All posts by Will

Learning to Take the L – Loss, Grief, and the Law

This piece has been simmering and marinating in the back of my mind for awhile now. Meeting a mentor last week who had at a crucial juncture shared with me his story of loss and this time shared his current work to reframe challenges as opportunities inspired me to finally put this down in writing.

So too did this piece where Stephen Colbert, who lost his father and his two brothers at the age of 10 shared some lessons on loss and grief with Anderson Cooper, who similarly lost his father at the age of 10, a brother to suicide, and at the timing of this filming, just recently his mother.

Cooper talks about a letter that Colbert wrote to him following the death of Cooper’s mother wishing him ‘peace and grief’ and Cooper talking about how how he is coping with the help of others and how death has changed the trajectory of his life.

Both Cooper and Colbert also shared their experiences of life pre-loss and post-loss. Colbert talks about this ‘big break at the cable of my memory.’

Before I get into my experiences I want to define ‘loss.’ I know loss – to it’s extreme meaning is death but there is certainly more than that. For others, loss can be as simple as failing a course or dropping the ball on a big assignment. I don’t think comparing losses does any good nor does such a process take into account the fact we all have different relationships with loss. Some of us are used to it through our life experiences; stories of lives started in refugee camps, foreign lands, or with an early chapter of loss of family member. Some of us suffer from PTSD from traumatic experiences and violence. Others have had loss through breakdown of relationships with close partners or other family that continue to linger in day-to-day life today.

However, and to certainly generalize but with some basis, I don’t think lawyers handle ‘loss’ as well as the general public. We are a group who tend to represent a pathway of some past privilege, in worlds where loss (losing) can seem so foreign. We come places where ‘things just don’t go wrong’ – a pathway we drew up and executed to a T. Our perfectionism as a profession and ways we address problems (usually through ‘covering our own ass’, or ‘risk mitigation’) doesn’t allow us to comprehend and understand loss in a way we need to grow and move forward.

Personally, I haven’t talked too much about the time I dealt with loss and almost purposely so.  I tried to give a talk at the Federation of  after it happened (probably too prematurely) fumbling around without having prepared any proper notes. I lost my train of thought and likely rambled something incoherent – the wounds being still so fresh. I can tell you that the Law was incredible during my most difficult times. Not the actual content itself but the people and the experiences from it. I was able to chat with countless colleagues, like the mentor I met this week, who were able to open up to me on their own experiences of losing a parent. From the unspoken and the feared, it became counselling. In fact, it was my introduction to the power of counselling before even seeking professional help to tackle it. I also was grateful to have the love of my partner, my best friend, my mother and sister. There were certainly a lot of moments that tested those relationships but we’ve become stronger through it. Again, some gratitude (of the type Colbert discusses) through grief. I remember reading ‘When Breath Becomes Air‘ and several blogs/podcasts to prepare myself mentally for that moment. I still was terrible unprepared but I think somewhere it added some foundation. It was the first time (in awhile) I remember being able to read non-work materials because it turned into words that were that important.

I went back to work two days after my pops passed. My pops was always someone who never celebrated successes, nor wanted a big deal made of things. I thought about his ‘business as usual’ and ‘never take a day off’ approach to things and followed his lead. Did I go back to work too early? Probably. Did I go through a proper grieving process? Probably not.  In hindsight, I would have taken more time. Yet, for me work gave me an escape. Today, I need an escape from work on some occasions to handle the effects of loss.

The biggest and most negative effect of loss and how it may affected me – and it was shared by Colbert and Cooper – has been the breakdown of memory, the compartmentalization of the past. My memories pre-2016 are nowhere as vivid as my memories since. I cannot piece together some of those moments. Much of my three years of law school have been blurred into probably a 60-second clip of 5-second memories. Truly the shards of glass and flashes that Colbert speaks to. I can barely remember my pops as an unsick bastion of strength and confidence and that grasping of fleeting memories is scary. It (has) worsened year by year.

On the flipside, it has given me a short-term loss cycle. I think it has allowed me to work through daily losses or mistakes quicker. I recognize, forgive, blame myself, but move forward in a very short period. I still have trouble grasping loss or mistake (a trait since I was a kid) but I am trying to breakdown my walls and let others in to help. One thing I recognize (and something I am working on) is not burdening the femmes in my life (including my mom, spouse, sister, and various colleagues) with these but to seek more comradery within men’s circles to chat about this as well and put aside our usual ego-dominate conversation.

It is ironic, as in my legal work, I push and press my clients to discuss their trauma, to open up, to try and detail moments and feelings in ways I cannot do myself. I still straddle that line of experience of being able to say ‘I know what you are going through’ but realizing that grief and loss is so different for each of us that I truly cannot, nor should, carbon copy my experiences on others. The gratitude I do have from grief is that it has opened me to be able to listen to the grief of others and spot it or the roots of it. I have not a psychologist but I have been able to understand the psyche behind unspoken words, reading between the lines, and some of the ways anxiety, stress, despair, depression, and fear can affect us. I don’t know if I would have seen it without my own personal experiences.

At the same time, because of how sensitive I can be to grief and suffering I partner with more senior practitioners and others who may be better at driving the legal analysis and are less on the client-facing side. I take short-term financial L’s (co-work with a senior colleague or work with an assistant) so we can have space to discuss how to separate law and emotion, prepare strategy and help address the burden (and responsibilities) of representation.

A lot of my work moving forward, through this early-mid stage of my career, is about ‘going on,’ not avoiding suffering but embracing it (paraphrasing Paul Kalanithi, When Breath Becomes Air). Recognizing and appreciating the double-edged sword that is being more sensitive to the negative emotions and feelings of suffering (never being able to become ‘indifferent to it’ as some have tried) but that this is motivating for one’s work. That through tough days we should as Genia Ginzburg writes in Journey Into the Whirlwind (which I read in high school and re-read after my pop’s passing) still live and find someone each day to be grateful for.

I can truly say that I have found gratitude, through grief. Gratitude that the power of our profession that it is one that allows us to address the grief of others, of our clients. Moving forward that my work will always encompass an honest approach towards that grief and a vulnerability that I will share with my clients to create an environment where we can grow through our challenges together.

To close, I also want to offer myself and my time to anybody who is grieving or going through loss. I know I will be but a mere stranger. I don’t hold a psychology degree nor will I inundate you will self-help material. I can just assure you that I will be a listening ear to your hardship and struggle. Law is built off of confidentiality, privacy, but the search for resolution and understanding – platforms that too much of our world today cannot co-exist.

Meanwhile, personally, I will still move forward to learn to take more Ls. Holding the hands through someone you care about into the fire is hard – but ultimately it is our job and a resiliency, we need to build up and learn. Mistakes, losses, and grieving from those mistakes and loses (those we can control and those we can’t) is part of our job description.

I thank you all for reading through this and jumping into my world. I’ve show you a lot (some would say too much) but I do so with the hopes of de-stigmatizing the conversation around loss, grief, and the law.

With love through gratitude,

Will

 

Understanding the Six-Month Ban on Work Permits and Study Permits

In today’s bit of a fun exercise for people who like to dork out on these things, let’s take a look at the six-month on work permits and study permits – what the Regulations (IRPR) say, what the IRCC website says, and try and make sense of all of this fun stuff. I have tried to interlace [somewhat witty] commentary in between the analysis.

TL;DR – I feel sorry for those who have to work with this on a daily basis.

[1] Work Permits

The relevant Regulation is R200(3)(e)(i-iv) of the Immigration and Refugee Protection Regulations. 

Exceptions

(3) An officer shall not issue a work permit to a foreign national if

 

  • (e) the foreign national has engaged in unauthorized study or work in Canada or has failed to comply with a condition of a previous permit or authorization unless

    • (i) a period of six months has elapsed since the cessation of the unauthorized work or study or failure to comply with a condition,

    • (ii) the study or work was unauthorized by reason only that the foreign national did not comply with conditions imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c);

    • (iii) section 206 applies to them; or

    • (iv) the foreign national was subsequently issued a temporary resident permit under subsection 24(1) of the Act;

We know that the six-month period from the end of the unauthorized work/study and failure to comply with a condition becomes relevant [more on this later]

We also know that there are exceptions for those on ‘No other means of support’ permits  – refugee claims and those those subject to an unenforceable removal order. We also know that there are exceptions for subsection 24(1) of IRPA – Temporary Resident Permit holders.

There seems to be some tension on the face with the mention of a condition in (e), (e)(i), but the use of conditions [plural] in (ii).

Let’s then dive back into subsection (ii) – a section I looked at back in 2016.

I’ve bolded the out clauses and underlined a couple of interesting sub sections.

Specific conditions

 An officer may impose, vary or cancel the following specific conditions on a temporary resident:

  • (a) the period authorized for their stay;

  • (b) the work that they are permitted to engage in, or are prohibited from engaging in, in Canada, including

    • (i) the type of work,

    • (ii) the employer,

    • (iii) the location of the work,

    • (iv) the times and periods of the work, and

    • (v) in the case of a member of a crew, the period within which they must join the means of transportation;

  • (c) the studies that they are permitted to engage in, or are prohibited from engaging in, in Canada, including

    • (i) the type of studies or course,

    • (ii) the educational institution,

    • (iii) the location of the studies, and

    • (iv) the times and periods of the studies;

  • (d) the area within which they are permitted to travel or are prohibited from travelling in Canada; and

  • (e) the times and places at which they must report for

    • (i) medical examination, surveillance or treatment, or

    • (ii) the presentation of evidence of compliance with applicable conditions.

 

(B) The Website

Unauthorized work or study

There are several factors that could be applied under paragraph R200(3)(e). Only 1 of the following factors [R200(3)(e)(i) to (iv)] needs to apply for the officer to refuse the work permit.

We see from the website interpretation that they are going to harp on the fact any violation could constitute a six-month bar.

(i) Unauthorized work or study and 6 months not elapsed

As per subparagraph R200(3)(e)(i), the officer should not issue a work permit if either of the following applies:

  • the foreign national worked or studied in Canada even though they never held a previous work or study permit, nor were they authorized to work [R196]
  • the foreign national worked or studied in Canada under authorization but did not comply with the imposed conditions [R200(3)(e)(ii)]

The officer may issue a work permit as long as 6 months have passed since the foreign national stopped their unauthorized work or study.

…….

(ii) Failed to comply with more than 1 imposed condition

As per subparagraph R200(3)(e)(ii), if the foreign national has failed to comply with a condition of a previous permit or authorization, unless the study or work was unauthorized only because the foreign national did not comply with conditions imposed under paragraph R185(a)subparagraphs R185(b)(i) to (iii) or paragraph R185(c). Paragraphs R185(d) and (e) are not included in these exemptions.

If the foreign national did not comply with only 1 imposed condition, a work permit can be issued as long as they have applied for restoration of their temporary resident status.

However, if the foreign national did not comply withmore than 1 imposed condition, they may not be issued a work permit under paragraph R200(3)(e).

Example

A temporary worker was authorized to work for employer A as a waiter until July 15, 2017, and continued working beyond July 15 without applying for a new work permit.

If the foreign national otherwise meets eligibility and admissibility requirements, they could be issued a new work permit without waiting for 6 months to elapse.

However, if the temporary worker was authorized to work for employer A as a waiter until July 15, 2017, and on August 15, 2017, they began working for employer B as a waiter, their work is considered “unauthorized” and they must wait for 6 months to pass since the day the work for employer A stopped before a work permit can be issued.

Source: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/prohibitions.html#unauthorized

My statutory interpretation differs from IRCC’s in that I still see R.200(3)(e)(ii) as standing for any combination of those conditions not being enough to find one subject to the six-month bar. I don’t see how the lack of plurality in the 200(3)(e) language does any more than suggest the violation of 1 condition is enough for the six-month bar. I don’t see any impetus for this 2 or more imposed condition violations create a six-month bar.  That being said, this policy as it is currently written  will mostly capture workers who for example have overstayed plus a second violation. Given the open work permits and study permits involved, it is hard to come up with a scenario that captures international students.

However, it is clear from the language of those two exception sections that there are a lot that are not caught.

Which moves met to my next point of….

[2] Post-Graduate Work Permit

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).

An RCIC colleague sent me this gem of a response from Immreps.

Immreps Response dated 06 March 2019

Response: Examples of conditions that students may violate could be working without authorization (e.g. continue to work after they completed their studies but before applying for a PGWP) or not actively pursuing their studies.

I do think this is right.

Students who work when not authorized – for example between knowledge of completed studies and when they applying for a PGWP appear to be captured under R.185(b)(iv) IRPR [no exception].

However there can certainly be some grey read in on another provision. Does actively pursuing studies fall under s.185(c)(iv) IRPR [exception granted]  or s.185(e)(ii) IRPR [no exception]. In my mind it likely falls under a separate section s..222(1) IRPR but would that create overbroad consequences?

