All posts by Will

OPINION – The E-Race-d Migrant Workers of COVID-19: Why Canada’s Colourblind Approach to COVID and Immigration Needs a Major Rethink

枫彩 / CC BY 2.5 CN (https://creativecommons.org/licenses/by/2.5/cn/deed.en)

COVID and Migrant Workers as a Starting Point

While we rush to seal our loosely-defined borders and legal exceptions, let us not lose sight of the reality of who it is ‘doing the work‘ as low-paid essential service workers in Canada – temporary foreign workers (TFWs). Accordingly to a Government of Canada official, over 60,000 temporary foreign workers have come to Canada to work in our agriculture and agri-food sector.

I begin this piece by rejecting the term, ‘low-skilled.’ Anyone who at times like these is contributing putting food on to our table and taking care of immunocompromised seniors at senior’s home and care facilities,  I hold to the highest esteem.

From 2019 Open Data, we know Canada and British Columbia’s are coming from five countries – Mexico, India, Jamaica, Philippines, and Guatemala. Asides from the correlation that they are all from the Global South, they also all represent countries where racialized folk – brown and black – are primarily entering Canada to do the work Canadians are not doing. While I understand some are floating around the idea of a national work program to get Canadians into these positions over TFWs, we must admit the reality that the exposure of risk to COVID-19 of this work (not to mention the low pay) would drive most away.  This reality also creates a contradiction that Chris Selley questions in the subheading for his recent National Post article titled, ‘Ottawa’s plan for quarantining temporary foreign workers is more bizarre than comforting,’ where he writes:

If we can identify a group of people without whose labour we literally wouldn’t be able to feed ourselves, why are we denying them a path to citizenship?

I share the same question. Through this pandemic we have already had one TFW outbreak at a Kelowna greenhouse/nursery and countless stories of senior home outbreaks which make up half of Canada’s confirmed deaths from COVID-19. We have not said so much of a thank you, other than discussion of how to quarantine them effectively upon entry and pay back employers for lost wages.

However, worse yet, we’ve been left an invisible image of who these workers are, what their races are, and their migration histories that have led them to heed the call into action. While we are all in this as Canadians, I am eager to know who these individuals are and eventually reward them with pathways to permanent residence or at the very least create new pathways that honour that work.

Indeed, if we are putting racialized migrant workers on the front lines of COVID-19, I argue we should putting these same migrant workers in the front line of new immigration programs to facilitate their transition as permanent residents.

 

The Invisibility of Canadian Racism and the Misapplication of Intersectionality

However, there appears to be preferred invisibility – something that runs deep when it comes to issues of immigration and race in this country.

The Canadian Government approach to immigration continues to be one that on the outside adopts a Gender Based Analysis (“GBA”)+ framework that states an intention to take into account intersectionality, but a reality that race is the unspoken, untouched, undelved into dark space – a Pandora’s Box.

IRCC does not collect data on religion or race.

Zoomed in, in case the footnote is hard to see:

We know only what countries applicants are coming from, not who they are by way of their race, ethnicity, and colour, and how discrimination  factors into visa refusals and availability of pathways to permanent residence. We know anecdotally from client experience and those cases that end up published as case law that visa officers discriminate against individuals from minority racial/ethnic groups, particularly when the visa office responsible for processing the applications is not located in the same country.

How are we purportedly taking into GBA+ if we have not looked further at what the + entails. How can we claim to even be applying an intersectional lens?

The GBA+ touts itself as applying an intersectional lens in various Government training materials, but one questions how Kimberlé Crenshaw would view this given her conception of intersectionality was focused on the intersections of gender (yes), but very and just as importantly class, and race.

When you go back to the foundations of Crenshaw’s underlying work, the research was centred heavily on race and migration status. She examined how immigrant women’s vulnerability to spousal violence and the fear of undocumented women were exacerbated by legislation aimed at subordinating the sponsor, creating ‘double subordination.’ (See: Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color)

Much of intersectionality has unfortunately become what has become what sociologist Sirma Bilge calls “ornamental intersectionality,” a neoliberal approach that “allows institutions and individuals to accumulate value through good public relations and ‘rebranding’ without the need to actually address the underlying structures that produce and sustain injustice.”

Currently, proposed regulatory and legislative amendments do go through a GBA+ lens through Part 1 of the Gazette Regulatory Impact Analysis Statement (“RIAS”) stakeholder feedback process but this process is primarily based only on Gender, which itself is a primarily a supplement to other economic and resource considerations. No one asks in these pieces how racialized communities of women or non-binary folk will be affected, nor are most organizations who will provide feedback putting racialized or non-binary gendered migrant communities at the centre of their analytical lens. The centred lens on immigration continues to be white and able-bodied, from it’s legal practitioners to the immigrants held in the highest demand and sought after.

Furthermore, the very idea of intersectionality has been to view the different social categorizations as separate and distinct boxes for us to parse ourselves into, rather layers and true intersections – a mistake we continue to repeat in our misclassification and misapplication of the term.

 

Colourblindness as a Racist Policy

Ultimately, without identifying race as an important social stratification, that centres other discrimination – which could include language, migration status, and gender – we remain stuck in colourblindness.

You may have heard about colourblindness recently with respect to COVID-19. In the context of COVID-19, Ontario’s chief medical officer of health, Dr. David Williams, recently stated:

“Right now we consider our main risk groups (to be) the elderly, those with other co-morbidities, regardless of what race they are,” he said. “Regardless of race, ethnic or other backgrounds, they’re all equally important to us.”

But what got us to this colourblind (regardless of race) approach? What got us to normalize the one human race (we’re all the same) theory?

Writer Ibram X. Kendi explores the foundation of racism as a mode for power holding, and writes poignantly in his book, How to Be in An Anti-Racist at page 10:

“The common idea of claiming “colorblindness” is akin to the notion of being “not racist” – as with the “not racist” the colorblind individual, by ostensibly failing to see race, fails to see racism and falls into racial passivity. The language of colorblindness – like the language of “not racist” is a mask to hide our racism”

Constance Backhouse, whose seminal work, Colour-Coded: A Legal History of Racism in Canada, 1900-1950,  on the history of racism and the law in Canada, similarly examines how immigration help served to help aggrandize white power. She writes:

“Immigration laws shaped the  very contours of Canadian society in ways that aggrandized the centrality of white power.” (Backhouse, at page 15)

She provides example in her book many instances where the lines between races were either purposely blurred, combined, or in some cases written out, to achieve this power. In my perspective, colorblind is not only a neoliberal feel-good strategy, but a tool that has been used historically to justify racist policies.

