All posts by Will

Financial Sufficiency – Applications for Canadian Study Permits

Several clients and individuals have been contacting me relating to the issue of financial sufficiency.  Studying in Canada is expensive (sometimes prohibitively so), and for several students demonstrating sufficient funds to support studies in Canada will be an issue.

Citizenship and Immigration Canada (“CIC”) Visa Processing Offices Overseas and in Canada all have different requirements as to what constitutes adequate proof of finances. That topic is beyond the scope of this piece (and will be the focus of my next piece actually!)

What I want to tackle in this piece is the amount that is included in the IMM5843/IMM5710 (and ideally explained later) in a Study Permit Application.

How is adequate financial sufficiency calculated?

CIC’s own Study Permits: Assessing the Application Guidelines state as follows (emphasis added):

Financial Sufficiency

“Students are required to demonstrate financial sufficiency for only the first year of studies, regardless of the duration of the course or program of studies in which they are enrolled. In other words, a single student entering a four-year degree program with an annual tuition fee of $15,000 must demonstrate funds of $15,000 to satisfy the requirements, and not the full $60,000 which would be required for four years. Officers should be satisfied however that the probability of funding for future years does exist (i.e., parents are employed); scholarship is for more than one year. Applications for extensions made to CPC-V must also meet this requirement.”

What is very interesting is when you compare this to CIC’s Office Training Module (which has not been made public), which states (emphasis added):

Financial Sufficiency Training Guide

Officers must make sure that applicants have sufficient financial resources to pay their tuition fees, transportation costs to and from Canada, as well as living expenses for themselves and any family member who may be accompanying them, without the need to engage in employment.

The above section is somewhat fair. The wording is repeated in some of the country specific checklists, for example China’s:

Chinese student study plan

However, this wording is missing from the general IMM 5483E (11-2015) checklist that is utilized for every visa office:

Finances (Doc Checklist)

Importantly, the wording is in the legislative regulations of the Immigration and Refugee Protections regulations at R.220. It states:

Financial resources

 An officer shall not issue a study permit to a foreign national, other than one described in paragraph 215(1)(d) or (e), unless they have sufficient and available financial resources, without working in Canada, to

  • (a) pay the tuition fees for the course or program of studies that they intend to pursue;

  • (b) maintain themself and any family members who are accompanying them during their proposed period of study; and

  • (c) pay the costs of transporting themself and the family members referred to in paragraph (b) to and from Canada.

The big kicker, is the part that states without the need to engage in employment.

I know that I have seen several study permit applications where counsel/applicants would emphasize that the applicant will be working part-time or possibly that their spouse would find a job and earn X amount of dollars.  This line appears to take those factors outside of the Officer’s scope of analysis.

Implications

CIC’s guidelines don’t always seem so crystal clear – particularly when they go beyond their legislative scope into things such as employment as a source of proof. I think Applicants with refusals due to lack of financial resources may want to review the Officer’s analysis and, if they are reapplying, find ways to satisfy the Officer’s Training Module criteria while ensuring to cite the proper legislative framework.

I think also that CIC needs to bring about a little more parity in the way it assesses and provides public information about issues such as financial sufficiency in light of the clear legislative language. Utilizing the same language across all sources – document checklists, visa specific posts, and training manuals would certainly ensure greater consistency.

 

Please note that the screenshot above titled “Assessment of Funds and Tuition” is derived from an Officer Training Module obtained via Access to Information and Privacy from Citizenship and Immigration Canada. I am not in any way affiliated with Citizenship and Immigration Canada (CIC) nor am providing this information on their behalf or a representative of their organization. I also cannot confirm whether these are and will be the current Training Manual instructions moving forward.

The Resignation Letter: An Online Novel (Chapter 4: Maria’s First Day, Mo’s Never-Ending Nightmare)

Mohamed woke up extra early on Boxing Day morning. It was not because he was in a rush to get to the mall to purchase the wool jacket for his wife that he could no longer afford. Boxing Day, a Saturday this year, kicked off the five-day rush prior to the New Year. The Firm’s clients from all over the world were in a rush to replace their 2015 marketing strategies and advertising materials to try and be the proverbial ‘early bird that gets the worm’ in 2016.

Mohamed had called his wife the evening of Christmas. As usual, his wife was busy attending mosque with her younger brother. They had recently moved into a small apartment together, and even had a new household helper. Mohamed had not been back to Sierra Leone in over a year and his wife, who didn’t have a visa to travel to Canada, was awaiting processing on their sponsorship application, currently stuck in the African backlog of a three-year delay. Based on processing, they would expect to hear from Immigration any day now.

    The city still pitch black when he woke up, Mohamed took the number 15 bus, as he had every morning for the past ten years. Said his good morning and thank you to the bus driver, who didn’t acknowledge him. Mohamed always sat at the back of the bus, where there were usually less people at this time of the day.

When Mohamed arrived at the office, he noticed he was the first one in. They are probably all hungover again, Mohamed thought to himself. Mohamed had spent his Christmas dinner eating leftovers from his lunch with Shafiq and watching television. It was a boring existence, albeit a quiet one, which Mohamed had become comfortably accustomed to.

    As Mohamed was about to turn the corner, a light suddenly turned on in the hallway. It was the cleaning lady “Maria”, an affectionate 45-year old lady that Mohamed absolutely adored for her vivacious laugh and honest approach to cleaning. Maria was more serious this morning however.

    “Maria, how was your Christmas? You don’t seem your usual self my dear” Mohammed asked gently.

    “Mo, things are not good back home. My husband lost his job and is sick with cancer. It was just diagnosed. My eldest son got arrested for dealing drugs and is in prison. They won’t release him. I can’t afford a plane ticket back to the Philippines right now. I missed Christmas again.” Maria responded, trying to hold herself together.

    Mohamed patted Maria on the back reassuringly. He opened his wallet and slipped Maria a twenty dollar bill. “Take this Maria. I know, it has been tough for all of us. We’re both trapped in a city way too beautiful for all of us, but so lonely without our loved ones. It will get better I promise. Go home and get some rest”

  “Thanks Mo.” Maria replied, pocketing the twenty dollars. “I would like to go home but your stupid boss left a note for me reminding me that the three new interns are starting today and that I need to set up their work station.. volunteer station.. whatever you guys are calling it this year.”

     Mohamed chuckled. He had completely forgot that it was time for the Annual Student Internship Program again. Billed as a program that would give work experience to underemployed/underprivileged recent graduates,

    Mohamed knew that the real reason for hiring individuals like this were that they would work for essentially no pay. Mo knew from previous years experience that each year the interns would be brought on for the busy period of New Years, Valentine’s Day, and Easter and then sent home in early May with a generic letter of congratulations and a $500 stipend. During these five months, had they been salaried junior level employees they would have each taken home at least $500 a week and had to have their medical insurance and Canadian Pension Plan covered.

    Maria bid adieu and continued with her cleaning duties. Man, this is a whole city of immigration problems, Mohamed thought to himself shaking his head. As Mohamed was about to sit down at his desk, Maria came running down the halls.

    “Mo, I forgot to tell you something. You forgot to shut down your computer and you left a document open all weekend.” Maria grabbed the mouse and shook the computer awake. It was the first two lines of your resignation letter. I hope nobody saw it. When I came in yesterday it was brightly displayed. I couldn’t help but notice it.”
“Thanks for mentioning it Maria.” Mo said earnestly. “I hope so too.”

    I am an idiot, Mohamed thought to himself. The thought of resigning immediately had since Christmas become a more distant one in his mind. I can resign next summer. I need the money and peak season means overtime hours. Next summer, when my wife joins me in Canada, then I can quit and we can find new jobs together. Mohamed closed the document and prayed that nobody has seen it.

