All posts by Will

Authorization to Return to Canada (“ARC”) – A Deep Dive

With an increase in individuals being removed from Canada on exclusion and deportation orders, the practice of filing Authorization to Return to Canada Applications (“ARC Applications”) is on the rise.

Per IRCC: 

A52(1) provides that if a removal order has been enforced, a foreign national shall not return to Canada unless authorized by an officer or in other prescribed circumstances. A removal order is considered to have been enforced whether the client either leaves voluntarily or is removed by the Minister.

R226(1) provides that for the purposes of A52(1) and subject to R226(2), a deportation order obliges a foreign national to obtain the written authorization of an officer in order to return to Canada any time after the deportation order has been enforced.

The consequences of trying to return to Canada after an exclusion/deportation order without having filed an ARC is a deportation order per the operation of R. 228(1)(c)(ii):

(1) For the purposes of subsection 44(2) of the Act, and subject to subsections (3) and (4), if a report in respect of a foreign national does not include any grounds of inadmissibility other than those set out in the following circumstances, the report shall not be referred to the Immigration Division and any removal order made shall be

…..

(c) if the foreign national is inadmissible under section 41 of the Act on grounds of

…..

(ii) failing to obtain the authorization of an officer required by subsection 52(1) of the Act, a deportation order,

As a specified removal order, this does not need to go the Immigration Division and can be issued by a CBSA Minister’s Delegate.

Going Behind the ARC Application

IRCC gives very little guidance (online) on what should be an ARC application.

Indeed, the online guidance is limited to the following as posted on their website.

Important information

When an officer assesses your application, they will consider, among other things:

  • the reasons for the removal order
  • the possibility that you will repeat the behaviour that caused the order to be issued
  • the length of time since the order was issued
  • your current situation
  • the reason why you want to enter Canada.

An incomplete or illegible application will be returned without being processed.

There is no guarantee that you will be issued an Authorization to Return to Canada.

There is another source – OP 1 – Procedures at 6.2 that sets out more details on what is assessed:

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Note how detailed the analysis at each stage and how it suggests that there is the need for significant documentation.

The above seem to follow the words of Immigration Lawyer, Richard Wazana who said recently in an Immigration Lawyer’s Listserve: “Do not take anything for granted on Authorization to Return to Canada (“ARCs). Make thorough submissions and support them with evidence, like you would an H&C.”

Who Can Issue an ARC?

OP 1 at 6.5 provides  the following:

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This makes it clear that there will likely be multiple Officers involved in a decision but restrictions around the decision-maker.

It also suggests that there can be other decision-makers other than at visa offices abroad, which a closer look at the Instruments of Designated Authority confirms.

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My experiences have been limited to overseas offices but the authority expands beyond that to members of IRCC’s CMB and senior CBSA members just to name a few. It will be interesting to better understand that decision-making/referral network.

Let’s look at it from the inside.

I’ve managed to get my hands on the training guide used (2017 results, so slightly dated and may not be what IRCC presently utilizes), but does add a little more conversation (especially processing-wise) to the resources we’ve been able to build.

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The above is important especially to remember that eligibility is assessed before ARC in the process so the need to file ARC does not diminish the need to file a strong baseline application.

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In this page remember the issue of paying removal costs and that this needs to be resolved before the ARC.

 

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These factors track OP 1, 6.2 and also refer to the Instruments of Delegated Authority that I pointed to earlier.

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Here, note ARC does not need to be filed each time. The first ARC  is all that is needed so a strong application is crucial.

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Remember too that a TRP can overcome the need for an ARC – but that an exceptional case needs to be made out for this.

Finally, here’s a helpful chart from the training guide that may be worth putting up on your wall to remind you of the interaction between ARC and removals.

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All the process is good to know but I would suggest that the most important parts of an ARC involve two stages – (1) making a strong case for initial eligibility; and (2) drawing those factors to make a compelling and exceptional case for why you deserve to return to Canada notwithstanding your past immigration history.

Hope this post helps guide you in that journey!

 

Non-Immigration Tribunal’s Immigration Confusion – Implied Status for R. 206/R.207 work permit

An interesting decision in a Alberta Workers’ Compensation Appeal Decision No.: 2017-0248, 2018 CanLII 87280 (AB WCAC)

raises interesting issues about how accessible or apparent are some of the nuances of the operation of the Immigration and Refugee Protection Act [IRPA] and Regulations [IRPR], especially around implied status.

Implied status (R.186(u) of IRPR in the context of work) is an often misunderstood concept. It is an area where I have had to write a lot of opinion letters for employers/employees in order to preserve the employees’ ability to maintain employment. As there is no “official” document confirming implied status, and the end of the period will often rely on a worker’s forthcoming updates to their employer about their application, it can be the source of some tension.

In Decision No.: 2017-0248, the status of foreign workers vis-a-vis their implied status is addressed in two major statements in the decision. Without getting into the applicability of the misunderstanding on the consequences, which it appears there may have been, it is important to clarify the law. I hope this piece is ultimately also an argument by getting an immigration opinion from an immigration lawyer may aid in understanding non-immigration law matters. This area of the law is not as simple as ‘googling’ IRCC’s website.

The Worker’s Representative’s made the following submissions as entered into the decision:

[106.12]   The worker’s employer had offered modified work duties.  The worker was committed to performing modified duties and signed a modified work agreement on March 19, 2015.

[106.13]   On the same day the agreement was signed, the employer advised WCB that it could no longer employ him because his work visa had expired and the worker had done nothing to renew it.

[106.14]   However, the worker had reported to his supervisor that he had applied for an extension, one month before his work visa expired.  He provided the supervisor with an email to support this.

[106.15]   An employer who hires temporary foreign workers should be aware that, once an individual has applied for extension of work visa, he or she remains entitled continue to work for the same employer until a decision is made on the extension.  The employer did not follow through with the worker’s implied status as a temporary resident entitled to work and removed the modified work.

[106.16]   Because of the employer’s decision, the worker had to relocate to another province as he had no way to pay his living expenses.

The Appeal Board later addresses the submissions and decides as follows:

[158]        We acknowledge the worker’s representative’s submissions with respect to the worker’s ability to continue to work past the date on which his work permit expired.

[159]        We note that the worker was issued a work permit on March 20, 2014.  The date of expiry was March 20, 2015.   The work permit explicitly stated that the work permit did not confer temporary resident status:

“. . .

Remarks/Observations:

DOES NOT CONFER TEMPORARY RESIDENT STATUS.  JP/OSC

. . .”

[160]        The Government of Canada information, supplied by the worker’s representative and copies of printouts of which were contained in the appeal documents package, stated what would happen if a temporary resident applied for renewal of a work permit which then expired.  However, there was no evidence before us to establish that the worker was a temporary resident at the time his work permit expired.  To the contrary, the permit stated he was not.

Implied Status is Available for a Work Permit Holder With a Condition “Does Not Confer Temporary Resident Status”

What the Worker Compensation Appeal Board does, in essence, is  equate the condition on the work permit indicating that the work permit does not confer temporary resident status to the presumption that implied status cannot be available as implied status requires pre-existing temporary resident status.

While it sounds good in theory, it is wrong on application of law. This is where implied status can sometimes be a misnomer.

*Warning – this part gets a bit reg heavy so if you hate regulations, you may want to avoid reading further.

First, the starting point – what type of work permit does the Appellant in this case have. We can do a preliminary deduction without seeing the work permit that is either a R. 206 of the Immigration and Refugee Protections Regulations [“IRPR“] and/or R.207(c) or (d) IRPR work permit. We are able to do this by looking at R.202 IRPR which sets out the impetus for the condition of not conferring temporary resident status.

This provision applies to work permits that often are applied for by refugee claimants or subject to an unenforceable removal order [R.206], is a protected person within the meaning of subsection 95(2) [R.207(c)], or is applying to become a permanent resident and has been granted an exemption by the Minister per s. 25(1), s.25.1(1), or s.25.2(1) of IRPA [R. 207(d)]. The later is commonly knows as the “first-stage approval” for a Humanitarian and Compassionate grounds permanent residence application, quite common when dealing with individuals without status who are applying for permanent residence.