For example, Canadian Immigration laws led to the closure of borders for Asian and Black immigrants in the first half of the 20th century, while anti-immigrant sentiment and racist legislation severely policed and controlled communities from being able to operate businesses (for example laws preventing the hiring of white women) and adding restricted covenants preventing them from owning property (just to name a few examples):

Laws such as B.C.’s above An Act for the Protection of Women and Girls in certain Cases (which was in place until 1968) were indeed purposely amended as a result of criticism that it was too critically aimed at the Chinese community, and replaced with more universal language with the same intentions and substantive effect.

The law was colourblind, and by today’s Charter standards, a claimant would therefore need to ‘do more’ to prove it was indeed racist, but we know from the history it most definitely was. I would argue that the assumption that we have stepped out of racism due to legal reform is a dangerous myth and one we must continue to breka down.

True s.15 of the Charter, formally added equality rights that were supposed to apply regardless of “race, national or ethnic origin, colour,” language mirrored by other employment and human rights legislation. There were historical apologies and reparations, but I would argue there has never been a race equity lens applied to immigration law – to study, if you so well, of whether and how laws continue to discriminate against racialized marginalized communities.

 

Built Off the Back of Coloured Bodies

Applicants who have tried to bring racism up in Courts (environments that bluntly speaking do not at all reflect Canada’s racial diversity), have faced significant evidentiary hurdles. One thinks of the Federal Court of Appeal’s decision in Begum v. Canada (Citizenship and Immigration), 2018 FCA 181 (CanLII), [2019] 2 FCR 488, which upholds the higher burden on claimants where the a law applies neutrally on its face, and simultaneously criticizes a lack of specific evidence on race, where as we have seen none is being collected from official sources, leaving case studies and academic formulations the only current pathway forward (both of which the Court criticized).

At the same time we have seen our case law build up various areas off the backs of racialized individuals. Using humanitarian and compassionate grounds as just one example, the leadings cases in this area involve Black Jamaican woman, Ms. Mavis Baker, where the visa officer wrote blatant racist marks into the applicant’s file [Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817], a Black Jamaican woman, Ms. Daphney Hawthorne [Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475 (CanLII) that helped define the scope of the Best interest of the Child (“BIOTC”), [2003] 2 FC 555,],  and a former Sri Lankan child, Mr. Jeyakannan Kanthasamy, [Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 (CanLII), [2015] 3 SCR 909 which has become the leading case of BIOTC.

Unfortunately with the framework for humanitarian and compassionate grounds as it stands, little can be done other than to criticize the structures within countries of citizenship and former habitual residence. We will continue to see Brown and Black applicants held down by Canadian system with no recourse other than to blame foreign systems in order to seek discretionary relief. These same blames are then perpetuated on other visa applicants and refugee claimants from those countries in what becomes a very problematic cycle. Canadian racism or the intersectional challenges of migrants, particularly those with precarious status, again gets whitewashed through forced positive explanations of ‘establishment’ and ‘ties to Canada’

I know racialized migrants are the ones struggling most because I viscerally see them. I constantly receive migrant workers in my office, whom facing their first work permit extension, visitor record extension (in order to facilitate their on-going status in Canada). They are the ones who ultimately end up in admissibility hearings and that we must run detention reviews for.

Returning back to the COVID reality, it is a real shame that the temporary foreign workers coming from around the world or who are here and finding themselves suddenly unemployed are receiving little in the way of Government-funded legal support. The minute the employer lifeline is removed for many workers, the void is filled only by good willed non-profit organizations, many with limited capacity to take on individual cases let alone try and advocate on a more systemic basis. Access to services itself is often marred by racist interactions, preconception, and barriers. Many organizations do not even have materials translated into key languages such as Spanish, Hindi/Punjabi, and Tagalog. With limited funding and now a limited staff as a result of their own COVID consequences, they have had no choice but to turn many people away.

The reality is most of these foreign workers affected are Brown, Black, and from countries in the Global South, with major linguistic barriers. Many talk about difficulties there, difficulties here, but generally have ended up in the whirlwind of challenges of identity, hopes of assimilation, and experiences of harm-causing racism.

 

Centering Race Post-COVID

Taking race into account when we look at these cases will allow us to examine processes in a more systems-driven way rather than simply focusing on individuals. For example, we can look at Personal Service Worker (PSWs) and caregivers right now as a collective community rather than individuals who have suffered negative consequences or come from complicated pasts.

Until Canada can prove it is taking anti-racist (not just non-racist) steps to tackle immigration and COVID, we’re stuck in invisibility. The same invisibility women of colour feel when they are under recognized and first to be blamed at their workplaces (Dr. Tam, comes to mind). COVID and the migrant workers who were part of helping us get through these times will fade to collective memory as a large part of the fault, a small part of solution, a consequence of their failures, and the results of our success. Our only ‘thank you’s’ will be in the form of temporary extensions and expiring permits, a few Canadian dollars to bring back to homes already ravaged as a result of western colonialism and imperialism. The mental health and trauma being experienced by workers being shepherded into the fields to work at increased  productive capacity or migrant personal service workers having to watch individuals take their last breaths and expose them to illness, a distant memory.

I really hope this is a good opportunity to rethink our way of moving forward post-COVID. As another Indian writer Arundhati Roy so eloquently put it, we can break with the past and imagine the world anew, taking anti-racist (not just not racist and colourblind) steps to eliminate the historical and present day prejudices of anti-blackness, racist immigration policies, and barriers for darker-skinned migrants from the Global South. We can re-examine why we refuse so many Black African visitors and students, and why our rush to Artificial Intelligence has not adequately taken into account factors such as inherent racial bias. We can start building ties with migrant communities and Canada’s Indigenous communities creating solidarity, rather than let the State divide and conquer us into separate groups  fighting over scarce resources that neither of us control.

I have submitted for approval a conference paper where I discuss how intersectionality can be rethought of in the Immigration Appeal Division (“IAD”) context. Much of this expands on what I talked about in this piece.  I hope that when this paper is published I can begin expanding this conversation to other areas so that once we are prepared to re-engage with each other and our systems, we can make sure to keep racism at the front, not back, or our collective societal consciousness.

My Friend Miranda is an Amazing Facilitator: Reflections from a Week on Virtual Calls

Today’s post is dedicated to a friend and mentor of mine. I’ve seen a lot of good facilitators (half my network are or have experience as professional facilitators) but this week, and in the context of the new online COVID reality, I saw another display of the best.