    Opening his real-estate marketing final report, Mohamed smiled to himself. This is my life calling. The report was intricately prepared. He knew the things that mattered to clients from Arabic-speaking countries: proximity to the mosque, availability of halal food choices, security, and, most-importantly, privacy. His idea was to market the new complex as a “Little Dubai in the Heart of Downtown Vancouver.” He made some last minute edits to the presentation he would have to give on Monday at the real-estate firm’s offices. Mohamed’s line of thinking was interrupted by an email from his manager.

WELCOME TO OUR 2015-2016 STUDENT INTERNS read the email in unnecessary CAPS  usually reserved for emergency situations. Mohamed opened the email to see three student profiles.

    The first was a girl named Veronica Chiu. She had quite the impressive profile. She had attended the city’s top private school, the Colburn Academy. She had a business degree from out in Eastern Canada. She seemed like the type who would be working at a Bay Street firm rather than in Vancouver. Mohamed peered at the fine print.

    Ah, it all made sense. The profile mentioned that her father, Moses Chiu, was a client of the Firm and that all of them needed to be extra careful in making sure Veronica was happy. Veronica would also be working indirectly through the boss’s guidance.

  The second was Dawayne Jamison or “DJ” for short. He went to an inner city high school in California before moving to Vancouver to play college basketball. According to the email, apparently after redshirting he switched colleges three times due to poor grades disqualified him from the basketball team. Eventually, he attended a Christian college, found his calling in God and graduated Valedictorian.

    Wow – exactly the kind of guy our firm will use to secure new clients, Mohamed thought to himself.
Mohamed got to the third profile. She is very pretty, very Hollywood gorgeous, Mohamed thought before playing around with his ring finger and realizing he was having thoughts that a married man should not be having. She looked young, maybe half his age. Maria, eh just like our cleaning lady. Mohamed made a mental note she would call Maria Mendes, Ms. Mendes. In Mohamed’s mind there was only one Maria, the nice cleaning lady. Mohamed read Ms. Mendes’ profile. It was very short and stated:

Maria comes to us from Surrey, British Columbia where she recently completed her post-secondary studies. Maria has a particular interest in fashion and international marketing and will be working closely with our International team.

  Mohamed had been Deputy Chair of the International team for several years. The current Chair, Elliot Huang, was the Firm’s big rainmaker. In 2015, Elliot had successfully closed 40 new clients for the firm and engaged them in the development of marketing strategies. Many were new immigrants to Vancouver, who established quasi-operational businesses that served as vehicles designed to transfer assets to their young sons and daughters who were studying in the city. However, they made the Firm millions and were given rock star treatment.

    Mohamed was secretly quite excited that the team had recruited a new member, and additionally excited that she was quite easy on the eyes.

  A follow-up email soon arrived from the boss. STUDENT INTERNSHIP PROGRAM MENTORSHIP PAIRS read the email.

The email read:
• Veronica Chiu has been assigned to the International Marketing Group, she will be mentored by Elliot Huang.
• DJ has been assigned to the Sports and Entertainment Marketing group and will be mentored by Don Michaels.
• Maria Mendes has been assigned to the International Marketing Group and will be mentored by… 

Mohamed stopped in his tracks.
…. Mohamed Kamara

  Mohamed was shocked. It was the first time he had ever been asked to mentor or let alone participate in the program.
Before Mohamed could ponder any further, a third email came into his inbox. It was from the government’s immigration department in Ghana. Mohamed’s heart sunk has he opened it.

Dear Ms. Kamara:

Your Application for Permanent Residence in Canada has been refused. The primary purpose of your marriage has been adjudged to be for immigration purposes. We are also not satisfied that this is a genuine relationship. Thank you for your interest in Canada.

Officer MF.

    “Motherfucker!” Mohamed screamed smashing his keyboard on the table. It snapped in half. Mohamed looked around. Thankfully no one was around as an audience to his morning meltdown.

  Before Mohamed had a chance to think any further, the recognizable heavy footsteps of his boss and the accompanying rhythm of a set of high heels came towards him. Mo turned around to see his boss’s recognizable bespoke suit and thick-rimmed glasses. Next to him was Maria. She had a serious, “focused” game face on.
“Is this a bad time, Mo?” his boss asked, looking at the shards of keyboard noticeably scattered around Mo’s cramped desk.

    “No, sir” Mohamed answered curtly. “Had an accident. Dropped a heavy bag on my keyboard a second ago. I’ll go see IT in a minute.” Mo explained in a hastened fashion, hoping his boss wouldn’t notice the clear fabrication.
“That’ll be okay Mo. I’ll personally put in your service order in on a new keyboard. Mo, please meet your mentee, Maria”

    Mohamed took his hand, still sweating from anger, out of his pant pocket. “Pleased to meet you Miss Mendes.”

  “You can call me Maria,” Maria answered. Mohamed couldn’t help but notice the layer of cold in her voice.

    “Well then,” Mohamed’s boss continued, “I trust you will show her around the offices. I know you are busy with that Real Estate presentation of yours. Maybe you could bring Maria to help close us that deal for us. Good, good. Have fun Maria. See you soon” Mohamed’s boss gave Maria a quick wink, straightened his tie, and strutted off.

    Come with me Ms. Mendes,” Mohamed stated trying to sound as polite as possible, hiding his discontent.

    “It’s Maria. Please call me Maria,” Maria snapped back.

  This one is going to be a challenge, Mohamed thought to himself.

—————————————————————————

    Maria was grateful for the morning coffee break. It had been a hectic morning. Maria chose to sit at a table away from all of the other employees in the room, hoping one of the two other student interns would show up so she would have someone else to converse with.

    Mohamed is going to be the WORST mentor, she thought to herself. She thought about the half-eaten tuna fish sandwich on his desk and the smell of his stench. She felt repulsed and had a huge headache to boot.

  Maria reflected on her hectic morning. It began at 6:30am. It was dark inside the house, even dark outside in her white picket-fence neighbourhood. She had forgotten to pack a lunch before, hastily making a peanut butter and banana sandwich for herself. She made an extra slice of buttered toast as her breakfast.

    Maria initially had considered driving to work from Surrey. However, the parking downtown was much too expensive and would have essentially negated any financial benefit from the internship. Maria was unclear on how she was getting paid. Apparently it was some sort of honorarium with the potential of bonus if she helped recommend new leads or close new clients.

  It was a lonely bus ride. She was the only one on the bus for nearly the whole trip before arriving at the SkyTrain station. Sitting in the back of the SkyTrain, she couldn’t help but notice the number of men looking at her. Even men who appeared to be on an early morning trip with their wives (and even young babies) would ogle at her apparently unaware of their sins. Most times she wouldn’t pay attention. However, there would be the occasional “looker” that she would return the gaze of. Bearded, short hair, buzz cut – the “Vancouver Special” that she also considered her model man.

  At a stop around Burnaby, an elderly lady got on the SkyTrain and grabbed a seat next to Maria. She tapped Maria’s shoulder.
The lady looked at her, her bony pale face scrunched into a look of serious concern. “Honey, you look stressed out.”

    “I’m just a little tired” Maria shrugged.

    “Honey, I know stressed when I see stressed. I’m fifty and look sixty. My ex-husband left me when I had breast cancer ten years ago. I now work two jobs just to pay 75% of my salary in rent. My two cats and I barely have enough money for food every month.”

    “I’m sorry to hear that,” Maria responded, with far too little emotion in her voice. She secretly wondered why someone who couldn’t sustain herself would want to have two cats.

    “Girl, you look like you have had a tough go of it as of late. Just let grandma tell you this. It’s not about finding the right guy or pleasing your boss. It’s about doing what makes you happy. Are you happy right now?”

