How the Federal Court of Appeal, Federal Court, and We as Young Racialized Advocates See Vavilovās Application in Immigration Cases, One Year Later, March 2021
Last month I had the privilege of presenting to the CBA National Administrative Law Section’s, Vavilov, One Year Later panel (see: https://www.cbapd.org/details_en.aspx?id=na_NA21LAW04A)
I was definitely in the presence of some big hitters, from the moderator Pam Hrick (https://www.linkedin.com/in/pamhrick/?originalSubdomain=ca) to advocate extraordinaire Audrey Boctor (https://imk.ca/en/team/audrey-boctor/) to one of the legends of Canadian administrative law David Jones, QC (http://sagecounsel.com/team-members/david-phillip-jones/).
It was a fascinating discussion, for me highlighting in even more of a clearer light, the ways immigration law almost operates in it’s own bubble when it comes to administrative law, tribunal decisions, and the application of Vavilov.
Still Figuring It Out: How the Federal Court of Appeal, Federal Court, and We as Young Racialized Advocates SeeĀ VavilovāsĀ Application in Immigration Cases, One Year Later, March 2021
Please feel free to read here or click the downloads below for direct download of our paper.
Still-Figuring-It-Out-Vavilovs-Application-in-Immigration-Cases-One-Year-Later-March-2021-WT-
Some Thank You’s
This research/review would not have been possible without the support of the following individuals. I wanted to give them shoutouts because they are building incredible legal careers and I am so grateful for the time they took to help draft key sections of the paper.
Afifa Hashimi
Articled student at Moore, Edgar, Lyster and future superstar human rights lawyer. She has this amazing feminist, human, touch to her work and she gets all the credit for the section we wrote on applying an intersectional lens and seeing what has been left out of the Canadian administrative law conversation.
I met Afifa when she was in her early years at UVic Law and I have been so impressed. She’s been active in FACL BC, vocal about racism in our profession, and just someone I would want in my corner.
Learn more about here: https://www.mooreedgarlyster.com/afifa-hashimi
Yussif Silva
I met him first when he was in the LLM program, but really got to know him at Edelmann and Co. Law Offices (my former employer). Yussif, when he finishes articling, will literally be a fifth-year level call as a first-year Canadian lawyer. He worked for several years in Brazil as a lawyer and has a very good handle on administrative law. He wrote this incredible statutory interpretation argument for me in another matter we did together. Probably one of the best legal researchers I have met.
Check him out on Twitter:
https://www.linkedin.com/in/yussif-silva/?originalSubdomain=ca
Thanks to Professor Jamie Chai Yun Liew for her paper that inspired ours (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3522597). I did not get a chance on a tight timeline to share my paper with her but I certainly want to follow-up on our areas of research interest and overlap.
Finally, thanks to Heron Law Offices (my firm!) case manager, Edris Arib for his support in putting this together in final form.
Get Busy Writing (and Possibly Speaking More)
After a month of trying to set up my new practice (including hiring a new lawyer – more on that later!) I finally am in the place to start writing more.
In the last month we did several talks:
- FACL Ottawa;
- CBIE (part 1) on Accompanying Family Members;
- Vavilov – One Year Later
This next few months will bring much more of the same:
- CBIE (part 2);
- Mark Holthe’s Canadian Immigration Institution’s video podcast;
- Presentation to IRCC Policy folks on Transitions (reconsiderations + restorations + the unseen impacts)
- CBA National Immigration Law Conference (perhaps this is too early an announcement – apologies if it is!)
I may also be starting my own podcast soon with a friend and colleague that I am ecstatic to update everyone on. I won’t speak on this one too soon, but I an excited! ILOAC of course š
However, I have not forgotten that this space and Vancouver Immigration Blog needs more TLC. It is my first project, the one that gave wings to everything else. I am pledging to do at least one written blog a week at least until May (when big family changes come in place!).
Thanks again for all of your patience. Big things to come in the next few months!