The provision for implied status falls under R. 186(u) IRPR which allows a foreign national to work on the conditions of an expired work permit while awaiting a decision on a new work permit application. It is worth noting that this is a provision which does not mention anything relating to temporary resident status.

 A foreign national may work in Canada without a work permit

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

In fact,  R.201 IRPR ties into R. 200, which states and Officer shall renew a foreign national’s work permit [note again – no language around an individual needing to be in status] if they continue to meet the requirements of section (R.) 200.

Application for renewal

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

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

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

  • Renewal

    (2) An officer shall renew the foreign national’s work permit if, following an examination, it is established that the foreign national continues to meet the requirements of section 200.

  • SOR/2010-172, s. 3.

In fact, four subsections of R. 200 specifically highlight section 206 and 207 and indeed in subsection (2) make it that the ability to leave Canada at the end of an authorized stay [i.e. or reframed –  maintain temporary resident status] is not a consideration in whether to issue a work permit.

In conclusion – it is very clear from the regulations that an individual with an R. 206 or R. 207(c) and (d) IRPR work permit that has a condition stating the work permit does not grant temporary status CAN still rely on implied status under R. 186(u) of IRPR.

It is unclear what Government of Canada documents were relied upon but websites don’t often tell the full picture.

What IRCC email “actively pursuing studies” compliance checks look like

Email Compliance Checks

As you may have seen from IRCC’s revamped study permit instructions website, the process of verifying whether a student is “actively pursuing studies” is finally being taken up by the Department. While some may find concern in this (given the broad nature of R. 220.1 IRPR), if it leads to less Port of Entry decisions and more assessment by those who understand the challenges of international students and can grant some of discretion, this can be a positive thing.

I have shared an earlier post – what the letter looks like but I want to provide some more details about what we know and what we don’t know. Hopefully, IRCC will also put up some sort of an information page that sets out the guidelines/thresholds to be met and what (if any) steps a student can take to explain peculiarities or normalize their study status when facing such a request. For one, it is not clear how a student is to address medical breaks, time outside Canada (when they are not subject to the requirement to actively pursue studies), or any other explanation in a manner that can lead to the exercising of positive discretion.

Step 1: Receive Email from IRCC

IRCC.DNISPCompliance-ConformitePEERN.IRCC@cic.gc.ca

  • On this a side note and tip- many international students utilize the email of educational agents, family members, etc. to apply for study permits. For many of them, once you are comfortably in Canada and in school their obligation ceases to exist, but yours still do. I would suggest creating a MyCIC and linking your application to your new MyCIC to ensure that you get communication. Alternatively, you may choose to contact IRCC by IRCC webform to change your contact information. Still, IRCC has been known to send emails to wrong/old addresses. Being proactive will do you well here.

Step 2: Read the Email from IRCC carefully, noting deadlines, format and documents required

Copy of a compliance check

In this sample request, there are two things requested – one proving current enrollment status and a second requesting transcripts from past dates. There is also under the “Please note” section the ability to provide additional explanations.

With a deadline, you want to make sure that if (for whatever reason) documents may not be obtained within the deadline [let’s assume your consultant sent you this email three weeks late and a transcript takes one week to obtain from your former institution], make sure to  email and ask for a reasonable extension of time. 

Step 3: Review the Letter/Transcripts You Get Carefully

Not all letters and transcripts are self-evident when under review. It is possible the educational institution themselves may not have undergone an immigration audit of their letters, attendance records may be inaccurate/missing, or the transcript may have some issue that you were previously not a party to. Schools also may have very unique semester systems that are not captured in their enrollment letters or transcripts. It is important before you pass it on directly to IRCC that you review it for possible flags that may need explaining.

That being said, IRCC’s technology to catch fraud is increasing, comes with high consequences (a possible 5-year bar from Canada for misrepresentation and/or regulatory offense/charges). I would highly advise against any one seeking to alter anything for the purposes of trying to cover up a record of underwhelming studies. There is sufficient enough grey in the legislation that you may be better off providing an explanation of your ongoing intent and explaining short periods of non-compliance than to cover up or hide it.

Step 4: Provide a Response or Determine if You Need Legal Assistance Providing Said Response

Next comes responding. If there are straight forward documentation which clearly establishes your attendance with no issue, you may be okay sending in just the transcripts. However, in many cases a cover letter or timeline may be beneficial to provide. Your job is to make the Officer’s job easier and as well advocate for your own past studies and ongoing-pursuit of studies. Again, at this stage, there are no clear cut rules as to the standard of proof. It is unclear whether students on academic probation, students who failed, and students who were wait listed or prevented from studies due to registration/health issues will be able to get a hall pass. Hopefully, in time these issues clarify themselves and as well IRCC also clarifies their communication with CBSA on students seeking entry who may have violated the actively pursuing studies requirement. In an ideal world, I would like to see CBSA cease issuing removal orders at the Port of Entry and referring cases to IRCC to pursue, giving students fair and reasonable opportunities to respond to concerns and/or make necessary efforts to change their status, if required and available.

Detained Migrant in Vancouver – A Descriptive Narrative

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+00000001_Image_Form_und_Schatten_Sachsen_Germany By Lupus in Saxonia – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=50750508 

When my moms was still around, she told me about how they used to put our people in shackles.

They were thicker back then. Big iron shackles. So tight, apparently, the blood vessels constricted and feelings were lost in hands and legs. From our ancestral home, we was apparently brought onto boats to supposed freedom. Instead, years of slavery followed. There were no keys back then so those shackles became the bangles of the day, the number of links remaining a sign of the length of your arms and your worth as a potential worker.

I know my people suffered the consequences of generations of abuse. Maybe that is what led to my own abuse so many years later. My parents abandoning me at such a young age. I don’t know if my parents are alive or dead. My biological mother, they said, was only 14 when she had me. Her and my father never were supposed to be together.  They had both runaway from their respective homes and met in an abandoned building that they calle dhome. They both needed to get by and used each other as a lifeline for that fateful year. 

My father stayed long enough to watch my first diaper switch and decided that this life wasn’t for him. He went on to other cities and apparently fathered other kids. I tried to ask around, and best I know he is in the hole now – doing life for a murder. They put me in protective services when I was just 10. I didn’t realize moms had thrown me to the wolves back then. Pain was just natural. I only realize the scars I carry now.

My foster family that they set me up with decided I was nothing but a burden on their lives and who put me into labour to feed their own older biological children and their own crack addiction. I would always get the leftovers – the soupy and saucy parts of pasta and stale bread that I needed to dip in water to make edible. I often went to school with no packed lunch. Every day I needed to pretend to use the washroom and instead go to the cloakroom where I took a few pieces here and there from my classmates.  I knew which bags belonged to the white kids. They always had more snacks that were easy to steal.

I always slipped out, eating lunch by myself on the roof of a nearby building. Watching the cars go by, women being picked up and driven away. Back then, I had no clue what that operation was, only that these women were real pretty and tall.

I understand that the Fosters were paid to take me in but they decided to keep any money they got to themselves. They would always sober up just enough to tell Child Services at their monthly meeting that I was doing okay and had my older “siblings” nod in agreement in a repetitive, orchestrated routine. I was told if I said anything I would get beat so I just put on that blank starey face that I still use today.

Damn, I wish I could put my hands in my head. Close my eyes and dream of those faint memories of better days. When I was hitting lead off for my high school baseball team. Coach even said that if I played the way I did in my 9th grade there would be college scouts by 10th grade. Unfortunately that year was my last year of formal education. I didn’t pass enough classes to allow me to stay at the school they said. Other schools said their schools were full and didn’t allow me to enroll.