  No, Maria thought to herself before instinctively answering “I’m okay.” Maria excused herself and pretended to get off the SkyTrain. A whole city of crazies, Maria shook her head. Closing her eyes Maria suddenly was transported to a night several months ago.
—————————————————————————

  “Maria, Maria.. are you okay? Wake up” a glass of cold water was suddenly thrown over her face.”

  The whole room was hazy, a blur. Her head felt as though her head had been beat in with a baseball bat. She thought a second ago that she had been on a beach in Hawaii swimming with dolphins.

    “What happened to me?” Maria murmured. The familiar downbeat of EDM confirmed she was not in Waikiki but rather in a night club”

    “It’s okay girl” it was the familiar voice of her best friend Sasha. “We thought we were taking just e but it turns out someone laced something in there. Don’t worry baby we’ll get you home.”
—————————————————————————

    “Next stop: Vancouver Centre Station” Maria snapped out of her daymare just in time to step off the SkyTrain. Maria checked her watched. She had ten minutes to find the office.

    Maria was completely unfamiliar with this part of downtown. Her knowledge of downtown was pretty much limited to the bars and clubs of the Granville Strip. She tugged on her skirt, making a mental note to herself to go with the suit pants next time.

    After mistakenly entering two office buildings, she finally found the right one. She took the elevator to the 21st floor. Apparently the Firm had space on both 20th and 21st floor. Just like me, 20 going on 21, Maria thought to herself.
She exited the elevator. The Firm was definitely the nicest office she’d ever seen. It was even nicer than her brother’s firm and much better than her father’s cramped law offices.

    “Hi Sweetie, you must be Maria Mendes” the receptionist motioned her through the doors. “Stuart will be with you shortly. Hold tight”

    Maria didn’t know too much about Stuart. Their interview conducted over Skype seemed relatively quick. Stuart had asked Maria to be honest in her answers and Maria had been. She didn’t mention her father’s infidelity, but mentioned her brother’s experience in the PR business. She also admitted she had previous substance abuse issues.

Maria was at first hesitant to bring it up, but thought about the fact that the student internships were advertised for recent graduates who had overcome challenges in their personal and professional lives. No doubt her challenges with drugs and alcohol following break up and unemployment were part of that narrative. Stuart seemed okay with it and even said that she respected her for delving into her own personal issues.

    “Maria, welcome” Stuart warmly shook her hand. Stuart was an imposing figure. He looked every square inch of his managerial role – thick black glasses, thick tie, and sharp bespoke suit. Maria’s eyes wandered to Stuart’s ring finger. It was bare. No ring. He’s not bad looking, Maria thought to herself before snapping back into remembering he was her boss not her blind date.

    “The others have already arrived and have been introduced to their mentors. I need you first to sign this internship contract. Remember you must keep confidential everything that you hear, see, or do within these four walls. Understood? Good. Please follow me, I will bring your mentor, Mo”

    Mo, eh. Maria signed her name without reading the contract and passed it to the secretary who was waiting patiently by the door. Maria was secretly hoping for a really good-looking mentor, someone who she could spend all day at work with and not want to go home. Perhaps Mo was short for Morrison or something, she thought.

  “Maria, now I am sure Mo will give you the office tour later. It is really busy around here and it will be until mid-February.” Stuart began, although his voice trailed off as Maria noticed he had walked far ahead of her. Maria ran to catch up, trying to reduce the sound of her heels on the marble floors. “We are a small firm, but we do big clients. We are a social bunch. We generally all get along very well in and out of the office. Unfortunately, there are no parties or get-togethers until after Valentine’s Day when we will have our office spring party, the Spring Fling” Stuart continued.“You will meet all of the team members during our staff meeting after work today. You may likely run into your fellow interns during the day. The coffee room is on your right, the washrooms are on your left” Stuart pointed, much in the manner a flight attendant would point out emergency exits.

    Two rights and a left turn later Maria apparently reached her final destination, an open office space with several cubicles. She heard a smash emanating from the cubicles in the larger office area. Maria winced at the sound.
“Just a little hiccup, I’m sure,” Stuart continued on confidently.
Maria noticed that Stuart was directing her towards the desk of the individual who had just smashed his keyboard, which was lying in pieces on his desk and on the floor. He was skinny. He had glasses that appeared crooked on his face. He was black.

    As Stuart talked to Mo about the mentorship set up, Maria scanned the desk looking for evidence of her mentor. She spotted a photo frame with a gorgeous looking black woman dressed in what looked to be traditional African garb. Mo, who looked many years younger at the time of the photo, looked much more relaxed and confident than her mentor-to-be. Maria continued scanning. She saw a half-finished setting on Mo’s shelf – unmistakably tuna fish, the frequent tormentor of her childhood lunches.

    As Mo extended his hand out for a shake, Maria could smell the sweat that was emanating his forehead. Maria didn’t mind the occasional Indian food, and often frequented Surrey’s Scott Road for late night paneer, but the smell was something else. She wiped her chin against her sleeve hoping to pick up the scent of some of the orange blossom perfume that she had worn that day.

  Maria was frustrated by the way Mo called her ‘Ms. Mendes.’ She tried to correct him several times. She hated the Mendes in her name, a reminder of her father’s infidelity.

    The rest of the early morning was a blur. She met the office staff, the main marketing team, and the support workers. Mo told her about the upcoming projects and the presentation that they were to do together. Maria would be given the task of moving the PowerPoint slides forward, passing out the brochures, and taking notes from the Q&A that followed. The presentation itself would serve the basis for the actual final plan that would be implemented just prior to New Years.

    Maria put her hands on the table and rested her head against them. She dozed off for about half a minute before a tap on her shoulder woke her up.

    “Hey are you the new intern, Maria?” It was another black guy, this one dressed very impeccably. Next to him was an asian girl with frameless glasses, a neatly tied up bun, and designer shoes.

    “Yes, yes I am, did we meet earlier?” Maria asked, still in a state of utter exhaustion.

    “No, I don’t think so. We are the two other interns,” the Asian girl answered in a voice far too sweet for the context of a coffee room conversation. “My name is Veronica” the Asian girl held out her hand. Maria shook it and couldn’t help but notice her hands were incredibly cold.

    “My name is Dawayne. You can call me DJ” the black guy held his hand out. His handshake in contrast was firm. His hands were huge, and rough – clearly someone who hand used them for craft.

  “My name is Maria. Maria Mendes” Maria stood up, apologizing for her state of tiredness. “It has been a long morning. I’m still adjusting to the early morning schedule.”

    “My morning has been fantastic,” Veronica replied. I look my mentor. We’re going to be doing some awesome work with this Hong Kong-based diamond company. I may possibly even be able to go on a business trip to Beijing if we can secure the client’s show there. I love Elliot, he’s a great mentor.”

    DJ carried on excitedly. “My morning has been great too. Apparently the firm does a lot of work with actors. We’re repping this local guy who we think is the next Denziel for his auditions next week. We’re also doing the marketing for a charity tennis tournament ‘Fourty – Love.’ How sick is the name?”

    “How was your morning Maria?” Veronica asked.

    Maria noticed that Veronica went very heavy on the eye shadow and possibly the extensions.
“It’s been okay. I’m still new to this, lot’s to learn for sure.”

    “Whose your mentor?” DJ asked.

“Mo…” before Maria could finish he could hear the recognizable voice of Mo yelling on the phone.
 
Mo wasn’t speaking English but it was a language that contained heavy English elements. It was clear Mo was upset and pleading at the same time. “Baby gurl, ya don’t leave me now. Been through too much.”

Maria brought her voice down to a whisper. “That’s my mentor, Mo.”

CIC’s Processing Times Receives a New Year Makeover

Screen shot 2016-01-02 at 1.52.52 PM

Citizenship and Immigration Canada/Immigration, Refugee, and Citizenship Canada  (“CIC”) has just recently changed the way it displays processing times.

