All posts by Will

Why the 180-Day Post-Graduate Work Permit Application Period Will Create Problems for IRCC/Applicants

In past pieces I have lauded IRCC’s extension of 180 days for students to apply for post-graduate work permits. From a policy perspective, I believe it gives students more time to find a job and prepare a decent application rather than to have to rush and base such an application off an expiring study permit that may or may not be easy to extend based on an institution.

IRCC’s new rules are that the study permit must have been valid sometime within the past 180 days but do not need to be valid at the time of application. I also wrote about how the lapse of a study permit automatically 90 days after completion of studies may also complicate the policy switch and require some sort of extension regardless.

What I didn’t realize at the time, but only did with some more reading and cross-referencing is that some of the policy likely does not work in theory with respect to the regulatory provisions of the Immigration and Refugee Protection Regulations which hold power of law.

Let’s start with the issue of what a student whose study permit is expiring (either naturally or on the basis of the 90 days) who wants to stay in Canada needs to do and how that affects their post-graduate work permit (“PGWP”) eligibility.

For those who switch to visitors in Canada, that means that their PGWPs should not (technically) be processed inside Canada unless they are accompanying a family member which permits them to make an application after entry under R.199 of IRPR.

Application after entry

 A foreign national may apply for a work permit after entering Canada if they

  • (a) hold a work permit;

  • (b) are working in Canada under the authority of section 186 and are not a business visitor within the meaning of section 187; – They don’t meet this subject to my analysis below on a possible loophole created.

  • (c) hold a study permit; – this is expired

  • (d) hold a temporary resident permit issued under subsection 24(1) of the Act that is valid for at least six months;

  • (e) are a family member of a person described in any of paragraphs (a) to (d); – this depends on family members

  • (f) are in a situation described in section 206 or 207;

  • (g) applied for a work permit before entering Canada and the application was approved in writing but they have not been issued the permit;

  • (h) are applying as a trader or investor, intra-company transferee or professional, as described in Section B, C or D of Annex 1603 of the Agreement, within the meaning of subsection 2(1) of the North American Free Trade Agreement Implementation Act, and their country of citizenship — being a country party to that Agreement — grants to Canadian citizens who submit a similar application within that country treatment equivalent to that accorded by Canada to citizens of that country who submit an application within Canada, including treatment in respect of an authorization for multiple entries based on a single application; or

  • (i) hold a written statement from the Department of Foreign Affairs and International Trade stating that it has no objection to the foreign national working at a foreign mission in Canada.

(emphasis added – comments in underline)

The student whose study permit is expired without a family member to boot has no regulatory authority for their PGWP to be processed in Canada unless they utilize an exemption.

Moving on….

Adding to these challenges is the interplay between R. 186(w) which is the provision that allows a former student to work in Canada while awaiting their post-graduate work permit creates major timing issues.

No permit required

 A foreign national may work in Canada without a work permit

…..

(w) if they are or were the holder of a study permit who has completed their program of study and

  • (i) they met the requirements set out in paragraph (v), and

  • (ii) they applied for a work permit before the expiry of that study permit and a decision has not yet been made in respect of their application; or

(emphasis added in underline and bold)

In short, if I am not mistaken (and correct me if I am wrong) – a student who has let their study permit expire (90 days after completion of studies) and is applying within 180-days after graduation is under IRPR at least, in a situation where they have to make an outside Canada application.

Even more contradictory, they cannot work after they submit their PGWP application because they no longer meet the requirements of 186(w)(ii) as their PGWP application is coming after the expiry of their study permit.

Unless…..

My third point. A loophole emerges where it actually makes logical sense for a student who wants to take advantage of the whole 180-days they have to submit their post-graduate work permit to submit another paper-based application (which may be without merits – such as a Significant Benefits WP or frankly any WP application such as an accompanying spouse of a student) that would then authorize them to work until R. 186(w)(ii) until a decision is  made.

In short, it is my reading that these helpful policy changes (with good intention) will require regulatory amendment (in addition to just policy) and there may be some individuals caught in the middle of this crossfire of law and policy. Hopefully those regulatory amendments will capture that.

I will have to wait for the Gazette for those instructions.

Immigration law is fun isn’t it?

International Students, Criminality, and Immigration Status – a Few Points and Pointers

In the past year, one of the areas in which I have received the most inquiries and run the most consultations involves international students who have found themselves facing either criminal charges or dealing with the consequences arising from immigration investigations following charges/convictions.

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A Little Background – Crimigration Generally

I would be remiss if I did not point out first that my piece below will cover mainly practice/practical experience and tips that I would take if I were an international student or international adviser giving a talk to students on criminality and it’s possible consequences. I won’t be going into the details of the foundations of immigration consequences of criminality generally as I couldn’t do the topic full justice in one most.

I would strongly recommend reading this paper from my mentor Peter Edelmann, which subject to a few developments in the law around conditional sentence orders being held by the SCC not to be terms of imprisonment in the criminal admissibility context is still very valid today (http://pblsask.ca/imm_consequences_at_sentencing.doc).

Peter’s brilliant memos on criminality have helped a good number of criminal lawyers in their negotiations with Crown and their Court matters. I strongly encourage you reach out to him (peter@edelmann.ca) if you would like more advice on this.

I would also recommend reading the case he argued in front of the Supreme Court of Canada – R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696 – with respect to sentence appeals and informed consent of immigration consequences.

The SCC held that  the accused must be aware of the nature of the allegations made against them, the effect of their plea and the consequences of their plea which include immigration consequences.

International Students – Things to Be Aware Of

Unlike other permanent residents and even temporary residents, there are several factors that make international students unique in the context of criminality and have direct impacts on their larger immigration status issues.

The Role of Studies Before, During, and After the Criminal Process

First, their studies heavily factor in. International students are required to actively-pursue studies and remain enrolled during the duration of their time on a study permit in Canada (R. 220.1 IRPR). The considerations for this are highly subjective, yet gratefully have been clarified recently by IRCC – see my past post on this issue.

From my experiences, individuals who come to the attention of IRCC through criminal charges are highly scrutinized for their past educational efforts (or lack thereof). Indeed, I have come across several Officer’s section 44 reports that flag this for review, even where charges were eventually resolved by way of discharge or a peace bond (i.e. where criminal admissibility cannot be made out).

Students who are having issues with the law should do what they can to stay in school. The criminal proceedings will inevitably have an affect on their ability to attend classes, but communication needs to be established with professors, instructors, and international student advisers to try and accommodate.

Even the conversion to part-time classes for one semester that is not a final semester or a failed class can be enough to trigger attention. These would seem to be very natural consequences of the stress of facing charges in Canada, particularly for many students who have never been in trouble with the law before.

At worst, an exclusion order can be issued for not actively-pursuing studies. At best, an international student’s eligibility for a post-graduate work permit which require full-time study throughout (other than last semester) gets thrown into the deep water.  Also, for international students not engaged as a full-time students when facing charges, it is not advisable to work as doing so may be in violation of your study permit conditions, another violation that could lead to an individual’s exclusion from Canada.

I find many international students are also not aware of some of the possible outs. Exceptions to actively-pursuing studies for family members (common-law partners/spouses) of study permit and work permit holders is not adequately canvassed. In fact, the practice of updating IRCC on changes in family make up during the time after a study permit is approved is not posted anywhere on the IRCC website nor done in practice by anyone, but a select few.

Similarly, applying for a visitor record while holding a study permit can be done in cases of leave yet I would argue that IRCC has not yet made clear how the simultaneous holding of both these permits affects the active-pursuing studies requirement.

Second, applications/efforts to seek re-entry or extend stays in Canada will come under increased scrutiny. I generally recommend individuals who are facing charges in Canada and/or are in the process of fighting those charges to stay in Canada and stay enrolled. Once a flag is placed on a file, the individual can be subject to deeper looks into their immigration histories when seeking re-entry, for example on a day trip to Seattle or a Spring Break trip back home.

What were accepted as mistakes and/or missed by visa offices on past applications can now become open ground for misrepresentation investigations. The breadth in which s.40 of IRPA is applied makes a mistaken question about whether you have been previously arrested or charged, refused an application, or even the organizations you were involved with in the past  is now an open season search effort. In my ideal world, every student who is currently charged with an offense and/or was recently acquitted would seek legal advice and review before filing their subsequent applications, especially if the proximity of time between the two is very short.

Another issue to flag is that communication and contact with IRCC/CBSA becomes even more important post-criminal charges laid. It is not uncommon for CBSA officers to want to interview you in advance of a decision on your criminal matter, as a bit of a check-in and file review. Warrants for arrest, leading to detention have been issued on the basis on failures to update home address properly with relevant authorities.

I am really opposed to the detention of international students for immigration violations, but unfortunately a lot of it spurs from communication issues that are entirely avoidable. It is much more advisable for both Client and the CBSA to have an interview and go through the admissibility process when the Client is not detained.

Putting international students who have never been arrested in their life, into cuffs and with general population can have scarring and traumatic effects. I have had to make more than a few referrals to psychologists on this basis. I think there is much more that can be done to create better and more accessible portals for home address changes, especially when students do not have access to their own MyCIC application accounts (an issue I have addressed many-a-times on this blog).

Pressure to Leave Canada On Own Accord – Either/Or Conundrum

In the inside Canada context, charges are not convictions. Only convictions render an applicant in admissible. Often times I find clients that contact me have not been advised enough of the immigration consequences by their criminal counsel. This is certainly area for continued collaboration between the two legal practices, especially where students and cognitive/mental health vulnerabilities are heightened and the uncertainty can have worse psychological effects. Family overseas often times are entirely kept in the dark, many time purposefully, by international students. Students often borrow money to try and pay for legal fees further creating a whole for themselves.

The other issue I have see is pressure from CBSA who in many cases will try to encourage individuals facing criminal charges to accept a lesser exclusion order and leave Canada. Many times the grounds for this are nefarious, at best, yet remain largely unchallenged administratively.

I personally would love CBSA to take a little more of a hands-off approach and let the Canadian Criminal Justice system play its course before intercepting. However, I can see why it is sometimes deemed beneficial to get a rid of a perceived problem and cost on the system from their perspective. International students are a dime a dozen from the system’s perspective – bad press, media, and lengthy trials – certainly aren’t.

The Value of a Letter to the Court/Crown from Immigration Counsel

One of the lesser known benefits immigration lawyers can provide to criminal counsel is, as discussed earlier, a legal opinion. I mentioned Peter’s opinions are in my biased opinion – the best in the business.

These opinions can set out the immigration consequences of finding an individual guilty. They can be especially crucial for international students where you can tie in the consequences on their inability to study if found inadmissible and their removal order enforceable (R.222(1)(b) IRPR).  In my own practice, I have been able to provide memos that once disclosed by Defense counsel to Crown started the resolution process early. Crown, especially for first time offenders on more minor charges, have been amenable to considering an absolute or conditional discharge, a peace bond, or even a stay – taking into consequences the vulnerability of their student status in Canada.

I am not a criminal lawyer myself and can only provide my ‘afar perspective.’ I tend to find the process more Crown-facing than immigration’s client-facing preparations (maybe if part of it is because we don’t usually have a physical face in immigration to talk to). I would provide some constructive feedback that my crimigration clients, especially those with language barriers, often find themselves a bit in the dark during the initial stages prior to trial. Here a collaborative approach may work and also where the use of interpreters at an additional cost becomes entirely worth the transparency of communication.

A Note on Sexwork

With the cost of tuition for international students rising astronomically and as well with a strong movement of women who are breaking the stigma and taboo of sex work as an illegitimate form of labour, it is not uncommon for international students to engage in this area. I won’t weight into the larger and very Vancouver debate over whether eliminating prostitution, regulating, or deregulating prostitution, is the best path forward but do note that it is very much in the post-Bedford atmosphere here.

Unfortunately, temporary status poses problems in this regard. Section 196.1 places a blanket restriction on foreign national entering into employment agreements with employers who offer sexual services:

Restrictions

 A foreign national must not enter into an employment agreement, or extend the term of an employment agreement, with an employer

  • (a) who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages; 

There is a current silence around self-employment (especially escort work) and occasional sex work and these are the gray areas in which this arguably cruel and unusual law operates. Furthermore, no direct link is made in section to work without a permit while a student which falls under R.186(v) which has no similar sex-work limiting provisions.

For international students, I have seen the actively pursuing studies provision as well as extension refusals targeted at those who engage in this work. The ‘bawdy houses’ are still very much being treated by enforcement officials in the immigration context as human trafficking hubs, somewhat contrary and different

This is an area I am increasingly interested in. Should you have or know of other international students who are struggling with the ways the laws are written and enforced around the ability to perform sex work while on a study permit or even as an international graduate please email me at will@edelmann.ca. I am currently awaiting a few stakeholder directions on where to direct further research in this area.