Snap back to reality. Today, I am in those same shackles my mom told me about. Red jumpsuit. Laceless shoes. One foot in front of another, I tell myself. Those cursed feet. The same ones that led me to cross over the arbitrary line to a foreign land that seemed so familiar. To me, it all seemed like one America. Little did I know that I had broken a rule. Hell, I had broken numerous ones before. I don’t what made this one any different. One side of the street had a Taco Bell and the other a McDonalds. I was just trynna get a burger, you feel me?

The guard accompanying me looks no older than 22. Poor kid, I think to myself. He’s a brown skin as well. Isn’t that how society works? They got us coloured people enforcing each other. I wonder if I was his blood brother he would treat me the same way. Regardless, I wouldn’t know. I only met my blood brother a month back. He offered me to stay long enough to find another City to get my sorry ass to. Other than a last name we shared nothing. He clearly didn’t want nothing to do with me other than ensuring I never returned.

I don’t remember what happened over the past week. What day it is? What month it is? What led me here again? 

Suddenly my shackles came loose with a pop. I tried to massage my wrist and ankles that were feeling incredibly sore from three hours of constriction and bumpy suburban van rides.

“Hands on the glass, and face the wall” – a new guard came up behind me. “Put your hands on the glass and spread out your legs.” Suddenly I felt a leg stick between mine. Hands started patting me down. This is probably not the best time to think it, but imagine I could just turn around and give a big hug. I haven’t had a hug in years. The touch of this guard made my whole body shiver. Every single human touch I had did the same.

“Do you prefer Turkey, Ham, or Vegetarian for lunch?”  I think of making a wise-crack that I would love that Big Mac meal and I would have got one had I had enough money,  but it was pointless. I knew the menu here. It is the same as always. “I’ll have Turkey again, sir.” with Ice Tea.

I remember that one Thanksgiving when I was five when Mom’s and I had went to Georgia to see Grandma. She made this Georgia Sweet Tea and they had roasted this big crispy turkey. Apparently it was a slave recipe passed through generations. I will never forget how rich the gravy was. You know that feeling when you hungry and wake up immediately dreaming about food. The turkey and gravy shows up all the time in my dreams, but not enough in reality.

“Where do you want to go when you leave Canada?” I stared blankly at her. 

I unno, I got nowhere to go m’aam, no family” I stammer. I was gonna go into my whole story about how I ended up here accidentally. That I had brought the can of mace from the States as I had been robbed sleeping a few months back and that I never intended to use it.

I decided against being lengthy.  She probably already knew my story anyway. This woman truthfully looked like she didn’t want to be here either. I could only imagine her job was like doing laundry, except every time a batch of clothes were washed, they kept getting dirty again. 

“Do you wanna go home then?” or “Stay locked up for another week.” she asked in a damned if you, damned if you don’t manner.

“Just get me home, m’aam. I’mma go crazy if I stay here just another minute.” I whispered.

“Come again? You need to speak up, sir.” she barked.

“Get me home.” I spoke – not realizing how loud my response came out. I barely had any water all day. My voice must have sounded coarse and cruel.

“No need to raise your voice,” she admonished. “We will get you home by 4pm today.” 

“Sir, in five minutes you will have your hearing,” she continued. “All you have to do is tell the member hearing your case that you want to go home and today we can get you home. Alright. No further questions? Take care.” she left curtly. 

I went back to my cell. The two Spanish-speaking detainees eyed me with some interest. “How did it go… esayyy?” one walked up to me.

They had not had their meetings yet and were eager to know what was up. Every time someone was released, there would be ‘high fives’ all around – woots and cheers – even the Guards would sometimes join in.  The same ‘high fives’ they used to give when I hit the ball out of the park back in 9th grade. Except, this time I did not want to be a part of it. There was no reason to ‘celebrate.’ This wasn’t a Common song.

I shook my head and said nothing. I went back to my corner of our tiny, too cramped cell and put my head on my arms.

The two Spanish-speaking ones started talking to each other and laughing. They were refugee claimants. Apparently they were just missing identification documents and they would be out in the matter of days. I had taken some grade school Spanish but still couldn’t catch much of what they were saying other than the word ” dis one loco.”

The rest of the afternoon was a blur. I went in and out of a sedated state. I was offered some tylenol yesterday because of a bad headache. Maybe the medication was too strong. Maybe I didn’t sleep well enough last night. Maybe, the 5am cornflakes didn’t go down so well this morning. 

I think I spoke to some lawyer. She was helpful enough. She was tall and beautiful. Eyes that had me lost like I was looking into an ocean. I didn’t grow up with any oceans though, we were stuck between Atlantic and the Pacific, dead centre Middle America.

She told me with much empathy that there was not much I could do, that refugee claims from the United States would not work, and that I had to decide whether I wanted to stay or go. “Go, I responded.” “I just wanna get out of the whole.” She wrote down a list of homeless shelters for me along with some phone numbers on a yellow piece of paper. She folded it delicately and placed it into my hands. I crumpled it into the pocket of my blue polo. “Thanks m’aam.”

The hearing was quick. Five minutes. There were two individuals in the room and my lawyer with the nice eyes. The man at the front said some thing about me wandering into Canada and violating some law about not being examined. I was banned from Canada for a year. I was told not come back without permission, or something like that. They decided they would continue to detain me until I would leave Canada in the matter of hours. I was immediately escorted back down. 

When I went back, my cell was empty. All the other detainees had left. It was me. I was told to change into my regular clothes.

“Border Run time” – an Officer came knocking on my door after I got about ten minutes of much needed rest.

What’s a border run?” I stammered back.

“Time to go home for you.” he answered. 

I was put back in my handcuffs, for the last time. There was two with me. One driver in the front. One Officer to my side. The windows were tinted but it was still daybreak.

The route was different this time. It was beautiful – Is this Vancouver? The maple leafs were falling off trees, gently moving in the wind.

I saw mountains, park, children playing baseball in a park. Where I grew up it was all flat. All hood. Kids had nowhere to go but to the corner to serve as human pawns for the trade. I got really good at spotting police cars and undercover agents. I wish I was better at spotting the one that woke me up from my nap on the park bench. The plan was to pan handle a little so I could get my burger and fries.  I guess it was too late. By the time I responded “who are you” I was already rolled to the concrete pavement with my hands behind my back.

This started what today is being ended – my brief trip to Canada. My brief stay in Vancouver.

I know I told this story without a beginning, middle, and end. Kind of like where I am at today. 

I get dropped off at an office. The Officers receiving me have U.S. flags sewn onto their uniforms. 

I’m home. I think.

 

20 September 2018 – CCAC x Punjabi Market Forum – Text of My Intro Speech

Full text (minus a few ad libs from the day of):

I would like to Acknowledge that we are on the unceded, traditional territories of the Coast Salish Peoples  – the Squamish, Musqueam, Tsleil-waututh.

It is the resilience of our First Peoples, in the face of adversity and historical and on-going discrimination that inspires us to continue to strive for reconciliation.

I ask that we draw on their collective wisdom, the wisdoms of the ancestors of this land, as we gather in our own circle here today.

Friends, name is Will Tao. Pronouns: he/him/his. I am the Chair of the Cultural Communities Advisory Committee. I am so grateful to be able to provide brief statements to open up today’s packed agenda of events.

For those that don’t know about our Committee we are a 15-member volunteer advisory committee. Our mandate is to enhance access and inclusion for Vancouver’s diverse cultural communities.

Over this present mandate, we have played important roles on some of the City’s major projects. We’ve been part of the Vancouver Immigration Partnership, assisted in drafting the Apology for the Historical Discrimination Against Chinese Project, been part of the Mayor’s Working Group on Immigration, The Assets Naming Committee (who I add just did a fantastic job naming several City assets)!, among others.

We are particularly proud of our Committee-driven initiatives, from the Spaces survey studying challenges in securing ethno-cultural spaces, to hosting the City’s International Day for the Elimination for Racial Discrimination, to our Voices of Vancouver statement, and to the exciting Islamic History Month, the city’s first, coming up on October 27th.