I do have a question about why this is not currently available on IRCC’s website in plain letter wording setting this out. I think all Immreps responses should be accessible publicly and/or immediately incorporated to updated instruction to lessen any confusion.

[3] Study Permit

The six-month study permit bar (or ‘failure to comply with conditions’) is similarly worded and not worth repeating in full but worth looking at in terms of what IRCC’s website has to say.

The Regs:

Failure to comply with conditions

 Despite Division 2, a study permit shall not be issued to a foreign national who has engaged in unauthorized work or study in Canada or who has failed to comply with a condition of a permit unless

  • (a) a period of six months has elapsed since the cessation of the unauthorized work or study or failure to comply with a condition;

  • (b) the work or study was unauthorized by reason only that the foreign national did not comply with conditions imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c); or

  • (c) the foreign national was subsequently issued a temporary resident permit under subsection 24(1) of the Act.

IRCC’s website:

Six-month ban [R221]

The first step in processing an application is to determine the admissibility with regard to section R221.

A FOSS or GCMS check will provide a case history. If the applicant is not described in R221 and there is no inadmissibility then proceed with assessing their documentation.

If the applicant has lost their status while in Canada (see section 47 of the Immigration and Refugee Protection Act for loss of status), determine whether the “six-month ban” on the issuance of a study permit applies.

Side note from the Immigration and Refugee Protection Act. 

Temporary resident

 A foreign national loses temporary resident status

  • (a) at the end of the period for which they are authorized to remain in Canada;

  • (b) on a determination by an officer or the Immigration Division that they have failed to comply with any other requirement of this Act; or

  • (c) on cancellation of their temporary resident permit.

If the applicant has engaged in unauthorized work or study in Canada or has failed to comply with a condition of a permit, officers cannot issue a study permit unless a period of six months has elapsed since the applicant ceased engaging in the unauthorized work or study, or since the applicant failed to comply with a condition that was imposed on them. See section R185 for details on the conditions that may be imposed on a temporary resident.

However, it is to be noted that there is no requirement to wait for the passing of six months prior to the issuance of a study permit if the unauthorized work or study in which the applicant engaged was unauthorized because of non-compliance with any of the following conditions [R221(b)]:

  • period authorized for their stay [R185(a)];
  • type of work permitted to engage in, or prohibited from engaging in, in Canada [R185(b)(i)];
  • the employer for whom they were permitted to work or for whom they were prohibited to work [R185(b)(ii)];
  • the location of the work [R185(b)(iii)];
  • the type of studies or course[R185(c)(i)];
  • the educational institution[R185(c)(ii)];
  • the location of the studies [R185(c)(iii)];
  • the times and periods of the studies [R185(c)(iv)].

Not the easy to miss formatting issue as they did not have a separate heading but put the actual application of the six-month ban as a bullet point (per below).

  • The six-month ban does apply to the issuance of a study permit when the work or study was unauthorized because the applicant did not comply with the following conditions imposed :
  • the times and periods of the work [R185(b)(iv)];
  • in the case of a member of a crew, the period within which they had to join the means of transportation [R185(b)(v)];
  • area within which they were permitted to travel or prohibited from travelling in Canada [R185(d)];
  • times and places at which they must have reported for medical examination, surveillance or treatment, or the presentation of evidence of compliance with applicable conditions related to medical requirements [R185(e)(i) and R185(e)(ii)].

If the “six-month ban” applies on the issuance of a study permit and six months have not elapsed, officers should refuse the application and proceed as follows:

At an overseas visa office

Officers should advise the applicant of the date when the six-month ban ends in order for the applicant to be eligible for a study permit.

If six months have elapsed, or if the applicant has failed to comply with one or more conditions imposed on them, other than the ones leading to a six-month ban, then officers may issue a study permit to the applicant, provided the applicant meets all the requirements for the issuance of a study permit at the time of the application and the applicant is not inadmissible.

At a port of entry

Advise the applicant of the date when the six-month ban is due to end in order for the applicant to be eligible to apply for a study permit.

The applicant may become the subject of a report alleging that they are inadmissible pursuant to section A41.

If six months have elapsed, or if the applicant has failed to comply with one or more conditions imposed on them, other than the ones leading to a six-month ban, then officers may issue a study permit to the applicant, provided the applicant meets all the requirements for the issuance of a study permit at the time of the application.

What will be very interesting to see is how something like the ‘actively pursuing studies’ requirement is assessed with respect to a six-month bar. From my understanding is not cured simply by leaving Canada if re-entry is sought as a student and there were period of the authorized study that occurred during a period the study permit was held in Canada. This raises a question for those individuals who are now ‘activelY-pursuing studies’ (per. R.220.1 IRPR but previously did not). Some further clarification from IRCC will be helpful here.

At an inland office

The lapse of six months would not apply in the case of inland applications because the applicants would first have to get their status restored prior to being issued a study permit.

I understand in circumstances where a study permit holder has stayed beyond their authorized stay and how a student who was not authorized to study and loses status would have to restore themselves to get their status back. However, I am still not convinced we have figured out how this interacts with the ‘actively pursuing studies requirement.’ Someone who is caught still has a valid study permit and would not require restoration but would still need to do a study permit extension if their study permit was approved. Would they be subject to the bar or just refusal/and the possibility of a non-compliance finding? Questions remain. It also seems somewhat inconsistent with the ability to apply the six-month bar to the obtaining of a post-graduate work permit (usually an extension) but not to a study permit extension.

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

Conclusion

I hope you enjoyed this piece. We dove quite deep into the wording of the six-month bar. I expressed some concern over IRCC’s that violation of more than one imposed condition could render the six-month bar active on the basis of their interpretation of ‘a condition.’ I looked at the purported six-month bar for PGWPs and how the non-coverage of ‘actively pursuing studies’ as an exempt category would become increasingly relevant. Finally, I looked at the study permit six-month bar and highlighted how the difference of instruction may be incompatible and again create grey areas around non-enumerated exceptions to the six-month bar.

Is it Possible to Go From a Failed Refugee Claimant to an Economic Immigrant? (REVISED)

I revised this post on 6 August 2019. Thanks to fellow colleague Tess Acton for pointing out R. 209 (the work permit parallel to R.222). I’ve worked with this provision before. It goes to show that (a) don’t rush a blog before the long weekend; and (2) read and reread and fall on your sword. Thanks for the assist Tess!

With the increase of refugee claimants to Canada, there will naturally be an increase in failed refugee claimants. The pathway for remedy for failed refugee claimants, as advertised by IRCC,  includes at various stages (and subject to various bars) applying for an appeal to the Refugee Appeal Division, Judicial Review, a Pre-Removal Risk Assessment, and an Application for Permanent Residence on Humanitarian and Compassionate Grounds.

Increasingly, a question I have been receiving is why is there not an economic pathway available? Many refugees are working on work permits with employers. These employers may have indicated that they wish to support them. Why are these pathways not feasible if a refugee claim is to be abandoned or lost.

I want to try and breakdown the operation of this in a manner that refugee claimants can understand. I have definitely heard of at least a few agents abroad who advise clients that this is possible and feasible, so I want to show why this is so difficult with as much reference to plain letter wording and the regulations as possible.

That being said, as my analysis will over there are several sections of the Immigration and Refugee Protection Act (“IRPA”), Immigration and Refugee Protections Regulations (“IRPR”), Ministerial Instructions and Provincial Nomination Program program guidelines that make this a non-straight forward exercise. It is also an interesting exercise in statutory interpretation of which I won’t fully engage on but have alluded to.

 Refugee Claimants are Subject to Conditional Removal Orders until Their Claim is Accepted – but What About their Possibly Pre-Existing Temporary Status?

A refugee claimant is subject to a conditional removal order per s.49(2) IRPA. The ability to work while awaiting the refugee determination system falls under the category ‘no other means of support’ per R.206(1)(a) of the IRPR. This is the permit that is now applied for alongside the making of a refugee claim.

It is important to note that refugee claimants are also caught under R. 202 IRPR which indicates that the work permit issued to them under R.206 does not confer on them, in itself, temporary resident status.

R.202 IRPR states:

A foreign national who is issued a work permit under section 206 or paragraph 207(c) or (d) does not, by reason only of being issued a work permit, become a temporary resident.

This seems to suggest that those who hold an R.206 IRPR work permit are not by the issuance of that work permit itself granted temporary resident status – which makes sense. What about if they held a permit prior to making their claim?

From this, I had an interesting premise… what if someone came into Canada on a three-year work permit and one day one claimed refugee status inland. Would their work permit still be valid? Would they be still be considered temporary residents under IRPA?

This question came up after a presentation where I examined the context of students. Because for students, there is a clear regulation R.222(1)(c) IRPR that allow one’s study permit to remain valid even through a refugee determination process because of the emphasis on enforceable removal order for which the conditional departure issued to refugees is not. Regulation 222 of IRPR states:

Invalidity

 (1) A study permit becomes invalid upon the first to occur of the following days:

(a) the day that is 90 days after the day on which the permit holder completes their studies,

(b) the day on which a removal order made against the permit holder becomes enforceable, or

(c) the day on which the permit expires.

That is not to say that the student who holds the study permit while making a refugee claim still has temporary status but we know at the very least that the study permit is not invalidated as a result.

There is a parallel section (R.209) which also confirms that a work permit is not invalidated until a removal order is enforceable.

Given this I moved to R. 183 and R.184 of IRPR which places conditions on all temporary residents.

Reading IRPR alone, one would be misled to think that the making of a refugee claim does not end one’s authorized stay as a temporary resident. Indeed no cross reference is made to IRPA at all in this section nor ties the permit to the issuance of a removal order.

R.184 states:

  • Authorized period ends

    (4) The period authorized for a temporary resident’s stay ends on the earliest of

    • (a) the day on which the temporary resident leaves Canada without obtaining prior authorization to re-enter Canada;

    • (b) the day on which their permit becomes invalid, in the case of a temporary resident who has been issued either a work permit or a study permit;

    • (b.1) the day on which the second of their permits becomes invalid, in the case of a temporary resident who has been issued a work permit and a study permit;

    • (c) the day on which any temporary resident permit issued to the temporary resident is no longer valid under section 63;

    • (c.1) in the case of a person who is required by section 10.01 of the Act to provide their biometric information, the day on which the period of 10 years following the latest day on which the person provided their biometric information under section 10.01 of the Act ends; or

    • (d) the day on which the period authorized under subsection (2) ends, if paragraphs (a) to (c) do not apply.

  • Marginal note:Extension of period authorized for stay

    (5) Subject to subsection (5.1), if a temporary resident has applied for an extension of the period authorized for their stay and a decision is not made on the application by the end of the period authorized for their stay, the period is extended until

    • (a) the day on which a decision is made, if the application is refused; or

    • (b) the end of the new period authorized for their stay, if the application is allowed.

From this I gathered only that leaving Canada and the expiry of a permit, or the second permit would end an authorized stay of a valid temporary resident.

However, the important provision often missed in this analysis is s.47 of IRPA which specifies when a temporary resident’s status is lost. s. 47 states:

Temporary resident

 A foreign national loses temporary resident status

  • (a) at the end of the period for which they are authorized to remain in Canada;

  • (b) on a determination by an officer or the Immigration Division that they have failed to comply with any other requirement of this Act; or

  • (c) on cancellation of their temporary resident permit.

As you can see, s.47(b) does not appear to be captured in IRPR. It also leads to the follow-up question – what is ‘a determination.‘ We assume it is not a first level s.44 IRPA report issued by an Immigration Officer/CBSA Officer but is it when the Minister’s Delegate confirms the report and issues the applicable removal order. The inclusion of Immigration Division suggests that this is the proper interpretation. However – the wording does not say ‘final determination.’ It leaves room for statutory interpretation, particularly where a refugee’s removal order is conditional.

What happens in the case of refugees with previous status prior to making their claim? If the refugee never had status in Canada they may have never had authorization but what about the student or worker who came in with a permit and that permit is never invalidated. Is that permit still valid but their temporary resident status lost? This appears not readily reconcilable.

However, as I will look at below – moving now to eligibility for economic immigration – there may be some major implications for this area of grey.

Express Entry Requires Work to Be Authorized and that a Foreign National Had Temporary Resident Status During Work Experience in Order to Count for Points

Continuing on the premise of a failed refugee claimant – what happens if they wish to try and rely on work done in Canada.

Would time on an R. 206 work permit count? If not, as a standalone, what if the work permit was still technically valid (if such an argument could be made)?

Let’s take a look at the 2018 Ministerial Instructions for Express Entry.

Subsections 15(7) and subsections 17(8) of the MI’s talk about eligibility for Canadian Work Experience to count for CRS scores. Pulling just ss. 15(7) [as the language is identical], the section states:

Express Entry – Canadian Work Experience Requirements

Work Experience Requirements

(7) For the purposes of this section,

  • (a) a period of employment during which the foreign national was engaged in full-time study is not to be included in calculating a period of work experience;
  • (b) a period of self-employment or unauthorized work is not to be included in calculating a period of work experience;
  • (c) the foreign national must have had temporary resident status during their period of work experience and any period of full-time study or training; and
  • (d) the full-time equivalent for part-time work experience is 30 hours of work per week.