After Removal…. Coming Back to Canada

Depending on the outcome of the criminal trial, whether one is ultimately found criminally inadmissible and removed, the ability to return to Canada may vary. Rehabilitation may be available, as may deemed rehabilitation after a certain prescribed period has passed.

However, for those students removed on a finding of ‘not actively pursuing studies’ or ‘work without authorization’, the one year mark when the inadmissibility expires is not an automatic green light to return. Previous admissibility findings often lead to increased scrutiny on future temporary.

I would also familiarize myself with the Authorization to Return to Canada (“ARC”) provisions especially for those who are removed on a deportation order for serious criminality or on a five-year exclusion order for misrepresentation. I’ve done a deep dive post here.

Conclusion

In short, it is tough for an international student facing criminal charges. There’s a lot of uncertainty  and a lot of communication issues inherent in the process. Conversations between yourself and your criminal counsel, criminal counsel and immigration counsel, Crown and your criminal counsel, Crown and CBSA, and CBSA and yourself all may occur in this whirlwind of personal uncertainty.

You need good and effective counsel – and thankfully Vancouver has some of the best criminal lawyers in the country. Definitely get on top of things and organize for this process – put your relevant people in touch with each other. Failure to recognize your rights, reliefs, and the interplay of CBSA with the arresting authorities can lead to confusion, and possibly huge immigration consequences for international students.

Feel free to provide to email me if you have any questions arising from this post: will@edelmann.ca

Eight Interview Prep Tips I Use to (Try to) Avoid Becoming a Colour-Sound Bite (“CSB”) for Mainstream Media

In the first three months of this month, I have had the privilege (and I would also call it also a personal and familial/community responsibility) to speak on quite a few very controversial issues for media (print and radio). In many of these pieces, I was selected to speak as a representative of my cultural community, a job I took wearily and with precaution.

Looking back on the many pieces, I have to admit they weren’t all great interviews, and subsequently not all of what I wanted to say was published. Indeed, for most of them, where I would spend 20-30 minutes on the phone with the interviewer and often times 2-3 hours in preparation for what to best say, at most one or two lines would be used. Many times those lines would be what lawyers call, obiter dicta (side points in passing), rather than main points. In some of these pieces, my thoughts did not become the primary narrative.

Radio is even more difficult. Going into these interviews, you have an agenda of where you want the conversation to go, but the interviewer, station, and other interviewees can take the topic entirely different directions. I felt that way especially with the CBC Early Edition piece, where the Professor I was speaking alongside wanted to focus on the technical/diplomatic relationship between Canada and China, where my gameplan moving in was to try and destroy the relevance of that macro-level, trade relationship to most of our day to day lives as Chinese-Canadians just looking to get more politically engaged. I was worried that this story would define us/serve to divide us rather than allow us to pour attention to the progress/challenges we face at home in an election year.

Unfortunately, to-date, this conversation as continued to go that way, and again the blindness of the Chinese-Canadian struggle/need to organize continues.

In my work and in my mentorship, and thanks to advice from incredible mentors, I’ve started to pass on my interview opportunities to others (I’ve turned down my last four).

Many times, it’s just a matter of sending an interview request off to a mentor or someone I feel more qualified to speak to an issue. It is my hope that more women, especially women of colour and Indigenous women, replace the white male-dominated pundit/talking heads we see too much of on our TV and hear and read too much of on our radios and in our newspapers.

In that process of encouraging others to speak up and to present their views, I also do worry that they are prepared. It is not usual for people of colour and minorities to be more nervous and anxious about these interviews. For us sharing our perspectives exposes us to mix of external and internal pressures – not only from ourselves individually (for many, our greatest critic), but from our families (many of which told us to not speak up unless we have to) and our communities (often splintered/divided along several lines of migration, wealth, and regional difference).

We cannot expect to be talking pieces for entire complex diasporic communities, but that is the expectation that those less in the know or those wanting to sell sound bites want us to be. We’re easy, quick, accessible, educated and can put in comments that raise questions and tensions. These are tensions for the most part (although with more journalists of colour, this is changing) journalists will not have to lose sleep over. Either their piece gets hits or it doesn’t – either it helps them get their next big story or attention, or it doesn’t. The consequences lie primarily on us, who have to go back to our communities, attend networking events, and be judged by the few words that were printed in our names.

This is not to degrade the profession of journalism (one I admire so much) but rather to acknowledge that the written space does provide opportunity to hide behind corporate, editorial, or even what page and where it is published, ways. People will forget a bad piece from an author as soon as a good piece is written. People (especially those within our communities) will not forget when we shared our views, especially when they may have contributed to detrimental outcomes and we have to see each other once a week at Church, or at the same neighbourhood coffeeshops and community meetings.

Furthermore, there are also some journalists (conversations about which I have had with other journalists) who will be writing with a very clear agenda about what they want to say. They have mapped out their piece as an essay with a conclusion, and their looking for their evidence in the form of your quote. Frankly, I hate this kind of journalism. I love the kind that presents the nuanced views and leaves me thinking there is another chapter or a bigger story to be told. I love when a journalist tells me they went out trying to write one piece, but another one emerged on paper that challenged their own perceptions. Finality often doesn’t exist in most contentious issues that draw attention, but pundits get paid to take stances and draw conclusions (as premature as they may be).

Friends: be very, very careful of being utilized for your appearance and position (lawyer, person of colour, LGBTQ2+, professional) as a way for the journalist/opinion writer to meander and promulgate their own opinion through your words. You can say a whole 30 minutes worth but your one off-colour, or you ‘wish was off the record’ comment of honesty or internal debate or side chatter, will represent you and by extension the community.

To paraphrase and quote the words of a mentor:

“Canada is a construct in most people’s minds that is just white and for many of us of colour (and those who are more aware) we know that it is a lot more complicated than that. To get our proper voice and opinion in, we have to do the extra work of proving to them that we are of a different world as much as we have been able to survive in theirs for so long. In that act of showing them that we are ‘different’, we chip away at ourselves because it has never been accepted to be normal – might speak to the inner trauma that many of us have.”

With that being said, here are a few (seven) tips that I have employed myself to share with those being interviewed for the first time.

Will’s Eight Tips

1.Research, Research, Research: Research the topic inside out before you speak to the journalist. Memories fade, facts and figures that the journalists look to tie your comments to can be wrong/outdated/or not properly cited. My own personal rule is at least 1-2 hours prep per ten minute phone call.

2.Understand the Ethical Guidelines: Review the CAJ Ethics Guidelines and clarify beforehand whether the media you are interviewing for follows specific rules http://caj.ca/images/downloads/Ethics/ethics_guidelines.pdf – Depending on the source journalist standards may be different. Some are okay with publishing written email comments (my favourite, because I can cite and research). Others are okay allowing you to review quotes first before they publish. Others put a process for correction, after the fact. It’s good to know what the industry norms and standards are rather than to be caught off-guard.

3. Deep dive into the journalist/interviewer’s work: On that point, on norms and standards – research the journalist or show you will be on. For the radio ones I did, even though I admit I’ve only recently gotten into podcasting, I watched a couple episodes to understand style. Similar for print – many times experts are called in on follow-up pieces to news reports. It is good to see what the writer has been doing in that area and whether there are some underlying message being shared and whether they resonate with you. If they don’t, you may choose to pass the interview on, or else address your concerns directly with the journalist. Even if you are not published, it spares your thoughts or work being reduced into a ‘colour-sound bite.’

4. Find Dry Run Partners/Debaters: Run through a few mock interviews with people you trust (and who you respect for their difference of opinion). I would do it not only with my spouse, but also with close friends at parties (who I would tell about upcoming interviews), and over the phone with trusted mentors. Sometimes, you may come from different views on a topic – that opposition is helpful. In a few cases, texts back and forth clarified that I shouldn’t do an interview. In another, I got valuable advice on the direction I should steer my interview. Speaking to someone with experience can really lessen the nerves and clarify the bigger picture often missed when questions are being asked that you are unprepared to answer.

5. Record Your Interview Yourself! I am not the best at this – but try and record (and ask for permission to record) the call at the same time you are being interviewed. At the very least take some typed notes as you speak so you have a record of what you said. Clarify exactly when things are ‘on’ and/or  ‘off’ the record. A full record for yourself can be very important, especially if you want clarify something in your own social media post later or expand on points that weren’t published or gotten to.

6. Speak Your Truth, Presented Specific to You (With Caveats, As Necessary): I realize in interviews, many questions (particularly where the interviewer hasn’t yet done their homework in the same way you have) can be asked very broadly. It’s important to highlight your perspective and what you believe in, but it’s important to also put those important classifiers – this is what “I” believe, “I see the situation as,” “in my personal opinion only.’ It’s important to clarify when you speak as an individual (especially those with many professional responsibilities) and when you speak as a mouthpiece of an organization. I find that big sweeping statements such as ‘we’ or ‘our community’ or ‘most of us’ get picked up often and often times are only a partial picture of the point you are trying to get across.

7. Get Ready for Damage Control – If the quote in the preview or posted product isn’t exactly what you meant –  it’s time to do damage control. I like to get ahead of stories and share it myself with a full summary of what my point was. On a couple occasions I’ve had to ask journalists to make some corrections, which they can if it meets their journalistic guidelines.

8. Prepare for Social Media Backlash – Be aware of social media blow ups. Twitter accounts or Headline/Catchphrase choosers are often run by a completely separate person than the one interviewing you

To Conclude

I end off with a quote from Ta-Nehisi Coates which I think any of us stepping into the controversial arena of being interviewed by a journalist throws you into.

“You are growing into consciousness, and my wish for you is that you feel no need to constrict yourself to make other people comfortable.”
― Ta-Nehisi Coates, Between the World and Me

I am very hopefully with the new, fresh, voices on both sides of journalism – both writing and interviewing. In this way, we’re able to have more intimate dialogues that go to the heart and depth of issues rather than superficial comments that leave surfaces barely scratched. Yet, in this age of populism and financial difficulties, there will still be a huge market of journalism aimed at and for those who want the sound bites, especially the colour sound-bites, to rationalize and justify their superiority and validate their biases, prejudices, and racism.

I wish you luck in your interviews and look forward to the conversation this piece generates!

Immigration Appeals: The One Question You Should Ask Before Retaining a Lawyer/Consultant

For those that wonder why I have been posting less frequently than I used to do, one of the major reasons is that I have been putting significant time into building my immigration appeals practice (currently mostly spousals, residency, misreps, and some criminality).

I had the ability to learn after one of the very best at my old Firm, and I realize it is a practice quite suited to the younger, energetic lawyer who is willing to invest time into their clients and their cases. Through this process, clients have called me an ‘honourary family members,’ a designation that for me, more so than any third-party recognition, gives me true value through work.

I wanted to write a simple and short post because I have been seeing both a discouraging and worrying level of poor representation not only from those who do not generally do appeals work but also those who some would one would assume are the best/top immigration lawyers in Canada.

These two groups are lumped in for very different reasons. For the first, it is due to inexperience – not having spent enough time seconding or attending (as I did often during my articles) both hearings but also the preparation sessions with clients. Lack of awareness of rules, deadlines, and procedures can be killers in the final appeal.

For those in the latter category, it often is a time thing. Good, solid immigration appeal work takes time. This includes time getting to know your client, generating document lists to obtain, reviewing those documents, determining whether alternative dispute resolution is on the table, coordinating around hearing timing, preparing clients for direct examination and cross-examination, updating the file (as required), and ultimately delivery strong submissions. It is a full-service performance combining litigation and solicitors skills. For many lawyers who are eager to fight the next big constitutional battle or tackle legal interpretation, this often times pure factual engagement process (especially in the case that rely solely on humanitarian and compassionate grounds) is a time suck. Some lawyers will try and pass these preparation tasks off to an assistant, something that this work cannot be done properly by without solid direction. Others will even forgo preparation altogether and show up on the day of the hearing. Such a strategy is risky. Without having gone through questions in advance with your clients and applicable witnesses, communication lines are very likely going to break down between lawyer and client and between the answers of clients and witnesses on the day of the hearing. These gaps will lead to negatively credibility findings (when many times it is simply poor preparation, stress, and anxiety that are the root causes).

When hiring a lawyer/consultant [who I will just refer to lawyers moving forward, as a majority of good tribunal reps are lawyers rather than consultants] to do an appeal case – first of all, sign up for a consultation. Before paying a lump sum get some paperwork in front of the lawyers and work through the essential facts. That consultation will allow you gauge both the legal analysis and the factual analysis strength of who is helping you and can determine whether there is sufficient rapport to ensure the essential facts get revealed. As a client, you want to ensure that you are providing a full factual record as well. Details you may think are irrelevant or private (circumstances of family members back home, country conditions, a child with a learning disability, reasons for a misrepresentation, or a previous application) are very crucial to the overall circumstance. The lawyer should show some proactivity in gathering this documentation.