Express Entry: Three Things to Ask Your Representative About Your eAPR Before They Submit + One Bonus Tip
As many of you are aware, Express Entry took a new direction last week when 27,332 Invitations to Apply were issued to Canadian Experience Class applicants at a record-low 75 CRS points
I will not repeat what I have on Twitter and other channels. I would have preferred an ordered and organized invitation to apply that gave applicants more time to anticipate this move, secure relevant documents, and create profiles. This also could have better tempered expectations in the future and avoided the unfortunate cash-grab I suspect we will see from those now taking unreasonable amounts of money to create profiles, a step ripe for ghost consulting/agencies/and unauthorized practice.
Nevertheless, what what was done is done (and cannot be undone) and now Applicants are being contacted by their representatives letting them know they have an invitation and a limited time to gather their materials (90 days) for which many will struggle to obtain key documents such as required overseas police clearances.
The Limitation of the IRCC Representative Portal
The first contextual thing to understand is that the current IRCC Representative’s Portal has major limitations. The biggest limitation is that we are unable to share our work with clients to access their own file, without taking print to PDF screenshots or joining a virtual meeting to share our screens. For this reason, many counsel may suggest you create your own profile and that they help you review and edit what you type in. They may take it on an hourly review basis or as authorized representative (with a Use of Rep). While some consider this ‘ghosting’, I’m not mad at this approach.
It is a risk though, I repeat a huge risk, to allow for the submission of any application without reviewing what that representative has done in full and giving the green light before it is submitted. This is particularly true with this round of invitations. Given the volume of ITAs and the Government’s recent 0% target of meeting Express Entry processing times, I would suggest that the Government very likely has some sort of artificial intelligence-based pre-assessment system lined up to tackle this workload. Applicant/Representative mistakes and errors of even the most minute type, may be readily caught. There appears to be an increased scrutiny around misrepresentations, particularly around failures to disclose arrest histories and omissions of relevant employment/work history details.
We are hearing, anecdotally, that some advisors (both authorized and unauthorized) have in some cases in the ballpark of 200 ITAs. That means 200 Electronic Applications for Permanent residence (eAPR) applications that need to be submitted within 90 days. You may find that these are often time larger scale enterprises, volume driven, who may have already registered many clients on a hope and a whim, not realizing they would pan out. Now, they will need to put resources together (which include passing you off to case managers or other processing agents – with limited Canadian immigration law expertise) to meet their deadlines.
As someone who considers working on a dozen paid applications a month as enough volume (to control process and see them through step by step), I worry for the applicants. I write this piece for their well-being and best interests.
Three Things to Ask Your Express Entry eAPR Rep
#1 – Ask for a Print to PDF of Your Entire Application With Employment History Broken Down
If you are counsel and a CBA Member consider Nate Po’s app Immprintr to print your entire application as one pdf (https://www.cba.org/Sections/Immigration-Law/Resources/Resources/2018/IMMPrintr)
Ask for the full breakdown of the Employment history to make sure that what you have passed on with respect to your positions, hours of work, start and end months is consistent. Double check that the NOC codes selected match with your duties at the time and be careful to avoid mixing together or overlapping two clearly different positions.
Triple check that the statutory questions have been answered correctly, particularly around any arrest history, work for Governments, medical inadmissibility issues, and military history.
Document discrepancies, ask for changes to be made, and to see proof of those changes by way of revised screenshots.
#2 – Ask for a Itemized/Number List of All Attachments To Be Submitted to be Shared Via Cloud for Your Review
One of the value-adds an authorized representative should be able to provide is organization. They should know what IRCC wants to see and what makes life easier for the processing Officer. If they are organizing things in a way that doesn’t make it clear and in fact, is probably messier than you would have done it yourself – this should be a flag.
Ask your authorized representative for a full itemized/numbered list of all attachments (often called an Enclosures List or Personalized Document Checklist). Ask for a Cloud-shared folder of everything that is being submitted. Are the documents you provided there? If they have been excluded, ask why (or why not). Some flags include pdf attachments that are much too large (suggesting the authorized representative has limited experience with upload size), as well as things that are not combined properly or not at all. This is also your way to double check what you have submitted against IRCC’s completeness check list of attachments for Express Entry (see here: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/express-entry/applications-received-on-after-january-1-2016-completeness-check.html)
An incomplete application can often have huge and negative impacts on one’s ability to stay in Canada during processing of an Express Entry eAPR application.