In this piece I want to walk through what made Miranda such an amazing facilitator. She does this for her professional work but only one of a million hats she wears. I want to break down how she facilitated and what made it so effective.

As a background I have been a part of a few conversations on creating equitable online space this week. Below are some strategies that Miranda employed that I highly recommend all of you to consider to do the same, particularly when working in diverse

Giving Adequate Space and Time to Settle In

Online spaces tend to put pressure on individuals who not only have to speak but watch themselves speak or appear in real time. Giving space and time for individuals to settle in and feel comfortable is crucial. Not everyone will be sitting formally at a desk, some may be on the floor, others in tight corners of quiet. Miranda led us in an exercise to take a few breaths and shake out the tension at the beginning. We all looked silly but we settled quickly into our true online selves.

Making Participation and Mode of Participation (Camera) Voluntary

During this time, many individuals may not be able to find an entirely private space, may not be able to use laptops (having to call in from cell phone) or calling from small private spaces that they are uncomfortable sharing. Family homes are innately private. The requirement to show one’s face at all times or look a certain way can creates pressure and stress in a space that should be stress free. Family members and children may need to enter the space, while doing their own calls, chores, and play activities.

While everyone at this meeting turned on their camera, it was made clear from the beginning through Miranda’s facilitation that eating and child-rearing while meeting would be completely acceptable. That level of comfortability and understanding was very facilitative of the different personal backgrounds and situations of attendees.

Check-Ins (But Not Forcing It)

The provision of alternative ways to share, such as using the chat box (for those who prefer to write) and as well share documents (which allow for anonymous participation). Many chats or verbal communication options require individuals to assign their name to comments, which makes it difficult for individuals to ask the difficult questions that often need to be asked. Creating a parallel anonymous document is a very effective tool, one that I saw implemented a few times in effective Zoom meetings this week.

Miranda’s check-in process of assuring again that there was no pressure and that there were alternative venues was very effective. No one was put on the spot. The silence of a minute of no one sharing was embraced not frowned upon. Eventually everything one did share and it was a very moving and important process of re-connecting after so much time apart.

Recognizing the Power Structures and Structural Imbalances of Virtual Space

Many times Zoom meetings can recreate the skewed power dynamics within organizations. For example, one person or a few persons could ‘hijack’ Zoom (as the online wording goes). On the other hand, too strict controls on muting participants and requiring raised hands in order to speak can also stifle participation.

It is very effective to introduce a few shared ground rules on muting mics when an individual is not speaking and also facilitating feedback from those members who may feel as though their contribution is less welcome. Where individuals are speaking too much, as demonstrated by their face/icon showing up too often on the brady bunch screen. I actually prefer putting my screen in a mode where I can see all participants at once instead of a rotating line up in the top.

Those who do facilitate and speak should be cognisant as well of dynamics such as accessibility. I was part of a few zoom calls that addressed that – one with real time closed captioning, and another with a transcript to be made available after the presentation. Facilitation becomes all the more additionally important because  with computer lag times and perhaps a less clear ‘order’ of participants, talking over each other or interrupting become all the more common-place.

Miranda was fantastic in giving space, soliciting broader feedback, but also giving time for us to think through questions virtually. Miranda also held us very accountable to time and to our other commitments as well. As someone newer to the team, I felt very much heard.

I have been part of other Zoom calls this week where that was not the case and those facilitating could have done a better job of inserting their ability to solicit broader feedback. We should also recognize that online space can re-produce power dynamics of one or two leaders speaking and everyone not being engaged.

Utilizing surveys or even just acknowledging the space as being different and possibly oppressive and uncomfortable helps facilitate the feeling out process of utilizing these apps.

Using Breakout Room Function or Hosting Separate Session

There are some incredible tech functions that allow for the use of breakout room functions to separate participants into different groups and to return back for a larger conversation. This is particularly good to increase participant interaction and work through problems in the similar way in-person breakout sessions or one-on-ones.

During our particular meeting we did not break out but, we had a portion where it was important to have decisions and discussions without certain attendees there. Miranda did a great job of facilitating the transparency of the transition between the larger team meeting and the departure of the members for that portion. It is important when doing actions such as this that it does not turn into a point of concern and tension but rather facilitated.

Closing – Thank You’s and Action Items

Closing of these meetings are important. Of all the Zoom meetings I’ve attended almost all of them have gone over time. Individuals will need to transition from these meetings into actions, actions which may they be less motivated to engage on without the in-person collaboration.

Miranda was again fantastic at thanking people (and their families) broadly and specifically. I left feeling truly part of a tight knit POC family.

I hope this piece was useful for some of you! TTFN and Happy Zoom, Skype, WebEx, NextCloud, Canvas-ing!

Immigration Consequences of a Quarantine Act Conviction for Foreign Nationals

Canada Invoking Emergency Order under the Quarantine Act

Today’s posts looks at an interesting legal question.

Health Minister Patty Hajdu announced this morning an Emergency Order under the Quarantine Act that requires any person entering Canada by air, sea or land to self-isolate for 14 days whether or not they have symptoms of COVID-19.

Here are a few links for background to the announcement

 

Criminal Admissibility 101 under the Immigration and Refugee Protection Act (“IRPA”)

What would happen in a foreign national subject to the lower inadmissibility standard for criminality under s.36(2) of the IRPA which states:

Criminality

(2) A foreign national is inadmissible on grounds of criminality for

  • (a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;

  • (b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;

  • (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or

  • (d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.

Under the IRPA, per s.36(3)(a) IRPA, an offence that may be prosecuted either summarily or by way of indictment (‘hybrid’) are deemed indictable:

Application

(3) The following provisions govern subsections (1) and (2):

  • (a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;

In short, for a foreign national (visitor, study permit holder, or work permit holder) a hybrid offence conviction would render one inadmissible to Canada.

So what does the Quarantine Act say?

 

Quarantine Act Offence Provisions

There are two Quarantine Act provisions that carry hybrid offences, s. 67 and s. 72.

Section 67 states:

Offence committed intentionally

  •  (1) Every person is guilty of an offence if they cause a risk of imminent death or serious bodily harm to another person while wilfully or recklessly contravening this Act or the regulations.

  • Punishment

    (2) Every person who commits an offence under subsection (1) is liable

    • (a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than three years, or to both; and

    • (b) on summary conviction, to a fine of not more than $300,000 or to imprisonment for a term of not more than six months, or to both.

    Section 72 states:

  • Contravention

     Every person who contravenes subsection 15(2) or section 66 is guilty of an offence and liable

    • (a) on conviction on indictment, to a fine of not more than $500,000 or to imprisonment for a term of not more than three years, or to both; or

    • (b) on summary conviction, to a fine of not more than $200,000 or to imprisonment for a term of not more than six months, or to both.