We know that holding a work permit authorizes the work but the key question remains – did the foreign national have temporary resident status during work and study. This creates a dual problem. Not only must the work have been while holding temporary resident status but also the study in order for the work to count. This draws in the question again of whether someone can hold a valid permit (study permit/work permit) but by virtue of making a claim and being subject to a conditional departure order – lose temporary resident status.

Provincial Nomination Program – B.C. and Ontario

Another common option for economic migrants is the provincial nomination program. I wanted to take a look at two provinces (BC and Ontario) but I do hope to replicate this look into other nomination programs.

The BC PNP is much clearer on refugee claimants and failed refugee claimants. They state in their program guide.

The BC PNP will not nominate you if you:

– are prohibited from entering Canada
– are in Canada and are out of status
– if your status has expired, and you cannot demonstrate you have applied for restoration of status within the 90-day eligibility period, you will be considered out of status
– are working in Canada without authorization
– have an unresolved refugee claim in Canada
– are under a removal order in or outside of Canada

Under this broad wording a refugee claimant and a failed refugee claimant would be excluded from applying for nomination under the BC PNP.

With respect to the eligibility of past work experience there are no specific indicators of whether certain work experience in Canada will count. There is only another reminder of the requirement to be authorized and in status:

Please note that your application will not be approved if you are in Canada and do not have valid immigration status, or if you are working without authorization.

This seems to suggest that at least the work performed (if on a R.206 IRPR refugee work permit) could support the required work experience requirement for BC PNP. However, as discussed the unresolved/under a removal order would make that not possible to do from inside Canada.

Moving on now to Ontario and their PNP. Ontario states the following in their program guide:

2.6 Legal Status in Canada (if applicable)
If you are residing in Canada, you must have legal status in Canada at the time of application submission and you should maintain it until the time of nomination.

Legal status means that you are authorized to enter and remain in Canada as a temporary resident for a specific period of time, either as a visitor, worker or student.

You may apply to the OINP if you are in ‘implied status’ at the time of your OINP application submission. ‘Implied status’ means that you submitted an application to IRCC to renew/extend your temporary status document (i.e. visitor record, work permit, study permit) before its expiry date. You can remain in Canada and continue to work or study under the same conditions as your existing permit until a decision is made on the pending application.

IMPORTANT: NOTE ON REFUGEE CLAIMANTS
Refugee claimants with a pending application to remain in Canada are not eligible to apply to the OINP. Refugee claimants will need to resolve their refugee claim before applying to the OINP.
For more information related to refugee claimants, please visit IRCC’s website.

As to the definition of whether the work experience is eligible or not. Under the Canadian Experience Class section of the Human Capital Priorities Guide it is written:

You must have had legal status in Canada while you were working in Canada.

Technically speaking, a failed refugee claimant while holding a refugee work permit and subject to a conditional departure order would have had legal status at that time (per Ontario PNP’s definition) if the A47 ‘determination’ of IRPA did not kick in. It again goes to show how important that one section is particularly in light of a disconnect with the wording of IRPR. 

Why Is This So Important for Failed Refugee Claimants?

Subject to very few other limited options (the most popular of which is an in-Canada Humanitarian and Compassionate Grounds application under s.25 IRPA – if they are eligible and not barred) the chances of returning to Canada on temporary resident status are practically nil in the case of a failed refugee claimant. Their pathways back to Canada will most likely need to involve permanent residency. As many of you will know, a refugee claimant who does not leave within the 30 days after a removal order becomes enforceable has their departure order automatically deem into a deportation.

While my initial review suggests little option for while there are here (subject to anyone feeling like challenging the ‘a determination’ provision with me!) there definitely appears to be some pathway for utilizing that work experience in a future outside Canada application (at least in the BC and possibly Ontario contexts).

I will be looking at this issue more carefully but I am eager for you to share your two cents on this interesting topic!

On the Realities of Racism and Hate – Some Preliminary Thoughts Before a Dialogue

By User:Xil – merged parts of File:Alaska Vista Icons.png, File:Japanese Traditions iconshock.jpg and File:Iconshock wildwest.jpg, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=9038091

I am grateful to have been invited to a dialogue on the “realities of racism and hate in your community” with Parliamentary Secretary Ravi Kahlon in just less than an hour. Interesting enough on the invitation email wording of community. I was invited to this dialogue as a member of the South Asian community.  I take this role seriously but with simultaneous trepidation. I am but an adoptee of this community – a product of a best friend’s family, some education in South Asian diasporic history I was fortunate to receive at UBC, and community efforts that have given me space to join an important South Asian initiative – the Punjabi Market Regeneration Collective.

The South Asian community is one that has welcomed me but the fact that I am taking a seat from potentially many other voices challenges me. I will do what I can to share from their experiences but it is their voices and experiences that need to be channelled and put in front. These are the voices of South Asian international students who face constant harassment from classmates and institutions. These are the voices of South Asian women who have to operate every day among patriarchal structures and impossible expectations that I cannot begin to say I understand. Nor is it my place to do anything but listen and support.

Personally, I am the result of a deep-down broken but outer image intact cis-gender man who spent 30 years of his life trying to fit the ‘model minority’ mold. I am Chinese Canadian. I had the privilege of growing up here in Canada and being born here. I have had the privilege of education at a special west side of Vancouver program in high school, an amazing undergraduate program at UBC, and law school in Ottawa.

My parents and their sacrifices of taking on the first generation racism largely insulated me from those experiences for most of childhood growing up. While I still have bitter memories of lunches alone clutching my thermos, being unable to properly skate on the ice rink and fit in with the hockey-playing kids, or asked to sell poinsettia flowers so our school could go to outdoor wilderness trips – even my stories of prejudice ooze of privilege.

I have spent an entire life code-switching to whiteness and ‘fit’ and have largely benefitted from it. I have been able to join so many communities, obtain opportunities, blend, in and anchor myself utilizing my other intersectional factors (economic, gender) to compensate for the colour of my skin. I don’t buy any ‘society does not see colour’ explanation for this. It is not because I am a special Asian.

There are several Asians (and South Asians) like me who have had these privileges and benefits that we frankly do not often use to meaningfully assist in helping destroy the very system that allowed us to succeed at the expense of others – white supremacy.

While individually we may not be racist to one and another or do a darn good job of hiding our feelings, race is behind the scenes influencing so many areas including my own profession of the law. How else do I explain the fact that we are only now seeing the ‘first’ racialized Canadian Bar Association president, only recently saw our first Asian president of the Canadian Bar Association British Columbia, still see our judiciary with less than low single digit percentages in racialized lawyers.

The legal system instills this idea that we are all white knights, controllers of the law. We save our clients. We control destinies. These misconceptions all could not be further from the truth. First, this is a language, a show, a play that we get trained like actors to participate in. It is a language that on a day to day basis still forces me to seek translation. It is not what I grew up with but as an economic and career reality I have chosen to take on.

Further, this work comes at the toiling work of oft-underpaid legal assistants (many of colour or lower economic privileges). We become hypercritical enforcers of our own colonialized offices with us as masters. I struggle with this every day. I have seen myself become a criticizer where I am a natural sympathizer. Again, a transformation that is not for me but another code-switch that my own work requires me to reconcile.

I also cannot reconcile when those close to me who are newcomers go to interview for entry-level positions and are told they are overqualified or may struggle with ‘transactional work.’ Where interviewers and recruiters know they are Canadian or permanent residents but still ask them when they came here as if they have less entitlement to be here because they are immigrants, when other than the Indigenous – we all are.

Overt racism is on the rise in this city too. I would say that at least once a week I am on a transit bus ride or at a Skytrain station where someone is muttering something about Chinese, South Asian, and immigrants. I have had a Muslim friend assaulted on a Skytrain for wearing a hijab. I see my Jewish friends constantly concerned about being able to practice their faith and symbols of historical hate peppered on walls directed at them. Women are constantly sexually harassed in this city and those of colour even more so.

I think about Indigenous brothers and sisters seeking just some sort of autonomy to not have the very culture that was silenced/destroyed, land that was stolen from them now co-opted into a celebratory and token gesture of ‘thanks for reconciling with us.’ In practice, very little is being given up or actually acknowledged in terms of historical wrongs that need redress. When it takes more than just a small donation and actual power-ceding – we retreat back to our silence and inaction.

I also see that unless we created safe spaces, not forced spaces, where we can navigate these complex issues together, without Governments hovering over us or forcing a result. I think of stories told to me by Indigenous elders of resolving issues in a longhouse behind community closed doors and wonder if we can try this out within our many communities. We need time, space, and resources for this.

Going back to the fact I am an Asian man at a South Asian consultation I ask:  Why do our communities need to be silo’d, planned for in silos, and broken down into silos?

I understand that it helps our polling and voting, but how is this going to help tackle intragroup conflicts or lateral violence. We may be fine and dandy now but as soon as a limited resource is put on the table (land and funds) it becomes a game of tug-a-war that invokes the worst of colonial practices and unresolved trust issues. We ultimately need to start sharing our experiences and building coalition between us. Who is going to start this process and give us the keys to the room?

Why are there few white people at the table? We cannot talk about race and hate without white supremacy, white privilege, and power. When we take either a subset of community leaders with time and resources to attend but don’t require the attendance of those in powerful places to receive these messages – where do we actually ultimately go? Who is going to create space for POCs at these institutions (which are both progressive and conservative). Is it also ultimately fair to have people of colour take on the burden of the emotional labour of sharing our stories and volunteering?

Also, who is going to finally take a serious stab at media (news and radio) portrayals of our various communities. The pundits and talking heads (of which I realize I am also slowly becoming one) who purport to know and see all behind their laptop screens and lattes.  We occasionally become sound bites or share little tidbits but where is the space to share our stories and to highlight the overwhelmingly positive narratives. If we allow our stories to simply become those of crime, tragedy, and wrongdoing how do we win over support?

I will be reconciling with myself during today’s session. I am reconciling every day when I try to organize for communities. I am trying to read more theory to tie in these experiences but even those high-level thoughts are hard to dig in on the ground level. Maybe we start small. Talking, sharing, expanding. Rather than trying to sweep race and hate under a rug maybe we reveal the cover and be frank and honest about the way things are.

Multiculturalism is ideal. Racism is a problem and reality. Our inaction is our greatest sin. 

WT.

Exercise Caution When Claiming Dual Intent on Study Permit Applications – International Students

Dual intent is an important and increasing oft-used provision of the Immigration and Refugee Protection Act (“IRPA”) particularly for those applicants who straddle the pathway between temporary and permanent residence. I previously wrote about this concept more than four years ago with respect to a Federal Court case I was involved with called Jewell.

The Law

Section 22(2) of IRPA sets out:

Temporary resident

 (1) A foreign national becomes a temporary resident if an officer is satisfied that the foreign national has applied for that status, has met the obligations set out in paragraph 20(1)(b), is not inadmissible and is not the subject of a declaration made under subsection 22.1(1).

Marginal note: Dual intent

(2) An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay.

Is Dual Intention Applicable to Study Permit Applications? Is it Over-relied Upon?

Dual intent seems naturally applicable in the context of a spouse who seeks a visa or temporary entry into Canada while a permanent residence application is in process or a foreign worker seeking to extend a temporary work permit while awaiting an Application for Permanent Residence based on an Express Entry Application or Provincial Nomination Program nomination.

Recently in reviewing study permit applications made by international students, including those prepared by prominent and experienced authorized representatives, I realized that dual intention was being heavily relied on. Indeed, Minister Hussen in several speeches given last year about international students, seemed to suggest that it was no inappropriate for students to enter Canada with an ambition to eventually become permanent residents.

However, in this piece, I want to put a cautionary tale on the application of dual intention when the future intention (permanent residence) is years away and argue that any submissions on study permit applications should focus instead on future immigration compliance and strengthened/remaining ties to the country of citizenship and or permanent residence (if not Canada). I also believe that much of our over-focus on dual intention can also be inadvertently created by our own pathwaying (as representatives) of the permanent residence process.

IRCC’s Program Delivery Instructions on Dual Intention

IRCC has published instructions (as of the date of this post, last modified in March 2019). These instructions are quite detailed and worth a detailed read.

While the instructions set out it is not impermissible to have two intentions (one permanent and one temporary) and that it cannot be a standalone basis for refusal. The section titled ‘Example of a case for refusalsheds important light on the concept, especially in the study permit concept.

The instructions state:

An applicant for a work or study permit who indicates that they have no intention of leaving Canada has demonstrated only a single intent – permanent residence. Their application would be refused, even if the applicant might subsequently qualify for the Canadian experience class (CEC) or the Provincial Nominee Program (PNP). This is because the applicant has shown that they would not respect the terms and conditions of temporary residence, should they not qualify for permanent residence.