#3 – Ask for Transparency on Timelines and Info on What the Follow-Up Looks Like
The reality if you are working with someone who has a volume practice, is that this invite may have created an unsustainable workload for them. This requires that you ensure they are on top of your file, and for you to cover any gaps in their work and to hold them extra accountable.
Ask them up front – how many files are you working on and when do you see my file being completed. If they have some form of project management process, they should be routinely updating you with their submission plan, breaking down roles and responsibilities, and providing iterative feedback on your draft documents (especially Confirmation of Employment letters) at an agreeable time.
If you haven’t met your consultant or lawyer in person – that too is likely something you want to secure to at least put a face to name. Their availability (or lack thereof) may also be a good sign of the level of oversight on your file.
Ask too about Bridging Open Work Permits (“BOWP”). Ask about what happens to your accompanying family members who might have status expiring.
If updated documents will likely need to be submitted in order to ensure a complete application – ask them for their update plan. Where will they update the documents? What documents are necessary for a complete application and which ones are discretionary? These questions will likely give you a sense of where you stand and help you make sure you meet your timelines.
I will throw in one bonus tip for good measure.
Bonus Tip #4 – Don’t Be Afraid to Ask for a Second Opinion (Seek Independent Legal Advice). It’ll Save You Money
A refused application that needs to resubmitted will easily draw anywhere between 1.5-2 times the price of an initial application. Reconsideration requests, with an uncertain and ultimately discretionary outcome, could itself be in the range of at least cost equivalent to the original application, particularly if significant legal submissions on the test for reconsideration are required. The process of judicial review, amid lower grant rates, will put you back likely 2 times + the cost of your initial applications.
What is the worst case to engage a second opinion for a review on an hourly basis: you can choose the scope, but you are looking at in most cases about an additional 3-5 hours (at most). Even a spot check consultation for an hour can possibly turn up some red flags. I can tell you from personal experience, I have had to save many a client from having their application submitted with major concerns (often times possible misrepresentation) on file.
Bottom line: it is entirely worth it to get a second opinion on your Express Entry application, particularly
Express Entry: Grounded Expectations
Most importantly, and to conclude, Express Entry going to 75 points one one draw should not yet be a leeway to put your foot off the gas pedal. Blindly abandoning a paper-based PNP application, figuring you can get away with not doing a language test, can often backfire. If anything, I believe even more diligence will be needed now. Allowing more individuals into the race does not presume everyone will finish. Indeed, I can see these efforts (including the number of refused/abandoned/incomplete applications) used as justifications for the ‘trying’ to meet Canada’s immigration targets.
Greater due diligence and better organization will be needed especially if Artificial Intelligence becomes part of the assessment process.
I hope all those authorized reps (even those with 200 ITAs) the best as they deal with this major development in Canadian immigration law. I hope, most importantly, that our clients are well served by good, competent, and ethical work.
Reflecting On Racialization: One Chinese Canadian Lawyer’s Perspective
My Rocky Relationship with Being Racialized
In advance of a talk (as I like to do) I spend time reflecting on the questions the panel far more esteemed than I am tackling the underlying question of what it means to be a racialized lawyer. Truth be told, until very recently, I spent my entire life avoiding trying to be defined as racialized, never realizing that the racialization wasnāt something I was responsible for rather what was being imposed on me.
Sometimes I still catch myself believingā that I am a reformed victim of childhood racism. That I have come to terms with my past and that today is different. That I can be a role model now for racial change and a post-racial world. That Iāve stopped caring what they think ā or I say. All, while I still sign every letter carefully with my colonial name, trying to erase all signs that I may be seen as the perpetual foreigner in their eyes thereby forever letting what they think continue to be the clip-ons to my much tormented glasses. I was always the Asian kid with glasses. Still am today.
I am ashamed that I ask those I meet if they are from here (around town?), as my entirely happenstance birth on these stolen lands, make me any less settler than them. This hides the reality I am a product of taking advantage of my positive racialization as a second-generation immigrant, off the backs of those ā often Brown and Black ā not are not afforded that same luxury and have been racialized differently, and many times much more negatively. This approach flies in the face of both the adultered history of these stolen lands but also my parents generation (and the earlier Chinese settlers before them) who took the blows, the taunts, the sleepless nights, the unfair application of law and policy in their general belief that our eventual assimilation and acceptance (through tolerance) would make us happy and content. āBe like them.ā āMom, Dadā¦. why canāt I, be like them.ā
What has allowed me to claim today this wokeness, to claim some sort of 2.0 social justice Asian Warrior. Nothing. The short answer is nothing ā these I have constructed as shields and defence mechanisms for our own (read: my own) complicity and benefit. It has made me popular in progressive White circles, as the pendulum has it, just another group we have to please: the rock to our professional hard place.