Referring back to the Quarantine Act we find,  the two provisions: the duty to disclose communicable disease

Duty to provide information

  •  (1) Every traveller shall answer any relevant questions asked by a screening officer or quarantine officer and provide to the officer any information or record in their possession that the officer may reasonably require in the performance of a duty under this Act.

  • Marginal note:Duty to disclose communicable disease

    (2) Any traveller who has reasonable grounds to suspect that they have or might have a communicable disease listed in the schedule or are infested with vectors, or that they have recently been in close proximity to a person who has, or is reasonably likely to have, a communicable disease listed in the schedule or is infested with vectors, shall disclose that fact to a screening officer or quarantine officer.

Obstruction of officer

 No person shall hinder or wilfully obstruct a quarantine officer, a screening officer or an environmental health officer who is carrying out their duties or functions under this Act, or make a false or misleading statement, either orally or in writing, to the officer.

It is important to note that as this morning’s announcement was done by Emergency Order, we are still as the publication of this piece waiting for the publishing of the Order in the Gazette which effects criminal enforcement.

Contravention of unpublished order

(4) No person shall be convicted of an offence consisting of a contravention of the order if, at the time of the alleged contravention, the order had not been published in the Canada Gazette, unless it is proved that, at the time of the alleged contravention, the person had been notified of the order or reasonable steps had been taken to bring the purport of the order to the notice of persons likely to be affected by it.

Case Law

Given we know what the consequences are – the next question to be asked is whether the Quarantine Act has ever been enforced against foreign nationals in a manner that creates criminal inadmissibility.

There are no cases that directly reference prosecutions under the Quarantine Act for any individual, let alone foreign nationals. Most of the references are passing references, and those in the context of refugee cases cite s.100(5) of IRPA, which delays the referral process to the RPD from the officer who receives the refugee claim.

 

How Strictly Will It Be Enforced?

Again, I don’t think the provision was made so much with an emphasis on what the back end of  enforcement will look like,  but rather strong message that ‘self-isolation’ and ‘quarantine’ be treated seriously (and as a legal requirement) by the large numbers of Canadian citizens, permanent residents, and permit holders who are returning to Canada.

This is an unprecedented time and it is important for all individuals to recognize that these measures are life-saving. I would highly suggest Foreign Nationals take extra precaution given the possibility of criminal inadmissibility consequences. Given CBSA Officers will be at the front line of enforcing this, foreign nationals may find themselves not too many steps removed from other immigration-related challenges which can also arise on a parallel basis, something we have seen in the past with customs and other administrative enforcement.

Implied Status Student/Worker in B.C? – B.C. Government Extends Temporary MSP (you need to contact Health Insurance BC)

In a welcome announcement today, temporary MSP has been extended to those with expired student and work permits (i.e. on implied status). This temporary MSP will be effective until July 31, 2020.

See Below:

Q2. What if my temporary permits have expired and I no longer have MSP coverage?

In response to COVID-19, individuals who are currently in B.C., who were previously enrolled in MSP as a deemed resident, and their MSP has expired, may be provided temporary MSP coverage.

Individuals should contact Health Insurance BC to request this temporary coverage.

Health Insurance BC

Toll-free: 1 800 663-7100
Lower Mainland: 604 683-7151

Mailing Address:
Health Insurance BC
PO Box 9035 Stn Prov Gov
Victoria, BC V8W 9E3

This may include individuals who have applied for a new work or study permit but it has yet to arrive.

In these circumstances temporary coverage will be granted until July 31, 2020.

The link for all the changes is here: https://www2.gov.bc.ca/gov/content/health/health-drug-coverage/msp/bc-residents/covid-19-msp-qa

What is very important is that you have to call or mail in (it appears) to engage this coverage. 

So do it quickly and tell your affected friends.

I want to take this time to especially shoutout (there are many important people doing important things during the COVID-19 pandemic so this group often gets missed), the low-wage (and poorly defined by our system as low-skilled) temporary foreign workers who are putting themselves at risk, working jobs we do not work, in order to help a country that often has not reciprocated their help. I hope this whole situation and recognition of who is doing the labour, leads us to consider ways we can provide pathways to permanent residence and citizenship for our ‘essential’ workers.

Why Canadian Law Schools Need to Pay Attention to the Racialized Dynamics of Mooting

By Cimmerian praetor – Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=14772458

I want to write this piece partially because when a law student who passed on her experiences to me, it triggered my own experiences which led me to really thinking about the importance of sharing this in a more public form.

“We felt judged differently”

I met with a WOC law student a few days ago and began by asking her with how things have been recently. She mentioned they were okay, and I had asked about her moot as I had seen them robed up for it not too long ago.

She mentioned right away, without even talking about the content of the case question or positive experiences, that her own experiences and ones shared with other WOC participants in different sessions were that the judges appeared to be extremely tough on them. How in content they were presenting the same material as their white colleagues/classmates but in the feedback they got grilled harder and praised less. While it was just a small snapshot, it cannot be by more than chance that two separate mooters in two different sessions connected on the same point as an immediate feedback following the moot.

This experience is parallel to  the experience of WOC in many other professional fields. I harken back to a quote by U.S. Democratic Rep Rashida Tlaib last

Source: https://thehill.com/homenews/house/429550-tlaib-people-hear-you-differently-when-youre-a-woman-of-color-and-a-first-in

We’re seeing it in Canada too. As I have been tweeting, the differential treatment (and personalized attacks) against Dr. Theresa Tam (Canada’s Chief Medical Officer, a racialized Women of Colour) as compared to Dr. Bonnie Henry (BC’s Chief Medical Officer). I’ve written in the past as well on how many of my WOC colleagues had experiences of clients ‘going over them’ to contact male Firm Partners to complain, something racialized men deal with much less frequently.

Connecting with those experiences

Today I would consider myself a solicitigator but increasing involved in litigation. I openly admit that my writing is much better than my oral advocacy, and in terms of presenting in front of a courtroom there’s much for me to learn and improve on.  I am still grateful for how far I have come. During PLTC, I was so nervous with public speaking and sharing my voice publicly that I literally stumbled sharing my own name. I remember I almost failed a mock assignment because I became so anxious and had my mind go blank, creating disconnect between my written notes and oral arguments.