If you have any questions about our Committee’s work, I ask that you approach our Committee members. We have seven members here today – almost quorum (joke for all of you who do advisory work).

Today, marks a continuation of our efforts to ensure that diversity is more than a check mark.

Today marks our first meeting of the 3.5 half years I have been on this committee – held outside City Hall.

This brings me to the heart of today’s conversation – the Punjabi Market Community. One member of our Committee told me a few days back that this would be nostalgia for her. As a kid, Punjabi Market (like for many of the community members in this room today) was their backyard. A place to shop, to eat, to  spend those cherished family memories that today we look back fondly on.

This is a special community that stands for resiliency over time. That stands for everything great about our City and our people. It is our past, present, and future, all rolled into to one diasporic dosa.

When community members Ajay Puri and Gulzar Nanda, whom I will introduce momentarily, asked to attend a CCAC meeting a few months back and told us they needed our help. We immediately heeded their call.  Their passion for this neighbourhood – tied into their honouring of the legacy of their forefathers is an inspiration to all of us. I see our role today not only to share our own experiences and advice but to be active listeners to what this community wants us to hear as it heads to its half-century birthday in a mere two years.
I would like to close my brief remarks on just one more point.

For those that may not know, I have been adopted into a Punjabi-Sikh family myself. Had a traditional Punjabi wedding (even though my partner is Chinese). Spent hours in prayer at the Ross Street Gurdwara reflecting on God’s good graces.

I love the expression of Chardi Khala and how it ties in to work today.

Chardi Kala teaches us that even through difficult and trying times, that some of us may be facing be-it through life, work, paying rent, affording to run a business on 49th and Main, that we are all interconnected with one another. That our work here is for more and greater than our own selves and our own ambitions.

This community’s fate and future is our fate and future. By being here you have stepped into the shoes of this community for the evening, and have left your shoes at the door. Having stepped in it, it is not simply good enough to come back once every four years. You are bonded as well all are.

Today, let’s choose to face this challenge of community building with eternal optimism and positivity – Chardi Kala. Thank you for all being here.

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Some Additional Thoughts:

Growing up on the west side, Main Street was already considered too far East. I had very few South Asian classmates in high school. In University I was blessed to meet Davinder Sethi and his family who took me. Later. I studied South Asian migration and took Dr. Oberoi’s South Asian Beyond South Asia Class.  It was also during this time I was first exposed to the Punjabi Market. Davinder and I filmed an intro video to our Asian Representation in Politics course featuring Kohli’s and what was then Guru Bazaar.

For the past ten years, I will have to admit I lost touch with the Punjabi Market. I went to Pabla’s maybe twice. Even moving to South East Vancouver in April, I stayed within the confines of Fraser St. on the West and Victoria Drive on the East.

Recently, I was very fortunate to have two special individuals enter my life – Ajay Puri and Gulzar Nanda. They took not only the initiative to meet with our Committee but both took initiatives to meet with me individually. With Ajay, earlier this summer, we walked around City Hall talking about his engagement work. In mid-summer I met with Gulzar over coffee, bringing Davinder and hearing their stories of growing up in the neighbourhood. Both Ajay and Gulzar share commonalities with me. We’re all around the same age. Both of us have lovely partners (clearly better 1/2s), all three of us have lost a parent. I am so grateful for their passion for this City and their neighbourhood and that they were willing to welcome me into their networks with open arms.

This brings me to the picture  above . The Cultural Communities Advisory Committee decided to host its first ever meeting outside of City Hall in the Punjabi Market thanks to the work of Ajay and Gulzar. The tour of the Market was incredible – I learned so much about the history of the businesses, the art work, and some of the changes in the works. The Forum was equally aspiring, particularly the participation of the neighbourhood elders who were eager to engage with youth, sharing their wisdom while appreciating the young energy. I think some of the ideas that were recommended can be implemented very soon. I cannot wait to see what the next Diwali, a possible mural festival, and Indian cooking/dance classes will look like. I will certainly be there.

Now that we have these ideas, its time to start implementation. We have a host of really talented political candidates, who (whether elected or not) appear ready to ensure this neighbourhood is not forgotten for another four years.

As I said in my speech – I definitely view these next years with a sense of chardi kala.

Keep posted with the progress – https://www.punjabixmarket.com/

With gratitude!

Will

 

Guest Post: ‘Homage to Canada’ – by Ms. Zayneb Khairy

Vancouver Immigration Blog often receives posts from individuals seeking to share a platform for their thoughts and ideas. When I received this piece by Ms. Zayneb Khairy (through an email to me), I immediately connected to her words. I hope you all enjoy this beautiful account of one Vancouverite’s views of working with Arab refugees and how it has affected her worldview as much as I did. I have not made any edits, and it appears in it’s original form. It is truly inspiring – WT.


Syrian_Refugee_Child_in_Istanbul

Photo captions: By Ahill34 – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=53280088

I would like to share with you what I consider a perceptive account of my personal experience with the Arab refugees’ situation – particularly Syrians and Iraqis — here in Canada.

I believe most of you know that the Canadian government — in keeping with its humanitarian duties — has been welcoming thousands of refugees, most of whom are fleeing their homelands for a wide array of reasons. However, I assume what most of you do NOT know is that the government is not the sole sponsor for these refugees. Apparently, groups of individuals and private corporations have also been very actively involved in the settlement process of these refugees, either by privately raising funds or by using their own money to sponsor and support people coming from abroad. It turns out that the involvement of the Canadian public dates back to 1979, when Canada started welcoming Vietnamese refugees, something that made Canada a world-class pioneer in such an initiative.

Needless to say, bringing refugees to Canada is just the beginning of a long journey those private sponsors take along with the sponsored refugees, where they venture together into the different possibilities and opportunities awaiting the newcomers in their new home Canada. It is worth mentioning that the amount of resources needed to accommodate the new settlers and assist them in adjusting and acclimatizing to the new environment, are incredulously tremendous. Yet those private sponsors have pledged to do their best to make the lives of their guests as smooth and as comfortable as possible.

For me, this was a stunning revelation. It truly made me question the entire ethical, moral, and ideological systems ingrained in the societies in which I was born and brought up. In fact, hundreds of lingering questions have been bubbling in my head since I came upon these valuable eye opening facts about the refugees’ sponsorship process in Canada. For  starters, it made me think, why on earth would these sponsors go out of their way and go through all the trouble of securing the necessary resources, whether by fundraising or by sharing their own income, to  willingly and all wholeheartedly bring complete strangers, the majority of whom happen to be Muslims, to their home Canada ? Haven’t they heard of xenophobia, for God’s sake? What happened to the ”Islamophobia” narrative? Where did all the animosity the media have been relentlessly trying to feed us go?

Well, apparently Mr. Trump has no audience here, and North America is not after all America! As you will see once you continue reading, fortunately the world is still “Arab and Islam friendly”.

I won’t say I have found the answers to all of my inquiries so far, but I can confidently say I have come to a sound, reasonable understanding, at least for me. I started looking back at the countries I had lived in, mainly in the Arab world, the part of the world where my generation has been struggling, until this very moment, to justify its moral obligation towards those who were facing different forms of hardship, be it war, famine, or natural disasters, and were in need of dire help. Of course, we were expected to fulfil this obligation for some reason. And to be clearer, for some corny, run-of- the mill reason at least from my perspective. There should be a reason, no?

As if the mere idea of lending another human being a hand was not enough, we would frequently hear — particularly in the last few years that followed what has been called the Arab Spring — from those who called themselves scholars and preachers, clichéd justification to legitimize any act of kindness, generosity, or help. For example, we would hear them talk about helping people with whom we shared the same religion, beliefs, history, land or language, or those who belonged to our tribe, race, or sect.

They would go on and on to fill an entire list of vain reasons reflecting centuries of racial and bigoted attitudes.