The real key question you want to ask your potential counsel though, which will differentiate those who know the process and can execute a good appeal prep process, and those who will may leave you feeling uncomfortable, concerned, and ultimately unprepared is the following:

“What is your preparation strategy and schedule for preparing my appeal?”

It is a simple question. Much simpler than the question of how much will it cost (which frankly, is highly factor dependent on how much of an uphill battle preparation will be, whether interpreters will be needed, and whether you are able to handle the paperwork).

The lawyer should be able to draw you a roadmap quite early in the process. Using the hearing date (and the potential fallouts) as the end point, when will the schedule be for disclosure (or backing up, what are the timelines for when you need to file your appeal, when about will you get the Appellant’s Record or “Blue Book”, when should the Alternative Dispute Resolution (“ADR”) requests be submitted, disclosure, and how will appeal preparation work. For complex appeals, this may be a rotating schedule (3-4 hours a day) with relevant witnesses, culminating in a run through with full direct exam, cross exam, witnesses, and interpretation. They should also demonstrate the right balance of cautious optimism where the facts support it, without putting down a percentage of success (as I have discussed in previous posts).

If none of this is being discussed or even mentioned – I would dig and potentially search elsewhere. Without these details, it is very likely for the appeals to go off the rails and become a rush job in the last 20 days before the hearing. More often than not, this is not enough time to present the strongest foot forward.

When it comes to the question of whether I think an appellant should do an appeal on their own, my answer is – no.

Why? Because a lawyer is your voice. Through direct examination we can present your case and your facts. On your own you are subject to the questioning and direction of the member of the Minister’s counsel – one neutral and one on the side of the Government. By yourself, assuming you are also a witness, the appeal will be a show without a director.

Over the next few weeks, I will be writing more posts about appeals and as well judicial reviews (two areas of my budding practice) to share not only with applicants who seek counsel but also junior counsel who are seeking to engage in this area. I note that I am by no means a senior counsel (and don’t have all the answer) but these unique nuances of practice incorporating rules of Court and Tribunal can allow for us to explore more complex and less seen scenarios, that are increasingly showing up in litigation. With an increase in settlement of straight-forward judicial reviews and changing Immigration Appeal Division Rules shortly (which I had the pleasure to consult on), navigating the margins or the obscure will become more and more useful in our practice toolbox.

Appeals – do them. I love them! I would love to assist on even more of them.

‘Considering young lawyers in our Responses to hate’ – My Email to Fellow CBA Immigration Lawyers

Following the New Zealand terrorist attack, local elements of hate have started to put out threats. Unsurprisingly, among those targeted appear to be immigration lawyers.

After it was posted, a senior colleague from Toronto and mentor Chantal Desloges shared her thoughts about the worrying nature of this incident. Barbara Jackman, OC and probably the greatest living advocate for refugee constitutional rights, thoughtfully suggested we share these messages with our assistants, many of whom are diverse persons of colour, to ensure their safety. Kyle Hyndman, a local lawyer from Vancouver whom I’ve admired for several years for his leadership and expertise, particularly in the field of LMIAs and work permits, added a further message of inspiration for us to be proud of our work.

By the way, at this point I’ll note that I have rarely ever utilized the CBA Listserv to share my thoughts. Indeed, I can count on one hand the entire number of times I have done so in now almost five years of practice (if you include articling, when I first joined the Listerv) – 3. The first time was on a truly unique fact pattern involving an overturned removal order and the Government’s financial obligations, the second was to ask for assistance on our litigation for the Parent and Grandparent Program. This was my third.

As those who read and follow Vancouver Immigration Blog and my Twitter account will know, I have recently taken a huge interest into examining power, privilege, and race. The truth of the matter is, lawyers of colour struggle in balancing these three and in turn it makes us more susceptible to anxiety, self-loathing, imposter syndrome, trauma, and stress. We become often times the invisible practitioners, behind the scenes working long hours, serving as interpreters and arbiters, sometimes even having to translate. After we serve our clients, who will often scrutinize us more because we are not white and therefore do not appear to look like your typical lawyer, we then have to handle returning to our communities to deal with the consequences (both good and bad). There’s a lot of skin in the game and it is not an easy process.

I wrote this email response to that thread.

Thank you Chantal, Kyle, and Barbara (all three fantastic mentors) for raising this important issue to our attention and your words of courage and inspiration to us.

I also wanted to chime in on behalf of myself and other younger immigration and refugee lawyers of colour. For us, we often face additional barriers – without the platforms of power that can serve to insulate and speak for us, yet at the same time with these issues and challenges so deeply embedded in the communities we serve and live in. We become part of the threatened and as well part of the front line of defence, regardless of our own statuses in Canada, simply by the way we look and who we were born to.

I am grateful for a strong CBA Executive and Coordinator team, one that has allowed me to use Twitter as a platform to share stories of inspiration, put out debate, and highlight some of the activities of our immigrant communities and young lawyers who come from them. I continue to ask you to send me news stories and developments of inspiration so we can be part of this conversation in a positive way. We also have a very diverse executive we should all be proud of and is so unique to the CBA that we should continue to champion.

As a final note, I urge you all to reach out to younger, BIPOC (Black, Indigenous, People Of Colour), LGBTQ2+, and Differently Abled lawyers in your firms and also make sure they are doing alright. Vicarious trauma and stress affects us all in different ways and for many of us with lived experience or direct family that have come from migration and struggle, these client matters and associated threats from the public take on a different meaning.

We should also be looking at ways we can help highlight diverse voices in everything we do as an organization – to make sure young lawyers of different backgrounds know they are supported and that they have a place at the decision-making table, even if this requires some of us to cede our own power and privilege in order to make this happen.

In solidarity and with gratitude,

Will

‘I Don’t Get to Call Myself An Ally’ – But I Can Aim Towards Becoming One

Tomorrow, for the first time I am speaking on the topics of decolonization and intersectionality. I don’t think I have ever been as nervous for a talk. It is a topic I have been engaged in for the past several months, but it still feels to me a new term. However, there is some value into speaking to the newness and humility. That is why I eventually put my name forward and agreed to speak.

It has been a long time coming. A year ago, I don’t think I could have spoke on this topic let along would I have put my hands up to even volunteer. The pathway to learning about colonialism, decolonization, intersectionality, racism, and discrimination in our society has been a difficult one. It has forced me to confront my own current role (and definitely my past roles) in perpetuating my privilege and my power in not only my ‘colonial work’ but in the way I may have approached community service. I lose sleep now in ways that I did not before – because I am exposing myself to my own shortcomings and the painful truths I conveniently avoided in years past.

I am glad that it is slowly stripping away an ego that I think the process of being a lawyer almost inherently instills. I feel more humbled and I thank the learning I am doing and the social activists I am meeting for transforming me.

This process has highlighted mistakes I have made in the past in this regard.

For example, I donated money to a local organization on behalf of my law firm thinking I was doing good while simultaneously shirking a previous responsibility I had to that organization, as a volunteer. I realize that I was donating to cover up my own guilt and that goes against the very principles of decolonization that I am now learning about.

A second mistake I made was for a long time this law blog had an Indigenous logo that a non-Indigenous friend designed over. That appropriation of culture was entirely inappropriate. Even now, I am aware my logo is Indigenous and I am not – something I need to be extremely careful about as I consider the direction my blog goes and the societal/policy issues we engage with. I think that by engaging an Indigenous artist Diamond Point, we’ve made a step in the right direction but Indigenous recognition – much like, can very easily turn into lip service with no corresponding action.

All this to say – I don’t get to become an ally – just by reading a few pieces and attending a few workshops, giving a few talks, writing a few tweets, and making a few donations. Becoming an ally requires an investment in time, but more importantly a humility that this is a fight I care about but a fight that ultimately I need to support my Indigenous brothers and sisters in. I need to advocate but more importantly listen and be present when listening.

I had a colleague tweet in reply, not so long ago to a post of mine, that I also needed to show sensitivity when talking about things such as the residential school experience or the experiences of Indigenous women, as the very bringing up of these themes could be triggering to them.

As lawyers, we love to talk, to write, to share. It almost seems like the test for good advocacy is whether you have been to Court recently, what level of Court,  what policy issues, and what media opportunities. The first two months of this year gave me some incredible platforms but frankly I did not do enough to use those platforms to shift conversation or give light to underrepresented and more deserving voices, especially Indigenous voices. Indigenous issues are still so peripheralized and othered in mainstream media – through a lens that more often than not dehumanizes.

We seem more engaged with global events that have little effect on us, but that generate clicks and false outrage, than we do with local suffering that we are all collectively responsible for as settlers on stolen land – which should generate real outrage. It is as if those problems are our Government’s and that ‘reconciliation’ has solved all problems. From what I am seen and heard, it hasn’t even begun to scratch the surface.

When it comes to tomorrow’s talk on decolonization and intersectionality – I plan to share with these young impressionable minds of the amazing RADIUS program I am speaking to – my journey and my stumbles.

I also very much aspire to this idea that decolonization cannot be a metaphor for general social change, social justice, and anti-colonialism/oppression. If we water down decolonization, or worse yet, forget decolonization needs to come hand-in hand with indigenization (and not just of mind and rhetoric) – we may do more harm than good. I am also aware that this process will involve ceding of power, privilege, and land. Anything else, and it turns again into rhetoric and feel good excuses for our continued settler privilege and justifications for modified colonal appetites. We also need to come to global understandings of indigenizing that also doesn’t allow for the term to become homogenization.

Canadian indigenization – and where it comes from is historically grounded by systemic and full-scale wrongdoing that sought to wipe out Indigenous culture. Indigenization in another context, for example a country that believes in protecting and preserving one’s indigenous roots at the expense of newcomers or racial intermixing, can become problematic and the basis of racial/ethnic supremacy.

I think the position we come from and the model we develop in Canada will be very unique and we have to be careful to reconcile that with other world views and with the world view of newcomers. Introducing Indigenous issues and history to newcomers will become a major priority of mine, once I go through my own learning process.

On the topic of intersectionality, we need to also develop a Canadian model that takes into account Indigenous women, as a foundation for our BIPOC perspective. Indigenous and two-spirited women have had their identities marginalized and it is routed in the aforementioned colonial policies. Decolonizing will help highlight and tackle intersection issues.

Parallel, and simultaneously, we need (and I am grateful we are starting to see) the rise of powerful women entering newsrooms, media, politics, law, and other area of influence to highlight the structural, political, and representative intersectionality that marginalized and minority women find themselves in as a result of the narrowed patriarchal lens which creates male-dominated viewpoints or allows on some women in on our major conversations.

Our Canadian understanding and study of this concept is so behind, that on major issues – such as Karen Wang and recently, Jody Wilson-Raybould, – no one even brings it up. This gap in analysis (coupled with the consistent racelessness and neoliberal ‘multiculturalism’ espoused by those in positions of power) wipes out the experience of women of colour. This is unacceptable and as a man of colour, I bare my share of the blame for not tackling our own community stereotypes here.

To conclude, where I started, I’ve been thinking a lot about these issues, but I am not an ally (yet). I don’t get that label easily. I may never get it. I need to be listener, a repenter, and learner, a more humbled down human being. I need to use my voice and rather than sit silently while I watch the narrative be shifted, use my voice and privileges to shift the narrative to places where we need it to go.

Some of you will be sick and tired of me writing about race, taking as comedian Aamer Rahman wrote about “white person this, white person that.” On this point, I want to share the recent writing of Sandra Inutiq in her piece Dear Qallunaat. The headline says it best.

‘Recognize and admit your power and privilege and the fact you are benefiting from racist systems’

Even as a non-White settler, I have benefit from it too and I need to be more aware of this. Similar and parallel systems that made my ancestors Han Chinese and scholars in China from (my late father’s side) relative affluence and education made me benefit there too.

It’s time to strip away ego, recognize and admit privilege, and cede power and land back to our Indigenous brothers and sisters. In the process, I trust that the empowerment and deconstruction of barriers for BIPOCs will naturally occur. Canada will be a more equitable, equal, and truly diverse place.

With peace and love.

Will

I Want What Timmy Has – A Short Narrative

I haven’t wrote a fictional, lighter piece in a while so I thought I’d put together this short narrative. Like many stories there are elements of my own life embedded into it. I am also sure many of you can relate to some of the streams of written thought I go on. I’ve made a commitment to myself to do more non-fiction writing in 2019 so here’s a quick one!