I’ve always been a decent speechwriter. When I write prepared statements they are often thoughtful/well-crafted. Oral advocacy via litigation, where you are having a ‘conversation with a judge is more difficult. I grew up in very hierarchical settings where you never looked an elder directly in the face – where your father’s word was to be followed, your teacher’s were held up as perfect, and you, as your nobody self, was to follow not question these relationships. You grew up very conflict adverse – often resorting to silence or swallowing discontent and disagreement. Expressing disagreement publically usually led to a raised-voice argument and emotions that got in the way of logical discourse. I know many others probably share this experience.

Going into law school, and specifically still having hopes of being someone who litigates, then becomes a crucial space for learning and challenging oneself. Unfortunately, both the socratic method (less commonly employed) or through larger lectures where the same voices would dominate (usually white, privileged voices) created a lack of an environment to test out that litigative voice or engage in those types of important (outloud conversations). I only remember being able to share more freely through small groups and our incredible Tort Professor Dr. Jena McGill who would canvass each of us in ways that were non-intrusive and allowed for continued conversation.

What happens through these processes of silence (I can literally count on one hand the number of times I spoke up in lecture within three-years) is this internalized fear of speaking out. While stats do not exist (and in my opinion should be gathered), I believe for many racialized folk we get streamlined into solicitors work because we are not given the opportunity to work through our litigative fears/challenges/and culturally-specific barriers. To this date I hear from many upper year students who are preparing to graduate that they would love to pursue litigation but never made it to upper-year competitive moot teams, never properly received mentorship on becoming a litigator, and importantly never had space to practice and fail.

My Own Moot Experience

I only ever participated in one moot – a labour law moot. The topic was something to do with drug use within a unionized workplace, a sawmill if I remember correctly.

I remember that our first-round competitors (two-white men) presented their case. They were good – there wasn’t much depth of analysis but they were confident and clear. I don’t remember much in way of feedback presented to them.

I remember that after myself and my partner (a white woman colleague) presented, the entire feedback session was directed at me. A white woman judge criticized my decision to include my assessment of the societal impacts of the decision as a standalone argument as opposed to integrated into the points I was trying to make. I really did not have a defense – to this date in my cases I have done it both ways and found it effective.

While my teammate tried to console us (after our defeat) and I apologized for not ‘doing my best’ (even though I had spent hours preparing for both of us),  I really felt afterwards abandoned by the process. I thought I had gone much more in-depth than the other mooters – really engaged with the facts. Ultimately, however, I was picked apart for one strategic decision and that was that. There was no positive reinforcement, no identification that there was some potential there.

Needless to say we did not advance and that was the end of my mooting experience. I never applied for competitive moots, and avoided moots like the plague.

Systemically, moots will indelibly continue to reflect the whiteness of litigation, the way it stands. This is important because moots are usually the starting point for those who want to pursue litigation, which is the gateway to those who eventually become tribunal members and judges. Having strong moot experiences also tends to increase one’s chances of obtaining clerkships and increasing one’s interaction with Professors and moot coaches (often lawyers) who can open career/litigation doors.

Recommendations

A great starting point of change is for the aforementioned first-year moots, which I think all law schools should make mandatory.

For first-year moot especially, there needs to be a greater emphasis on selecting a diversity of guest judges (especially early round judges).

Having different perspectives in the room (even if they are non-subject matter experts – i.e. even if they are quieter solicitors) can change the dynamic in the room. I think judges should be encouraged as well to disagree with one another and themselves engage in positive conflict as opposed to be a consensual sounding board. That dialogue, showing disagreement, can liberate those who are themselves finding themselves in an uncomfortable process. For example, had I see women of colour receive unbalanced criticism from a white judge, I might engage that judge directly as another judge. I might bring in some of those different viewpoints and perspectives. I might even show additional patience or chime in to validate rather than rush to criticize.

For more competitive moots, it starts from the selection committee. Those who arrange competitive moots at schools tend to be usually social-facing white professors. If charged with choosing teams, there is certainly inherent bias towards similarly situated persons who reflect past teams of success and likely not those who were like me who struggled [the whole trauma behind being picked for teams – I’ll save for later posts]. 

Perhaps, schools can also consider putting in B-teams (second teams) as well that don’t represent the next four best mooters but four individuals who indicated their interest in litigation and who may not have had access to past experiences. Rather than going in with an intention to win, these teams can enter with a non-competitive lens of improving oral advocacy skills as a primary goal.

Furthermore, I would encourage affinity groups such as Federation of Asian Canadian Lawyers and South Asian Bar Association to follow the steps of the Black Law Students Association and the Julius Alexander Isaac Diversity Moot and arrange more experiences. Aim these moots not only at diversity issues but also of Charter cases, public law cases, and other areas. Host workshops, feedback sessions, and other opportunities for students to learn, fail, and challenge themselves. Turn Moot not just to a competitive law school sport, but also a recreational activity for all levels. While one may not turn to litigation right away, it could spark students to consider it or at least add it to their arsenal of tools moving forward into articling and practice.

 

Conclusion – Creating Safer Spaces for Students to Litigate

The fact that students are returning from these first-year moots, which are meant to help inspire litigation pathways and expose students to oral advocacy, with feelings that they may not want to do this again are very troubling. When there is a lack of diversity on the judiciary, we should begin to look at the root causes – including how students are being exposed to litigation.

Ultimately, my recommendation is that we start with first-year moots by having more diverse (including non-subjective matter expert) judges balance out the room and give voice and support to those students who may not come from oral advocacy/vocal backgrounds. Second, we consider competitive moot teams beyond just A-teams and actively into putting together non-competitive B-teams for those who want to improve their skills. Third, affinity groups (through their advocacy committees, etc.) can put together more moots directed at this target audience.

I hope that with some of these challenges we can start empowering BIPOC lawyers to pursue litigation careers beyond their time at law school.

 

 

Assessing Family Ties in the Context of Study Permit Applications – A Few Useful Cases

Hello, VIB blog readers:

It has been too long. I recently came back from meandering streets and towns of Cuba. I had an incredible time and needed the break. I’m back (a little sick from a sunset ocean swim) but motivated. Unfortunately, I have been spending most of my time writing conference papers which has mean less time blogging.

Photo I took in Varadero

Today’s blog will be short, sweet, but important. Increasingly, as the Federal Court has pivoted towards the position that procedural fairness (i.e. a PFL) is needed where there are concerns over the bona fides  of a study permit application, refusals are more likely going to come on concerns the Applicant will not leave Canada at the end of their authorized stay. Even on those grounds, with a lack of travel history being continually re-enforced as, at most a neutral factor (see e.g. Justice Ahmed’s comments in Adom v Canada (Citizenship and Immigration), 2019 FC 26 http://canlii.ca/t/hwx6m at para 15), there are becoming fewer and fewer ways for IRCC to actually substantiate that an individual will not leave Canada at the end of their authorized stay.