Sad to say, none of the reasons had to do with our humanity. The message was never as simple and straightforward as “we are morally obliged to help other human beings facing any form of adversity  only for the sake of being humans.” There were always earnest attempts to dig and search for labels, labels laden with bias and prejudice, to apply to those who needed our help, to qualify them and render them help-worthy.

These ignorant attempts have stripped human beings from their perfect sense of humanity. We were unconsciously led to look at those in need from the narrowest, tiniest, and unfortunately ugliest discriminating angle that reflects ages of narrow-minded and shallow thinking.

Going back to the situation here in Canada, I would be lying to say that people here are angels, and that there are no fanatics or extremists. Canada is not the kingdom of heaven , it is just an example of a society that has been trying to put its differences aside and look at the bigger meaningful picture. A lot of people here have been trying to lead a purposeful life where “giving back to the society” is their daily mantra. Those people have created a contagious culture, where volunteer work is valued, respected, and encouraged; where diversity is celebrated, and differences are appreciated. Those are the people who believe that they are meant to live as citizens of the world and don’t limit themselves to the narrow boundaries of their surroundings.

For those of you who know me well, you know that I have no personal gain out of writing these words, nevertheless I found myself morally obliged to share with the rest of the world my deep experience in the midst of global nonsense about race, religion, gender, and nationality. I truly believe that people have been purposefully steered away from the bigger cause of their existence. Instead of peacefully coexisting, and sharing the natural resources available to them, they have been fiercely drawn into endless struggles that have created nothing but frenzy, chaos, and devastation.

Frankly speaking, living in a diverse, inclusive society is not just a blessing, it is a learning experience by itself. It takes living to a whole new level. I believe the learned lesson from my own adventure is that we humans are all part of a bigger beautiful holy puzzle. Each one of us has a crucial, carefully scripted role to play, to make this puzzle a complete masterpiece. Every piece counts, and every single piece is equally important. And that humanity is a priceless value, worth being celebrated by itself.

I would like to invite all of you to share with me this conviction, by pledging to cherish and to live up to our humanity.

Author’s  Statement
Ms. Zayneb Khairy:
IMG_3101
I was born and raised in the Middle East. In 1999 my family came to Canada as immigrants. In 2008 I moved back to the middle east to work as pharmacist as I hold a BS.C in pharmacy. In 2011 I went through an extreme career change, from the health sector to the hospitality  sector, as my family at the time had ventured into the hospitality industry in the Middle East, particularly in Jordan. In 2013 I got married and in 2017 my husband and I decided to move to Vancouver, so here I am back to Canada but this time working as an Arabic / English interpreter for new comers especially refugees who have limited English proficiency. 

Summer ’18 – Study Permit and International Student Law Federal Court Case Law Summary

Global_Education

By Desmond1234 – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=46866616

As Canadian students ease their way back into studies and as school staff and administrators start thinking about the million responsibilities that come with a new cohort of international students, I thought it would be useful to review Federal Court Case Law over the past few months and uncover a few points.

I will focus on four points.

[1] PGWP regime not unconstitutionally vague, does not trigger s.7, and refusing a graduate from a private institution that was  not eligible under guidelines, not unreasonable. Brown v. Canada (Citizenship and Immigration)  2018 FC 452 [link to decision] – Manson J. presiding.

Jeremiah Eastman (a former DOJ lawyer for over 11 years)  appeared to make a valiant effort attacking the PGWP regime from all sides, but Manson J upheld the reasonableness of the decision and constitutionality of the PGWP regime. It is important to note that IRCC has now proactively addressed the issue at the heart of this matter by adding a list that sets out whether the DLI is PGWP-eligible and/or if certain programs offered are eligible.

[2] In the context of the requirement of  “actively-pursuing studies,” it is often parallel proceedings that will trigger investigation. CBSA Officers found to have broad discretion by Courts.  – Kone v. Canada (Citizenship and Immigration) 2018 FC 845 [link to decision] – Locke J. presiding.

 

Kone is a fascinating decision because it occurs in a context that I have lectured on for several years in my international student presentations. The Actively-Pursuing Studies requirement (which I have written about several times as being problematic) is most problematic when triggered by CBSA. There are many cases of international students who have missed one or two semesters (due to scheduling/health issues) but have not had issues entering new programs or getting student renewals. Kone gets triggered, not by an investigation into his studies initially, but by a related fraud matter where he is arrested.

Once this occurs, the books become open and the actively-pursuing studies allegation was sought after. We have seen this occur in other contexts as well – border entry incidents, criminal charges, arrests, etc.

The individual at that stage is often in a situation where their ability to provide further explanation is compromised. IRCC’s own process (triggered by compliance reporting and their own investigations) is much more fairer and consists of a PFL that often looks like this.

IRCC actively pursuing studies PFL letter

Students can then present a timeline including explanations as to why certain programs were unavailable or registration was delayed.

I also find the decision fascinating because, it does not (it appears) parse out the statutory requirements of what defines a failure to actively-pursue studies. At one point Justice Locke writes about one period of study:

[62]  First, I note that the applicant makes no reference to any authority indicating that his absence from Canada could excuse him.

The very provision of R. 220.1(1) of IRPR requires actively-pursuing studies only when in Canada on a study permit. Indeed, one of IRCC’s pieces of advice on this issue is to depart Canada or seek a visitor record if there is major gap due to issues such as illness or inability to enroll.

Finally, one thing that still needs to be resolved (in my mind) is whether this type of non-compliance can be cured by leaving Canada in the same way as other unauthorized work or study. IRCC’s Enforcement Manual – ENF 2- Chapter 11 states as follows:

Screen Shot 2018-09-09 at 12.14.59 PM

If a student who has not been actively-pursuing studies leaves Canada and returns either as a visitor (awaiting the re-engagement of their studies) or at a time prior to studies commencing, can the Border Officer go back to previous periods of study and render a decision that they were not actively pursuing studies while holding their study permit. It seems like an area where there is still not absolute clarity, and I’ve certainly seen most border officer’s take the later approach. Even IRCC’s PFL letter suggests that this assessment can be made irregardless of the Applicant’s travel history.

It is also worth noting a second case came out this summer El Kamel v. Canada (Public Safety and Emergency Preparedness) 2018 FC 730 [see attached link occured in the context of a student who was advised by his consultant to seek to amend his study permit at the Port of Entry (likely by flagpole) where he was subsequently issued a s.44 report and exclusion order.  The Officer noted the student’s good faith action at the Border, but noted that there were no grounds for review of the decision finding Mr. E-K did not actively pursue studies.

Expect that the actively-pursuing studies issue continues to be pursued as a ground for refusing non-compliant students but in many cases capture students that border the cusp of being also unfortunate, unhealthy, or unsuccessful which the provision can also apply to.

[3] Study Permit Refusals Should Continue to be JR’d – Raymundo v. Canada (Citizenship and Immigration) 2018 FC 759 [see linked decision] – LeBlanc J. presiding.

As discussed in my last post on the Omijie case [see link here], there has been an increasing judicial scrutiny around study permit refusals. It is understandable. There are now increasing number of study permit applicants, and while Canada has pledged more seats, within a global context it cannot take all applicants. Rates of granted study permits in many countries are still very low (15% or less, and in some cases close to 5%).

Many of these applications will begin with the starting point that the visa officer will likely refuse the application and assume the applicant will not leave Canada at the end of their stay, unless the applicant can demonstrate otherwise. While this is not how the laws and regulations should directly apply, it is a reality of the over-extended demand on a Canadian study permit.

In Raymundo, a study permit applicant from the Philippines applying for Centennial College’s International Business Program was refused a study permit. He had explained in his application why he intended to return to the Philippines to start a marine transportation business. It appears he had family in Canada who would be providing financial support but Mr. R’s wife and kids would be staying in the Philippines. The Officer found that the proposed studies in Canada were not consistent with a logical study plan and that the Applicant did not demonstrate significant socio-economic ties to the Philippines.