 

I stared at him across the room. Timmy. My part time friend and part time enemy “frienemy.”

Like always he was the centre of attention. Table packed with the most attractive girls from our class, the guys from the hockey team, and today a few young admirers I recognized from last night’s big game.

I did not have the luxury of such a fan base.

Like every other noon o’clock it was my daily period of solitude.

Today my friend Chen was sick – that or his parents took him back to China again. The rumour going around was that all us had the Asian flu. Including me, who I note never ever had stepped a single foot in the motherland, Asia.

It usually would just be us two – talking about, well mostly it was a silent Buddhistic ritual. His mom was a good cook – I would ask him what he was having. It usually looked and smelled better than mine. That and he had the triple layer thermos that neatly separated his rice, meat, and vegetable dishes. My own dented thermos carried a mystery mix or yesterday’s leftovers and some hidden surprises my pops whipped up at 7am. He was up early every day to make our lunches.

It wasn’t that I hated Timmy. If this was PE (Phys Ed) class we’d still share occasional laughs but half the time he may have been laughing at me. See I wasn’t the fittest boy in class. While rap fashion was in and I was of above average weight, the extra large hoodies and pants didn’t help. They were off the discount rank and I didn’t know better. The colours usually a mix of vibrant yellow, orange, and white accentuating how out of shape I was. The gym was a foreign place of growth stinting potential – one of the many places and spaces, the rules dictated I was forbidden to visit.

Timmy went into his brown paper bag and pulled out his sandwich. It looked like Black Forest Ham. I never much liked sandwiches but I was jealous of the neat tinfoil wrapping. His lunch was a series of hidden surprises. Sometimes he would gift a piece to his favourite admirer, who would woo and give him a peck on the check or one of those deep hugs that I desired – the hugs the members of the hockey team would give to each other after a nice goal, or when greeted by their fans after the game. All I had were the handshakes of a good game after a tennis match – usually one I would also be excluded from, riding the pine (or the place behind the chained fence, as it usually was in our tennis games).

Exclusion was a natural concept for me in these years. Excluded from my culture, from Timmy’s culture, from the school culture. I took refuge in my own little world of written words and verses, of Tupac and Em, much to the chagrin of my deeply conservative-music classical music listening family.

Today Timmy took out a cylindrical round thing out of his bag. I could tell by it’s colour – green that it was gold to me. The bane of my existence. Everything I wanted. I had tried asking for it before. Mom’s would tell me – ‘why the heck would you eat that when you eat the actual thing itself?’ and ‘do you think we’re a white family? – it’s too expensive’

I craved the sweetness, the granular, smooth texture. To me it was finer than the fanciest cake (not that we had any options but the over dry, fake peach fruit cake of every birthday ever). Timmy opened it up, licking the lid, blissfully unaware that the three girls surrounding were watching the tip of his tongue with eyes wide of excitement as they were already engaged in second base. Whatever, second base was – for me it was just Roberto Alomar.

A white plastic spoon came out of his brown paper bag. I stared down at my own chopsticks, which in my lack of attention paid had turned into one chopstick and one game of pick-up sticks waiting on the floor.

Timmy was smiling, he blue at his bleached blonde hair – spoon caressing carefully the corners of the plastic cup.

This is a memory I always carry with me. I carried it years later when I was in a foreign land (where what Timmy was having was entirely foreign). One of my classmates at the time had her family from Mid-West USA deliver some packages of the stuff. It was so damn good, I went for thirds and skipped dessert.

But, more than that, it represented a jar of memories, a cup of perfection of a culture that I never could fit in but damn right wanted to. An object of affection to a soul that at material times both crave it and lacked it.

I want what Timmy has. To be honest I still want it today.

I want that damn Apple Sauce.

IRCC Makes Positive Changes to the Post-Graduate Work Permit Program – February 2019, But First A Little Personal History About Pushing Change

Part 1: First – A Little Personal History about Pushing Change

In advance, I want to make clear that I am not writing this first section to make it appear as if I had anything to do with the changes announced today. This was done by concerned students, stakeholders, schools, other lawyers, and great IRCC policy people engaged in this issue. I am writing this because I’ve been asked by a number of young mentee law students/pre-law students recently (and other fellow junior lawyers) how I got so engaged with international student issues. Rather than just simply copy and paste the website changes, I thought the process of my interest, advocacy, and how it all plays in – may be of interest to some readers.

Since IRCC implemented their clarified directive Study Permits: Assessing study permit conditions I had a feeling that new instructions on the PGWP would be coming. A month ago, Immigration Representatives confirmed to me by email that this was the case:

Actively pursuing studies

A month later, on Valentine’s Day no less, IRCC placed some little cards into the brown paper bags tied into the back of plastic chairs of international students (sorry – as you can tell I’m getting off topic and nostalgic, as I write) .

As frequent readers of this blog will know, I have been advocating for PGWP changes for several years now, having assisted many clients in various stages of challenges with this program – ranging from eligibility concerns, to initial applications at Inland Offices, VOs, and POEs, to the Federal Court, and reconsideration requests. I gave talks, wrote a lot of articles, had student clients who speoke to media, and advised schools – all because of the uncertainty. At one of my talks I think I described being an international student in Canada as being caught in a rough ocean with a life jacket on and a PR island that often appears too far to swim to.

The past few years began to see a lot of challenges in the area. Refusal rates began to climb and international students, especially from those with non-traditional study programs or for reasons outside of their control had to take leaves in order to complete their studies. While I was successful in restoring several international students who had been refused, either for having their study permits lapse or having paid less than the required fees, the case law during the time (notable FC cases from Raj Sharma and later Ravi Jain), started to close the door on that process.

There was also a huge health toll, one that was lost in the rhetoric of blame placed on international students in mainstream media. I talked a bit about it with journalist, Melanie Green here.

International students, many already dealing with separation anxiety, isolationism, and culture shock, not only pay often times 3 to 4 times the tuition than domestic students, but also face other barriers limiting their ability to work and seek access to crucial settlement services.

From a personal perspective, my own spouse was at the time going through the international student experience as were her colleagues (and I was footing the bill of course!) I saw these issues affect a lot of her friends, especially the financial challenges. Personal experience goes a long way into building a passion for practice.

Looking back, given  I was having a conversation about this with IRCC program managers such under three years ago about the need for change – it has indeed been a long time coming.  It has been incremental – but now there is a clear list of DLIs on the website, as discussed earlier, the aforementioned actively pursuing studies requirement was clarified, and now this.

I am very proud of IRCC for stepping up for international students. Without further ado, here are the changes.

Part 2: The Changes

IRCC’s changes can be found here and are titled “Program delivery update: Processing Instructions for the Post-Graduation Work Permit Program.”

There are two major changes from IRCC and one change that I would also add to the list, around the leave provision.

Change 1: Deadline to Apply Extended from 90 Days to Six Months

There is now a six month period, instead of a 90 day period in which to apply for a Post-Graduate Work Permit. This gives a lot of flexibility for students to further explore after graduation whether they want to continue studying or apply for a post-graduate work permit. It also removes a lot of the uncertainty which arose when a student was told they had completed their studies but did not formally graduate until several months later, creating confusion on the 90 day period starting point. Six months will make that much better.

One of the things I do see arising out of this is change is a lot of schools that were previously thwarted (or had negative fallout) from four-month add on programs now integrating it into their programs. The raison-d’etre is that these programs could assist into entry-to practice and help students secure employment without killing valuable time off their PGWPs. It may also encourage some students to continue studies rather than graduate and apply for PGWPs.

This could create problems though if a student applies at month 4 of 6, makes a mistakes, and becomes ineligible for restoration. Furthermore, I think IRCC and related stakeholders do have a role to play with respect to sussing out that interplay between R.222(1) (a) IRPR which could invalidate the student status of individuals who intend to apply for a PGWP at month 4 or 5 but not continue their studies. These students could lose status unknowingly.

The possible solution? Visitor Record Extensions may need to be employed to bridge between end of student status and prior to a PGWP application.

Change 2: No need to hold a valid study permit while applying for a PGWP

This is a big one – which unfortunately came off the backs of several deserving applicants who were refused. Previously, students whose study permits were going to expire before they were able to apply for PGWP had to extend their status, creating a weird scenario where they had graduated but still had to apply to maintain student status at the institution. This also affected a lot of students who decided to leave Canada right after they graduated and apply abroad, forgetting to extend their study permits.

This was also the main issue in my colleague Ravi Jain’s case of Nookala v. Canada (Citizenship and Immigration), 2016 FC 1019 which unfortunately for awhile closed the door.

Now the language is hold or held a study permit.

This also opens the door for restoration at least within the six month period. This goes again to the importance of applying earlier (rather than later) for a PGWP in most circumstances.

I would like a little more clarity around Restoration and think it should be a separate section on the program guidelines.

Change 3: Leave Exception – Discretion to Issue PGWP Where Not Continuous Full-Time Studies

IRCC has added to their instructions information about leave which specifically carve out an exception for those students who took a leave.

The Instruction state:

Leave from studies

If the applicant remained in Canada while a student and took leave from their studies during their program, the officer must determine if the applicant was compliant with the conditions of their study permit, as outlined in Assessing study permit conditions. Officers may request additional documents to complete their assessment. Per paragraph R220.1(1)(b), students must

  • be enrolled at a DLI
  • remain enrolled
  • be actively pursuing their course or program of study

If the officer determines that the student actively pursued studies during their leave, the student may still be eligible for the Post-Graduation Work Permit Program (PGWPP).

If it is determined that the student has not met the conditions of their study permit, they may be banned from applying for a post-graduation work permit for 6 months from the date they stopped their unauthorized study or work, per subparagraph R200(3)(e)(i).

This suggests that in addition to leeway – there could also be individuals banned from applying, depending on the time elapsed before graduation. However, as we know there is also a final semester rule that does provide some comfort to international students who are part-time in their final semester.

IRCC’s Guidelines on Leave provide more insight on how this may apply in practice:

D. Leave from studies

Students may be required or may wish to take leave from their studies while in Canada. For the purpose of assessing if a student is actively pursuing their studies, any leave taken from a program of studies in Canada should not exceed 150 days from the date the leave commenced and must be authorized by their DLI.

A student on leave who begins or resumes their studies within 150 days from the date the leave commenced (that is, the date the leave was granted by the institution) is considered to be actively pursuing studies during their leave. If a student does not resume their studies within 150 days, they should do either of the following:

If they do not change their status or leave Canada, they are considered non-compliant with their study permit conditions.

In cases where a student has taken multiple periods of leave in Canada during their program of study, the officer should consider the student’s reasons for the various periods of leave. If the multiple periods of leave do not appear to support the expectation that the student is making reasonable progress toward the completion of their course or program of study in the time allotted by the course or program of study, the officer may determine that the study permit holder has not fulfilled the condition to actively pursue their course or program of study.

Examples of reasons for leave include but are not limited to the following:

  • medical illness or injury
  • pregnancy
  • family emergency
  • death or serious illness of a family member
  • change in program of study within the same institution, outside a regularly scheduled break
  • dismissals or suspensions (dependent on degree of severity)
  • postponed program start date (see Deferred enrollment for more information)

E. Deferred enrollment

In exceptional circumstances, a student may be required to defer their program’s start date to the next semester. If the student defers their program start date, it should be formally approved by the DLI. In some cases, the deferral is imposed by the DLI.

If the study permit holder is in Canada at the time of deferral, and they wish to remain in Canada, they must begin their studies the following semester or within 150 days from the date the deferred enrollment is confirmed, whichever comes first. Otherwise, they should do either of the following:

Note: In all deferral cases, students should obtain an updated letter of acceptance from the DLI.

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/assessing-conditions.html#leave

I still think there are some gaps such as deferred registration (see below) but ultimately it does give Officer’s a level of discretion. My hope is they will continue to rely on the support/guidance of DLIs when making their decisions on whether to grant an exception and issue the PGWP to students who rely on this exception.

Ongoing Challenge – Full-Time Studies Definition

There are a few issues that still remain that I think can be better addressed in new program delivery instructions.

IRCC has now clarified that full-time student status is now for ‘each academic session of the program or programs’ – replacing full-time for the program.

Full-time studies 

  • They have maintained full-time student status in Canada during each academic session of the program or programs of study they have completed and submitted as part of their post-graduation work permit application

I still find this definition problematic – for one because many schools operate on non-traditional calendars and in many cases there is both financial and career incentive to study part-time in the summer rather than full-time during the semester. I think it is not equal practice to have different sets of rules apply to international students and domestic students.

These rules may further tighten that definition. I think it is an area where more advocacy and putting the ball back into the Court of institutions (but holding institutions to higher standards) may be the best solution.