Section R179 is balanced by the flexibility of subsection A22(2), which allows the officer to consider an applicant’s intent in relation to the particular circumstances of the application. For example: an applicant for a study permit who may qualify for the CEC in 3 years has a different set of circumstances from that of a provincial nominee whose application is near completion and who applies for a work permit, with the support of the province, due to an urgent need for their services. Please note that all applications should be assessed on their individual merits.

(emphasis added)

The very examples provided by IRCC about when refusing an applicant may be appropriate focus on the international study permit applicant who is not eligible for permanent residency at the time of their application.  Furthermore, these instructions seem to suggest intent (where absent) can be imputed.

Therefore, even if the facts are presented in a balanced way – for example, half the family is in Canada vs. half the family is in the country of citizenship, or with the fact there may be a job opportunity available back home after graduation – there appears to be the needs for clear and explicit language that the Applicant will both be compliant with the terms and conditions of their temporary stay and can and will leave Canada at the end of their authorized stay. I have always interpreted leaving at the end of authorized stay as meaning as required under IRPA (i.e. if an extension is refused) rather than necessarily at the end of one’s study permit. A successful Post-Graduate Work Permit (PGWP) application, for example, would extend one’s authorized stay in Canada.

What Does Case Law Tells Us?

1) What you state and what you do must be aligned for dual intention to properly apply

In Pisarevic v. Canada (Citizenship and Immigration), 2019 FC 188 (CanLII), the Applicant, a lawyer who was applying for a Canadian paralegal program, was unsuccessful in judicially reviewing the refusal of his study permit application.

Arguably (although Madam Justice Simpson found otherwise), even the Applicant’s personal statement in this application sounded very much like a single intent statement:

Madam Justice Simpson writes at para 5:

[5] The Letter included the following statements which, in my view, express dual intent.

  • I have every intention of staying in Canada permanently but only, and I can’t stress this enough, if the Canadian authorities allow me to stay.
  • I have no intention of leaving Canada after graduating but only and for as long as Canada allows me to stay. I plan to do my best to finish school, work hard while I’m in school to maintain myself, apply for the PGWP, find a good job in the legal field and during that time to find a legal way to stay in Canada.

In the refusal the Officer wrote (paragraph 8 of the Decision):

Applicant is 37yrs old, graduate law program in 2010 and has many yrs of experience as lawyer. He now applies to do paralegal training. I note that applicant has four attempts to express entry. While the study program chosen is in same field as applicant’s previous studies and work, it is a step back – not coherent with career development. Given the applicant’s interest in immigration, the study program is meant only to secure entry to CDA and not obtain better employment/promotion in home country. In view of past applications history, study program chosen, I am not satisfied that dual intent exists. I am not satisfied that applicant is interested in returning in country of residence and will have incentives to leave CDA at end of authorized period of stay.

(emphasis added)

Madam Justice Simpson in rendering a bench decision and dismissing the Applicant’s judicial review, highlighted in the record the fact that the Applicant’s proof of finances to support his studies were from the winding down of his legal practice, which itself created a reasonable basis for the Officer to find that there was not an intention to return that could support a dual intention finding.

She writes:

[14]  I am entitled to review the record to make sense of the Officer’s Decision. In my view, although it is not referred to in the reasons, the fact that the Applicant proposed to finance his studies by selling his law office was reasonably treated by the Officer as a powerful determining factor. It gives the impression, in the absence of an explanation to the contrary, that he is winding down his practice and has no professional reason to return to Bosnia and Herzegovina.

(emphasis added)

Ultimately, not only in this case did the Applicant fail to adequately state out a clear temporary intention but the evidence provided suggested as well that the intention was primarily permanent. In the context of an international student, without a clear pathway or application in process – ultimately this represents a high risk approach to the application.

2) Dual intent requires a clear written statement of dual intent

One of the leading cases in this area of the law is Loveridge v. Canada (Citizenship and Immigration), 2011 FC 694 (CanLII) a 2011 decision that highlights my earlier observations that many study permit applications (and specifically letters of intent that I have reviewed) are entirely unclear, and possibly contradictory on the intent of the applicant. Indeed, for many students coming to Canada, the future may be uncertain but a reasonable pathway and understanding does have to be provided.

In Loveridge, the Applicant from the United Kingdom wrote a letter that led to a finding that the Applicant did not have dual intention.

Madam Justice Bédard writes in her decision:

[14]           The applicant contends that it was unreasonable for the officer, in light of the evidence that was presented, to infer on her part an intention to remain permanently in Canada. She insists that her motivation letter indicated, at a minimum, a willingness to return to the UK if required and that, as such, it was unreasonable for the officer to find that she had not established that she would leave Canada if she were required to do so. She argues that, in fact, her motivation letter clearly expressed her dual intent: she would stay in Canada if she had the opportunity to stay but would go back to the UK if required. She contends that she did not need to have a firm intent to go back to her country of origin in order to have a dual intent within the meaning of section 22 of the IRPA.

[15]           The applicant insists that she was credible and that she did not hold back any information in her application. She argues that there was no contradiction in her motivation letter but, on the contrary, that the letter clarified her intentions. She further argues that the officer made an error when concluding that the bank statements did not identify the owner of the accounts since the name NLoveridge appeared on the statements. She further points to the fact that her family and friends are located in the UK as demonstrating her strong ties to that country and her motivation to return there. The applicant also submits that no negative inference should be made from the fact that she and her husband were unemployed and that she did not have ownership of property in the UK. She contends that those circumstances could be viewed as reasons for wanting to migrate to another country, but that they do not support the contention that the applicant would refuse to leave Canada if required to do so.

[16]           The respondent, on the other hand, argues that the applicant’s motivation letter was vague, contradictory, and could not properly be interpreted as supporting a singular intention of returning to the UK. The respondent submits that the applicant had the burden of convincing the officer that she would leave Canada by the end of the period authorized for her stay and that she failed to discharge that burden.

[17]           I agree with the respondent that the applicant’s motivation letter is contradictory and unclear. In the first portion of her letter, the applicant indicates that her intention is to remain permanently in Canada. She speaks of “starting a new life in Canada” and states that she “will be happier in a country where there are more job opportunities”. If her sole intention was to stay in Canada only long enough to complete her studies, as is argued by the applicant, then the additional job opportunities available in Canada would be of no relevance. In the latter portion of the applicant’s letter, however, she indicates that “when” she returns to the UK she will be able to use the education received in Canada as a competitive advantage in her job search.

[18]           The motivation letter, thus, indicates both an intention to stay in Canada as well as an intention to leave Canada and return to the UK. This is different from indicating a “dual intent” within the meaning of subsection 22(2) of the IRPA, because that type of a “dual intent” is actually an intention to remain permanently in Canada, coupled with an intention to abide by immigration laws as required – i.e. a willingness to leave Canada if required to do so. The two intentions involved under subsection 22(2) are complementary, not contradictory.

[19]           Given that the intentions expressed in the applicant’s motivation letter appear to be contradictory, it cannot be said that the officer acted unreasonably in finding that the letter provided little support for the proposition that the applicant would leave Canada by the end of the period authorized for her stay.

[20]           Indeed, the burden was with the applicant to demonstrate that she would leave Canada at the end of her study period. As indicated by Justice Russel Zinn in Wang, above, at para 14, “The Officer is required to assess the evidence presented and weigh that evidence to determine whether it establishes on the balance of probabilities that the applicant will leave Canada at the conclusion of [the] study permit.” 

(emphasis added)

In this case, the Applicant did not interplay her two intentions properly in her letter. It was not a situation where she presented her ability to return primarily. Her letter gave the appear of having two separate intentions (a Plan A and a Plan B) rather than a Plan that considered both. Again, here is where authorized representatives can add value and applicants should think carefully before writing intentions into their study plans.

3) Officers still struggle with dual intention arguments

In Mahida v. Canada (Citizenship and Immigration), 2019 FC 423 (CanLII) , the Applicant’s study permit was refused. Among other mistakes (including the Officer’s failure to properly assess the online MBA she took and a letter from the University), it is clear that the Officer failed to understand dual intent by the following assertion (found at para 30 of the decision):

PA has failed to adequately demonstrate that proposed course of studies is logical or beneficial to their education or professional advancement as she states that she would like to live in Canada yet also intends to work in real estate in India.

Mr. Justice Russell in allowing the judicial review writes:

[31] There is nothing inherently illogical about the Applicant wanting to eventually live in Canada (a goal that she may or may not achieve at some point in the future) and her intent to work in real estate in India until that goal is achieved, and indefinitely if that goal is not achieved.

[32] Consequently, I simply fail to see how this supports the Officer’s conclusion that the Applicant may not leave Canada at the end of her period of authorized stay.

[33] Other reasons are given in the Decision for a negative conclusion but, as the Officer makes clear, he is weighing the incentive to remain in Canada against the Applicant’s ties to India. The errors I have mentioned are extremely material to this weighing process and hence render it unreasonable. The matter must be returned for reconsideration by a different officer.

(emphasis added)

While I think Mr. Justice Russell’s decision is right that the Officer failed to assess dual intention, I am a little confused still by para 33. It seems to be, by IRCC’s guidance, that the very exercise of dual intention is to examine whether the ties to the home country are strong, where there may be an incentives to remain beyond one’s authorized stay, and ultimately whether the Applicant’s stated (or unstated intentions) are credible.

The website states:

In assessing the applicant’s intentions, the individual circumstances of the temporary residence applicant must be examined; refusals of non-bona fide temporary residents may only withstand legal challenge when the refusal is based on the information related to the specific application before an officer.

In assessing an application for temporary residence, an officer should consider, among other factors, the following:

  • the length of time that the client will be spending in Canada
  • means of support
  • obligations and ties to the home country
  • the purpose and the context of the stay
  • the credibility of documents and information submitted
  • past compliance with requirements of the IRPA and the Immigration and Refugee Protection Regulations (IRPR) that are applicable to temporary residents (visitors, students and workers), as well as information available in biographic and biometric information sharing

Assessing an application where there are dual intent implications is no different from assessing any other temporary residence application. Each applicant receives the benefit of a procedurally fair, individual assessment. The applicant must, in turn, satisfy the officer that they meet all the requirements of the IRPA and the IRPR relating to temporary residence, before any temporary residence application is approved.

If an officer has concerns or doubts about the applicant’s intentions, the applicant must be made aware of these concerns and given an opportunity to respond to them. If an application for temporary residence is not approved, the officer will provide the client with a letter explaining why the application has been refused.

To me, I think it is all about the last paragraph of IRCC’s guidance that the ‘applicant must be made aware of concerns and doubts’ and the Officer must give the Applicant an opportunity to respond. This runs directly counter to some of the speculative decisions we see that extend beyond the evidence provided. Ultimately, this creates the whole dilemma between sufficiency of evidence and credibility which will be a topic of a future blog.

However, on this point,  it is worth highlighting Mr. Justice Campbell’s decision in Yaqoob v. Canada (Citizenship and Immigration), 2015 FC 1370 (CanLII). Very similar to many study permit refusals a trite, short summary was provided to a very detailed application which included very extension dual intention submissions that set out the pathway to PR. Here, Mr. Justice Campbell read between the lines that there must have been some credibility concern for which an opportunity to respond was denied. He also awarded costs to the Applicant. I read this decision as a bit of an outlier (where the dual intention submission was entirely ignored it appears). That being said, it would set a good precedent if more decisions would turn the way of Yaqoob. This would force IRCC either to refuse by properly addressing evidence or else cap the number of applicants if that is ultimately the concern, rather than arbitrarily refuse with pro forma refusal reasons and letters.

Nevertheless, this misunderstanding and confusion may be further reason to not create or counsel a ‘dual intention’ where none may currently exist. For example, many international students only learn about permanent residence options through counsel or advisors and do indeed wish to come to study and then decide their plans after. Presenting this single intention does not in any way hurt an international student’s study permit application. Of course, there may be other factors that do require addressing dual intention head on.

4) Dual intent not as effective as a back-end argument on judicial review. Courts still struggle with applying this concept in reviewing decisions.

In several cases I reviewed, it appeared that dual intention was not raised on the initial application but later argued on judicial review as a failed consideration by the Officer.

In these cases, it appears the Courts effectively sidestepped the question by stating that the Applicant’s failed to discharge their burden and/or the Officer took into account reasonable factors.

In Ali v. Canada (Immigration, Refugees and Citizenship), 2018 FC 702 (CanLII),  Madam Justice Strickland acknowledged the submission but stated that ultimately, the Applicant had to first demonstrate that he or she would leave Canada at the end of their authorized stay and that this was not demonstrated.

