me material information.

All this being said, in the past three years I have seen a different narrative as well. In that process I have come across countless other immigrants. Shaded and silenced now because of the overwhelming narrative which keeps them at home, often isolated, with few friends and a new world of fear. They want to speak but feel so voiceless. They feel victimized by those fraudulent agents that purported to help them and now they feel resigned to defeat by a country set with an agenda upon deporting them back to their home countries.

Before you stop reading any further – give me just a few seconds to make my case:

Imagine yourself, not fluent in a language, accepted as a permanent resident into a new country with rules and law much different than your own. You are here, but everyone views you as not one of them. Your job interviews highlight that you are overqualified, compensation proposed is low, opportunities out of reach. You go to school with young adults half your age and see them one by one obtain opportunities. You struggle to raise a child who needs their other parent. The astronaut thing that is presented as a scheme is actually a living hell.

Your Permanent Resident Card is about to expire. You look in the local newspaper (it is the only one you can read without having to consult a dictionary or your neighbour that you barely know) and you see the name of someone in a sharp suit. They look established, a good go-between, they say they are professional, licensed, with a high success rate. You come from a country where reputation is everything and usually those with the best reputation are the ones who are advertised.  

You go to their office – located in a central downtown office. Business license on the wall. Attractive employees in their high heels walking to and fro. Business seems booming. The person at the front is courteous and professional. They re-iterate the company’s strong performance, say a few things in your native language about what documents are required and the process, and they say leave it with us. We will guarantee your success.

You appreciate their confidence. You provide them the documents within a few weeks. They send you a contract in English – you cannot read it but you assume it is right. You sign. They provide you some forms, it seems filled in but most importantly it came from the company you trusted. You sign. The forms are submitted and you never keep a copy. You get notice you are successful. You pick up your card. You are happy.

Five years go by.  Out of the blue Canada Border Services Agency flags you. You have misrepresented. You are a crook. You are now an immigration criminal. A liar. A misrepresenter. A burden on society.

I would say seven out of ten cases I am currently seeing following this exact pattern.

Part of the appeal process for these individuals (after they are issued their exclusion orders and assuming they are a permanent resident have the right of appeal), is to demonstrate remorse. They do so by apologizing to those involved and telling their family, friends and employers about what happened. For a culture that values privacy, this is a deeply shameful process. The apologies that are spoken are genuine and are sincere. However, most time the sorry is not enough, too late. It does not matter if they truly had no clue that the mistake was made indirectly by the agent. This lie is treated exactly the same as a deliberate lie in terms of punishment under our laws for misrepresentation.

Should We Be A Little Remorseful Too?

On behalf of some Canadians (I am sure a majority will respectfully disagree), I will provide some remorse of my own. I am sorry we didn’t welcome you as a country with more open arms. I am sorry we did not knock on your door to introduce ourselves or offer to help when you were stumbling with the menu at the restaurant next door. I am sorry that we did not invite you and your spouse to interview or give them that raise when we gave it to everyone else. I am sorry that our legal profession was not diverse enough to provide you with competent assistance in your principal language. I am sorry that our rules and regulations were not tight enough to keep these fraudulent businesses (which outnumber legitimate shops) from obtaining a business licenses because their $56 dollars was all we needed from them. I am sorry that we allowed you to access clearly fraudulent services from the back of newspapers that we had no clue were in circulation in public spaces because we do not read them and cannot regulate them.

There is no excuse for fraud. Two rights do not and never should make a right. But put yourself in the shoes of someone, for just one second, who needs assistance and also gets victimized. Twice. First, by an incompetent practitioner. Second, by a competent society still allowing for too much incompetence and fraudulent animus to pervade in our day to day business.

There are actions that can be taken quickly to try and prevent fraud so we do not end up turning the immigrant deportation process into not a costly play involving two unwilling sides.

First, the Canadian federal government can actively step up in reaching out to foreign governments to step up their regulation of fraud. As these businesses are likely also assisting in capital flight and fraud in these countries, it likely will not be hard to find some willing partners.

Second, the Canadian government can invite a roundtable of relevant parties – regulatory bodies, provincial and civic immigration bodies, to come up with some strategies. This could involve a public relations campaign in different languages (which Immigration, Refugees and Citizenship Canada has started to do but with limited scope), and most importantly to create new regulations. If a business is applying for a business license but does not have the required professional license or good standing to do the work they purport to do – that business license needs to be withheld. Free newspapers should understand their civil liability to advertise only information that is accurate and not fraudulent. Criminal charges, where currently dissuaded under the legislative regime, could be implemented.