Justice LeBlanc found that the decision was not reasonable, rendering the following lines:

Screen Shot 2018-09-09 at 12.36.04 PM

The Applicant directly addressed his attempts in his personal study plan that he tried to find a similar program, yet the program was still found not to make sense.

The Officer also took major issue with the fact that the Applicant had left his wife and son in the Philippines and that this factor was not mentioned at all in the reasons for refusal.

Screen Shot 2018-09-09 at 12.36.12 PM

These are such common reasons for refusal that I see in many study permit consultations. Even with the Federal Court’s guidance with these cases, I still believe that visa officers will continue to refuse study permit applicants with short, trite, and little explained reasons knowing that 95% of them will either abandon their plans or re-apply to a similar refusal. I think the only way to challenge the system is to bring up these cases to judicial review.

I note a second decision this summer, Demyati v. Canada (Citizenship and Immigration) 2018 FC 701 [see link to decision] where a 18-year old Syrian national with a scholarship was refused a study permit.  Justice Roy seemed very concerned with the lack of transparency and intelligibility in concerns that the individual would not return home because of the country conditions. Justice Roy also appeared pertrubed by the type of requirements IRCC was expecting of a young student with respect to his employment history, etc. This is particularly true as parsed out in the facts presented by Justice Roy.

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One of the key differences in this matter that the officer appeared to also go too far in presuming the Applicant would not “actively pursue studies” in Canada without pointing to any evidence. The speculative nature in which was done was criticized by Justice Roy, ironically in the context of s. 7 of the Charter which is rarely ever in the same context of international students, who have no Charter rights in a context of a study permit application. Yet, his criticism, highlights the very real concerns about arbitrary reasoning that comes with many temporary resident visa refusals.

I expect more and more judicial review of these types of decisions. It may be worth considering whether the Government eventually is better off with a per country quota system (that allows for the ceasing of intakes) as opposed to needing to find reasons to refuse applicants that often times will prima facie meet statutory requirements, pending issues about credibility or misrepresentation.

[4] Students Need to Better Pathway Their Studies –  Masam v. Canada (Citizenship and Immigration) 2018 FC 751 [see link to decision] – Walker J. presiding.

I will not break down this case too much (as it is somewhat related to what occurred in Brown above). Ms. M appeared to, likely on the cases of other students, transition from a DLI, George Brown College, that was on the PGWP list to a non-eligible DLI, Canadian College for Higher Studies (CCHS). Upon completion of that second program, it had already been 90-days + since the completion of studies at a DLI. While the Applicant tried to add to the JR record an affidavit from CCHS attaching proof that other students were successfully, this did not render the assessment unreasonable in the Applicant’s circumstances.

This case makes it even more important that students, especially who are seeking to do add-on programs or transition between institutions are aware of how this may affect their overall eligibility for PGWPs.

 

 

The Need to Show Study Progression and Judicially Reviewing a Study Permit Refusal – A Closer Look Through Omijie FC

In  the recent case of Omijie v. Canada (Citizenship and Immigration) 2018 FC 878 [CanLII link], Mr. Omijie is a 26-year old citizen of Nigeria who sought to study at Alberta’s NAIT for a Bachelors of Business Administration program after he had previously graduated, three years prior, from a Bachelors of Science from a university in Nigeria. Mr. Omijie’s student permit application was rejected, and not for the first time [as will be discussed below].

This case highlights the dilemma faced by many study permit applicants, particularly from countries such as Nigeria, where the last figures we have from January – March 2017 show that the number of successful applicants (371) compared to unsuccessful (2,174) and total applications lodged (2,545) leads to a 14.5% success rate.

371 2,174 2,545 53%

I would assume that rate has worsened since with the volume of students seeking entry into Canada from all over the world.

One of the major issues under scrutiny was the fact that the Applicant was seeking a degree to continue studies in a related area at a related level.

It is also important to put into context that the Applicant’s study permit refusal had already gone back once to the visa office for reconsideration after a decision by Justice Diner. The reason it was sent back by the Federal Court was due to (as we will see also from this decision) a lack of explanation for why the “educational and employment history” was problematic.  As summarized in this decision about the first judicial review:

Screen Shot 2018-09-09 at 10.04.58 AM

Justice Pentney (former Deputy Minister of Justice and Deputy Attorney General of Canada many of those practicing will recognize from filing previous Judicial Reviews) made two very interesting points, set out over three paragraphs of his decision, as to why judicial review should be granted and the matter sent back to the visa office for redetermination.

In paragraph 23, Justice Pentney exams the evidence that was put forth by the Applicant for explaining why he wishes to pursue studies in Canada – specifically a desire to pursue hands-on, practical, and technologically advanced training.  The Visa Officer does not question the evidence provided but finds fault in the cost of relocating to Canada to undertake study at the same financial level.

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This is very common among international students who do often come with Bachelor’s or ther advanced degrees from abroad but wish to gain Canadian specific qualifications which may require them to start at a lower level or pursue diplomas.

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Justice Pentney acknowledges that the Applicant may not have set out the grounds of why there was a logical progression between the two studies clearly but that the Officer’s decision to reject what was presented without adequate explanation was itself unreasonable.

A recent trend of overseas visa office refusals that I have seen (both on the student and TRV side) is that the decisions are generally becoming more and more trite, with less and less reference to evidence provided. While a decision-maker is presumed to have reviewed all evidence, silence with respect to evidence that can corroborate the Applicant’s statements and that directly contradicts the visa officer’s decision, can render a decision unreasonable.

That being said, with judicial review being a costly procedure, and with the possibility that matters such as these can end up in a loop of judicial reviews and refusals, it is pertinent to put the best foot forward in the first application and make it abundantly clear how the Applicant meets the statutory and regulatory requirements of a bona fide student (or visitor as the case may be) that will leave Canada at the end of their stay.  In this matter, reference to policy and to previous refusals (if any) is crucial. Whether it is putting a succinct cover letter or organizing the online submission in a manner where the visa officer  is clear as to where documents are located, these small steps when a visa officer has only a few minutes to review a file and render a decision, goes a long way.

The Omijie decision also highlights another issue (and common point of misunderstanding) for those who pursue judicial review and expect that either the process will allow the judge to grant the study permit or else that once it is returned for reconsideration a student permit will be shortly granted.

As discussed by Justice Pentney, granting the study permit (which was sought b y counsel) is simply not an available remedy.

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S. 18.1(3)  of the Federal Courts Act states:

Powers of Federal Court

(3) On an application for judicial review, the Federal Court may

  • (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or

  • (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

In a case of this nature there has been no unlawful failure, refusal, or delay in performing the act of approving a study permit under (a), this is clearly a case of (b) where the setting aside for the re-determination is the only appropriate remedy.

Back at the visa office, it is likely (but not always the case) that the Applicant will be granted the opportunity to provide further documentation. The Applicant will need to re-demonstrate that they still hold an LOA to this program, and likely update (in a matter such as this one) proof of finances, study plan, etc.

With the Federal Court now having clearly indicated that the missing piece appears to be the brevity of the decision and no indication why the Officer found the Applicant’s failure, it would be very likely for a more detailed examination of why the Applicant’s study plan fell short. In the alternative, other areas of the decision could be re-examined (proof of finances, etc.), and possibly even an interview set up to determine the Applicant’s credibility in presenting this plan, in person. The other option is for the Visa Officer to simply stop the litigious process and approve the study permit application. Again, neither option is clearly guaranteed through a process like this.

Too often, unauthorized or underqualified representatives will never advise judicial review and end up having their client go through a slew of repetitive refusals that very much harm the prospective chances of ever getting a temporary resident visa.  If not early on, at a certain point in time, there needs to be an acknowledgment of whether the application deficiency is a factual one (i.e. the facts are bad and can’t be fit to meet the requirements – but can also be “improved” upon) or if there are legal deficiencies that lead a visa officer to be unable to budge on their interpretation of the law. In the later case, judicial review (and the heavy expenses that go with this process) may be the only way to go.