Previously, processing times were displayed in a table allowing an applicant to compare and contrast processing times based on visa offices.  While it is still possible to find visa specific processing times for temporary resident applications (such as study and work permits), the ability to compare processing times across visa offices has been removed. Also, for spousal sponsorship applications which previously provided processing times by stage (sponsor assessment and applicant assessment), the number now shown is a bulk figure that presumably takes into account the entire process.

There has been some speculation that this may be a move towards a global one-queue processing time, I think that it is very premature to assume that this is the reason for the change.

A global one-queue processing system doesn’t appear to align with the goals of Canada’s Immigration and Refugee Protections Act (IRPA)   to attract a diversity of spouses. Policy-wise, it makes sense that countries that historically supply Canada with more eligible applicants will have to wait a little longer vis-a-vis a country that produces less immigrants. That being said, not having a global one-queue system does not justify why applicants in certain countries in the Middle East and Africa are taking many years to process vis-a-vis countries in the Western world. Greater parity in actual processing times is desperately needed.

That being said, the new processing time display system certainly comes with a few positives. Like with Express Entry, it is certainly more applicant friendly then having to read a larger chart. It provides better updated processing across a category of applications – including economic immigration via Express Entry.

The cons of the new processing times display is that it is currently not as transparent as it can be. There are several examples of where this may kick in and have negative consequences:

  • Applicants who have legal resident status in a third country  can apply through that visa office for permanent residency in Canada and ask to be processed through a visa-office in that country. Without knowledge of visa-specific processing times, this becomes a bit of a crapshoot;
  • If CIC’s policy continues to be the call centre not updating applicants on where applications when they are in “regular processing times”, this chart creates complications. Does an Applicant who has not received first-stage approval have the right to access information from the call centre regarding their application?
  • Applicants may be dissuaded from from applying for permanent residency in Canada thinking it will take 18 months to sponsor outside of Canada and 26 months to sponsor inside Canada (a difference of only 8 months).
  • Also, because of the open work permit pilot that allows a spouse to obtain a work permit within 4-6 months of processing for in-status applicants, showing averages instead of actual processing times may create a incentive towards applying in Canada without properly advising as to the possible drawbacks. Particularly in several European visa offices where processing times are currently under a year, you may see applicants mistakenly apply in Canada thinking it is more beneficial process. I note that CIC’s own materials don’t clearly lay out the negatives of applying in Canada (longer processing times, loss of appeal rights, possibility of being denied re-entry and having to start from scratch with an outside Canada application).

Overall, there is clearly a need to let applicants known how long it theoretically will take for processing. Many potential immigrants plan their entire lives around processing times, whether to accept academic offers, whether to continue with their current employment, even whether to have kids before or after immigrating.

In my mind, while simplicity and clarity are important factors (which the new  CIC processing times display delivers), so to is transparency (which I believe the new CIC processing times display compromises).

Overall, I do not see any utility in providing the applicant who in reality has to wait three years that it will only take 26 months. I also don’t see any utility in telling the applicant that will only take 12 months that it will take 18 months to process their application.

It is my hope that either some sort of online global queue system for permanent residence is adopted as legislated policy OR CIC puts up the exact processing times and remains transparent through their process.

 

A Thank You… and Six 2016 New Year’s Resolutions for My Practice

2015 Canadian Law Blog Awards Winner

A Thank You

As we mark the end of 2015 I wanted to send a quick note to everybody who has supported my endeavours in the law. Seven months in I know a little more about Canadian immigration law but I would say a lot more about the work I need to do moving forward. The practice of immigration law is the practice of confident humility. We have to represent our clients. Stand up for our clients. We have to do so in a way that is respectful of the complexity of their lives and of the outside factors that we often cannot control. As a young lawyer, that is also how I have to live my life. Humbly, respectfully, and gratefully. For all the hurdles and heartache that 2015 threw my (our way), it taught me lessons that will last throughout in future years. Thank you to my family, my firm, and my friends (all of them mentors) for teaching me about all of the above. Three F’s I hope every lawyer has in their lives. I am also blessed with a fourth (a beautiful, supportive Fiancee).

I also want to thank all my clients this year for putting their trust and often hard-earned finances in my legal services. So far, outcomes have been great and I can only thank you for working with me as a team in

Thank you also to the Clawbies/Stem Legal Awards committee for granting me my first ever law-related award, a #Clawbies2015 Award for Best New Canadian Law Blog. I initially only wrote a nominating blog to support my two deserving mentors, Steven Meurrens and Raj Sharma, and was utterly shocked this morning to find that I had been given a nod. Congrats to all the award winners: http://www.clawbies.ca/2015-clawbies-canadian-law-blog-awards/  

I also want to particularly congratulate Steve Meurrens, who probably is secretly annoyed that I every time I ask him “I have an _______ question” for serving such a great mentor. Many don’t know, but in the summer of 2013 when I was figuring out things at Heenan Blaikie as a summer student, I found his blog and read a few pieces. Later on, when Heenan Blaikie collapsed I remembered there was an immigration law firm in Vancouver based on Steve’s blogs. He has really taken me under his wings, both when I was articling and now as a young associate. I admire and respect everything about him and his practice, and definitely my law blog is an emulation of just some of the success I hope to attain following in his foot steps. I’m super grateful to the trio of Steve, Ryan, and Peter for their guidance.

My Six Practice-Based Resolutions for 2016*
*I have a whole set of personal resolutions that I will keep a little more private

  1. Write More;
  2. Double My Practice While Enhancing Meaningful Client Interaction;
     
  3. Bring More Clients into Larlee Rosenberg;

  4. Find Ways to Integrate Technology and Better Organization/Practice Management into My Practice;

  5. Balance My Lofty Career Ambitions with a Healthy Balance of Spiritual and Mental Health

  6. Do a killer job organizing the Vancouver Cultural Spaces Crises *more to come

Adios 2015, it has been a slice. 2016, we’re ready for you.

 

 

 

Express Entry: Expressly Wrong on Older, English ‘Competent’ Economic Immigrants

Express-Entry-Tips

There is much that is good about Express Entry, the online application management system introduced by Citizenship and Immigration Canada in January 2015. Few can complain about the (so-far) expedited processing times and arguably even the program’s ability to scoop up the top, most qualified candidates. For all its glitches, Express Entry has helped modernize Canada’s previously broken first-come, first-serve paper-based system.

However, in my opinion there is something very bad – and in my mind, very misguided from a policy perspective, about Express Entry’s point system. I am speaking about the system’s unqualified prejudice against older migrants from non-English speaking countries. I believe this has negative consequences on our Canadian cultural mosaic and may even carry unintended economic consequences.

The Problem 

Express Entry’s point system awards to potential economic immigrants, allowing them to receive an Invitation to Apply (“ITA”) for Permanent Residence. In order to create a profile and enter the Express Entry applicant pool, applicants must first qualify for one of the three economic programs, the most popular of which are the Canadian Experience Class (“CEC”) and the Federal Skilled Worker (“FSW”) programs. Both programs have minimum language requirements in either English or French. For the CEC, the minimum language requirement depends on the classification of the skilled job for which the Applicant is claiming experience. For the FSW, performance on the required language tests above and beyond the minimum can increase one’s points towards their overall qualification for the program. For the most skilled positions under the CEC and for all FSW applicants, at least a “competent” level of English is required.

Only the FSW program considers age as a factor, although it is not a baseline requirement. Applicants under the age of 18 or over the age of 47 are awarded 0 points out of 12. As the overall point system is out of 100, for which 67 points is a minimum requirement, age is not a determinative factor for eligibility.