Third, we need to figure out the language thing immediately. I would almost purport that all new immigrants be required as part of their permanent resident process to enroll in government sponsored English programs. While it is a positive step that many immigration programs now require a level of basic competence, more must be done. There also need to be more regulators involved in the immigration system who also speak third-languages or hire those who speak third languages and can investigate into wrong-doing. One of the major challenges with the recent massive fraud investigations was that it took several years to get together, during which time more victims continued to add to the cycle of fraud.

I think if these three steps are taken – along with the appropriate firm but fair messaging that the Government is capable of promoting, we can better insulate those who are unwilling victims of fraud from those who are its true perpetrators.

Expect 2018 to Be the Year of the “Yes, No, Maybe (After a Delayed While)” in Canadian Immigration

Presa_de_decissions

I have noticed a bit of a trend in immigration over the past half year one that I believe will set the stage for 2018.

There are some applications – straight-forward Express Entry applications (for example) and on the province-side, certain nomination applications that are going fast. Incredibly fast.  I recently had a few Express Entry’s take less than a month when the going rate for 80% is supposed to be six months. My colleagues have had self-employed applications go through in months. Some extensions are being granted in weeks where they previously took months.

There are also applications that will inevitably be “no’d” – returned to sender per R.10 IRPR or S.13 of the Citizenship Act. Applications where seemingly minute details of questionable “legal requirement” are deemed to necessitate the return of Applications. I am already telling my clients (and those self-rep consults that come chat with me) to be extra careful. Dot the i’s, cross the t’s – include specific checklists, flag the fee receipts, include the postal codes, and do whatever you can to ensure the application does not get rejected (especially in the case of something like Express Entry). Refusals will also be quicker on some cases, especially where visa offices have low acceptance rates and the demand for the category (e.g. international student will be higher). Expect temporary resident refusal reasons to leave you scratching your head and learning to file judicial reviews.

The most worrisome pile is perhaps the “maybe pile” – the Citizenship applications missing strong proof of residency and the PR cards that enter what we deem in the industry as the “immigration black hole.” There are applications that I have seen where because an individual barely met the residency obligation (or even met it only by a month), or otherwise claimed an exemption that will sit and linger for months, if not years. I have a file in front of me that has been in processing three years without so much as a person having counted the days or assessed the eligibility of the exemption requested. To avoid the maybe pile, individuals may start choosing to buffer applications with additional days spent in Canada, advanced gathering of exit/entry records, and front-end addressing of back end consequences.

On the immigration appeals side, the lack of sitting members have facilitated a very fast, transparent, and excellent Alternative Dispute Resolution system that many applicants have utilized. However, the transitions from ADR to re-processing, and the wait for those files for members to hear their cases will test patience, no doubt.

Expect more historically straight forward applications – such as PGWPs and self-employed/Quebec investor to hit the maybe pile. There will be more due diligence on certain clients and Immigration will utilize more tools in their tool box – compliance updates from schools, open source intelligence on asset holders in countries such as China, to dig up a little more dirt. Expect misrepresentation to continue to be pursued, sometimes for cases where materiality may be nominal but there, in some form, all the same.

Other quick thoughts…..

Atlantic Canada – will become a hots pot immigration destination. PNPs will continue to flourish. Immigration will eventually have to rethink the current process of whether LMIAs and the Employer Compliance Regime are really serving the needs of local Canadian small businesses and their employees, who may not have the resources of corporate powerhouses and may require a little patience rather than their picking off as lower hanging fruit for non-compliance and other immigration violations. International students will be the education version, with their “employers” – DLIs, in a similar position – jockeying for credibility and strengthened compliance systems.

Information sharing – between administrative bodies – will turn from a consent question to a norm. Threatening to delay some applications and in other reveal webs of possible deceit or planning that traditionally would have been considered smart. Honesty – and hopefully the ability to correct mistakes uncovered prior to Government intervention by way of a 5-year bar or the writing of an s.44 report, hopefully will become the norm.

2018 has officially started kicking into high gear. Cases have started piling up. Time to strap on the boots (dress shoes in my case today), put on my glasses (I’m blind without them) and start reviewing some paperwork and make some submissions.

I’m going to Federal Court (solo) for the first time (my streak of consents officially ends now) next week on an interesting procedural fairness case. Here’s to making better law and policy in 2018!