One of the common ways Officers wish to do this is by highlighting family ties as a reason for refusal. Argument is that because an individual has family in Canada (either other family members or relatives on permits, as permanent residents, or citizens) that they will not leave Canada. This can also be demonstrated by showing the Applicant is not leaving or leaving limited family members behind in their country of origin/residence.

One way this is often addressed in the context of someone visiting their Canadian spouse (for example) is to put in a dual intention argument.

I have written previously on the need to exercise caution when claiming dual intention, especially when there is not a clear or immediate pathway to permanent residence for international students.

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

I am still debating whether I am of this opinion, as there has been some recent positive case law (see: Bteich v Canada (Citizenship and Immigration), 2019 FC 1230  http://canlii.ca/t/j2kzr). My opinion has shifted in that I do think a case-by-case assessment should take place. I will address this case below.

Addressing Family Ties

In the section that follows I  want to highlight a few strong cases from the Applicant’s side before looking at one case that the Department of Justice may lean on.

In the aforementioned, Bteich v Canada (Citizenship and Immigration), 2019 FC 1230  http://canlii.ca/t/j2kzr, Mr. B, a resident of Lebanon was applying for a study permit. His immediate family (parents) were in Canada on valid work permits and her three sisters were pursuing education in Quebec. He was admitted into the University of Montreal.

One of the major reasons he was denied was that he had strong family ties in Canada and the Officer had concerns that the Applicant would be coming to Canada for reasons other than those stated in his application (at para 10).

In assessing family ties,  Justice Shore highlighted the Applicant’s arguments (which were well made, I might add):

[12] The Applicant submits that it was unreasonable for the Officer to consider the parents’ lawful status in Canada as a negative factor. In support of this submission, the Applicant refers to the Minister’s Operational Instructions and Guidelines (OP-11 Guidelines, at page 13) which suggest a favourable consideration of family members with lawful status and stable employment in Canada.

[13] The Applicant further argues that the Officer made an arbitrary decision based on unintelligible reasons when he failed to justify how the legal presence of the Applicant’s parents in Canada warranted a negative consideration.

[14] The Applicant also submits that the Officer failed to consider that the presence of the parents with valid work permits would likely ensure that the Applicant has sufficient financial support (Girn v Canada (Citizenship and Immigration), 2015 FC 1222 at para 32; Tavakoli Dinani v Canada (Citizenship and Immigration), 2012 FC 1063 at para 27; Demyati, above, at para 11).

[15] In drawing a negative inference from the parents’ status in Canada, the Officer also failed to consider that the Applicant may have a legitimate dual intent, as permitted by the IRPA at subsection 22(2).

Justice Shore highlighted in analysis that the simple tying in of strong family ties to an individual remaining illegally was an unreasonable inference:

(2) The Officer acted without regard to the evidence of the Applicant’s current studies

[33] The IRPA explicitly provides for the possibility of having a dual intent:

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

[34] In this case at hand, the Applicant has strong ties in Canada with well-established and legally established members of his family. This Court agrees with the Applicant’s submissions as summarized above at paragraphs 12 to 15: the Officer should not have drawn negative inferences from the Applicant’s family ties in Canada. If anything, the Officer should have considered the financial support the Applicant’s family provides as a positive factor. At the very least, the Officer should have justified his/her reasoning: it is unreasonable to infer that Applicant will remain in the country illegally simply because he has strong family ties in Canada.

As set out in the beginning of the decision, in overview:

[2]  In this case at hand, the Applicant has strong ties in Canada with well-established and legally established members of his family. This Court agrees with the Applicant’s submissions as summarized below at paragraphs 12 to 15: the Officer should not have drawn negative inferences from the Applicant’s family ties in Canada. If anything, the Officer should have considered the financial support the Applicant’s family provides as a positive factor. At the very least, the Officer should have justified his/her reasoning: it is unreasonable to infer that Applicant will remain in the country illegally simply because he has strong family ties in Canada.

Bteich reminds us to actually present and assess the family members in Canada, where they have status and where they are of financial support to the Applicant’s proposed studies. If there is concerns that the Officer will speculate on this tie, it may be worthwhile to highlight Justice Shore’s reasoning.

In Gauthier v. Canada (Citizenship and Immigration), 2019 FC 1211 (CanLII), <http://canlii.ca/t/j2sgg>, Justice Shore again raises a strong argument that family ties are at the heart of individual lives, but that it is not enough to simply consider it a risk of an individual not leaving Canada.  In finding the refusal of a Haitian national applicant with a sister in Canada unreasonable, Justice Shore writes:

[18]  To arrive at his findings, the immigration officer was entitled to consider all of the factors—including family-related factors—that could prompt the applicant to stay or not to stay in Canada at the end of her study permit. Since family lies at the heart of our lives, it is an important element in the determination of place of residence. It was therefore reasonable for the immigration officer to consider the applicant’s family ties as a “pull factor”.

[19]  However, in conducting this analysis, the immigration officer placed an unreasonable emphasis on this personal factor. Admittedly, the evidence on the record shows that her sister is in Canada and is prepared to host her; however, it cannot be concluded that the applicant is necessarily at risk of not leaving Canada at the end of her study permit.

Finally, in Peiro v. Canada (Citizenship and Immigration), 2019 FC 1146 (CanLII), <http://canlii.ca/t/j2fsr>, Justice Manson examined a refusal where the Officer highlighted the Applicant’s brother, an international student in Canada, and determined it created strong family ties in Canada, even though the remainder of the family was Iran.

Justice Manson first sets out the arguments of the Applicant and Respondent (Minister) before assessing his position:

1.  Family Ties

[18]  Based on the record, the Applicant’s only family in Canada is his younger brother, who is currently an international student in Vancouver. The Applicant’s parents remain in Iran.

[19]  The Minister argues that the Applicant is a single adult male with no spouse or dependants in Iran, and the record states that the Applicant was responsible for caring for his brother in Canada. The record is silent on the Applicant’s brother’s permit status, but as he is an international student, his stay in Canada is temporary.

[20]  The Officer’s reasons with respect to family ties provide no reasonable basis for his position. While the officer mentioned family ties, he did not explain how the temporary presence of the Applicant’s brother in Vancouver would outweigh the Applicant’s family ties to Iran, which include his parents and family business which he intends on returning to after his studies.