I’m seeing one of the fall outs of these instructions putting more discretion in the hands of Officers as opposed to institutions. This is one point to monitor as we move forward.

Guideline Applicability Start Date – Remedy for Recent PGWP Refusals 

The rules kick in for applications starting today, with applications received before today considered under the old rules.

Eligiblity of Rules

Client who were refused PGWPs and are still within the initial six month period of being eligible to apply under the new guidelines may want to try and submit, if they meet the other requirements.

What Should Schools and DLI’s Do

I have three initial steps for DLIs and institutions to consider how to take into account these new changes.

  1. Do an Audit of Existing Materials – Website, Print, Agents, Advertising

These changes will undoubtedly require a massive overhaul of materials. It is important, as we have seen from litigation in Nova Scotia, Ontario, and Alberta recently for schools to either take best efforts in disseminating correct information or not disseminating any at all. A half-hearted approach is probably the most harmful.

2. Consider Program Changes

Again, with the new 6 month period to apply for PGWPs schools can start getting quite creative and benefit their students with tack-on programs that could help students secure jobs shortly after obtaining PGWPs in a way they couldn’t before. I can see adding on business and experience-based learning type programs to the end of completed programs. Schools may want to look into these

3. Consider Prospective Policy Changes and Advocacy

Change usually begats change. I have heard that some schools were presumptive in trying to tell agents that they were close to getting PGWPs. That hasn’t occurred with these instructions. Yet, there may be a lot of room for schools to advocate both to the Federal and Provincial Governments for programs whose graduates are bringing major benefit to the Canadian economy and social fabric. More programs to facilitate these individuals, in areas such as theological studies, film and television, and the arts should be pursued – ideally through PNP pathways.

I also see a change not too far in the horizon regarding schools (perhaps first secondary and elementary) being limited by a quota system in the number of Letters of Acceptance they are able to submit.  This is apparently the Australian model, something worth studying as the numbers for study permits increase and refusal decisions no longer are able to withstand judicial scrutiny.

Finally, what to do about international student fraud and the lack of any regulation of education consulting. The capital outflows occurring as a result of the current fee-for-seat system and the presence of global recruiters/agents is not tenable. The system will change as soon as the political will, which in B.C. is clearly there, goes along side.

Interesting times for our international student regime!

 

Letter to My Sister (in Law): A Reflection on Male Toxicity and Male Privilege in the Profession

The below piece was inspired by a recent experience in an Inland Spousal Sponsorship interview. In a moment of empowerment, I decided to step in for the Officer and question my clients, in a manner that went beyond my ‘courtesy’ role as counsel. I reflected on the power/historical dynamics that led me to believe that I could do this, and believe that part of it was because the officer was a Filipina-Canadian woman and in the back of my mind, as a lawyer, I could speak for her or over her. I connected it to other experience in front of white decision-makers of power and recognized my parallel silence. It is a position I could not reconcile with myself and therefore I have written the below letter.

The first version I wrote (but was accidentally deleted in a WordPress saving issue) was arguably better. I think I went more in detail and hit harder. Perhaps, it was to personal and would have drawn criticism from those individuals who may have recognized themselves in the parables. I hope that in this version, I still capture that essence. I will continue trying to find back the words I wrote but in the meantime please take these words.

1024px-Sister_Sister_logo.svg

Dear Sister (in Law):

While we are not bound by blood, we are bound as siblings by our mutual decision to enter this profession. You, like me, entered to be able to pursue a profession where you would be valued for your contribution, where you could fight to promote justice, and where you could secure a better future for you and your clients.

I am writing today to apologize to you and to share a few accounts both of my privilege and the ways in which we (as a Male Bar, writ large) have not given you the space or opportunity you deserve, as our gender equals.

To those of you of colour, we have even further made difficult a journey that is already made difficult by the trauma of practicing areas that hit often too close to home or too distinct from experience.

We have created environments that have further make you feel without a place and/or we have used our own space to take away yours, our voice to silence yours. For that, we need to acknowledge that we’ve fallen far short. We need to take immediate remedial action to empower you and humble ourselves in the process.

I take personal responsibility for my own role. Looking back on the past years, I have made so many mistakes. I have participated in speaking over women colleagues in male-dominated meetings, all-consumed in the toxic male ego. I have engaged in the backroom small talk of discussing visceral appearances, and generally not being a-tuned enough to how much I was contributing to the denigration of my own sister. I cast gazes that were inappropriate, had conversations that re-enforced my own alluster. I was selfish and wrong.

Inexplicably, I have at the same time showed deference to white men in a manner where I would not have showed deference to you – and it is something I cannot explain but damn-right want to fight in myself and in others. It makes me sick to my stomach that I would allow the historical colonial role of white men in Canada, to not only silence me but then turn around, as a silenced person of colour and not take away your voice.

Meanwhile I have listened but not acted when you told me about that partner who made you do 90% of the work and would take 100% of the credit. When you have told me of clients who would email them to complain about you and who treated you as a disposable assistant rather than the capable lawyer you are. I should have knocked on the doors of patriarchy or helped you fight back. My ‘it will be okay’ simple wasn’t an okay response and was reflective of my silence and misuse of privilege.

When you told me that you received a position on a Board and that the Partner thought you were filling a ‘diversity quota’ I should have made clearer that I was on your side. Instead, I tried to justify his response.

I regret not telling the lawyers who told me that I was at an advantage because I was male and would not have babies and go on mat leave that this was not fair to my sisters who often do not choose to abandon profession but often have the decision imposed on them by the external forces of child-rearing, with little more than a “that’s your natural responsibility.” I want a child but know full well that this decision will change my partner’s life and career choices in a way it does not affect me. I can show up the next day to accolades without having to feel an announce of the pain or the prejudiced judgment of bottom-line driven employers.

I regret the times I participated with the white man in casting that wicked gaze over you – commenting on your appearance and not your last appearance in Court.  The times I saw your high heels as symbols of sex but not the band aids behind the heels as symbols of pain of needing to please in a profession with it’s priorities all wrong.

I regret not telling the powers that be that maybe they need to speak to you first before speaking to me and that my rubber stamping of their authority added to simple majority but paid lip service to you, who was truly affected by the choices they were making.  We allowed our cultures to develop into mini fraternities and boys clubs, where we feigned listening to your monologues one second, and immediately after closed the doors and laughed at you the next.

I regret not trying harder to convince media that they do not need another male talking head or that they should assume that ‘he knows’ when ‘she knows better’ and has the credentials to back it up. I should have deferred or set ultimatums where simply I was happy taking the limelight, myself. It has made you question why you have to work twice harder to get half the accolades, at a portion of the pay – something your client may never know.

How do I fix this? How do I be a true ally to you?

For one, I should no longer contribute to ‘mansplaining’ your situation or always wanting to be the head of the table, especially in your conversations.

For second, I should ask you as my sister what you want – and not assume it is protection, a father figure, a direction seeker, and that maybe I am actually the one needs all three.

For third, maybe it’s time I stop enabling the powerholders and brokers by kow-towing and pumping their tires.

I should challenge their authority, that they are no King and maybe it is time for a Queen to be given her chance to reign. In my personal life, when I see situations of inequality affecting women and women of colour, I need to raise my voice rather than sit there content in silently being served by a woman, like the experience is normal. It isn’t.

I have a lot of historical wrongs to right. My response to feeling dispossessed as an ethnic male during my high school years was to try and join the popular forces of ‘whiteness’ and ‘maleness.’ I had encounters and moments where I crossed lines I had set for myself. In law school and my early practice, I felt male dominance was just part of a normalized environment. Little did I know that it was a environment built specifically to keep women out of power  – while simultaneously undervaluing/underappreciating their work. Next year they would always say – you would get what we have, but the goalposts would always shift.

What a difference time makes. I am now in a place where I work for badass women. They are now (currently) my office manager, two out three of my Firm owner’s, my mentor, my spouse, and my mother. I have cut from my life those elements of male toxicity. I am stepping (although it is a process) outside of my perpetrator role. The events of recent show I still have a long way to go.

Sister – I hope this next generation of lawyers is your generation. I hope you take seats on our highest bench where you hold decision-making power over us, molding law with your genius and maturity.

If I ever, talk for you, walk over you, gaze at you, in a manner in which you are uncomfortable I want you to tell me. I want you to tell me when another one of my brothers does it to you as well. I want you to share with us (when you are ready) how we have failed you. Any Firm that takes such a piece as an offense or tries and dissuade you from doing so, is no home for you.

It is with sincerest apologies and hope that we can do better, as men and allies.

Sincerely,

signed

Your Brother (in Law)

 

 

 

Reasonable Apprehension of Bias in Immigration/Refugee-Related Decision Making: High Thresholds and Reticent Engagement

ignorance-arrogance-bias-15072e-1024

In this long read, I thought it would be interesting to tackle an area I am quite interested in – the legal concept of ‘reasonable apprehension of bias’ and how it applies to Federal Court decisions where counsel are raising this argument. I focus this piece on Federal Court decisions issued in 2018 (one is a FCA decision).

My early thesis is that as administrative burdens on the Government increase along with a growing demand on immigration to Canada (which subsequently will increase the requirement to removal individuals who have ‘fallen out of favour’ – either by status or admissibility), more decisions may be perceived by applicants of demonstrating bias or being grounded in biased policies.

Simultaneously, we may see a subsequent increase in counsel going after the procedural fairness of a decision, on the basis of alleged bias.

What is the current state of the law? How does this all play out?

What is a Reasonable Apprehension of Bias

The test for Reasonable Apprehension of Bias was recently restated by Justice Gagné in Alcina Rodriguez v. Canada (Citizenship and Immigration), 2018 FC  995 (CanLII):

[34]  The test to determine whether there is a reasonable apprehension of bias is established by the Supreme Court of Canada in Committee for Justice and Liberty et al. v National Energy Board et al.1976 CanLII 2 (SCC), [1978] 1 SCR 369 at page 394, and confirmed in Baker at paragraph 46:

…the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . . [T]hat test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

[35]  An allegation of bias must be supported by convincing evidence and cannot be made lightly. The burden of proof is on Mr. Rodriguez, and the threshold to be met is high (Fouda v Canada (Immigration, Refugees and Citizenship)2017 FC 1176 (CanLII) at para 23). In essence, he must demonstrate that the decision-maker was closed-minded and not open to persuasion.

Emphasis added.

Another common setting out of the test of bias quotes from R v. S RD) 1997 3 SCR 484 which can also be found in Justice Brown’s decision in Kamal v. Canada (Immigration, Refugees and Citizenship), 2018 FC 480 (CanLII), at para 32. In the decision, he endorses Justice Kane’s setting of the test in Poczkodi v Canada (Immigration, Refugees and Citizenship)2017 FC 956(CanLII) at para 50:

[48]  In R v S (RD), 1997 CanLII 324 (SCC), [1997] 3 SCR 484, 151 DLR (4th) 193 [RDS], at para 113, Justices L’Heureux- Dubé and McLachlin referred to the test and noted that the threshold for a finding of real or perceived bias is high, explaining that “an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice.” The Court cautioned that allegations of bias are serious and should not be made lightly. The same principles apply to allegations against other decision makers.

As set out in Wewaykum Indian Band v Canada, 2003 SCC 45 (CanLII)[2003] 2 SCR 259recently re-iterated by Justice Strickland at para 27 in Yuan v. Canada (Citizenship and Immigration), 2018 FC 755 (CanLII),  the test is not whether there was any conscious or unconscious bias or to utilize it to fill evidentiary gaps, but to view it from the viewpoint of the objective ‘reasonable person’:

66  Finally, when parties concede that there was no actual bias, they may be suggesting that looking for real bias is simply not the relevant inquiry.  In the present case, as is most common, parties have relied on Lord Hewart C.J.’s aphorism that “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done” (The King v. Sussex Justices, Ex parte McCarthy[1924] 1 K.B. 256, at p. 259).  To put it differently, in cases where disqualification is argued, the relevant inquiry is not whether there was in fact either conscious or unconscious bias on the part of the judge, but whether a reasonable person properly informed would apprehend that there was.  In that sense, the reasonable apprehension of bias is not just a surrogate for unavailable evidence, or an evidentiary device to establish the likelihood of unconscious bias, but the manifestation of a broader preoccupation about the image of justice.  As was said by Lord Goff in Goughsupra, at p. 659, “there is an overriding public interest that there should be confidence in the integrity of the administration of justice”.