After meeting the basic requirements of one of eligible economic immigration programs, applicants are then scored according to the Express Entry’s Cumulative Ranking Score System (“CRS”). As 600 points of the maximum 1,200 points are allocated to having a valid job offer supported by a third-party employer either through a Labour Market Impact Assessment (“LMIA”) or a provincial nomination, a majority of potential applicants essentially compete within a 600-point system. As of the date of this article, a majority of the draws have been in the upper 400’s with several draws in the 500-700 point range. The lowest draw so far has been 450 points.

For Language and Express Entry, the English “competent” candidate earns an average of 64 points, assuming equivalency among their reading, writing, speaking, and listening sills. A candidate that is a “good” or “very good” user (keeping in mind that the later is a standard just below expert user/native speaker) is awarded an average of 116 points. In addition, these later candidates automatically increase their skill transferability (another important CRS factor) points adding anywhere from 16 to 50 points to their score depending on their education and work experience. It is therefore fair to say that applicants who are merely competent in English obtain 75 fewer CRS points then someone with greater (near native-speaking) competency.

From an age perspective, the effect on CRS points is even more pronounced. Under the CRS, a 45-year old applicant loses 110 points compared to a 20-29 year old applicant. Even a 40-year old applicant, with a spouse who could be much younger loses 60 points.

Consequentially, a competent English speaker (let us assume from a non-English speaking country) who is 40 years old, married with young children and who has a potential 25-year old working career in Canada loses 135 points right away.

To put it in perspective, even if the applicant obtains maximum scores in every other category they could only obtain a maximum 465 points out of 600, just 15 points above the lowest drawn score in 2015.

 

Not in Line Policy Research or Canadian Immigration’s Legislative Objectives

While the literature in this area is complex and varying in its results, it does suggest that Express Entry’s current policy on age and language is highly misguided.

A recent August 2015 Statistics Canada/CIC report suggests that language is not effective as a long-term economic-earning indicator.

This finding is not altogether surprising. In a 2012 article titled, “Language and Immigrant Labour Market Performance: What Does the Economics Literature Tell Us?” Canadian Economics Professor Mikal Skuterad asks whether it is reasonable to believe Canada can maintain current immigration levels and increase language criteria without sacrificing other desirable qualities of immigrants. In his piece, Professor Skuterad suggests that Canada’s emphasis on high language requirements may be too focused on short-term outcomes, and too neglectful of the importance of post-migration language training required via settlement services. In short, pre-migration language is an overemphasized indicator of economic success.

I would argue that age, while a long-term indicator of economic success according to the August 2015 CIC report, is overemphasized as a factor in Express Entry. Importantly, it is out of touch with economic realities. Our most recent studies of the issue in 2011 showed that even in Canada, where welfare and social services are readily available, the age of mothers at first birth was increasing towards record pace.

If we assume Canada is most desirable as a place of permanent residence for young families with the financial capacity to move and elementary/high-school aged children serving as a major impetus for the move, we should expect a high number of late thirties/early fourties applicants. Yet, this is the very group that Express Entry punishes through the prejudicial point system.

Overall, putting such a high emphasis on language or age of potential economic immigrants does not further the objectives of Canada’s legislated aims as stated in section 3 of Canada’s Immigration and Refugee Protection Act (the “Act”). The Act states:

Objectives — immigration

  • (1) The objectives of this Act with respect to immigration are
  • (a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration;
  • (b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada;

Combined, I would argue that creating a point system those only benefits younger immigrants from English-speaking countries does not serve to maximize the social and cultural benefits of immigration. If anything, a program that discriminates against older, non-speaking applicants narrows our country’s definition of the ‘desirable immigrant’ and creates an unnecessary, disincentive for economic immigration. Furthermore, while I do not believe past studies have been done on this issue, I would argue that the economic and immigration mobility of the types of fluent, young immigrants Canada currently desires will lead many to eventually pursue opportunities as overseas ex-pats rather than as Canadian-resident taxpayers.

 

Where do we go from here?

There is some hope. The governing Liberals have promised it will be re-examine the point system and may allocate additional points to individuals with Canadian relatives. However, I don’t think that is enough. I think it is enough that a potential immigrant meets minimum language requirements. I also think the age of a potential immigrant’s spouse and children should be qualifying factors. The 45-year old father of three Canadian kids who will have a lifetime to pay it forward to the Canadian economy should not be perceived as too old for Canada.

However, clearly some points are missing. Should students who studied in Canada receive more points under Express Entry? Should potential immigrants with current jobs held on other form of work permits receive more points? Arguably so. Should the economic immigrant who has started his or her own business or invested in the business of his or her son or daughter receive some points? Should an economic applicant who has a spousal sponsorship application in process receive additional points to facilitate their own immigration process? I would think that all the above would make sense.

Express Entry has much room to improve. Change, on the issue of language and age, is

 

 

 

The Resignation Letter: An Online Novel (Chapter 3: Maria, Maria)

“Maria, wake up.” Maria Morales felt a tap on her shoulder. It was her 12-year old younger sister Samantha.

Maria slipped on her bunny slippers and felt her head feel all of a sudden, light-headed. It had been five weeks since Maria had last woken up without a hangover, but it also marked five weeks since Maria woke up everyday with a painful headache. Maria pulled the curtains and looked outside. The scene was a beautiful winter wonderland. Maria resided in Surrey B.C’s beautiful, golf-course ridden, Panorama Ridge neighbourhood. It was “a gem in a rough,” as she often described to the guys she would meet and cringe when they heard the phrase, “ I am from Surrey, and you.”

Maria Morales walked down the stairs of her family’s five-bedroom house. Christmas felt different this year. As she stepped downstairs, she could see her mother slouched across the couch. The O was playing in the background. “Mom, wake up – it’s Christmas Day” Samantha tapped her mother on the shoulder in the same fashion as she had tapped Maria’s shoulder.

“Get off me, you little slut” Maria’s mother shouted slapping Sam across the face. Samantha, stood back stunned. To Maria’s surprise, Samantha didn’t cry but rather looked at her mother angrily.

“Get your shit together Mom, please” Maria yelled rushing over to pull Samantha away. “It is Christmas Day. You are not ruining today like you have ruined the last three months.”

“Fuck you alchy, go make me some breakfast,” Maria’s mother slurred. Suddenly, there was silence and only loud snores.

“Sam, I am sorry” Maria whispered to Sam. “Let’s go out and grab some Jimmys. I think it’s another one of mom’s bad days.”

Their mother had been acting this way for three months. It was the day that Sam had accidentally revealed that “Dad has a new girlfriend,” while fighting with their mother, unraveling a series of quick and unforutnate events leading to the family of five, now becoming a family of four. Maria’s older brother, Todd, had long left the family in pursuit of his own career ambitions doing God-knows what.

Long-story short, Maria and Sam’s dad, a divorce lawyer (ironically), had started seeing his secretary and within a month time had moved out of their Surrey home and into her Yaletown condo. Maria felt depressed, thinking about her mother, a former fashion consultant was now a 24-hour W Channel afficianado.

Maria helped Sam get her coat on as they left their apartment driveway. While it was municipal b-ylaw that the driveway was to be shoveled, there was simply no one for the task. No man of the house. Maria felt tears run down her cheek.

Maria herself had been through a tough patch. She had an abusive five-year long-distance relationship end earlier in the year. She had spent the last nine months dating various guys online, only to realize none of them wanted more than a short-term hit and run. Maria, as self-conscious as she was, knew she was pretty by all cultural standards. She had this vivacious, rich, yet innocent look to her – ‘real stature’ as her Dad once complemented her. She looked younger than her 20 years.

Maria looked at her younger sister, trying to maintain herself emotionally. Maria’s year had been filled with way too much alcohol, way too much marijuana, and even one incident where she had accidentally taken fentanyl after being coerced by a few of her former old high school friends one late night out. Maria secretly hoped her sister could have her memories from 2016 erased.