She writes:

[23] As to the written submissions of the parties as to dual intent, as stated by Justice Gascon in Solopova (at para 30) this Court has confirmed that a person may have the dual intent of immigrating and of abiding by the immigration law respecting temporary entry (Kachmazov v Canada (Citizenship and Immigration), 2009 FC 53 (CanLII) at para 15). The two intentions are complementary, not contradictory (Loveridge v Canada (Citizenship and Immigration), 2011 FC 694 (CanLII) at para 18 (“Loveridge”)). However, the burden lies on the applicant to first demonstrate that he or she will leave at the end of their study period (Loveridge at para 20, Wang v Canada (Citizenship and Immigration), 2009 FC 619 (CanLII) at para 14). In Solopova, as here, this threshold requirement has not been met.

Similarly in Cayanga v. Canada (Citizenship and Immigration), 2017 FC 1046 (CanLII), Mr. Justice Boswell did not delve into the Applicant’s argument that the officer failed to consider dual intention and that all temporary resident visas are premised on the idea that individuals may come to Canada to improve their economic situation (para 9). Nor, was the Respondent’s response that dual intention is permitted but reasonably found not to exist in this matter. Mr. Justice Boswell focused his reasons on the fact that evidence utilized was not extrinsic and that there was nothing unreasonable about the factors considered and applied deference to the officer’s decision.

Mr. Justice Boswell writes:

[13]           It is not unreasonable for a visa officer, as the Officer did in this case, to consider the availability of similar programs offered elsewhere at a lower cost; this is “simply one factor to be considered by a visa officer in assessing an applicant’s motives for applying for a study permit (see Zuo at para 23). Similarly, it is not unreasonable for a visa officer, as the Officer did in this case, to consider other factors such as the Applicant’s family ties in Canada and his country of residence, the purpose of his visit, his employment prospects in the Philippines, and his travel history.

(emphasis added)

5) Cases may be outdated to a time prior to detailed IRCC instructions.

There have been cases where dual intention was argued successfully in the context of international students and study permit applications.  However, I would warn these decisions as possibly being outdated or possibly not even re-occurring on the facts due to other mechanisms available to IRCC.

In Hernandez Bonilla v. Canada (Minister of Citizenship and Immigration), 2007 FC 20 (CanLII), Mr. Justice O’Keefe found that the Applicant (who affirmed through her guardian’s affidavit that she would return to Colombia once her studies were completed) was owed the opportunity to respond to the Officer’s concerns that her formative years would be spent in Canada and that she could not reintegrate into Colombia society and therefore would be unable to leave Canada. Mr. Justice O’Keefe found that this was a generalization that did not take into account the Applicant’s specific facts. Still, again, this decision had the Applicant confirming the intent to return in writing. While dual intention was framed successfully by the Applicant, it was procedural fairness rather than a failure to consider dual intention that won the day.

In Dang v. Canada (Minister of Citizenship and Immigration), 2007 FC 15 (CanLII), another 2007 case, Mr. Justice Kelen found an Officer’s assessment of a study permit extension patently unreasonable – in that it ignored dual intention. The Applicant, Ms. Dang, had a spousal sponsorship refused on bona fides and after an interview focused on that permanent residence application, the Officer refused the study permit extension – citing among other things, a lack of progress in learning English as proof she intended to remain in Canada. Mr. Justice Kelen found that inference patently unreasonable – yet in today’s day in age, with actively pursuing studies requirements and clearer guidelines, arguably an officer would be able to find other grounds to refuse. Dual intention did come handy and I do believe was properly applied in this case.

In light of new instructions and contexts, I am not sure that Madam Justice Heneghan’s decision in Moghaddam v. Canada (Minister of Citizenship and Immigration), 2004 FC 680 (CanLII), would be decided the same way especially now that it is clear dual intention requires looking at the totality of the applications situation including ongoing permanent residence applications. In Moghaddam, Madam Justice Heneghan found that the permanent residence application was not in front of the Officer and therefore was considered extraneous considerations.

Conclusion: Be Cautious Applying Dual Intent to Study Permit Applications

Ultimately, my review of the IRCC instructions and case law suggests that dual intention may not be the most effective argument when an applicant is not yet in the process or position of applying for permanent residency, as most international students would be. Emphasis should instead be placed on future compliance knowledge, individual knowledge of processes, and strong intentions and ability to effect a return at the end of the authorized stay. It is still my position that overemphasizing permanent residence does more harm than good and instead more creative ways to tie those ties to Canada (such as family, past immigration history, of courses) to a future career pathway or the possibility of employment in the country of origin should be explored. Those details should also be clearly stated, in a non-contradictory way.

While dual intention may have some back-end use in judicial review applications, it is also clear that these are usually secondary factors to underlying unreasonable assessments of evidence conducted by reviewing Officers. Proper caution should also be applied when reviewing case law to differentiate recent cases (which have or will have reference to a more robust instruction guide provided by IRCC) as opposed to those from a decade back where dual intention may have been a lesser understood concept. Still, dual intention (where there is not a permanent residence application pending) is a tricky word and evidence play that should ultimately be used very carefully by representatives and applicants alike.

R v. Singh 2019 ABPC 37: The Case DLI’s Should Make Mandatory Reading For Students/Recruiters

R v. Singh 2019 ABPC 37 is an Alberta Provincial Court decision involving an international student Mr. Surinder Singh who appeared at the port of entry in Calgary with a study permit approval letter to pursue a Masters of Chemical Engineering program at the University of Waterloo for which a letter of acceptance was purportedly issued. The problem – the letter was fake. He was not admitted to the University of Waterloo.

Also, the impugned study permit application suggested Mr. Singh had a Bachelors of Engineering from Panjab University and that he was currently a Processing Engineer working at Jagdambay Manufacturing Company. In actuality, he had only completed grade 12 and was working at McDonalds at the time of the application – as he later testified.

Analysis

This case is fascinating for several reasons.

First, it highlights the type of fraudulent schemes that are growing all to common around international study permits. While it is India in this context, the similar pattern of coaching from unlicensed consultants and local liaisons occurs throughout different communities around the world and in Canada. It highlights challenges with no oversight with the letter of acceptance process and how hard it is to detect fraudulent documents in today’s day and age. You see an established process unfold by which Mr. Singh enters Canada and then is coached on how to continue his stay here under different grounds (schools) than those by which he entered. It is also notable that this event took place in 2014 – with the trial and conviction happening some 4.5 years after the events in question took place and almost 3 years after the initial CBSA investigation began. These type of cases and situation simmer for years before being subject to public knowledge

Second, Mr. Singh’s situation represents a step up in terms of prosecuting the actual international student for criminal misrepresentation as opposed to the usual process of simply finding them inadmissible and giving them a five-year bar. No doubt, somewhere down the line, there would have been some consideration as to whether to simply pursue this as an inadmissibility matter but instead significant legal and departmental resources were placed in this case.

The Finding of the Consultancy Agency and the Network Involved

Many of us find it preposterous that individuals would engage with unauthorized practitioners but this case highlights how powerful word of mouth can be. Mr. Singh’s brother heard a friend from an adjoining village had he had recently landed in Canada as a successful immigrant. Mr. Singh and his mother went to the village where they understood the boy’s family lived, went to a shop owner – who then directed them to the family who directed them to the consultant Vicky  (paras 14-17 of the Decision). Again, this sounds very centuries ago in description but is the reality of small town life and demonstrates the desire by which some individuals often wish to leave their current situations.

The initial payment in this case was equivalent to 500,000 Rupees (CDN $10,000) which would be an incredulous amount to charge for any individual permit but again, considered so normal in the context of this case. So was the 25 lakh total price and the addition CDN $40,000 he owed after approval.

The other thing that is very common is the extended informal network of Canadian/international contacts that benefit and participate from these types of operations. The Consultant Vicky sends Mr. Singh to a “Gurjant” guy in Toronto (a purported friend) who ends up advising on education strategy (para 82 of the Decision). Vicky’s mother also assisted in the operation from India (para 51-53 of the Decision).

Judicial Knowledge of Immigration Processes Increasing

In the past where I have looked at non-immigration decisions at various courts and tribunals, I have often noticed language that makes it clear the Court was slightly uncomfortable with the immigration context. In this case, it appears that particularly Crown’s framing of the situation was done very effectively.

Crown put together this summary that looks like it was directly transposed (and or paraphrased) into the decision at para 7 of the decision:

[7]               The following is an outline of the student visa and study permit process.  I am indebted to the Crown for providing this summary in her written submissions.  I accept it as accurate based on the testimony I have heard and accepted and my review of the relevant legislation.  I have attached as an Appendix to these Reasons, all relevant sections of the Immigration and Refugee Protection Act, SC 2001, c 27 and the Immigration and Refugee Protection Regulations, SOR/2002-227

•        A foreign national from India who wishes to study in Canada must first obtain both a student visa and a study permit.

•        The foreign national must successfully apply for the study permit before entering Canada and studying in Canada.

•        The foreign national must also apply for the visa, or any other document required, before entering Canada.

•        By law, a study permit will not be issued to a foreign national unless they have written documentation from the educational institution at which they intend to study that states they have been accepted there.

•        A study permit will not be issued to a foreign national unless they demonstrate they have sufficient financial resources for the proposed study period.

•        Canadian visa officers review applications for study permits from foreign nationals.  If an officer is satisfied an applicant meets the criteria for a study permit, the officer may issue a student visa to the foreign national, which is placed in the foreign national’s passport before they come to Canada.

•        Once the foreign national has received their student visa outside Canada, they may present themselves at the Canadian border.  At the border, the foreign national makes an application to enter Canada and to obtain their study permit.  In other words, the student visa is issued outside Canada and the study permits is issued at the Canadian border.

•        Every person seeking to enter Canada must appear for an examination to determine whether that person has a right to enter Canada, or is or may become authorized to enter Canada.

•        When a foreign national presents himself or herself at the border seeking a study permit, the Canada Border Services Agency officer must satisfy themselves that the foreign national meets all the criteria for the student class (the criteria that would originally have been assessed to determine that a student visa could be issued to the foreign national).

•        Every foreign national entering Canada must establish that they hold the visa or other document required under the legislation and will leave Canada by the end of the period authorized for their stay.

•        Foreign nationals are inadmissible to Canada for misrepresenting or withholding material facts relating to relevant matters that induce or could induce an error in the administration of the Act.  [Footnotes omitted]

Even though we dealing with very particular regimes within immigration, it appears that knowledge around immigration is becoming more widespread. It is important that defense counsel similarly work closely with immigration lawyers when working on cases with an immigration component to ensure they match the resources Crown can often bring with their access to intergovernmental resources and knowledge.

Common Areas of Consultant Fraud

In this decision you get the ‘Rolls Royce’ of ways consultants advise their clients on study permit applications:

  1. Non-disclosure of representative – In this case, in the study permit questionnaire [page 5 – of the document which at the time may (or may not) have looked like this] was declared N/A. It is common for unauthorized consultants to ‘ghost’ a file in that they assist and prepare it without their name or address ever showing up on the file.
  2. Misleading address – A Canadian address was indicated for Calgary on the fraudulent letter of acceptance;
  3. Creating fraudulent documents/letter of acceptance – The fraudulent acceptance letter contained a student number that did not follow standards. We have seen similar issues with fraudulent photos and copy and paste graduation certificates;
  4. Lack of procedural transparency/expertise –  Mr. Singh wanted a work permit and indicated that he believed he would have trouble with the IELTS. He never knew he was going to the University of Waterloo (para 62)
  5. Submitting fraudulent documents to IRCC -Mr. Singh submitted a fraudulent IELTS exams and fraudulent bank statement;
  6. False promises – Even after the consultant Vicky indicated Mr. Singh was ineligible for a work permit, she recommended a study route to learn English (“ESL”) and then ‘get work permit’ (para 59). He then mentioned that ESL was part of the pathway to permanent residence and citizenship (para 60).
  7. Advising  on questionable travel plans – Mr. Singh was advised to fly to Calgary first (where the mailing address was purportedly indicated to be Calgary) to meet with Vicky.
  8. Getting rid of evidence – Vicky asked Mr. Singh for his password to his email account and started deleting emails.
  9. Undisclosed fee splits to third parties – while not directly stated, it is reasonable to assume that Gurjant was a benefactor – either through Vicky’s direct fee payment and/or through the schools he recommended Mr. Singh to attend;
  10. Asking a client to sign without reading – paragraph 92 is an all too common scenario and thread through common refusals.

Flag on File – Tracking Down Subject of Investigation

Many of us have seen IRCC’s efforts to track entries and exits. In this case, at paras 35-36, we see how this can work in practice in the summary of CBSA investigator Jolene Northfield. Having had difficult tracking Mr. Singh in July 2016, he came to CBSA’s attention 2017 thanks to a flag at the Windsor border. Mr. Singh’s Calgary address was obtained and supported the arrest warrant.

Wilful Blindness

Before I go into wilful blindness, there are a few things worth pointing to in the preceding section of the decision titled “credibility.