Recognizing that you too can be an oppressor and that, even further, you too have oppressed is a humbling reality. Just last week I took a close racialized friend and colleagues concerns with sexual harassment at the workplace, the wrong way ā asking instead how he could do it when he was married, rather than asking how she was doing, by way of the trauma he imposed through her. It took me several days to realize I sided with the White man again. Just like I did when I was a Frat boy. Just like I did when I was interviewing for that job on Bay Street. Just like I did when I was making the most money in my life doing this work and upholding this system.
Who I Am Hates Who Iāve Been: The Harms of Racialization
Let me tell you of this time when I had Christian pop phase. Many of us did. You remember when āA Walk to Rememberā was in theatres, Switchfoot and Lifehouse produced anthems like āOnly Hopeā and āHanging By a Moment,ā and a band called Reliant K played a concert in Vancouver. I went alone. Asian kids with glasses had trouble making friends in my highschool.
Stop right there, that’s exactly where I lost it
See that line, well I never should have crossed it
Stop right there, well I never should have said
That it’s the very moment that I wish that I could take back
I wish I could take back the countless times I participated in whiteness and the maintenance of white supremacy. Laughing with senior practitioners on their jokes about China money. Listening and standing proud when being told, you are a tall, confident Chinese-Canadian man ā you will do fine in this work. āLook at all these women here who will soon have babies and their careers will be over.ā I nodded, perhaps even gave him a resounding āyou are right! Thanks for thisā
Why did I so accept this as just normal? Why did I try to sympathize rather than emphasize, centre myself in trying to draw a parallel rather than using my voice earlier. Maybe because those who use their voices are seen as trouble-makers, activists, not impartial, not judicial material. Forever on the periphery. Even judges have written decisions and giving guidance telling us be neutral, stay our ground, do nothing to compromise our future.
Each tweet I tweet, each blog I write, someone/somewhere dragging the name into the ādo not hireā, ācould be a problemā, ānot good for Firm cultureā, a āliabilityā folder. Where we racialized folks tend to share space ā one drag away from the recycle bin, two steps away from being deleted.
Why do I always live with regretā¦.
I talk to absolutely no one
Couldn’t keep to myself enough
And the things bottled inside have finally begun
To create so much pressure that I’ll soon blow up andā¦
I cannot stand social media but I simultaneously thrive off of it. The pressure. This guy looks like me, how does he already drive a Tesla, buying his second house, starting own podcast, and was named Top 40 under 40. Their kids look beautiful. The in-laws are holding happy kids on the beaches of Hawaii. I was told growing up that he would be the next one. And I would amount to nothingness, or a shadow of him. Those words sting but what stings more is that constant urge to compare, outdo, and show up to other racialized folks. We forget who actually has it all and itās not this brother.
Just then, I am sitting in a small restaurant, a racialized colleague telling me her parents are unemployed, her brother is medically ill, her partner is considering leaving andā¦ā¦ wishes she had my life. She asks me how my non-profit is going. I forgot I also founded one. She asks me how I like my new home. Iāve almost forgotten I bought one.
Iām considered now the go-to Asian in my area of the law. They call me for interviews when they need a soundbite or some rationalization. Apparently Iāve become a safe quote and welcoming face. Itās a faƧade thatās difficult to upkeep.
In two weeks, Iām a diversity invite on a panel of an area of law where everyone is white, the topic is white, the case law is white, and they want my insight, my input, me to validate them. Iāll probably end up doing it just as I have always done. They wrote the textbooks, they fought the cases in the SCC, they were part of the consultative committees on changing the law. Me, Iāve tried to explain to my client in my second-language how the law works on a discounted consult and they say it makes no sense. They have no legal experience and background. And, to be honest, I actually agree with them.