I will be posting other cases of judicial reviews in a second (Summer 2018 in International Student Federal Court Litigation) so you will better see the nuances of how the Federal Court process works.

The Extent Unauthorized Immigration Agents Go to Hide Your Situation – A Case Study in Fraud

Recently, I was on Global News, talking about international student fraud (often times originating from overseas) where students get lured into Canada on a study permit and end up as precarious, exploited workers. You can find that piece here: https://globalnews.ca/news/4409552/aldergrove-subway-allegations/

In today’s piece I want to tackle a related issue that I have first hand knowledge of is affecting individuals across the spectrum – from individual seeking TRVs to study permits and work permits, and even to applications for permanent residence/permanent resident cards. This fraud takes place both inside Canada and outside Canada, although predominantly with unlicensed agents abroad or those agents who claim to work with “Canadian registered consultant partners.”

This type of fraud has affected a recent client of mine. I’m sharing his story (with permission). I’m modifying the facts so this will have no impact on his future immigration yet it can still serve as a warning to those who get caught up in these type of situations.

Scenario

You are a citizen of China seeking to visit Canada where you have a sibling who is currently on a post-graduate work permit. You engage in the services of a local agent in the service of your small town on the outskirts of Qingdao. He says he is an immigration service. They have a 95% success rate and they can help you with the process. They say they will go to the Visa Application Centre (“VAC”) VAC on your behalf. It is easier that way and you will not need to do anything other than to give them documents.

You provide them the documents. They tell you that they believe you will be granted a visa and to wait approximately three to four weeks for notification. They do not provide you any receipt or file number other than a brief voice message indicating it has been sent. You have not seen the final package.

They notify you on 29 April 2016 that your application was unfortunately refused but that the refusal was out of their control. They say that refusal decision appears to put the onus entirely on you for not providing enough financial documentation.

You see the letter. The heading says:Scrubbing Refusal 0a

 

 

 

The letter is addressed to you, it has the file number.

The content of the letter says:

Scrubbing Refusal 0a Scrubbing Refusal 2

You accept the refusal as par the course. You don’t blame the agent. Your family accepts it (they got their visas after all) and you let the matter go.

Several years later you find a licensed Canadian representative. You now wish to visit Canada again to celebrate your brother’s wedding. Your brother hired a representative in Canada who assisted him on his PR paperwork (economic immigration) which went smoothly.

As part of the process, your new representative recommends that you do an access to information request to get a copy of the Officer’s Electronics notes and the refusal letter. You ask for a copy of the physical file as well. you pay $5 dollars for this request.

A month later, IRCC responds stating that they have unfortunately disposed of your information in correspondence to their data retention policy. 

Two years have passed since the last administrative action. However, they do send you a copy of the refusal letter as per below:

Scrubbing Refusal 0

This date is 6 days before the date of the refusal letter you received from your consultant.

There is also a different address located on the top of the letter – not just your name listed.

Scrubbing Refusal Address

You also note the number of pages in the refusal is very different

Scrubbing Refusal 1There is another page that you are surprised to see – that the refusal is not just one page long:

Scrubbing Refusal 1bIn the electronic notes, you learn from the notes that a large portion of the refusal was actually due to the submission of unclear photocopies.

The reasons for refusal were entirely the same as the one included in your letter for the consultant. Why was the refusal letter transferred to a new form?

Breaking Down the Fraud

There are two major elements to this particular fraud case. These likely are the reason why said fraud agent

1) The Date of Refusal – this allows these fake agents/consultants to sit on refusals. They can pass the decisions within their networks and decide how to scrub them before sending it to you. While in this case they did not adjust the reasons for refusal, it would be very foreseeable that they would scrub it for wrongdoing (misrepresentation, poorly submitted documents, etc.);

(2) The address of the agent involved. You did not ask a Beijing firm for support. Why is there a Beijing address? By scrubbing the refusal letter and writing their own fake one, they were able to preserve their network of addresses. This would stop a line of investigation from IRCC. This would insulate the fact that the individual in Qingdao was not doing the work potentially and may have been a sub-agent for someone in Beijing.

Best Practices

As a client, you should always review everything that goes out, demand a copy of everything that is sent on your behalf, and require a file number as soon as possible. If you are passive and don’t take these steps, these are the types of frauds that will be perpetrated on your behalf.

While in this case, the only misrepresentation was a passed on refusal letter (not anything directly submitted to IRCC), it would not be out of ordinary for a fraudulent document to have been submitted on your behalf. With two years having passed, you will have no way of ever knowing.

I encourage all applicants to act prudently. Immigration works very differently than likely in your own countries where the process may be done in person, or through a process where you know exactly what is being passed on and when. With the move to electronic communication, and the lack of regulation of overseas agents, expect to see much more of this moving forward until preventative steps (such as sending a copy of the entire file to the client as well as the agent) are implemented. by IRCC.

The Asian Struggle in the Law That We Never Talk About – 5 Reflections on Battling Our Upbringing

This post is inspired by a series of older conversations with my sister (in LAW) and former colleague, Krisha Dhaliwal who is starting her LLM at the University of Toronto in September.

The_Chinese_Boy_and_Girl_page_104 (1)

I’ve been involved with Asian representation in the law for awhile now. I’m been grateful to be on the front lines with organizations seeking to break through the bamboo ceiling with ambitious goals such as to see that more diverse partners are appointed and that our judiciary starts to reflect our country’s diversity. As young Asian lawyers we often get together and discuss ways in which the system holds us back by sorting and filtering us through monikers such as “firm culture” and “fit” to mentorship being so difficult for us to access.

One of the things that rarely gets talked about, that I want to raise here, is the very struggle Asian lawyers have with themselves. I figure, with all the attention being placed on Asian Representation in Hollywood, Film, etc., that now is a good time for this (rather personal) post.

With this topic, I won’t touch upon mental health issues. It is quite well understood that is is an area with a huge stigma in our community and among lawyers no-doubt magnified by a legal profession that puts even higher expectations on outwardly appearances of confidence and success. We will keep this topic for another day but that day will come.

I want to focus on our upbringings. I want to focus on the very foundations of how we were brought up as first and second-generation Asian-Canadians by our parents and how some of the values we grow up with can often clash or challenge or absorption into “mainstream” law. Yet, for many of us it is this very journey into understanding and reclaiming our own voices and identities that for inspired our careers in the law.

In writing this post I acknowledge that there are very diverse experiences of Asian parenthood, so I’ll necessarily need to generalize how I and many of my colleagues responded. Some of you may relate to some or none of what is contained in this piece. Others may have had entirely polar opposite reactions influenced by the same life lessons but in different ways.

While it may seem I’m drawing primarily negative influences in relating to these lessons from our upbringing [indeed, I call the title of this articling “Battling”], I acknowledge they are entirely double-edged. Some of our best traits  such as thoughtfulness, emotional intelligence, humility are all cut form the same thread that brings us those more challenging aspects that make being a lawyer difficult. For all of us who are Asians and lawyers (especially junior), I hope we can step back from the lens of lawyering and see how we are very blessed by our upbringing and how it made us better human beings first and foremost.

Without further ado, here we go:

Reflection from Upbringing 1: Don’t Say Something Until You Thought it Through a Million Times – Silence is Powerful

Growing up, it was engrained in me at an early age that I was not supposed to be vocal as an Asian-Canadian.  Perhaps this was the product of my own parents not having space to be vocal and being of the head down, hardwork type. The idea that “if you do not have anything to say, don’t say it at all” was very much the mantra around the house, dinner table, and definitely public interactions with other families and friends. What ended up materializing is that I became quite nervous speaking out. You may not see it as obviously today, but a very deep fear of public speaking naturally followed. For many years (in fact I would say that it has only recently subsided a little through my teaching, guest-speaking, and speech giving), even introducing my name and what I did around a roundtable would lead to sweaty palms and constant overthinking. I was used to being behind the scenes, to let others do the talking.