Judge Skene impugns Mr. Singh’s credibility with a couple lines including  the following:

[139]      I accept that Singh did not fully read his Application, including his supporting documentation, for a student visa and a study permit, although it would have been hard to miss the statements in English directly above each of his signatures.  I find this was an intentional act on his part.  He had no intention of reading it. 

[141]      He signed under the statement “I declare that I have answered all questions in this application fully and truthfully.”  Did he read that declaration?  I am uncertain.  As stated, it is hard to miss.  If he did, he made a material misrepresentation on his Application.  If he did not read what he was signing, in this part of his Application, or any of the other signature lines, that act and those acts were intentional – a deliberate choice.  

I cannot walk into the shoes of the defense counsel in this case in terms of whether they should have pursued a different strategy – one involving preparing Mr. Singh in order to have him understand the mistakes he made and how he had been led into making these various mistakes. It is clear that the lack of sympathy the judge had towards Mr. Singh’s position of blaming the consultant and blaming the visa office for processing his visa did not win over sympathy or create reasonable doubt.

I do feel sympathetic for the manner in which Mr. Singh assumed the ghost consultants who represented him knew what they were doing were licensed. The process of figuring out is licensed is not easy, word of mouth referrals often accepted without background checks, and representatives (including the ghost consultants here) do not often do a good job of telling clients what it is they are actually signing and/or to review carefully materials before signing. Students, especially those eager to leave their situations for Canada at a younger age, have the tendency to be impatient.

For me this is a classic case of s.40 IRPA misrepresentation but to convict him also of the criminal provision s.128 IRPA seems heavy handed.

That being said, the wilful blindness sections of the decision from paragraphs 147 – 161 are an important read. It highlights the vulnerability students face but that those factors of vulnerability (lack of knowledge, dissociation, willingness to follow instructions) can be the very foundation of fraud and contribute to their own roles of perpetrators. Clients (and for students, especially their families) should be asking many questions along the way of those who purport to help them and pose difficult questions. Obeying or Acquiescing to instructions without any active efforts to challenge or clarify those instructions can lead to a judge impugning motives, intent, and wilful blindness. There is also a major benefit to documenting questions to your representatives or to those assisting you by email to clearly demonstrate your actions through your own paper trail.

Exposing a Major Policy Gap – Ease By Which Study Permits Allow Students to Change Institutions

In paragraph 106 of the decision, a major policy gap in Canada’s international study permit is exposed and pointed to by Mr. Singh to the Court. In his testimony Mr. Singh states:

“Vicky consultant told me you are coming here on study permit, you can go anywhere to study.”

Currently, there are no rules, regulations, or policy directives which limit or dissuade students from switching universities. In fact, many schools (especially privates) have continued to operate under a seat sale process where the offering of more letters of acceptance increases the chance of converting an enrollment. Indeed, one of the reason more letters of acceptance need to be issued is with the understanding that students are likely obtaining other letters of acceptance which they may (or may not) accept.

On the flipside, many students are being coached (as it appears Mr. Singh was here) that once you obtain one letter of acceptance a student is free to ‘change their institutions.’ In other cases, after a student enters Canada on a study permit they have been advised that they are able to switch to a work permit quite easily. While they attend classes, a consultant is busy securing them a labour market impact assessment. Not only is this application difficult (for someone who has limited work experience and is still a student), but the positions that the work is organized for almost never actually assists a student in obtaining permanent residence. Most are low-skilled food service/hospitality positions that have the actual effect of culling any academic progress the student may have wanted (or ultimately needed) to pursue.

IRCC needs to step in by creating some sort of compliance process before a student is automatically allowed to switch programs. While I understand the flexibility of issuing study permits that are not tied directly to a college or university, I do believe there needs to be more than an administrative ‘update’ to IRCC after the change and that changing primary institutions (with exceptions for cases where students cannot register because a program is full, for example, or unable to offer their required courses) should be an exceptional circumstance. Furthermore, I am a big proponent of centralizing Letters of Acceptance for international students so that they have some sort of unique identifier and cannot be simply recreated and copied.

There may be some benefit to looking into the Australia model on this particular point and their rules around this.

Anti-Fraud Initiatives

IRCC has since the decision was rendered in February 2019, introduced a new campaign in India to try and curb the use of unregulated consultants.

Unfortunately, heartbreaking stories of immigration fraud too numerous to document in one short blog post. The takeaway from Singh is that there’s not too much stopping the pursuit of the students for whom fraudulent study permit applications may be submitted for as a manner of future deterrence.

Take Away

Schools – private, public, PGWP eligible or not – need to take a hard and deep look at their practices in engaging agents. Regardless of who they have a contract with (could be someone like Gurjant), students are contacting friends and family for word of mouth advice. The process isn’t always clear and that is where schools (and their advisors) ultimately have an important role to play providing basic straight forward instructions so that student have somewhere other than their neighbourhood agent to get advice from.

I think IRCC can also take major steps to make their website much more intuitive and use click down menus to better organize the content. I have been reviewing website content in light of a talk and as someone who spends way too much time on the internet and searching for information, IRCC’s website is not among the best organized. Again, Australia has a lot to offer us in this regards.

I will be presenting this case (along with several other immigration-related cases on the 30th at a session I am facilitating called Taking Stock of International Student Regulations in Canada on July 30th and August 20th. I look forward to seeing everyone there.

The Final Regs for TFW Vulnerable Work Permits = Good, But a Lot Rests on Implementation/Anti-Fraud

Today, via Part II of the Canada Gazette, the Government released the final regulatory amendments for an open work permit regime for vulnerable temporary foreign workers experiencing abuse as defined by R. 196.2 of the Regulations. See link here: http://www.gazette.gc.ca/rp-pr/p2/2019/2019-05-29/html/sor-dors148-eng.html

The changes, which come into effect 4 June 2019, create an effective national regime. The regulatory changes themselves are quite simple.

Regulations Amending the Immigration and Refugee Protection Regulations

Amendments

1 (1) Subparagraph 200(1)(c)(ii) of the Immigration and Refugee Protection Regulations footnote 1 is replaced by the following:

  • (ii) intends to perform work described in section 204 or 205 but does not have an offer of employment to perform that work or is described in section 207 or 207.1 but does not have an offer of employment,

(2) Section 200 of the Regulations is amended by adding the following after subsection (3):

Non-application of paragraph (3)(e)

(3.1) Paragraph (3)(e) does not apply to a foreign national referred to in subsection 207.1(1) who engaged in unauthorized work in Canada or failed to comply with a condition of a previous permit or authorization.

2 The Regulations are amended by adding the following after section 207:

Vulnerable workers

207.1 (1) A work permit may be issued under section 200 to a foreign national in Canada if there are reasonable grounds to believe that the foreign national is experiencing or is at risk of experiencing abuse in the context of their employment in Canada and if they

  • (a) hold a work permit issued under subparagraph 200(1)(c)(ii.1) or (iii); or
  • (b) previously held a work permit issued under subparagraph 200(1)(c)(ii.1) or (iii), have applied for a renewal of that permit under subsection 201(1) and are authorized to work in Canada under paragraph 186(u).

Family member of vulnerable worker

(2) A work permit may be issued under section 200 to a foreign national in Canada who is a family member of a person described in paragraph (1)(a) or (b).

3 Subsection 299(2) of the Regulations is amended by striking out “and” at the end of paragraph (j), by adding “and” at the end of paragraph (k) and by adding the following after paragraph (k):

  • (l) a person described in section 207.1.

Coming into Force

4 These Regulations come into force at 00:00:01 a.m. Eastern daylight time, June 4, 2019, but if they are registered after that time, they come into force at 00:00:01 a.m. Eastern daylight time on the day after the day on which they are registered.

It interesting to note though that the changes amend R. 200 but don’t directly reference R. 199 which creates some interpretative questions/challenges. While I think in practice, a broad interpretation of R. 199 could still support in-Canada processing under R.199(a), (b), family members under (e) and (f) if R.207.1 was read in, I agree with a Twitter commentator who noted several amendments and wording issues could create uncertainties.

Here are some thoughts I provided on Twitter:

Three Good Changes Emanating From the Regulatory Amendments

1. Providing Recourse to the Six-Month Bar to these Workers – Allowing individuals who may have violated previous work permit conditions or unauthorized work to still access a work permit under R.200(3.1). This would likely forgive 3(e) unauthorized work which may arise from where unauthorized work is necessary as a result of an abusive employer.

2.  Program Delivery Instructions Fluidity/Consultation Process – recognizing the need for strong Program Delivery Instructions and fluidity. I think this came out of a very effective consultation. process.  Full disclosure – I was in attendance for the Vancouver consultation (on behalf of a sex worker organization I assist) and also contributed my thoughts/notes to those drafting the Canadian Bar Association’s position which Deanna, from McRae Law, did a fantastic job on.

3.  Processing Times and Duration of Work Permit – Near the end, there is a discussion of five business day processing standards in 80% of the case. There is also some discussion earlier about the importance of case-by-case discretion. There seems to be acknowledgement that ESDC and LMIA-processing times are heavily intertwined. Cross-departmental coordination to encourage a reduction in processing times (which the LMIA processing moving online as it is expected to do) will play a big part of.

My Major Concern – Program Misuse

One of the concerns I possibly see is in coming up with an effective mitigation strategy against program misuse is that the problem may go deeper than limiting false claims to use this program inappropriately.

While I appreciate the multiple language access (especially for those who self-represented), I think we under-estimate two important factors:

1) Literacy of Those Who Will Likely Fall Under the Policy

  • Just because instructions are available in many languages that applicants may speak – it does not mean those individuals will interact with them.
  • In fact, when these materials are available in different languages this can also encourage more peddling of this information by community consultants and other individuals who this type of work.
  • This won’t be an easy PDI to put into English let alone other languages. There will be discretion. There will be cultural nuances to navigate as well.
  • We have to remember as well that many individuals who work in the SWAP program or in positions such as cleaners and attendants can often lack high school education or literacy to read through the length of a documentation that will be required to breakdown the definition of abuse into various related real-life, and relatable scenarios.

2) Pathways to Abuse – the International Student Parallel

  • One of the challenges I foresee is that the abuse may legitimately occur in Canada but that the roots of the abuse could be overseas through unlicensed agents and ghost consultants.
  • We saw and/or are seeing this with international students with respect to their humanitarian and compassionate grounds or refugee claims. Many of these claims cannot be said to be fraudulent and/or even without basis but were created when the individual first received a letter of acceptance to a college/university they did not know and were not prepared to necessarily attend.
  •  I do see lawyers, consultants, and community organizations legitimately using this application to try and ameliorative exploitative situations. There will be threshold issues. However, what this does not stop is the trend of bringing in individuals by third-parties who know/or are wilfully blind to the fact that exploitation or deception will happen. Agents are actively working to set up students into schools and employees into employers knowing that students will leave for LMIA-based jobs or that that the LMIA conditions will not be met. These potential workers can either be not aware of this, aware of this, or even strategizing their pathway to Canada around this. In short, there’s nothing to stop an unscrupulous agent abroad from utilizing the Vulnerable Open Worker Permit as a safety net (which it is clear from the RIAS this is not supposed to be).
  • In order to make sure this is done properly, I don’t think you can create a safety valve without controlling the front end floodplains. I worry about this being another part of the pathway to PR that it is truly not meant to be.

I am working with several community organizations/non-profits and organizing around this from a public service perspective. The LMIA process (which requires an Employer to pay for the processing fees and not reduce the costs of the processes from an Employee’s wages) can create major conflicts when both employer and employee want to go forward but cannot financially support the process. It is still very likely that several vulnerable workers will still be forced between the decision as to whether to stay in Canada (via a humanitarian and compassionate grounds and/or refugee claim) or whether to leave.

Keep me posted as this program moves forward.

Would love to engage with you and/or your orgs on this.

 

Taoyanzhen, Qiu Jin, and My Great-Grandfather’s Parable to the Great-Grandson He Never Met

First – to Frame

I have been trying to write this piece for over seven years. I had this constant struggle with whether this story should remain a family secret/dinner table fable or whether there was a greater utility in sharing it publicly.

I have decided, ultimately, there is. First, I was inspired by my mentor Dr. Henry Yu who had this piece written about him in the Georgia Straight which he delves into family and delves into his motivations for doing the work that he does. Second, recently, I have read a lot about China and the Chinese Canadian diaspora in Canadian media (about the country and the people, to be specific and certain) that discords from my own experiences and threatens to paint over the history of myself and many others with broad brush strokes represented by a current politics many of us want nothing to do with.

For first and second-generation (and many further past generations – I like to call us all X-Gen’s) our histories are inextricably tied and always will be tied to our ancestral homes. China (and for others Hong Kong, Taiwan, Macau) will always be a home for us. Our way of living of bringing in the past into our present (the same missions we’re fighting in Chinatown, Punjabi Market, and Indigenous communities across) is for us, our form of existence and survival as settlers between homes.