Again this case suggests that parsing out as well who has status in what country in addition to simply indicating their names is important. I suggest letters of explanation and support where pertinent as well copies of identification (passport bio-data pages, and permits). One thing I have been doing more of is having the family members inside and outside Canada writing with assurances of compliance.

A recent case you will likely see the Minister rely on is the case of Hajiyeva v. Canada (Citizenship and Immigration), 2020 FC 71 (CanLII), <http://canlii.ca/t/j4vm2>

In the case of Ms. Hajiyeva, as is the case with many potential international students, she sought to come to Canada alongside her spouse and children.

Justice Diner writes:

[5]  Ms. Hajiyeva argues that the Officer ignored evidence, and failed to provide adequate reasons relying on Omijie v Canada (Citizenship and Immigration), 2018 FC 878, at para 26 [Omijie]. I find, however, that this case differs from Omijie. First, while the Applicant’s parents and brother would remain in Azerbaijan, her immediate family (husband and children) would join her in Canada; she indicated her husband would obtain a work permit and gain international work experience, and her children would attend school and be exposed to Canadian values. The Officer’s finding regarding her incentives to remain in Canada were reasonable. Here, the finding that her evidence and supporting documentation fell short of demonstrating that she would leave Canada at the end of her study period was open to the Officer.

In cases such as these, there may simply be no way to overcome the pure mathematics of the family members (and their closeness) vis-a-vis the plan and the country of origin. That being said, one might need to be a bit cautious in seemingly explaining the family’s plans to ‘settle’ in Canada (as workers and students) and how that may detract from both the study plan but also create the reasonableness of an intention to immigrate or stay permanently (especially if no dual intention is otherwise claimed).

Post-Script Note

I will be in Montreal from April 2nd to 4th including a panel on April 3rd on study permits.

See: http://cba.org/Immigration-Law-Conference/Agenda/5B

I look forward to seeing you there and dorking out on study permits.

A Second to Breathe – A Poem

First: A Catch-Up

In lieu of doing something substantive at this stage (check out my Twitter for that) I want to do a bit of a remedy piece. These past two months due to the changes at the Firm and the influx of work, I have been writing submission letters, memorandums of arguments, presentation, and papers, instead of blogs. I hope that when I head to Cuba in a week I can catch up a bit on my blog writing and as well when I am travelling most of March for conferences. 

This year I will be presenting at:

  • AMSSA (online) – 14 February 2020 on pathways to permanent residence for migrant workers;
  • Keynoting the 40th Annual Chinese Legal Community Banquet – 12 March 2020 (tentative date);
  • Metropolis Conference – Winnipeg – 19 March 2020 – 21 March 2020;
  • Cornell University – 23 March 2020;
  • Canadian Bar Association – National Immigration Conference – 2 April – 4 April 2020; and
  • Ottawa Immigration Conference – 7 May 2020;

I start teaching in UBC’s CILPP program at the end of March and again in June, am rebranding/building an immigration-specific legal clinic at LSLAP (ongoing). 

Did I mention my full case load as well?

To junior lawyers out there (as I slowly step out of my first five-years): don’t do this. Say yes, but don’t say too many yesses. As my mentor and now Justice Edelmann always told me: “operate at 80% capacity, as you never know when you will need that extra 20%.”

With all that said – time to engage in a little poetic break in this piece titled “A Second to Breathe”

A Second to Breathe

I need a second to breathe

I see these face masks, wondering whether it’s real or fake tasks

Too many asks, but not enough answers

Caught myself slipping at McDonalds with my poor manners

Impatient all the time, like getting rid of click-bait banners

Caught between five stars, and the star-spangled banner

I understand her, she’s wanting to make a move

What am I doing caught up dancing to my own groove

It behooves reality that the handcuffs are being applied so liberally

But not literally, only when there’s too much non-white colour in the vicinity

I’m confused by these pipelines, right after we say yes to undrip

It’s like saying don’t drink and drive, and justifying your two sips

Half these cats around me preparing for their next job to quit

Too many people hustling around carrying other people’s sh*t

How do I preach it’s about liberty or all about justice

When in reality, it’s always just about us and just his

How do I tell these students, not to worry when it’s just a quiz

When these laws get rewritten faster than the answers of a math whiz

I no longer know what’s reasonable, seemingly achievable

What rule of law means, when most the people are not regal

When whistleblowers get ignored, but they listen to those sounding their own begals;

When we feel like society’s seagulls all trying to be eagles;

What’s the meaning of my role in this process, I ask you;

Are we just here peddling in lives,

Or are all we making honey, in this mutually shared hive.

I’m sick and tired of wallpaper but that’s what I’ve become;

They got me thinking so individualistic, I forgot I was someone’s son

I forgot there’s a sun, been too much rain these days;

There’s so many routes, we forgot about pathways;

Damn, I need a second to breathe. Actually maybe a minute.

Cause this world has got my head spinning all up in it.

Forgiveness.

 

I promise to blog soon. Once I get through this home stretch. In February. I hope all of those currently going through a rough time are able to get ample rest this weekend. With all that’s happening in this world, we all need a getaway. I hope you find your own little piece, wherever that may be.

PEACE.

 

 

A Glass of Green Tea – A Poetic Narrative

A glass of green tea is a beautiful thing.

Greatly unappreciated – subsumed by the old, mashed up, fermented teas sold in these overly bright-coloured commercial shops that line my city;

A city that often makes one lose their identities;

I miss the young shoots standing upward in thrice filtered water;

Elegantly dancing as if in a well-rehearsed synchronized swimming routine;

Tender, slightly bitter – the memories of those lost days;

I can’t remember the year, but the tea was of that same age;

Hand-picked by a distant relative, shared in limited supply in carefully curated tin cans;

Gifted to me as a I returned back as a stranger to the town that carried my ancestral name;

The warmth of the glass, the hot steam fogging my glasses, liquid burning the roof of my mouth;

I remembered being surrounded by those who were supposedly my family;

Those I only met that day, previously unseen and foreign to my existence;

What brings two people together or a group from across oceans?;

To this table of dishes even more plentiful than the seats surrounding it;

The taste of stinky tofu fried, with simultaneous stench and savour;

Pickled vegetables from the months of painful potted preparation;

The meat fry, a tradition, for this time of year now the basis of a dish stewed and steamed;

The fish a staple, a bottle of local brand beer accompanying the lighter fluid, rice wine;

All around me kids, babies, a community, our town, my family;

Communal tables, low stools, barely inches up off the ground;

Fireworks the distance sounds, stray dogs, and motorbikes

Not colour but contour, roads surrounded by dikes.