I remember in law school feeling constantly overwhelmed by those speaking up around me. Those that were brilliant and provided brilliant answers – prevented me from feeling confident to provide my own thoughts. I chalked up their confidence to their socioeconomic status (she’s the daughter of a Judge, or his aunt is best friends with an SCC Judge) or their intelligence (relating to my lack thereof). Those that spoke because they liked the sound of their voice or made comments that were shot down by professors I internally criticized and/or felt a sympathetic camaraderie  towards. They had violated the cardinal Asian household rule.

As a result, in law school I may have put my hands up less than 5 times in three years. I faded away, never engaged enough with my classmates on an academic level, and it is something I deeply regret to this day. Indeed, I still feel overwhelmed around brilliance yet it is so crucial to the development and growth of juniors such as myself.

Similarly on a silence perspective, I still find it challenging putting out a controversial or strong-minded opinion as opposed to harbouring it for myself or sharing it among a smaller, trustworthy circle.  I am sure that these similar feelings I hold also contributes to why we are as a larger cultural group we are not as engaged in politics or leadership as we ought to be. As a community, I find we tend to be afraid to say things and especially afraid of the consequences of saying them when viewed by others (the majority).

In a litigation context (especially in-person) this also becomes difficult. We have to do extra work to battle that voice (be it your own voice of that voice of your parents from childhood) telling you that you are wrong and that you have not thought it through.  I still write everything down more than I’d like to and find it challenging to go off script.

Reflection 2: Don’t Show Off, There Are Always Those Better/Wiser Than You

Another major lesson from my childhood was one of humility. I wasn’t a brilliant kid, so admittedly there was little to show off about, but in public I was told never to gloat over accomplishments. My parents would never publicly acknowledge that I was doing well in school or sport. Ironically, to this date, my mom still asks whether I am having a successful practice or not and tells me she has trouble pitching my services for the lack of knowing this answer.

Behind closed doors, we were always told to look at others as pillars of success and desire. The occasional kid whose parents would gloat or whose accomplishments would become public knowledge would end up being the topic of dinner-time conversation. “You need to be more like him – look at his grades. He already is doing AP. What are you doing with your life?” When it came to performance it was always about how everyone else was doing when compared to you. I believe that a large part of this mentality was generated from the roots of the homeland, where opportunities for our parents truly were mostly merit/exam-based and where failure on things such as the gaokao exams inevitably led to different and less prosperous pathways (more on failure later).

There was also very clear authority in most of our families. As children, we were of low authority. Our parents were the higher authorities. Higher still were police and government.

This indoctrinates in many of us, now as lawyers, a need for constant validation from others, especially those higher in the hierarchy. This creates in us the constant want for someone to tell us that either we are “doing well.” We also come to expect criticism and in fact criticize ourselves more than we need to. I see a lot of self-deprecating Asian lawyers – no doubt still viewing their own (already brilliant accomplishments) in the lens of their equally successfully colleagues.

Reflection 3: Failure (and Wrong Turns) are to be Avoided

The third lesson was about failure. This is one I will be sure to teach my child differently when I become a parent. I entirely understand why our parents taught us to equate failure as a negative. For them, every one of their moves from choosing to abandon their lives in their home countries, to seeking employment, to buying their first house was so calculated.  They always saw (and still see) our generation as too impulsive. There was not margin for failure or/else they had experienced that failure and wanted to shield us from it.

In my childhood, failure was most often of the academic variety. Where grades were below class average/median, it was considered a clear negative. Again, as discussed above, failure was also intertwined with the success of those around you.

I would argue that particularly for Asian law students and young lawyers – learning to fail and fail hard is a very eye-opening experience but much required experience. Starting from the graded curve in law school to the adversarial nature of litigation, failure is ultimately part and parcel the experience of lawyering, especially when you represent clients who are vulnerable.

For myself personally, I cannot think of one important practice tip or thing I believe I do well that was not influenced by something that went sideways.

Still, the competition of law – the feeling of needing to constantly be successful – in court room wins and positive news, affects the reality that a large chunk of law is addressing situations that are negatives for all parties involved and seeking understanding as opposed to a positive outcome.

This is also why I find myself particularly sensitive to the question that clients have about success rates (that anything who tells you a number is entirely making up). I almost recommend that the best way to judge a practitioner is to ask them about their greatest failure and the lessons learned from it rather than the amount of their success.

Reflection 4: You are Responsible for Everything, Don’t Burden Others With Your Problems

This one may be more of a product of the rational atheism I grew up in (that I know a lot of others did as well). There was never a moment where we stood back and said – “that is just life” or “it is out of our control and is God’s hands.” Our parents thought they were responsible for everything , particularly where things (we) did not go right. Many of you may remember family dinners from your childhood. I certainly do. The dissecting and Gantt-charting of all your problems that need solving and that only YOU could solve.

In my practice today, making highly discretionary applications to decision-makers (which any two individuals could make entirely different decisions) confronts me head on with this issue. As Asian lawyers we need to tell ourselves and our clients that we can only be responsible for our part/efforts of the process and not the entire product and result. This way too we change the perception of law so that it no longer becomes about paying for a result or empty-handed guarantees.

It is a difficult lesson but it is important one to grasp. You are not responsible for everything. This world is not meritocratic. There are biases. There is racism. There is inequality. It is not a crutch. It is not an excuse. It is just part of a system we constantly fight and that we should embrace as giving us purpose. I find taking this approach has liberalized my ability to try hard but not always expect reward.

Reaching out for help is also something that more Asian lawyers need to start embracing. I don’t just mean professional help but the guidance of mentors and embracing the idea that sharing our personal challenges is not a sign of weakness. Growing up, reaching out to others was considered problematic and an act that would either draw unnecessary attention or require returned sympathy or act. We did not grow up with the idea that helping others just for the sake of helping others was a possibility.

This, I think, has ultimately hurt our ability to both seek and act as mentors. In this sense, Asian lawyers need to let their guard down and not be afraid to reach out and proactively reach out to help one another.

Reflection 5: Honesty is Good – the Law is to be Followed

Honestly was not only the best policy, it was the only policy growing up.  There was no greater mistake in my Asian household than to tell a lie. Any lie would often be fessed up sooner than later for fear of the consequences.

Honesty continues to be the very foundation of my practice. I honestly advise clients when they have an option and when they don’t. I am honest when mistakes are made. I am honest when bad news needs to be delivered.

However, there are definitely times in litigation or in practice where you cannot play with your cards open the entire time. There are moments (short of misrepresentation, which is of course a violation) when it is useful to strategically operate in a manner that is lawful, in your client’s best interests, but is more creative and edgy (such as interpreting grey area legislation in an aggressive manner).

Many of us were also very much brought up to be “scared” of the law. Our parents would scare us into compliance (on issues such as drugs) by telling us of the consequences of jail. There was never a sense of a boundary or an envelope to be pushed. The law was viewed as greater than the people and a thorn to keep you from going astray.

On the issue of law and authority, I still remember that I attended the counter protests and City Hall and as the police went through in a line I grabbed my spouse to a side and held her. The police officer joked to me “don’t look so scared.” I will be honest here. I’ve had (and still had) the world’s biggest fear of cops. I admired them on television. My mother reminds me that back then I wanted to be one. Still, nothing puts me more on edge than police sirens and the fear of accidental wrongdoing.

It has been entirely challenging of my lived experience to starting being able to see beyond the black and white of the law, into grey, into colour, into ways to challenge or uproot the system. Growing up, I could not have imagined that those who were responsible for making decisions could actually be (and were often) wrong.

Lessons to be Drawn

Much like I used to resent being Asian-Canadian to eventually embracing it, I’ve moved from resenting the ways my upbringing challenges my progress to appreciating the way it keeps me grounded. I’ve learned to come to terms with strengths and weaknesses and am grateful that one set balances out the other.

Thoughts on this piece? I want to hear from you  – willtao06@gmail.com (my personal email).