Through all the madness, there was some good news. Maria had recently accepted a coveted internship at a marketing firm. While Maria was not sure if she had been selected to do marketing or be the one marketed, it was an end to her unemployment. Maria had obtained a certificate in marketing two years back but had never been able to find a firm to take her. They all said her grades were too poor, her certificate worth less than the paper it was printed on. One interviewer even accused her of being a fraudster and asked her for a criminal background check for a job (as a fashion model!).

Maria would start her new job, downtown, on boxing day, apparently as the Firm was short staffed for last-minute New Year promotional materials that were being requested by their retail clients. Maria felt nervously brave about this new job and her only worry was running into her father downtown. She had not spoken to him since he had tried to explain to her that he needed to ‘pursue his own happiness’ and move out with Anastasia (his secretary).

After a fifteen-minute walk, Maria and Samantha had arrived at Jimmys. They saw that the line-up was a mile long. In the front, she could see a Arab man with her wife, wearing a hijab. The man was yelling at the front-desk attendant, who appeared to be an Asian girl.

“This coffee is cold. Why is it cold?” the man yelled at the girl, who looked as though she was near years.

These damn refugees think this is Saudi Arabia or something. Maria thought to herself. I hope they deport these guys. Such a burden on our society.

The Resignation Letter – An Online Novel (Chapter 2: Party Like a Permanent Resident)

     “Ladies and Gentleman – this year’s Power 50 Marketer of the Year is… Mohamed Kamara! Mohamed, please come and claim your award.” 

     Mohamed could hear applause fill the air and the sound of a rap song in the background. He heard his dad’s voice booming from behind him.

     “You did it, my son, you did it! I am so proud of you”

       As Mohamed walked up to the podium, he noticed that the seats were empty. Looking back, Mohamed notice his father’s seat was unoccupied. In fact, there was no audience at all. As Mohamed started walking up the red-carpet lined stairs he felt the ground start to crumble. Looking up, he managed to make eye contact with the good-looking Caucasian male who was the award presenter. As Mohamed’s vision came into focus, he noticed it was his manager holding his final paycheck. “You are fired buddy, do you actually think we would actually award you?” Mohamed felt himself falling through the floors into a dark abyss.

 

“Mo… where are you?” a faint voice came from outside the room.

Mohamed woke up in a cold sweat. He looked at his alarm clock – 8am. He should have been at work by now. Mo sat up on his bed in one swift, urgent motion. Waking up at random times at night in this fashion was a bad habit of his, one his future chiropractor would certainly speak to, and probably his future psychiatrist as well if she did not diagnose it first. After staring dumbfounded at his ceiling for a minute, Mohamed suddenly remembered that it was Christmas Day and the office was closed. He lay back down gingerly on his pillow.

“Mo… open the damn door”

Two knocks on the door of Mo’s basement suite confirmed that he had a guest this morning.

Mohamed quickly pulled on his pajama shirt and stumbled to the front door. He peered carefully outside. The East Vancouver neighbourhood he lived in was notorious for break-ins, and even (as of recent) a string of violent home invasions. Mohamed saw a man with a puffy jacket wearing a green toque. As Mo stepped closer, he noticed it was his best friend, Shafiq. Mohamed felt his nervous tension dissipate.

Mohamed hurriedly unlocked his door.

“Ya scared me brother. Why didn’t you call me yesterday to tell me you were coming? Eh Shafiq, where is your wife? Shouldn’t you be spending the day with your wife and kid.”

Shafiq mumbled something inaudible before he spoke, “Bro I’m sorry, it is an emergency.”

Mohamed was worried. This was very out of the ordinary for Shafiq, the usually happy-go-lucky/outlandish comedian. While they didn’t see each other often, with Mo trapped at work and Shafiq trapped with newborn parenting duties, they made sure to attend mosque together once a week, followed by afternoon tea or coffee. Shafiq’s stories of perennial underemployment and diaper education often had Mohamed in stitches. Shafiq was an Engineer, turned Gas Station Attendant, and now probably classified himself as a budding entrepreneur. Shafiq always had amazing ideas for solving Western problems, unfortunately problems that Mohamed all-to-often pointed out, were not actually problems for most Westerners. For example, Shafiq came up with a remarkable idea of a swimsuit that could turn into a cocktail dress at the pull of a strap, in the odd event the female’s father or mother showed up at the beach and saw her underdressed. Mohamed kindly reminded Shafiq that cocktail parties usually did not occur at the beach and that in any event, two piece swimsuits were specifically selected for being two pieces rather than one.

Shafiq eventually resigned two weeks later to the fact that his idea was a flop. In fact, he lamented in the fact that his “market research” into two-piece swimsuits led to a cold night spent on the couch. His wife had come home from work one day and found Shafiq holding the newborn and looking at a few too many goriye girls.

“Mo, it’s not good. I think she’s doing something behind my back,” Shafiq’s eyes locked with Mohamed for a brief second. Mohamed could tell that Shafiq had not slept all night. He looked liked he had been hit by a bus.

“Brother, what happened?” Mohamed responded, quickly putting on a kettle of hot water for tea.

“I was out with the baby girl yesterday just around 5pm. I stopped at the Jimmys next to her work place. I grabbed two hot chocolates thinking I could give her a surprise when she left. Minutes later, I get this text message – saying she has a work meeting and can’t make it for dinner. This isn’t the first time, so I am not that upset, right. I get the stroller and I get ready to try and catch the next bus back home. I see out of the corner of my eye across the street. I know it was my wife. Just as I am about to call her name, I see this Lexus pull up and she gets into the front seat. I try and I.D the driver and I see her colleague next to her. Guy is the Team Lead of their project. I don’t remember his name. I know he’s rolling in dough. Dad’s a big-time lawyer or something. I remember him from the Christmas party. Whole night he was starring at my wife. My wife would smile back. I just know they are up to something.”

“Calm down brother. You are married with a kid. She would never be that reckless.” Mohamed grasped Shafiq firmly on the shoulders. “If you need me to go speak with her, I can do it for you. She’s in the PR business. We work with them all the time in marketing. It’s business around the clock. I’m sure it was just an innocent business meeting.”

“It is because I am a useless good for nothing foreign-trained engineer. Brother, I don’t know how you did it back in the day. I can’t even get another job anymore. I am an overqualified, stay-at-home father. That should just go on my resume. You know one interviewer last week even said that if he were me he would just let the wife make the money and stay home.”

Shafiq had only been in Canada for a year and a half. Initially, the plan was for his wife to move to Pakistan with him and for him to eventually find a company that would transfer him to Canada. However, Shafiq’s wife Muneeza (or Melissa, as she called herself at work) was offered a new job in Vancouver and Shafiq came to Canada right away. Importantly, Muneeza became pregnant shortly after sponsoring Shafiq. Now, he was what Canadian immigration called a “conditional permanent resident” and had to cohabit for his wife for two years before the conditions were removed.

Mohamed himself was all too familiar with Canada’s immigration system. He had arrived in Canada as a political refugee from war-torn Sierra Leone. His citizenship application had been held up for a year and a half because he had purportedly provided “inconsistent dates” – a two-week memory gap in his ten years as a Canadian permanent resident.

“Where is the wife and kid now?” Mohamed asked Shafiq inquisitively.

“They went to visit Melissa’s grandparents for lunch. I have to get back after lunch so she doesn’t think I left. Apparently the grandparents don’t want me to show up at their house this year. They think I’m some money-sucking bad omen.” Shafiq sighed heavily.

“Anyways brother, Merry Christmas.” Shafiq took out a small neatly-wrapped gift box from inside his jacket pocket. “I know it is not much, but I value our friendship.”