For many of my friends with Southern Chinese roots, these stories come from cities such as Xinhui, Kaiping, Panyu, Enping and Heshan. Sadly, I have yet to visit these towns although it is high on my to-do list to study how families made it generations through distance and exclusion. I know that every time I watch documentaries where youth or Vancouverites go back to meet their elders, speaking their Cantonese, Toishanese, Hakka, I get the feels. Even though I don’t speak Cantonese, I share the same warmth. My own ancestral dialect of local Shaoxing is a weird mix of Mandarin and Shanghainese that I find delightful and complicated (as a kid who grew up with an ear for Shanghainese, and a mouth that spoke on basic Mandarin). Our dialect (coming from the South – Nanfang 南方)as opposed to the North (where standard Beijing Putonghua 北京普通话 comes from) – also leads to understanding bits and pieces of Cantonese.

Linguistics is just one example. When we look beyond what divides us, we find some similarities like this that we forget to appreciate and cherish. This extends to those who come recently and who may bring with them different means than many of us originally came with.

Through writing this piece and sharing just a bit of my Chinese Canadian story, I hope that for those people and pundits who cannot separate the physical space, the people, and the Government, that gives a different lens into past, present, and future. That they can give space and room for Chinese Canadians to share their stories and to recognize that with over a billion people there exists more than two sides to the coin of China and how the country and culture has shaped our identity, historically and continuing today.

We are not monolithic, we are different, coming from different political histories, levels of historical and current affluence (of mind as well as money), periods of migration – that all sought Canada as our country of opportunity and new beginnings. That did not change then and does not change now. Our stories are worth sharing because they are unique, different, and for many of us – extremely humbling and full of our rooted values of filial piety, respect, and community. Again, there’s so much that ties us together and makes us each other’s keeper in ways we have not yet begun to appreciate.

Here’s just a slice of my mooncake I hope to share.

Taoyanzhen, Shaoxing – My Paternal Ancestral Hometown

This is where the grandfather and the great-grandfather were born. Taoyanzhen (陶堰镇)Shaoxing (绍兴)Zhejiang Province (浙江省).

When I was young, I thought before that my ‘ancestoral home’ was Shanghai (上海)as that was where mom and pops grew up.  I still remember no mention of Shaoxing in that brown shoebox project my dad helped me with in elementary school where he wrote over it in beautiful calligraphy, ‘My Ancestral Home’ (我的家乡).  In the few vacations I made in the city as a child, teenager, and later young adult – it never felt ancestral or ‘Chinese.’ It felt like Paris. Other than the food, to be honest I was often left craving more. I was a bigger fan of the historical attractions of Beijing than the fast metros of Shanghai.

I found what I was looking for in Shaoxing, and specifically my ancestral hometown village of Taoyaozhen (about a 15-20 minute taxi ride outside of the City Centre). For those that are wondering, – yes the ‘Tao’ is the same ‘Tao’ as my last name. This is a village of people theoretically related to me (although many have intermarried so last names of various type are in abundance). I almost/kind-of had that Punjabi-wedding meet and greet feeling that many of my close friends speak about.

Here is the look of one of the main ‘streets.’ The river serves as a canal with draw bridges. It’s very, very working class. Toilets are a hole in the ground. The whole town a series of intricate mazes and bridges.

For more info about the town check this out link in Chinese.

Going to Taoyanzhen in 2012

When my pops and I went to Taoyanzhen, Shaoxing in 2012, we took a taxi to town entirely lost. My father had been a bit hesitant about going. To him the ‘past was the past,’ and he feared that we would either find nothing from the past or find something that would create additional familial burdens.

After getting off the train from Shanghai (about two and a half hours away) and hopping into a taxi,  a couple individuals in town saw us get off with our Western backpacks and told us we needed to check in with Master Tao (陶老师) who would know how to help us find the information we were seeking. Turns out, Master Tao was the town historian and archivist. In fact, he was doing a family mapping project for the whole village. He sat down with my Dad and proceeded to tell him about his father and his grandfather – from memory. It was a fascinating history for someone who studied the filed in undergrad. It turns out my grandfather left town for Shanghai really early at the age of 12 and never looked (or went) back.

Master Tao showed my father the project he was working on. I remember he also treated us to the famous local Shaoxing corn and I had my first bowl of Shaoxing yellow wine (more on food later).

The project ended up being a book (that my father has and now sits at my mom’s house) and a DVD that he provided me the last time I went there in 2016. I have a copy of the family tree on my laptop which I look at frequently (to the amusement of my spouse Olivia).

My late father was quite the amateur photographer. I love this photo of the Master’s glasses with his work sheets. The photo is nice, so it must have been my father who took it (I’ll own up to my bad photography). At that time he had not yet finished the full collection (the DVD which he gave Olivia and I in 2016).

The Master took us on a short walk to my Great-Grandfather’s home. I don’t think I ever appreciated how good I had it (even in the basements of my childhood) until I saw these humble beginnings.

While I am sure the room looked different then, thinking about my great-grandfather, my great-grandmother, and my grandfather, together in the space I was now standing gave me shivers. Looking at it now still does.

After touring the (literal) ancestral home, my father was re-introduced to and spent time bonding with my father’s cousin (his grandfather’s younger sister’s daughter [could be wrong on generations here]. I believe she hadn’t seen my dad in some thirty years at that time but had faint memories of going to Shanghai on a few occasions to see him.

After a great meal, the next day my father and I went exploring around Shaoxing. The famous author Lu Xun has his ancestral home near the City core so we went there and shared  plate of famous Shaoxing dishes, some referenced in Lu Xun’s work. Shaoxing food is known for it’s liberal use of Shaoxing Yellow wine. It is one of my favourite cooking ingredients – although sadly the ones found in your local Asian grocer bear very little resemblance to the real thing. Shaoxing also has some of the best fermented vegetables and fresh green tea leaves I have ever had in my very biased opinion.

I remember being happy – having convinced my father to make this trip and learning more about him and history that I had spent 24 years of my life entirely oblivious to.

Qiu Jin

This woman needs no introduction. She is one of China’s first feminist heroes, considered China’s ‘Joan of Arc.’ Without butchering the importance of her life story (which the New York times partially covers in their Overlooked series here), she was important as she fought against the patriarchal imperialist society of the time and her own arranged marriage where her spouse subjugated her to a house wife role. She ended up cutting her hair, dressing like a man, and going to Japan to study and eventually became a revolutionary martyr. In coming back and trying to organize she ended up back in her ancestral home town of Shaoxing. She was eventually murdered (beheaded) by the Qing troops who caught up with her in Shaoxing.

Some in the west are familiar with the following stanza of her famous poem written as she was facing death:

“Autumn wind, autumn rain, fill one’s heart with melancholy.”

I want to share another poem of hers called Mistake (失题) where she drops deep metaphors of war, and the failures of masculinity. She writes in traditional five character stanzas where are deep and beyond my level of Mandarin comprehension but I’m slowly working through. Her work is truly something else.

失题
登天骑白龙,走山跨猛虎。
叱咤风云生,精神四飞舞。
大人处世当与神物游,
顾彼豚犬诸儿安足伍!
不见项羽酣呼钜鹿战,
刘秀雷震昆阳鼓,
年约二十余,而能兴汉楚;
杀人莫敢当,万世钦英武。
愧我年二七,于世尚无补。
空负时局忧,无策驱胡虏。
所幸在风尘,志气终不腐。
每闻鼓鼙声,心思辄震怒。
其奈势力孤,群才不为助。
因之泛东海,冀得壮士辅。

 

Other than hometown, you might be wondering what my own story has to do with Qiu Jin other than the shared hometown. That is where my great-grandfather comes in and plays an interesting (and very complicated role).

My Great-Grandfather’s Parable to a Grandson He Never Met

I’ve never met my great grandfather. In fact, I only have met my own grandfather twice (once on a longer extended trip) before he passed. He had my father when he was quite old (sadly, I only realized this about two weeks back when I was doing the math based on the family tree).

My grandfather was a teacher and educator and wrote about language retention techniques (if I am not mistaken). Some of his textbooks written in the 1980s are still for sale in China., online today. Apparently he left Shaoxing and Taoyanzhen when he was 12 years old for Shanghai.

His father, my great-grandfather, was a man named Tao Yun 云 (Chinese word for ‘cloud.’) He also had two other names Lusheng 鹿笙 (Chinese word for ‘deer’) and the nickname 梦 (Chinese word for ‘dream’). I definitely got the ‘clouds’ and the ‘dream’ portion passed on to me (not so sure about the deer).

All of this was captured in Master Tao’s family tree book which I mentioned I had a digital copy of, but here is the excerpt for my great-grandfather (29th generation). We’re 31st and my future kids hopefully 32nd.

On that first trip to my ancestral hometown, Master Tao told my father that his grandfather Lusheng Tao (he called him), was quite a renowned teacher/mentor. He would teach several youth/teenagers/adolescents to read and write, the classics, and became their mentor. It appears he was a bit of a ‘behind the scenes’ guy, wasn’t considered famous but yet he was well-known in the community.

Doing some further research online, I found out he was also the teacher of one Zhang Xiyu, who also became a writer/publisher, strong feminist advocate, and later was a victim of the cultural revolution the late 1960’s. As a side note, I would love to know from others/historians/individuals located in China if he mentored and taught more students.

Another one of my great-grandfather’s students was – you guessed it – Qiu Jin. When Tao Master told my father, I was listening but my command of the language wasn’t good enough. I missed a lot of the important details. However, I did learn this one parable about what happened to my great-grandfather with respect to Qiu Jin.

When Qiu Jin fled the Qing imperial forces (as a result of her counter-revolutionary activities) she apparently landed on my great-grandfather’s door steps seeking refuge. After all, he was her mentor. I am not sure if this was just when Qiu Jin was a youth or after she escaped her abusive relationship and went to Japan – something I am eager to piece together.

Apparently my great-grandfather, looking at his wife and son at that time, decided he couldn’t do it. Harbouring a fugitive would mean that his head would also be on the cutting board. After Qiu Jin’s eventual death, it was a decision he came to highly regret. I was told by Master Tao that he eventually became mentally ill because of this regret and passed away quite young in his late 40’s.

There may be a bunch of ties that I am creating  myself here – but this story and this parable speaks volumes to me. I love and have a passion for teaching, mentoring, and being a bit of a ‘behind the scenes’ fixer. I constantly worry about situations involving pitting family and public interest. I like watching those I work with elevate their careers. I am passionate about de-stigmatizing mental health issues and to see a direct family connection to the effects of the illness is eye-opening.

The most eye-opening one is to my work now as an immigration and refugee lawyer. Clients are entering my office often times seeking respite and refuge from their lives. I open doors for them and hear their stories, but there are honestly and definitely times where I have similarly regretted stepping up in difficult situations. In that sense, I empathize with the conflicts my great-grandfather have but try to will myself to step up so I do not have that regret moving forward. It is still a constant battle and I look to more courageous colleagues for some of the brilliant work they do as source of inspiration.

All in all, I feel so bonded to this great-grandfather I never met.

Full Circle – Returning with Olivia

My father passed away in early 2016. In June of that year, I went to China to pick up my then fiancee (now spouse) Olivia to bring her back to Vancouver so we could formally start our lives together here.

I wanted to show her my ancestral home as she had so graciously done for me on several occasions since we met in 2013.

We found Master Tao again and told him the unfortunate news of my father’s passing. He immediately showed us the work he had continued to do since we last saw him four years ago.

During the trip, and walking around Shaoxing, I also introduced Olivia to Qiu Jin (her statute lies around this beautiful Shaoxing lake-bend) who she read about in history books but didn’t quite relate to. She still doesn’t quite share my obsession over everything Qiu Jin, but I definitely see that strong feminist characteristic in her as well – one I have to work on elevating against my own often-bad patriarchal habits. I like to think of Olivia, who volunteers with Atira and constantly challenges toxic masculinity in environments she is in, as a Qiu Jin-like figure in my life.

That day we also returned to my great-grandfather’s house. I felt that beautiful blue ray of light seem to shine down from the heavens. The house was even more dilapidated (and now abandoned), but it still has withstood time.

The next day we met up with my father’s cousins and their extended family. It was a surprise trip – they gathered all my related cousins and they treated us to amazing home-cooked Shaoxing food. I learned that my father, without our knowledge, had kept in touch with her and supported her when she lost her own husband to illness with money. That was the kind of guy my father was – super low-key and caring to a fault.

Our Stories Matter. Take Time to Listen to Them.

Where does that leave me. Back to the start.

These are our stories. These are the stories our parents often times didn’t tell us, many times because their parents did not tell us. These are the histories that we didn’t grow up with but are slowly, with age struggling to reclaim.