[Emphasis in original]

In Abdi v. Canada (Public Safety and Emergency Preparedness), 2018 FC 733 (CanLII), <http://canlii.ca/t/ht3wq> at para 48, Justice McDonald reminds that the threshold is extremely high:

[48]  The threshold to establish bias is high. The party alleging bias must do more than “hint” that the outcome is tainted (Turoczi v Canada (Citizenship and Immigration),2012 FC 1423 (CanLII) at paras 11-17 [Turoczi]). There must be an evidentiary foundation in support (Zundel v Citron2000 CanLII 17137 (FCA)[2000] 4 FC 225 (FCA) at para 36Southern Chiefs Organization Inc. v Dumas2016 FC 837 (CanLII) at para 46).

We also know that:

“a reasonable apprehension of bias does not arise merely because the same officer has made the decision on the different processes whereby an applicant seeks legal status in Canada.”

[IRB Legal Policy Guide – https://irb-cisr.gc.ca/en/legal-policy/legal-concepts/Documents/SpoPar11_e.pdf – citing Kouka, Serge v. M.C.I. (F.C., no. IMM-1823-06), Harrington, October 17, 2006; 2006 FC 1236.}

2018 FC Decision Citing the Reasonable Apprehension of Bias in the Context of Immigrants and Refugees

In this data set, I looked at 19 cases that directly mentioned “reasonable apprehension of bias.” Fourteen are immigration and refugees cases and one is in the context of a CSIS matter, but significantly similar so I included it.

The cases are included in numerical order, from earliest in the year to latest in the year. I acknowledge that there could be other ones that address bias under procedural fairness. In narrowing the list, some decisions where reasonable apprehension of bias were raised at earlier tribunal levels but not raised to the Federal Court, were excluded. Those cases where the Court acknowledged but did not directly address the arguments were also included.

Given the above, how did the reasonable apprehension of bias argument fare in 2018 judicial reviews related to immigration? Out of the 19 cases analyzed,  not a single ‘reasonable apprehension of bias’ argument, was altogether responsible for the granting of a judicial review. Indeed, in the large number of cases where JR was dismissed, the analysis of the failure of the argument was more robust compared to those where JR was allowed (see Analysis below).

I tried to provide a brief quasi-summary where there wasn’t a paragraph in the decision that did it clearly. Some descriptors are longer than others for that reason

I also decided to go with replicating portions of decision that addressed reasonable apprehension of bias as opposed to attempting to summarize the decision. This choice was made consciously to allow us to look at the exact wording.

[1] Malit v. Canada (Citizenship and Immigration), 2018 FC 16 (CanLII), <http://canlii.ca/t/hppb2> – McDonald J. – JR Dismissed.

The Applicant (a Filipino national) was refused a study permit as the accompanying spouse of a study permit holder on the basis of financial inadmissibility (s.39 IRPA).

On the question of whether the Officer demonstrated a reasonable apprehension of bias, Justice McDonald writes:

[18]           Although the Applicant suggests that the Officer was operating under a bias, the Applicant was not able to identify any evidence or indication on the record which would support this contention.

…….

[21]           Here the Applicant’s assertions of bias are not substantiated by any evidence. Therefore the Applicant’s bias arguments are without merit.

[2] Oyejobi v. Canada (Citizenship and Immigration), 2018 FC 107 (CanLII), <http://canlii.ca/t/hq5jv> – Ahmed J. – JR Granted.

The Applicant’s (a Nigerian national) judicial review of a  RAD decision upholding a RPD rejection of a protection claim based on sexual orientation. RPD member noticed similarities of BOC with that of another claimant. Applicant tried to have RPD member recused. Decision was refused on negative credibility. Applicant argues that there a reasonable apprehension of bias, erred credibility assessment, and failure to analyze Applicant’s claim under s.97. Justice Ahmed reclassifies the issue as whether there was a breach of procedural fairness and focuses attention on RAD’s failure to determined whether RPD followed Rule 27 of the RPD Rules by not notifying Minister.

[3] Hosseini v. Canada (Immigration, Refugees and Citizenship), 2018 FC 171 (CanLII), <http://canlii.ca/t/hqhd0> – O’Reilly J. – JR Granted.

The Applicant (an Iranian national) found inadmissible pursuant to s.34(1)(d) IRPA, re: an Iranian chemical engineer who was formerly worked for the National Iranian Oil Company Company (NIOC). Justice O’Reilly finds that the decision was procedurally unfair and in doing so does not address the Applicant’s third argument on reasonable apprehension of bias.

[5]  The issues are:

  • 1.Did the officer treat Mr Hosseini unfairly?
  • 2.Was the officer’s conclusion unreasonable?

[6]  The applicants also argued that the officer’s analysis gives rise to a reasonable apprehension of bias. In light of my rulings on the first two issues, it is unnecessary to address the question of bias.

[4] Mathurin v. Canada (Immigration, Refugees and Citizenship), 2018 FC 172 (CanLII), <http://canlii.ca/t/hqg19> – O’Reilly J. – JR Dismissed.

The Applicant (a St Lucian national) was an H&C PR applicant who had a previous refugee claim refused on credibility and also a prior H&C refusal. Her argument was that the Officer’s reason gave rise to bias in the analysis of the birth of her children in Canada (similar type argument to the seminal case of Baker). Justice O’Reilly dismisses the argument and defends the Officer’s assessment, ultimately denying the JR.

[3]  Ms Mathurin argues that the officer’s decision was unreasonable because it overlooked important evidence supporting her application. She also maintains that the officer’s reasons give rise to a reasonable apprehension of bias, in particular, the officer’s observation that Ms Mathurin had chosen to have two children in Canada while having no immigration status here. She asks me to quash the decision and order another officer to reconsider her application.

…………..

[15]  Ms Mathurin objects to the officer’s observation that she and her partner chose to have two children in Canada while having no status here. She claims that the officer’s statement, which appears twice in the reasons, is indicative of bias.

[16]  I cannot find that the officer’s statement displays bias. Reading the officer’s decision as a whole, I find that the officer, in his first statement, merely noted the amount of time Ms Mathurin had spent in Canada illegally and pointed out that she had two children here during that period of time. The second statement appears in the officer’s summary of the circumstances in which Ms Mathurin and her children have found themselves. A fair reading of the officer’s statements does not support a reasonable apprehension of bias. Rather, the officer’s overall analysis reflects a genuine concern for the family and empathy for the choices they now face.

[5] Vo v. Canada (Citizenship and Immigration), 2018 FC 230 (CanLII), <http://canlii.ca/t/hr4gv> – Diner J.  – JR Dismissed.

The Applicant, a citizen of Vietnam, sought judicial review of an IAD decision which dismissed her sponsorship as res judicata, specifically due to issue estoppel. This case is interesting as the Applicant did not raise this as part of her procedural fairness argument to the IAD, but Justice Diner still engaged with a potential analysis. He writes:

[22]  Further, while Ms. Vo indeed argued certain fairness concerns before the IAD, she did not submit that the immigration officer’s refusal raised a reasonable apprehension of bias. Generally, a reviewing court will decline to consider issues raised for the first time on judicial review (see Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association2011 SCC 61 (CanLII) at paras 22-23).

[23]  Even putting aside this principle, as well as the fact that the second immigration officer’s refusal is not the subject of this judicial review, there is no merit to Ms. Vo’s submission. Allegations of bias are serious and must be supported by concrete evidence (Panov v Canada (Citizenship and Immigration)2015 FC 716 (CanLII) at para 20). It was open to the second immigration officer to explore the aspects of Ms. Vo’s application that had raised credibility concerns in prior determinations, and which continued to raise concerns. I am satisfied that an informed person, viewing the matter realistically and practically, would not find that such questioning gave rise to a reasonable apprehension of bias(Committee for Justice and Liberty et al v National Energy Board et al1976 CanLII 2 (SCC), [1978] 1 SCR 369 (SCC)at 394).

[24]  Specifically with respect to the “trick question” allegation, I agree with the Respondent that any bias argument fails when that exchange is looked at in its entirety:

Q: What did you and the SPR decide to do after the appeal was dismissed? We were depressed and sad for not being allowed to be together. So we decided to give birth to a child. Q: Why? I think that having a baby is evidence of our real marriage. Q: So you had a baby to show that your marriage was real? Yes.

[Emphasis added]

[6] Ahmed v. Canada (Citizenship and Immigration), 2018 FC 353 (CanLII), <http://canlii.ca/t/hrfdr> – Strickland J. – JR Granted.

The Applicant (a Pakistani National) sought judicial review of a danger opinion finding pursuant to s.115(2)(a).  In the decision, the Risk Assessment Unit found some of the Applicant’s documentation submitted fraudulent. As part of the process the RAU approached Pakistani authorities for assistance relating to som e of the documentation The Applicant sought to cross-examine the RAU officer but not was not provided that opportunity.

The JR was allowed but Justice Strickland found both that the Applicant did not establish the existence of a reasonable apprehension of bias in the Delegate exceeding his or her jurisdiction but also that a reasonable apprehension of bias could have occured in the Delegate’s decision to ignore the bias allegation of the Applicant. Justice Strickland ultimately says that determining this is not necessary in this matter.

[62]  As I have found above, there is no merit to the allegation that the Delegate exceeded his or her jurisdiction and, in my view, it was open to the Delegate to seek to have the new evidence submitted by the Applicant in support of his alleged new risk verified for authenticity.  Doing so does not support an allegation of bias.  Determining if a reasonable apprehension of bias exists involves asking “what would an informed person, viewing the matter realistically and practically- and having thought the matter through” would conclude that bias exists (Committee for Justice & Liberty v Canada (National Energy Board), 1976 CanLII 2 (SCC)[1978] 1 SCR 369 at pp 394-395).  Further, the threshold for finding a reasonable apprehension of bias is high and the onus lies with the person alleging its existence to rebut the presumption of impartiality (Zündel v Citron2000 CanLII 17137 (FCA)[2000] 4 FC 225 at para 36, citing R v S (RD), [1997] 2 SCR 484).  In my view, the Applicant has not established the existence of a reasonable apprehension of bias in these circumstances.

[63]  However, as the allegation of bias was made by the Applicant the Delegate could not simply choose to ignore it (Bongwalanga v Canada (Minister of Citizenship and Immigration)2004 FC 352 (CanLII) at paras 15-16; see also Bajwa v Veterinary Medical Assn (British Columbia), 2011 BCCA 265 (CanLII) at paras 23-24, citing Tranchemontagne v Ontario (Director, Disability Support Program), 2006 SCC 14 (CanLII)).  Accordingly, had I not been able to address this issue on the merits, the failure to address the issue could also have been a reviewable error.

[64]  Given my findings above it is not necessary for me to also consider the reasonableness of the Delegate’s findings on risk.

[7] I.P.P. v. Canada (Citizenship and Immigration), 2018 FC 123 (CanLII), <http://canlii.ca/t/hrjrg> – Russell J. – JR Dismissed.

This is a very length decision relating to an RPD member’s reported ‘zero percent acceptance rate’ of refugee claims and an application for recusal on the basis of a reasonable apprehension of bias and Professor Rehaag’s report. The member refused.

The Applicants (an extended family of 24 Mexican nationals) sought judicial review on the basis that the reasonable apprehension of bias in the RPD proceedings violated s.7 Charter and the administrative law principles of natural justice.

In Russel J’s decision (with over 60 references to the term ‘reasonable apprehension to bias’), he finds that there is no s.7 Charter violation or administrative breach of procedural fairness.

[235]  In my view, a reading of the transcript makes it clear that the Applicants really became concerned about the Member after learning about his acceptance rate in news articles and otherwise. This source of information is all negative. It would naturally cause the Applicants great concern, and no doubt could give rise to psychological and physical symptoms. But this is not something the Member has done or induced in the Applicants. It comes from outside the RPD. In my view, there is nothing in the hearing process itself, and the Member’s conduct throughout that process, that would cause an informed person, viewing the matter realistically and practically, to detect a reasonable apprehension of bias. What is more, I think that most of the allegations and evidence cited by the Applicants in this review to support their case for a reasonable apprehension of bias, even when they are accurate, have little substance to them and would not cause a fully-informed objective observer to detect bias on a balance of probabilities.

…..

[277]  In my view, there is insufficient evidence, either from the proceedings themselves, or from witnesses commenting upon the Member’s general performance at the RPD, to support a reasonable apprehension of bias finding. From the Applicants’ perspectives, the Member was predisposed to decide against them. From the Member’s perspective, he was doing his duty:

I am bound by a Code of Conduct to decide cases based on the facts and the law before me and each case turns on its own merit…. All members are bound with the same case law and generally use the same standard documentary evidence packages for each country. Each of us are bound by the same Code of Conduct that we swore an oath to or affirmed, that we would decide cases properly on the facts and the law before us.

[8] Kamal v. Canada (Immigration, Refugees and Citizenship), 2018 FC 480 (CanLII), <http://canlii.ca/t/hrzn6> – Brown J. – JR Dismissed.