So sorry for the person I became
So sorry that it took so long for me to change
I’m ready to be sure to become that way again
‘Cause who I am hates who I’ve been
Who I am hates who I’ve been
Finding Liberation in Law: Embracing My Race But Rejecting Their Racialization
Perhaps it took me taking a hall pass away from Whiteness. Starting my own Firm alongside a racialized colleague (who happens to be a lawyer himself, struggling to build a family in a Society that has racialized him to his financial limitation).Ā I am developing a hiring strategy of Racialized and Indigenous folks only. It only took writing out my struggle and pain, plus 30 odd years of lived experience, before realizing that I am together because I have finally embraced my Chineseness, that I love my culture. I love those things I used to want to destroy in me and that they still want to stamp out of me in the guise it will make me a ābetter lawyer.ā
Iāll hold onto these principles and core values ā perhaps more privately than I would like to start, but slowly we will talk in our circles, and these circles will become crowds, these crowds will become movements, and soon we will not allow ourselves to be labelled simply as minorities, visible or invisible of no importance. We are not small and we will not play that part for you. We are not simply wallpapers for your next client pitch, sushi advisors for when you go to your local restaurants, the 5pm Friday work dump guy, because you assume we have no family, no life, and no ambition and that we are here for you in ways youāve never showed up for us.
Iāve hated the way Iāve played into your system, facilitated your oppression, contributed myself often times for my own gain. Iāve hated the way Iāve ignored my own history, this landās history, ignored misery, avoided conflict, simply to keep you happy and your pockets filled. My happiness is no longer in receiving your good graces but finding my own and dreaming for that greater liberation for others ā being part of their journey. On their own terms. In their own birth name. With their own embraced culture and identity.
See You Tomorrow ā Putting Writing Into Words
Thatās it folks. Iāve written this. Itās on paper. I might speak on it tomorrow. I might not, and one day, some student thinking about our shared career path will accidentally Google it and tell me she thinks the same way. I might be 50 years old one day nervous (as Iāve been my entire life) at a judicial or political interview and asked about this. Remind me […]
Yes, I Review Spousals – But Here’s What You Should Know (6 Points to Consider)
More and more I have been approached by spousal (spouses and common-law partner) sponsorship Applicants and Sponsors asking me to provide a review of their materials in lieu of full representation. While I still recommend those that can afford it to pursue full representation if possible, I understand the benefit of hourly review during these times.
Yet, many lawyers and law firms I know are unwillingĀ to do hourly review because of the risk and uncertainties this work poses. Many are afraid that having an incomplete picture that can lead to incomplete advice, and create liability problems down the road.
I believe spousal reviews is not only a necessary part of my practice but good for access to justice. However, because of the misalignment between the clients seeking the services and the lawyers willing to offer it, many times confusion is created.
In this piece, I put forward six points that will make it easier for self-represented applicants to approach lawyers and work through the review process.
Point 1: Understand Our Mutual Limitations and Constraints
The main constraint of the self-represented applicants seeking my assistance in hourly review is cost. They are unable to pay a full set fee, have exhausted public information (from forums, blogs, etc.) and now need help on specific pieces of their application. Most often times these specific issues include inadmissibility, letters of explanation, police certificates, etc.
From the lawyer’s perspective, the constraint is usually more based on risk. With only incomplete or piecemeal information, how can a proper job of assessing a file be done?Ā Is the time spent on this particular issue (usually clients will want reviews to be done in 2-3 hours or less) worth the possibility of not being able to see the application, the whole way through.
First, in order for this process to worth smoothly, an immigration lawyer must prepare a clear retainer that indicates the scope of work (limited scope retainer) and in subsequent emails continue to set and establish the expectations of both sides. Applicants and Sponsors should be aware that a full cover to cover review does take several hours (ideally 4-5 hours +) and limiting the budget of a review to only 2 or 3 hours may not allow for all the details to be adequately looked at.
In some cases, this will be fine as your issues are limited to particular areas. In a limited review, it is my practice to clarify with you both at the outset of my review and as well after providing my comments and recommended changes, that I did not see the full application and cannot be responsible for issues such as incompleteness.
This is a risk the Applicant must bear in a limited review, but ultimately where the cost savings also occur.