In the same way your parents talk about the amazing war heroes of the time, and revolutionary business owners who were the big firsts, we try to uncover the stories of our past. These stories don’t come easy. They come scarred, broken, often times in languages we barely understand.

Yet these are our stories. Without these stories there is no us. There is no migration. There is no diaspora. There is no rich cultural “Canadian mosaic” that brings you foods and your friends. Behind this,  without key decisions made at different times by different family members, we may have stayed in these villages bearing our names, never to have known Canada and this Canadian life we are so privileged and grateful to live.

I, for one, am very touched by Indigenous brothers and sisters who always start off meetings by welcoming others and channelling the ancestral spirits from the pasts. What, in our modern day, has led us to do the opposite? To stop welcoming others, and to try and ignore and or speak over the stories of others to write our truths over theirs.

Give space. Open up your minds to the fact a world outside of these columnist’s reminiscing on their 80’s tourist trips to China exists. Similarly open up your minds to the fact there are substantial populations in China who cannot share their stories or even their day-to-day truths like I can so freely do here.

While in Canada, never forget that behind each face, each building, each passport bio-data page, each mixed race individual, each dish, each piece of clothing – is a story.

We should champion each other and each other’s stories and carry on the legacies of our parents, elders, and the ancestors of the homelands of our present and past.

My pops. God rest his soul. I love this photo of him and it also scares me how I’m another 20 years from looking like this (although he was always much better looking than I am).

Why Lawyering With Honesty and Emotion Isn’t Always a Bad Thing

Last Friday, I had the privilege of mentoring two brilliant students.

Both students were racialized law students. Both reminded me of myself. They were very humble, aware, fearful – altogether, so very human. I have seen my share of young law students or lawyers with fresh-pressed suits carrying an air of premature confidence. To see two law students who reminded me of myself back in the day was refreshing. I felt connected to them and I felt we communicated well.

During the hearing, I saw the lead counsel constantly looking to me for validation.  Something I find myself still doing. I saw him carry this air of a honest good kid, trying his best to help his client. He didn’t hide his emotion, did not sugarcoat moments where he felt like a fish out of water. It was his first hearing and frankly – he outperformed many experienced counsel I have seen. He showed a level of humility and grace wise beyond his years.

During lunch, I gave him a bit of a pep-talk – one that inspires this following post. I told him I was in his shoes before. He was handling things wonderfully.

I, like many other racialized lawyers, have likely heard the following criticism from others:

“You are too emotional!”….. “You need to disconnect from your work, more Will.” ….. “You need to play your cards better.”….. “stop wearing your emotion on your sleeve.”

This isn’t just a North American phenomenon. I remember when I was in China and the lawyers there told me it was probably wise for me to not pursue law there because in their words I was too “honest” and wouldn’t be able to “work” the system. I wasn’t good at playing ‘my cards’ so to speak.

I find that students struggle with this idea of having to disengage with who they are (i.e. fake it until you make it) in order to obtain their career goals. They feel as though they need to acquire some sort of larger than life, impenetrable personality in order to succeed.

This is particularly the case in litigation, where through either pop culture or frankly real life SCC telecasts, we get this idea of the litigator needing to be that way. Bold, brainiac, and brilliant. Not, Asian, not shy, not neurotic, and not soft.

I want to break that stereotype.

In my own immigration work, and through some trial and error I have come to view it differently. Regardless of whether you are a solicitor or a litigator, I do believe there is room in this profession for those who do not (and or cannot) fake it until they make it, be a bolder version of their softer self, and who can still advance strong litigative efforts on behalf of their clients.

This doesn’t also always involve taking a back seat. I do not want to understate the benefit of collaborating with bolder personalities and playing off each other in that sense. I for one, have been a huge beneficiary of partnering with more aggressive litigators and felt that process just as rewarding.

However, I do feel there is room for the honest litigator who wears their emotion on their sleeves. They may not get the accolades or the same press coverage that other star litigators do but many times they are just beloved by their clients and their community. They are able to make an impact without overshadowing. They are able to empower and utilize their empathy to bring out relevant facts and bridge to opposing parties. They are able to mediate differences through finding shared interests rather than taking necessarily polarizing positions. Clients will be super grateful because you are able through your honesty, thorough preparation, and ability to connect – as you can avoid high cost litigation, negative PR, and secure good results.

I do think the legal profession will benefit from more Type B – introverted individuals. I think also that great litigation teams can be made combining various personalities. The types of new personalities going into law, the diversity of lawyers and their experiences with authority and advocacy, the increase in women approaching law from positions of historical oppression, and often-forgotten Indigenous legal perspectives all suggest we need to re-examine what makes a traditional ‘litigator.’

I’m proud and excited to be part of this new generation – it won’t be easy but we’ll keep fighting (and learning)!

Reflections from the ACCT Conference: Chinese Canadians Need to Organize Around Community Mental Health Resources STAT

Jason Isolini [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)]
This past weekend, I went to Calgary to join over 100 fellow Chinese-Canadians to attend the inaugural “Action! Chinese Canadians Together (ACCT) Leadership Conference.

It was a weekend of deep healing and reflections on identity, progress, and the many barriers that still exist for us as a community. Among the highlights were a youth panel, organized by many of my younger colleagues, to deep dive into the inter-generational challenges that made some of the previous sessions difficult to set through.

Many of the youth (including those well into their 30’s) felt as though their leadership efforts were not yet being recognized and that speakers were speaking down to some of their lived experiences and re-enforcing patriarchal modes of thinking.

Personally, I did observe that older male voices tended to dominate speaker panels and the small group sessions meant for sharing weren’t always accessible to those with quieter voices or more nuanced/conflicting perspectives. The concept of co-existing ‘commonalities’ and ‘differences’ came up several times during the afternoon.

What I also saw  was therapy in session – as tears were shed, especially by many of the younger participants, but in particular when speaking to the challenges of growing up Chinese, growing up mixed race, and the difficulties connecting to both our parents and grandparents generation and mainstream society. Many elders in the room, afterwards, came around to commend the youth and discussed how they too had tears from listening to these perspecties.

I think these type of spaces and conversations are so important, yet more and more mainstream society is asking us to think beyond, colour, race and identity that we don’t lose sight of how crucial these are to our DNA and our understanding of the individual ‘self.’

I would also argue that, to contrary, until we have these conversations with ourselves and between ourselves (and other oppressed communities including the wisdom of Indigenous descendants to this land) we will not be able to simply carry our ‘play the game’ mentality to positions of power and privilege in Canadian society in a manner that does not cause us to re-enforce those oppressive systems on others, and does not tokenize us away from our communities.

The Mental Health Crisis that No One Is Talking About and the Stigmas Within

The most incredible experience I had was in facilitating a session with Olivia Chow on both story-telling and community organizing. I was one of several facilitators and was assigned to a group from Calgary.

I won’t be discussing any names and organizations (as per the community agreement made before starting the panel and in my small group that I enforced).

I will say that during the story-telling session (after I was socratic-method called on stage and bombed a story-telling example), a speaker in my small group opened up to talk about their own challenges with mental health, how they had a personal connection to suicide, and how this issue affect their Chinese-Canadian clients (i.e. the ongoing ‘stigma’). After a group feedback session of coaching, they felt empowered to share this story with the larger group of attendees. It was very powerful and relatable to the individuals there to here them call us to action – and in fact led to a stakeholder in the room connecting with them to offer support.

I can’t remember the exact facts that were shared, but apparently a subset of Asian Canadian (or was it Chinese Canadian youth) are 1.5 times more likely to suffer from mental health related issues. Another stat that came up earlier in the conference was that within a period of I think it was 20-30 years, mental health will become the greatest factor inhibiting our economy. This places our community at the forefront of a risk to our economic and personal well-being.

We had discussed in our small group that we wanted to bring these theme of mental health into the second part of the workshop. The second part of the workshop was discussing the ideas arising from our stories and our own work (largely around Chinatowns) and turning it into some sort of organizing goal.

We came up with an organizing statement, theory of change, ally mapping, and tactic generation process to try and start up a “Chinese-Canadian Mental Health Co-Op” on the premise that these individuals and organizations present wanted to lobby the Alberta Provincial Government for funds prior to their budget this Fall and provide culturally and linguistically-specific funding.

Before even coming up with our organizing statement, a simple intro around the room revealed everyone…. (self-selecting, as they choose to work on this project) had their lives touched by mental health. It ranged from elders who themselves were going through mental health issues from abusive relationships, to mothers unable to work full-time to take care of a child debilitated by mental health, to seniors feeling isolated from community, to youth and international students going through these challenges. As we went around the room, it was clear that for many of us this was the first time we were sharing on this ‘taboo’ and stigmatized topic. The mood was somber yet resolute.

It was clear that there was a lot of work to be done in our short planning session.

First, as Chinese Canadians we realized we needed to organize on this by creating inclusive personal spaces to hold these conversations. We discussed how the encouragement of young adults to pursue careers in social work and counseling would also help deal with the issue of resource shortage. We recognized that most of the available mental health resources online are in the English language, creating a major barrier to those who are unable to find names and that these resource lists are often in big cities and not shared province or Nation-wide. I heard again (as I have heard time and time again from my clients) that school and work counselors and resources are not nearly enough to address these issues.

As we were organizing and planning, it was clear that a plan was do-able but that such a plan appeared to replicate the usual process of (1) lobbying government through petitions; (2) a cultural communications strategy highlighting prominent Chinese-Canadians suffering from mental health issues; (3) surveys and committees struck up to study the issue and highlight the scope of the problem; and (4) events to raise funds and awareness.  To implement these in practice would require a lot of connecting with stakeholders and persons with power, many of whom may not be vocal champions or see the need for resources directed at one particular cultural community.

We ended up setting up our tactics after getting group consensus but not being able to map these out in terms of timelines. We could have used another three hours, which unfortunately weren’t there.

I am sad that the workshop is over but I do hope someone and some ground of people will take the championing of this forward in Calgary and other cities across Canada. Especially given the tragic news of 9-year old Amal (cited by the speaker in their talk as well) I think it is only appropriate that we were beginning the planning process there.

I have tried to, below, summarize some of my thoughts arising from the session:

  • Mainstream mental health organizing efforts, although well-intentioned, are not culturally or linguistically-specific enough to serve the Chinese-Canadian community. Furthermore, there are challenges with inclusivity and especially finding professionals who understand cultural-specific components of these mental health-issue (such as PTSD, migration-created separation anxiety, filial piety, importance of physical home and community, etc.,)
  • When mapping our allies, several allies are neutral (possibly neutral-negative) but both have and do not have power. This lack of understanding of their positions (due to lack of approaching them on this issue) hurts our organizing.
  • Social media can be a powerful way of spreading awareness but also a contributor to mental health issues. This double-edged sword must be kept in mind as we plan;
  • There is a two-step challenge: (1) fighting to get rid of the stigma; (2) finding tailored solutions that do not end up pitting our communities against each other from precious/limited resources. We can’t simply be firefighting the next suicide without addressing other trigger points from a settlement/sociological perspective (such as racism, inclusion, social isolation, etc.)
  • We have a surface level understanding challenges international students are having with anxiety, depression, and other mental health-related issues – and are painfully unaware of the type of challenges our seniors/elders are having with isolation and costs of living. I think this supports the work of organizations such as Yarrow in Vancouver and to facilitate inter-generational conversations that may be therapeutic for both elder and international student youth.

I have been trying to do some work recently and have been open about issues I myself have had (from seasonal depression to life-long anxiety [you wouldn’t have guessed it from my media appearances and work as a litigator]). Speaking about it publicly and openly with others has truly made me realize and appreciate the spectrum we are all on. Similar to the concept we were discussing about shifting allies over by one category rather than expecting a dramatic shift, I think we can also tackle mental health with the same approach of not trying to eliminate these issues entirely but rather facilitate a more supportive environment for those whose lives are negatively affected and/or debilitated by it so they can improve their lives incrementally.

More broadly speaking, as someone who assists many individuals ranging from minor depression and anxiety to severe mental health issues, that our institutions, rules of engagement, and our societal pace can confound problems. I am also very aware that we do not even publicly appreciate a small percentage of the problem that is out there.

I am also very grateful to journalists such as Wanyee Li (The Star) for writing pieces such as this one to bring awareness to the broader community about the efforts taking place in the diaspora to tackle this.

Most journalism these days rarely ever shows  or espouses the dual concepts of ‘vulnerability’ and ‘opportunity’ so to see it from those who write or reflected in the communities they write about is beautiful.

I look forward to seeing how to get involved in this conversation in Vancouver in a culturally and linguistically meaningful way. I do hope that more public resources.For one, I think more “Big Brother/Big Sister” style mentorship programs between old generation and new generation Chinese Canadians, whether it is systematically organized or just done in informal networks.

What are your thoughts? Do you want to share your experiences or discuss? Would you like to collaborate to make this issue a more prominent public health issue and break free from the stigma?

Feel free to email me at willtao06@gmail.com