Mohamed guilty accepted the gift. He had been so busy with work that he had forgotten to prepare anything for Shafiq. “I left my gift for you at the office. I’ll hit you up with it next week.” Mohamed responded, hoping the cheerfulness in his voice would hide the whiteness of the lie.

“Go ahead, open it” urged Shafiq.

Mohamed opened the package to find a beautiful, brand new Quran written in both the Arabic and English language. “It’s beautiful. Thank you my brother. Let’s make lunch, how does some of my homemade fish stew and yam sound to you.”

“You know that I love everything you make guy,” Shafiq answered happily. “Tomorrow’s problems we can deal with tomorrow. Now where is the remote control, I want to watch the football game, the Hawks are playing”

American football,” Mohamed kindly corrected Shafiq, throwing over the remote.

#Clawbies2015 – My Three Nominations

This year, thanks to the emergence of Canadian Immigration Law (hashtag: #cdnimm) as a major policy and election issue, I made my accidental entry into the blogging world. I know the path was paved by amazing bloggers before me, that deserve their credit for being fantastic resources – for their clients and for the interest of the public.

The three blogs I have nominated I read at least several times a week and keep me engaged and passionate about the practice of law.

My Nominations

1. Paul Daly’s Administrative Law Matters – I was only introduced to this blog less than a month ago but I have been religiously reading Professor Daly‘s analysis in this area. I think any practitioner that does tribunal work or Federal court work should read Paul before drafting their arguments.  In my mind, blog of the year.

2. Stewart Sharma Harsanyi Calgary Immigration Law Firm Blog – This blog could fit a couple of categories. The firm itself is doing great work out in Alberta. I think what makes Firm Partner and Lead Writer Raj Sharma‘s writing stand apart is that he interlaces his excellent legal analysis with literature and popular culture interpretations. If not best Practice Group blog, I would put this as one of the best blogs for non-lawyers to read as well for its ability to connect to those of all levels of immigration knowledge.

3. Meurrens on Immigration – I consider Meurrens on Immigration (written by my mentor and colleague, Steven Meurrens) to be the bible on immigration. He’s been quietly (but prominently) doing his thing since 2010. A still very young call (just over 5 if I remember correctly), he is already Chair of the CBABC’s Immigration Section and has been counsel of several important Federal Court decisions.  Steve’s blog adds value by providing the results of several access to information requests he coordinates with lawyers and consultants across the country. His work is truly ground breaking.

Those our my nominations. Best of luck to all the #Clawbies2015 participants!

W.

 

 

The Resignation Letter – An Online Novel (Chapter 1: Writer’s Block)

Chapter 1

Writer’s Block

     “Dear Boss….”

Mohamed stared blankly at his laptop screen hoping that the letter would somehow write itself.

     No that doesn’t sound right… too informal, Mohamed thought to himself. He quickly corrected the line. It now read: “Dear Mr. Smith”

One would think that after a decade as a marketing professional that Mohamed would be able to perform a little better under the circumstances of a last-minute pitch. Mohamed wished at that moment he had followed the advice of his best friend, Shafiq, who always kept a template resignation letter ready to deliver just before his pending resignation/firing. Needless to say it had been used quite frequently through Vancouver’s recent economic downturn.

Mohamed heard footsteps behind his cubicle, realizing it was only the cleaning lady, Maria. No one else was working at this hour. In fact, the rest of his colleagues were already half-way through getting sloshed off expensive scotch at a senior manager’s Coal Harbour apartment. It was the Company’s Annual Ugly Christmas Sweater Wine & Cheese, not that Mohamed had ever attended any of the eight previous ones. He only found out after receiving a half-hearted, after-thought invitation from the manager. The offer came simultaneously asking him if he could stay late to do a document review favour for a client of interest. All clients were always of interest – much more interest than he (or his work) had ever been paid.

Mohamed sighed heavy. He closed his eyes and for a second was transported to his favourite tea spot. Five of his university brothers were surrounding him – discussing the topic of the day, football and how many points their hometown team, the Sephadu Stunners, would win by. Mohamed remembered fondly walking home to the sights and sounds of the local market. He remembered the states of sweet aromatic breadfruit and the smell of freshly slaughtered cumin-dusted lamb being grilled on the charcoal grills. His hometown markets stood as such a sharp contrast to the same apples, oranges, and bananas that filed the fruit shelves in their endlessly and unnecessarily repetitive varieties.

However, the bane of Mohamed’s existence had to be the mayo and mustard baloney sandwiches that had become somewhat of a daily ritual. Mohamed never used to eat pork, considered haram in his religion, but a year of welfare cheques when he first arrived made his a connoisseur of cheap cuts of all edibles.

Mohamed’s thoughts were suddenly transported back to the streets of his hometown. After the walk through the market, it would be one left turn and two right turns before he would arrive at his home – the Jenagh Compound. He would see his elderly mom busy grinding up a cassava dish and his wife preparing the side dish of fresh pepper fish. His wife’s radiant smile and hazel-coloured eyes lit up in a concentrated gaze as she asked him if he wanted a third serving. He always did.

Mohamed grabbed a bite of the increasingly-soggy tuna wrap that was sitting in a half eaten glob on his desk. Mohamed hated tuna fish wraps, but they had become someone of a staple of his eight o’clock nights. Mohamed`     kept a box of tuna fish and a bag of tortilla wraps under the small drawer on the right side of his desk for these all-to-often emergency session.

A pile of files sat on the left side of Mo’s desk. These were a reminder that he was still four projects behind. In addition to the task for the manager, he owed a draft mock-up to the city’s largest real estate company that was launching a push for new Arabic-speaking clients. Mohamed also had to finish off a marketing report for an up-and-coming luxury car company that wanted to advertise their new fuel-efficient car to buyers.

Having been in the business for twenty years, Mohamed could smell through the proverbial horse dung that was marketing. For example, he knew that that real estate companies were selling their townhouses way above market value, and conveniently leaving out details relating to historical leaks and hydro problems. The ads only focused on the ‘view that will get you laid’ attracting the young generation of the debt-ridden and those who lived off daddy’s wealth.

Mohamed looked at the yellow envelope on his desk. He had waited until the night to open his cheque. The cheque was to contain his much-anticipated year-end bonus. Mohamed had already searched out the beautiful baby blue wool overcoat that he wanted to give his wife for Christmas. Although they did not celebrate Christmas back home, he always used it as a good opportunity to give his wife something special. Doing the math, if his cheque was $1800 (assuming a $300 bonus), he could pay rent for $1000 and would have about $500 dollars to buy the coat. Mohamed’s own shabby suit jacket came from Global Fashion Co. – 70% off the Black Friday discount rack. It fit well enough, but it definitely looked every dollar of its $60 after-sale price.

Mohamed carefully ripped open the cheque with the dull-blade of his desk scissors. To his surprise he saw a few coupons with a handwritten note from his boss. Mohamed scanned the letter:

“Dear Mo, due to our difficult economic quarter, we have decided to cancel the yearly bonus. In exchange, we are giving every member of our team a generous $200 voucher generously provided by our client, Horizon Gas. Please enjoy this with your family (and if you don’t drive, friends!). Merry Christmas”

Mohamed placed his hand to his head. Mohamed didn’t drive nor own a car. Merry Christmas Indeed he thought to himself. Mo continued to work on the resignation later:

“Due to recent financial challenges at work, I have decided…”

It would be a long night before Christmas.

Unpacking the Legal Phrase “Fettering Discretion”

Fettering definition

The phrase “fettering discretion” found its way into two important decisions released today.