In Kamal, the Applicant (Bangladeshi national) sought to have an alleged expert to testify and to rely on a Response to Information Request [RIR] document, not earlier tendered (para 24) in relation to a s.34 terrorism case. The Immigration Division allowed a lengthy report authored by the alleged expert but dismissed the request for the proposed testimony. The Applicant argued that the ID member recuse herself on the ground of bias for ‘prejudging the case’ by disagreeing with the Applicant’s interpretation of the RIR (para 30). The ID found the allegation baseless and dismissed the recusal request.

[33]  Before me, the Applicant specifically alleged not only apprehension of bias but actual bias:

This finding by the ID is tainted by bias as it disallows the Applicant from rebutting the Minister’s case against him; indeed it is a grave breach of natural justice as by refusing [name of the alleged expert] to testify on this basis, the ID is effectively breaching the Applicant’s right to put forward his case.

[34]  In my respectful view, the allegations of apprehended bias and actual bias are unsupported. The ID made an evidentiary ruling in the course of an inadmissibility hearing. The Applicant requested relief from his failure to follow the rules established by the ID for the admission of oral evidence. It was open on the record for the ID to decline to abridge time; the ID not only considered the lateness of the filing but also considered the substance of the proposed testimony. The ID considered the Applicant’s newly-discovered RIR, which the Applicant used to support the request for oral testimony. The ID noted that the Applicant’s discovery of the RIR was extremely late in the day (the night before the hearing). Further, the ID found its lateness was inadequately explained.

[9] Abdi v. Canada (Public Safety and Emergency Preparedness), 2018 FC 733 (CanLII), <http://canlii.ca/t/ht3wq> – McDonald J. – JR Granted. 

In one of the most important FC cases in 2018 that has inspired a greater conversation about children in care accessing citizenship. Justice McDonald addresses the Applicant’s (a Somali national) argument that the Minister’s Delegate (MD) redetermination process involved bias. Justice McDonald dismisses this argument writing:

[49]  Here, Mr. Abdi’s arguments are largely speculative, pointing only to perceived associations between the MD and CBSA officials. While the MD and the CBSA officials share a common employer, there is no evidence that the MD consulted with others before rendering her decision.

[50]  As noted above, the decision by CBSA to arrest Mr. Abdi is not at issue in this judicial review. Further, the actions of CBSA in taking Mr. Abdi into custody, without more, does not provide an objective indication of bias, sufficient to meet the high threshold set out in Committee for Justice and Liberty.

[51]  I conclude that there is insufficient evidence to support a reasonable apprehension of bias finding.

[10] Bains v. Canada (Citizenship and Immigration), 2018 FC 740 (CanLII), <http://canlii.ca/t/ht2c1> – Boswell J. – JR Dismissed.

This is a JR involving a Canadian sponsor and his Indian-national spouse. There was not much discussion in the matter about the law or application of the reasonable apprehension of bias test. The Applicant’s argument was that the IAD refusal of the spousal sponsorship was based on a moral judgment of hte Applicant as a sex offender. Boswell J writes in response to this allegation:

[20]  As to the Applicant’s allegation that the IAD showed bias based on a moral judgment of him being a sex offender, this too is devoid of merit. The Applicant provided no legal argument as to how the test for a reasonable apprehension of bias is met in this case. Just because the IAD asked itself why Ms. Bains and her family would agree to her marriage with a sexual offender does not, in my view, show bias of any kind.


[11] Yuan v. Canada (Citizenship and Immigration), 2018 FC 755 (CanLII),
<http://canlii.ca/t/ht3x3 – Strickland J. – JR Granted.

This very interesting case (that I quoted in the outset) involves an argument that the Member demonstrated a reasonable apprehension of bias by not asking the same questions at a second de novo hearing that had been asked by the same Member at the first hearing, which was tainted by interpretation issues. The case involves an Applicant (Chinese national) who made a refugee-claim based on her practice of Falun Gong that was found manifestly unfounded.

[28]  It is clear from the transcript of the de novo hearing that the Applicant herself was concerned that her poor performance in the first hearing would impact the decision to be rendered after the de novo hearing. However, the test for a reasonable apprehension of bias is not to be utilized by the “very sensitive conscience”.  Understandably, the Applicant would fall into that category in these circumstances, thus the test is not met simply on the basis of her concern.

[29]  Moreover, it was open to the Member to choose what questions he wished to put to the Applicant.  As he pointed out, it was a de novo hearing, accordingly, he was not compelled to try to recreate the first hearing.  Further, there is jurisprudence that suggests that religious knowledge cannot be equated with faith and that the quality and quantity of religious knowledge to prove faith is unverifiable (Zhang v Canada (Citizenship and Immigration)2012 FC 503(CanLII) at para 16). Put otherwise, religious knowledge cannot necessarily be equated to the genuineness of a claimant’s beliefs. While a certain level of knowledge may be expected, the sincerity of the belief is what is legally relevant (Ren v Canada (Citizenship and Immigration), 2015 FC 1402 (CanLII) at para 18Liang v Canada (Citizenship and Immigration), 2017 FC 1020 (CanLII) at para 18.  Accordingly, the Member was not compelled to test this or to test it in the manner that the Applicant’s counsel would prefer.

[30]  That said, I acknowledge that there could be a perception that by not asking the Applicant the same questions as to her Falun Gong knowledge the Member was, in effect, precluding the Applicant the opportunity of the “redo” that she had sought and been denied at the close of the Member’s questions in the first hearing.  I would also point out, however, that when the Member did attempt to ask a different question about her religious knowledge – which of the five exercises is focused on getting rid of karma and jealousy – counsel objected to the question on the basis that it was misleading because there was no one exercise that does this and stated that, in his view, this was a trick question.  The Applicant then duly answered that it was necessary to practice all five exercises to achieve this.

[31]  With respect to the Applicant’s submission that the Member focused on peripheral matters rather than the Applicant’s “Falun Gong identity” (Rasheed v Canada (Minister of Citizenship and Immigration) 2004 FC 587 (CanLII)(“Rasheed”), I note that the Member made a number of negative credibly findings.  In my view, even if one or all of them were unreasonable, this is demonstrative of reviewable error, not bias.  Further, in Kozak v Canada (MCI), 2006 FCA 124 (CanLII), the Federal Court of Appeal stated that the legal notion of bias also connotes circumstances that give rise to a belief by a reasonable and informed observer that the decision-maker has been influenced by some extraneous or improper consideration (at para 57).  Based on the record and the decision, I am not persuaded that in this matter the Member based his decision on improper considerations.  Rather, the Applicant would prefer that the Member had focused on other evidence.

[32]  In conclusion, viewing the matter in whole, I am not persuaded that the Applicant has established that an informed person, viewing the matter realistically and practically and having thought the matter through, would think that it is more likely than not that the Member, whether consciously or unconsciously, would or did not decide fairly and therefore that he erred by failing to recuse himself.

[12] Ching v. Canada (Immigration, Refugees and Citizenship), 2018 FC 839 (CanLII), <http://canlii.ca/t/htl6j> – Diner J. – JR Granted.

In Ching, the Applicant (a  Chinese national) had sought recusal of the IAD member. The Applicant has had a decade long series of immigration proceedings, including the pursuit of a serious criminality finding against him. Justice Diner addresses the reasonable apprehension of bias argument in the last section of his decision after setting aside the appeal and remitting the matter. However, he had some harsh words for counsel’s raising of this ground.

[192]  Mr. Ching has a variety of ongoing administrative and civil proceedings, which overlap in many respects.  His litigation history also includes allegations of bias against the member who decided the IAD’s Inadmissibility Decision.  As a result, I will comment on his allegations of bias made in these Applications, with respect to the member who issued the IAD’s Refusal to Reconsider, for Mr. Ching’s future benefit.

[193]  Mr. Ching’s Amended Statement of Claim in his civil action impugns certain acts and omissions of the RCMP Liaison Office in China, and pleads that it conspired with the People’s Republic of China’s Ministry of Public Security in an attempt to deliver Mr. Ching to torture and unlawful imprisonment.  On February 6, 2017, during the reconsideration hearing, the IAD member disclosed to the parties that he was a former member of the RCMP.  The relevant excerpt of the transcript is as follows:

[transcript omitted for length]

[195]  Mr. Ching argued that the test set out in Committee for Justice and Liberty et al v National Energy Board et al1976 CanLII 2 (SCC), [1978] 1 SCR 369 [Committee for Justice] was met, namely that “an informed person, viewing the matter realistically and practically — and having thought the matter through”, would conclude it “more likely than not that [the member], whether consciously or unconsciously, would not decide fairly” (at 394).  Mr. Ching also submitted that actual bias need not be established, only a reasonable apprehension of bias, relying on R v S (RD)1997 CanLII 324 (SCC), [1997] 3 SCR 484 (at para 109) [RDS].

[196]  Mr. Ching’s position is untenable.  I remind him that allegations of bias must not be undertaken lightly and that the threshold for a finding of bias is high (RDS at para 113).  The member’s former membership in the RCMP, on its own, does not raise a reasonable apprehension of bias with respect to the IAD’s Refusal to Reconsider.  Further, Mr. Ching did not raise his bias concerns at the earliest reasonable opportunity, as required by the jurisprudence (see AB v Canada (Citizenship and Immigration)2016 FC 1385 (CanLII) at para 139).

[13] Nassif v. Canada (Citizenship and Immigration), 2018 FC 873 (CanLII), <http://canlii.ca/t/hv2zs> – Annis J. – JR Dismissed.

In Nassif, the Applicant (presumably, Lebanese nationals) argued that there was a reasonable apprehension of bias demonstrated by the Officer questioning her right to enter Canada that transferred into the dismissal of the appeal of the removal order. Annis J refused this argument as it was not raised in the IAD appeal:

[23]  The applicant claims that the immigration officer demonstrated bias upon her arrival at the Montréal International Airport on May 3, 2014, by questioning her right to enter Canada, which was subsequently reflected in the officer’s decision to dismiss the appeal of the removal order.

[24]  There is no evidence indicating that the applicant or her counsel raised an apprehension of bias during the hearing before the IAD. The Court agrees with the respondent that the applicant is prohibited from raising this argument in the judicial review.

[14] Khan v. Canada (Public Safety and Emergency Preparedness), 2018 FC 881 (CanLII), <http://canlii.ca/t/htsjd> – Lafrenière J. – JR Dismissed.

In Khan, the Applicant’s vacation of convention refugee status was allowed by the RPD. The Applicant requested that the RPD member recuse themselves arose in the context of a series of postponement delays. I have reproduced paragraphs 14 – 21 of the decision below as they adequately set out what occur.

[14]  The proceedings before the RPD were delayed by several postponements. The hearing scheduled for November 2014 was postponed after the Applicant contested the validity of documents submitted by the Minister and he presented documents that shed doubt as to whether he was Arshad Iqbal.

[15]  Another hearing was scheduled for April 30, 2015. Three days before the hearing, counsel for the Applicant requested a postponement on the grounds that he was not available on that date and that the Applicant’s medical condition did not allow him to prepare for the hearing. A note from a medical doctor in British Columbia was produced in support of the request. A postponement was granted by the RPD. On April 29, 2015, the RPD received further correspondence from counsel for the Applicant indicating that the Applicant’s health problems were more serious than initially thought. Counsel indicated that a medical opinion on this issue would be sent, but nothing was ever submitted. The hearing was rescheduled for October 26, 2017, with two months’ notice to the parties.

[16]  Two days before the rescheduled hearing, counsel for the Applicant sought another postponement on the basis that his client was in a “psychological crisis” and unable to give instructions. The Minister objected to the request given the lack of proof supporting the Applicant’s condition.

[17]  At the hearing, counsel for the Applicant called two witnesses in support of his allegation that the Applicant was in Vancouver and unable to proceed for medical reasons. The Applicant’s wife and a friend, who was a pharmacist in Pakistan, testified that they visited the Applicant in September 2017 and that, during the visit, the Applicant was agitated, talking nonsense, paranoid and constantly repeating that people want to kill him. Both witnesses testified that the Applicant was taking medication; however, neither knew what medication had been prescribed to him. Both witnesses claimed that they did not know the Applicant’s address or phone number, and were only able to get in touch with him through an “Indian guy” who lives in Vancouver. The RPD found the two witnesses not to be credible and, in the absence of evidence of incapacity of the Applicant or other impediment to attend the hearing, rejected the request for postponement. Detailed reasons were provided orally at the hearing and are set out in paragraphs 20 to 24 of the Decision.

[18]  Counsel for the Applicant then made another request for a postponement on the grounds that he was not ready to proceed. Counsel stated that he had only prepared to request a postponement and had not prepared the case itself. According to counsel, he had three witnesses to call. The RPD denied the postponement request as counsel had had ample time to prepare his case and also declined the RPD’s offer to have the witnesses testify by phone.

[19]  Counsel for the Applicant then asked the RPD member to recuse herself from the case, arguing that she had acted in an “extremely belligerent fashion” towards him. Counsel claimed that the member constantly interrupted him in an impolite fashion, did not listen well to the witnesses, and did not act fairly. Counsel further accused the RPD member of snapping at him and behaving in an impolite fashion towards him in the past.

[20]  Applying the test for bias set out in Committee for Justice and Liberty et al v National Energy Board et al, [1978] 1 SCR 3691976 CanLII 2 (SCC), the RPD rejected the recusal motion, finding that the recusal request was arbitrary and not credibly grounded. The hearing subsequently proceeded, with no witnesses being called by the parties.

[21]  As reflected earlier, the RPD allowed the application of the Minister to vacate the refugee protection that had been conferred to the Applicant by the CRDD and to exclude him from refugee status under article 1Fb) of the Convention.

Counsel argued that the RPD displayed favouritism to the Minister causing the whole proceeding to be unfair, and rejecting all of the Applicant’s evidence for no reason (para 34).

Justice Lafrenière dismisses the reasonable apprehension of bias argument:

[36]  A review of the hearing transcript reveals that the RPD member did not show any bias towards the Applicant or his counsel or any predisposition on any issues. To the contrary, the RPD member was professional and courteous and exhibited great patience with Applicant’s counsel. Although she admonished Applicant’s counsel on occasion, her interventions were warranted given that he repeatedly made assertions, without evidence. I am satisfied that the RPD member conducted the proceeding in a fair, impartial and judicious manner.

[37]  Any informed person viewing the matter would not conclude there was a reasonable apprehension of bias from the RPD member. The Court reminds the Applicant that an allegation of bias against a tribunal is serious and cannot be invoked solely because the Applicant disagrees with the RPD’s decision.

[15] Gebreyesus v. Canada (Citizenship and Immigration), 2018 FC 966 (CanLII), <http://canlii.ca/t/hvd9h> – Zinn J. – JR Dismissed.

The Applicants (husband and wife of respective Eritrean and Ethiopian nationality) sought JR of a negative RAD decision which upheld a negative RPD finding.

Counsel argued that the Panel member was alleged to have made an inaccurate reference to the Applicant’s Ethiopian citizenship and allowed an adjournment to allow the Minister to intervene leading to a reasonable apprehension of bias. The RPD then decided that the Applicant was excluded by Article 1E of the Refugee Convention. The RAD dismissed the appeal finding there was no reasonable apprehension of bias.

Zinn J. addressed the RPD’s actions as follows, without directly addressing the apprehension of bias but upholding the reasonableness of the decision:

[22]  In my view, the RPD acted in accordance with the Rules and there is nothing in its conduct to support the allegation that it had made a determination that Article 1E applied.  The RPD by way of its first letter had invited the Minister to address the exclusion issue only six days before the hearing.  When new evidence emerged in the hearing it was adjourned, pursuant to Rule 27, in order to update the Minister.  The panel did not take any position or make any findings and it arguably had an obligation to update the Minister, especially when as here the first notice was given so close to the hearing and the Minister had not yet responded.

[23]  Furthermore, when the questionable documents came to light, and the RPD concluded that the Minister’s participation might be of assistance, it had a statutory obligation to advise the Minister as set out in Sub Rule 27(2) of the Rules.

[16] Scott v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 178 (CanLII), <http://canlii.ca/t/hvdcb>  – Gleason J.A – Appeal Dismissed.

Self-representative argued that Justice Roy’s dismissal of an extension of time JR for was biased due to the fact that he formerly served as a government lawyer prior to appointment to bench (para 1). Justice Gleason found there was no reasonable apprehension of bias. She writes:

[3]  There is no indication that Justice Roy was previously involved in any matter involving the appellant and the mere fact that he held the positions as outlined in the appellant’s material is insufficient to establish a reasonable apprehension of bias, see, for example, Wewaykum Indian Band v. Canada2003 SCC 45 (CanLII)[2003] 2 S.C.R. 259 (Wewaykum)at paras. 76, 81-85; Amos v. Canada2017 FCA 213 (CanLII)2017 FCA 213 (Amos) at paras. 18-22. Neither his past functions as General Counsel in the Criminal Law Policy Section at the Department of Justice nor as Deputy Secretary to the Clerk of the Privy Council and National Security Advisor to the former Prime Minister required Justice Roy to have recused himself from deciding the appellant’s motion.

[4]  Those who wish to disqualify a judge bear a heavy onus in light of the presumption of impartiality and must prove that the facts are such that an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that it is likely that the judge would not decide the case fairly: Committee for Justice and Liberty v. Canada (National Energy Board)1976 CanLII 2 (SCC)[1978] 1 S.C.R. 369 at p. 394, (1976) 9 N.R. 115.

[5]  No such conclusion can be drawn in this case as there is no evidence or even any suggestion that Justice Roy was in any way involved in the appellant’s complaint against CSIS. As we held in Amos, absent such involvement, prior employment is insufficient to rebut the presumption of impartiality. In addition, as in Wewaykum, the passage of time militates strongly against a finding of bias in this case. Thus, an informed person, having thought the matter through and viewing it realistically, would not conclude that there was a reasonable apprehension that Justice Roy was biased.

[17] Alcina Rodriguez v. Canada (Citizenship and Immigration), 2018 FC 995 (CanLII), <http://canlii.ca/t/hvmqq> – Gagné J – JR Dismissed.

This case involved the JR of the IAD’s refusal of a Cuban national’s spousal sponsorship. The context of this reasonable apprehension of bias seemed a little far-fetched and convoluted with a reasonableness and procedural fairness argument. As set out in the decision:

[33]  Mr. Rodriguez submits that the IAD gave rise to a reasonable apprehension of bias:

  1. By criticizing the fact that he was challenging the ID’s finding of misrepresentation;
  2. By indicating that the new evidence could have been presented to the ID and to the Superior Court, whereas the IAD hearing is a de novo hearing;
  3. By indicating to the minister’s counsel that there was no need to cross-examine him, an indication that its decision had already been made;
  4. By displaying animosity towards him through irrelevant statements;
  5. By misinterpreting his current spouse’s testimony;
  6. By minimizing his efforts to find employment and by discriminating against his status as a [translation] “homemaker”; and
  7. By citing the fact that he frequently goes out dancing to minimize the effects of his back pain.

[54]  Just because the IAD interprets the evidence in an unfavourable manner for Mr. Rodriguez does not mean that the IAD is biased.

[61]  Therefore, I am of the view that “an informed person, viewing the matter realistically and practically—and having thought the matter through—” would not conclude that there is a risk of bias on the part of the IAD in Mr. Rodriguez’s case.

[18] Lakatos v. Canada (Citizenship and Immigration), 2018 FC 1061 (CanLII), <http://canlii.ca/t/hvx28 – Southcott J.  – JR Dismissed.

In Laktatos,  the RPD refused an argument from a family of Hungarian Romas. The Applicants argued that their discrimination and racism amounting to persecution. The Applicants objected to the RPD’s questioning of the adult female Applicant. Southcott J writes:

[2]  As explained in greater detail below, this application is dismissed, because I have found that the RPD did not demonstrate conduct giving rise to a reasonable apprehension of bias, and the Applicants’ arguments have not established that the Decision is substantively unreasonable.

[7]  They now apply for judicial review of this decision under section 72(1) of the IRPA. They submit that the decision is tainted by a reasonable apprehension of bias, that it breaches their parents’ Charter-protected right to parental decision-making, and that the immigration officer’s assessment of their best interests is unreasonable.

[16]  Portions of the Member’s questioning and his exchange with counsel, which are raised by the Applicants in support of their bias allegation, demonstrate that the Member was sceptical about components of the Applicants’ assertions. The Member questioned the assertion that the homeless are permitted starve to death in Hungary and sought support for this assertion in the country condition documentation. The Member also explained that he was having difficulty with the Applicants’ allegation that a Hungarian physician had refused to prescribe appropriate medication for their child, as the Applicants had not presented evidence to support the diagnosis that they alleged required the medication. Neither area of questioning demonstrates that the Member was not considering the Applicants’ claims fairly.

[17]  At the hearing of this application, the Applicants’ counsel raised concern about how the Member’s questioning affected Ms. Horvath’s ability to give her evidence. However, as the Respondent points out, the Applicants have not filed affidavit evidence from Ms. Horvath in support of this argument.

The appellant alleges that the Federal Court’s decision should be set aside because she claims there is a reasonable apprehension that Justice Roy was biased in light of the roles he held as a government lawyer prior to his appointment to the bench.

[19] Jani v. Canada (Citizenship and Immigration), 2018 FC 1229 (CanLII), <http://canlii.ca/t/hwjqk> – Norris J. – JR Dismissed.

In Jani, the Applicants (a Canadian sponsor) argued that the H&C officer demonstrated bias in not understanding the situation relating to the Indian national children he was trying to sponsored that were barred under R.117(9)(d) IRPR. Norris J. dismisses this argument justifying that it was a different officer who conducted the officer and who made the decision [which as a side note, although not discussed in the decision: is not a breach of the procedural fairness concept of ‘who hears, decides‘]. Norris J writes:

[28]  The applicants rely on the record of the interview on March 23, 2017, and their father’s affidavit to support their submission that the decision denying their H&C applications is tainted by a reasonable apprehension of bias.  Mr. Jani states that during the interview the officer’s “manner and tone of questioning was quite hostile, as if she did not understand our situation at all.”  He felt the officer was critical of him for not having discussed a potential move to Canada and separation from their mother with Kshitij or Darshith.  Mr. Jani was of the view that the officer was biased towards himself and Ms. Pasla.

[29]  There is a simple answer to the applicants’ submission.  The officer who conducted the interview is not the officer who made the decision.  The case had been reassigned in the interim. The officer who conducted the interview asked Mr. Jani and Ms. Pasla a number of direct questions about their relationship and the parentage of the children, among other things.  Given the unusual circumstances of this case, it was only fair for her to put her concerns squarely to Mr. Jani and Ms. Pasla and to give them an opportunity to address them before a decision was made.  But even if there were a reasonable basis to conclude that the officer who conducted the interview did not approach the applications with an open mind, something I need not decide, there is no basis whatsoever to conclude that the officer who made the decision was influenced improperly by the views of the officer who conducted the interview.

Analysis

Of the 19 decisions (18 FC and 1 FCA),  judicial review was granted in 6 cases. In most of the 13 cases where judicial review was dimissed, the Federal Court (and FCA panel of) judges took quite a bit of care in establishing the contours of the law and the high thresholds. In many cases, an ardent defense of the system and the decision-makers rationale is carefully laid out. The same cannot be said for the cases where JR was granted. This was the case even in the reviewed decision of Justice Ahmed in Oyejobi, a judge who rarely minces words when analyzing the actions of decision-makers. Judges who granted JR preferred to overturn the decision on other basis, stating there was no need to engage with the argument.

My feeling is the ‘reasonable apprehension of bias’ not only is viewed as a case-specific procedural fairness issue but one that undermines the rule of law. As such, judges prefer not to give off the impression that there are potential systematic problems. As such, finding other procedural fairness faults or the decision-making unreasonable, allows focusing on safer, calmer waters.

Yet, with upward demands, should the Federal Court more actively engage with the concept in cases where it is successful, so as to ensure that there is not a chill created in raising the argument.  Where the Federal Court so clearly steps in the shoes of the decision-maker when upholding the lack of bias in the system, does that encourage challenging voices to hold back for fear of being ostracized. Is that even the role of the FC on judicial review? Should they simply keep their assessment short and thrift where the threshold of bias clearly not met and avoid a dicta defense?

It could also be very well that the cases where it was part of the successful argument were settled by the Department of Justice (my colleague Raj Sharma shared on example where he presumes this may have happened).

From my perspective, I do hope 2019 brings a few cases where the Federal Court utilizes reasonable apprehension of bias cases (even where the JR may have been granted on different grounds) to heed caution to decision-makers that a reasonable person may begin to formulate concerns with the decision-maker bias, especially the oft-misunderstood concept of unconscious bias. Counsel should not also be dissuaded by the high-bar or the fear of being criticized, for putting together well-though out criticisms of the structure of immigration-decision making that it inherently biased. I do see a room for the argument – even if we never have another Baker-like decision that spells out the bias so clearly and unequivocally.

Moving forward, this piece is still a work in progress. I hope to compare other years and look at other decisions where a reasonable apprehension of bias was found and to see if I track any historical trends. If anyone is interested in this project, please message me!