In Trinity Western University v. The Law Society of British Columbia 2015 BCSC 2326 (“TWU-LSBC“), The Hon. Chief Justice Hinkson found that the Law Society of British Columbia Benchers incorrectly fettered their discretion by binding themselves to a ‘fixed blanket policy set by LSBC members in the form of a non-binding vote (at para 120).

In Kanthasamy v. Canada (Citizenship and Immigration) 2015 SCC 61  (“Kanthasamy” ) the majority decision (penned by Justice Abella) found that the Immigration Officer had unreasonably fettered her discretion  by avoiding the “requisite analysis” of s.25(1) of the Immigration and Refugee Protection Act (“IRPA”). The Majority found that the Officer’s  adoption of the Citizenship and Immigration Guidelines of “unusual and deserved or disproportionate hardship” as a threshold for humanitarian and compassionate relief, without a proper assessment of best interest of the child, was an unreasonable application of IRPA s.25(1).

The questions to be asked from this are:

  1. What does it mean for an officer to fetter their discretion?
  2. What is the correct standard of review (or is it case dependent)?

Definition

In TWU-LSBC, Hinkson C.J. does quite a thorough job of setting out the law of fettering discretion in British Columbia. He writes (emphasis added):

[97] Fettering of discretion occurs when, rather than exercising its discretion to decide the individual matter before it, an administrative body binds itself to policy or to the views of others: Hospital Employees Union, Local 180 v. Peace Arch District Hospital (1989), 35 B.C.L.R. (2d) 64 (C.A.). Although an administrative decisionmaker may properly be influenced by policy considerations and other factors, he or she must put his or her mind to the specific circumstances of the case and not focus blindly on a particular policy to the exclusion of other relevant factors: Halfway River First Nation v. British Columbia (Ministry of Forests) (1999), 129 B.C.A.C. 32 at para. 62 [Halfway River].

Hinkson CJ expands on this definition in paragraph 114 of his decision and writes (emphasis added):

[114] As discussed in the standard of review analysis above, fettering of discretion occurs when a decision-maker does not genuinely exercise independent judgment in a matter. This can occur, for example, if the decision-maker binds itself to a particular policy or another person’s opinion. If a decision-maker fetters its discretion by policy, contract, or plebiscite, this can also amount to an abuse of discretion. Similarly, it is an abuse of discretion for a decision-maker to permit others to dictate its judgment. As Mr. Justice Gonthier said for the Court in Therrien (Re), 2001 SCC 35 at para. 93:

 [93] It is settled law that a body to which a power is assigned       under  its enabling legislation must exercise that power itself and may not delegate it to one of its members or to a minority of those members without the express or implicit authority of the legislation, in accordance with the maxim hallowed by long use in the courts, delegatus non potest delegare: Peralta v. Ontario, [1988] 2 S.C.R. 1045, aff’g (1985), 49 O.R. (2d) 705…

[115] While Gonthier J. referred to a minority of the members of a body, I see no reason not to apply the same reasoning even to a majority of the members of a body like the LSBC whose elected or appointed representatives are assigned a power that requires the weighing of factors that the majority have not weighed.

This definition of ‘fettering discretion’ is mirrored in the Majority’s decision in Kanthasamy at para 32, where the court discusses the Officer’s use of the Guidelines on Humanitarian and Compassionate Grounds provided by CIC. The Majority writes (emphasis added):

[32] There is no doubt, as this Court has recognized, that the Guidelines are useful in indicating what constitutes a reasonable interpretation of a given provision of the Immigration and Refugee Protection Act : Agraira, at para. 85. But as the Guidelines themselves acknowledge, they are “not legally binding” and are “not intended to be either exhaustive or restrictive”: Inland Processing, s. 5.   Officers can, in other words, consider the Guidelines in the exercise of their s. 25(1)  discretion, but should turn “[their] mind[s] to the specific circumstances of the case”: Donald J. M. Brown and The Honourable John M. Evans,Judicial Review of Administrative Action in Canada (2014), at p. 12-45. They should not fetter their discretion by treating these informal Guidelines as if they were mandatory requirements that limit the equitable humanitarian and compassionate discretion granted by s. 25(1) : see Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, at p. 5; Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195 (C.A.), at para. 71.

 

Standard of Review

In TWU-LSBC, Hinkson C.J. appears to adopt a standard of review of correctness – stating that the fettering of discretion is an area where the court owes an administrative decision-maker no deference. Hinkson C.J. writes:

[99] As Mr. Justice Finch (as he then was) explained in Halfway River at para. 58, the fettering of discretion is an issue of procedural fairness, which is an area where the court owes an administrative decision-maker no deference:

[58] The learned chambers judge held that the process followed by the District Manager offended the rules of procedural fairness in four respects: he fettered his discretion by applying government policy…[.] These are all matters of procedural fairness, and do not go to the substance or merits of the District Manager’s decision. There is, therefore, no element of curial deference owed to that decision by either the chambers judge or by this Court.

In Kanthasamy, the Majority adopts the reasonableness standard of review. However, arguably this was done with respect to the decision as a whole and not directly with reference to the issue of fettering discretion:

[44]              The Federal Court of Appeal refers to one case from this Court to support this point: Hilewitz v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 706. This case is not particularly helpful. It was decided before Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, there was no discussion of the impact of a certified question on the issue of standard of review, and the parties asked that correctness be applied: para. 71.  In any event, the case law from this Court confirms that certified questions are not decisive of the standard of review: Baker, at para. 58; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, at para. 23.  As the Court said in Baker, at para. 12, the certification of a question of general importance may be the “trigger” by which an appeal is permitted. The subject of the appeal is still the judgment itself, not merely the certified question. The fact that the reviewing judge in this case considered the question to be of general importance is relevant, but not determinative. Despite the presence of a certified question, the appropriate standard of review is reasonableness: Baker, at para. 62.

My Analysis

I want to bring in another definition of fettering discretion (going way back to the archives here) that I like personally. I found this on a Worksafe BC memo dated 20 December 1991 but I think it sets out the law quite clearly (emphasis added):

“A general principle in administrative law is that administrative bodies must not fetter their discretion. In other words, a body entrusted with a discretion must not disable itself from exercising its discretion in individual cases by adopting a fixed rule of policy. As summarized by Jones and de Villars in Principles of Administrative Law (Vancouver, 1985): … the existence of discretion implies the absence of a rule dictating the result in each case; the essence of discretion is that it can be exercised differently in different cases. (at p. 137).”

I think eventually there will need to be two standards of review for fettering discretion cases. When an officer is fixated on the application of a policy or discretion that is narrower than the written  law – I believe that the reasonableness standard should apply. For example, as in Cha v. Canada (Minister of Citizenship and Immigration) [2005] 2 FCR 503, the Officer unreasonably fettered discretion by adopting a narrower approach (not conducting a full analysis) in reaching a decision that legally flowed from the imputed act – the issuance of an s.44 report and subsequent deportation order.   However, if the officer is fixated of a policy that is broader than, or even more egregiously, contradictory, to the law I think it becomes an issue of correctness. I think that a blanket relevant/irrelevant considerations analysis is broad for the purposes of a fettering discretion assessment (see: Gleason J’s judgment in Jia v. Canada 2014 FC 596 at para 68).

 

Regardless, expect “fettering of discretion” to receive more judicial play in the years to come. I know in the immigration context, several refusals (subject to litigation) are based on discretionary applications of policy and Citizenship and Immigration Canada-generated requirements rather than the plain-language of the law.

Corresponding, you will likely see from this (if I were the government) more Ministerial Instructions and Regulations that codify existing policy. The reasonableness standard itself, where as long as balancing and factor consideration was arguably attempted is sufficient, may be enough to defend the decision-maker in those cases.

Ps. for a great article on “fettering of discretion” in the Canadian administrative law context check out Professor Paul Daly’s 2014 post “Fettering of Discretion and the Reasonableness Test” here.