I am not from here but part of me from a past was;

Now the product of fading five-second memories;

…..

Fast forward years later, what seems like a lifetime ago;

I had to go to work today, unlike Green Day – I was not on a holiday;

I see a lot of people who remind me of the cousins I feasted with;

Perhaps everybody is going for some sort of a feast tonight or at least have a bite of something that reminds them of who they are;

But they aren’t sharing their planned menus nor extending their invites. This seems like just a regular rainy day;

We all left our separate ways, barely even greeting each other in our own mother tongue;

I am at a table of four but today there’s only three;

Today I sit with a tea bag, lacking flavour. I ran out of the good stuff – it’s back to the bulk;

The tap water started out an unearthly nuclear green. But it has now been watered down by cup three;

I would be drinking a beer if anybody cared to ganbei;

I’m wondering why my culture has been watered down over time.

I’m wondering why I don’t have anyone to talk about this with;

I dream of that tea, that flavour, that depth;

Whether in another world I would be surrounded by elders;

By a heated coal fire, sharing stories of days past and ambitions for tomorrow;

Today I barely keep up with news present;

They fill our minds with our supposed backward practices;

They tell us we’re infectious and that we don’t belong in nice homes;

We walk zombie-like through these white corridors at work;

Pompous posturing in this supposed post-everything world;

For breakfast I had bland coffee and a bag of candy;

I can’t pretend this shit is all good and dandy;

When it’s through other people’s misdoings, that they shelf me and brand me;

Turned from fresh leaves into ground sand, into ground up orange pekoe;

An unnatural colour tainted like when vanilla hits your chai;

Perhaps I will return one day to the tea fields;

So I can pick the shoots myself and dance once again;

 

 

Post-Graduate Restoration Woes Continue – Ntamag and the Nookala R.182 IRPR Conundrum

PC: https://plugin-magazine.com/living/sonica-festival-of-transitory-art/

It has been awhile since I have written on post-graduate work permits and restoration but I feel inclined to do so as a result of a recent decision of the Federal Court in  Ntamag v. Canada (Immigration, Refugees and Citizenship) 2020 FC 40.

 

Ntamag and Chief Justice Gagné’s Decision

The facts are not too relevant in what I am about to assess. In short, Ms. Ntamag did not apply for a post-graduate work permit before her study permit expired on 30 November 2018. She only received confirmation of her completion of studies on 4 December 2018. She waited until 16 February 2019 to request that her status be changed to visitor. That visitor restoration was denied on the basis, among three other factors, that she did not accompany a post-graduate work permit application with the restoration application.

For a little background context (although Associate Chief Justice Gagné’s decision does not highlight this), IRCC put out a program delivery update on 14 February 2019 which extended the eligible period in which an Applicant can apply for a post-graduate work permit from 90 days to 180 days. This change also removed the requirement to actually hold a study permit while making a post-graduate work permit application. Furthermore, the provision was applied so that applications moving forward could benefit from the extended period of time.

What the Applicant was presumably trying to do was to restore their status to visitor in anticipation of later being able to make a post-graduate work permit application while a visitor. We have no information in this case about when the decision was made and whether the Applicant could have presumably restored her status to visitor before first before making another post-graduate work permit application. We do know that it appears the application was deficient of information to assess her restoration to visitor.

Perhaps what is more problematic is that as a consequence of the Applicant arguing for the restoration provisions in R. 182 IRPR having one broad (‘shall’) interpretation [see para 15 of decision] – Associate Chief Justice Gagné returns back to what has become a problematic tenant created by another Federal Court case Nookala v. Canada (Citizenship and Immigration), 2016 FC 1019 (CanLII), which she applies:

[18]  Ms. Ntamag also did not include any proof that she had applied to the PWGPP, nor does her Application mention any intention to do so. Yet, Ms. Ntamag was represented by counsel who was likely familiar with the IMM 5708 process for visa extensions and restoration of status. However, Ms. Ntamag has offered no explanation as to why she failed to include these two pieces of required information. She has also not submitted any evidence that she has applied for a PGWPP since February 2019.

[19]  Given that the application is missing several required elements, and that Ms. Ntamag has not explained these gaps in her materials, I find the Officer’s conclusions reasonable.

[20]  Second, I am also of the view that the officer did not err in his interpretation of section 182 of the Regulations. Subsection 220.1(1), which is referenced in Subsection 182(2), makes it clear that an Officer must not restore the status of temporary resident’s Study Permit if they are not currently enrolled at a designated learning institution or actively pursuing their course or program. As Ms. Ntamag was not in compliance with these conditions at the time of her Application, the Officer’s interpretation of Section 182 and its relevant provisions was reasonable.

[21]  One of the conditions imposed on a PGWPP applicant is that the application be sent before the expiry of the applicant’s Study Permit. As Ms. Ntamag did not meet that condition, she asked to be granted a Visitor permit to be valid until January 1st, 2021.

[22]  However, just as section 182 and the 90-day grace period that it provides do not apply to a former student seeking a PGWPP, they do not apply to a former student seeking to obtain a Visitor Permit. Ms. Ntamag could not simply rely on section 182 to obtain a different Temporary Residence status than the one she had held before she applied (Nookala v Canada (Minister of Citizenship and Immigration), 2016 FC 1019).

 

Analysis

It is unclear if the 14 February 2019 PDU was every put in front of the Court in this case as an argument. Had the Officer ignored this development and the intention created by IRCC to remove the requirement to hold a study permit (and allow the holding of a visitor record) at the time of application, perhaps the reasonableness of the decision would have been put in question.

This decision also re-highlights a fundamental disconnection between the wording of R.182 IRPR and the application in practice that it has taken through policy instruments and other processes.

R. 182 IRPR states as follows:

Restoration of Temporary Resident Status

Restoration

  •  (1) On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay, has not failed to comply with any other conditions imposed and is not the subject of a declaration made under subsection 22.1(1) of the Act.

What does that ‘restore that status’ ultimately mean?

IRCC has provided up instructions, that as counsel for Nookala highlighted in their post-case submissions [see para 24 of that decision] asks officers to look at restoration not through a backward lens of restoring an individual to the status they held but rather to a status they are able to meet, if they still meet the initial requirements of their stay.

Eligibility requirements for restoration of status

Applicant requirements

The applicant must

  • apply within 90 days of having lost their status;

  • meet the initial requirements for their stay;

  • have not failed to comply with any other condition (e.g., working without being authorized to do so);

  • meet the requirements of the class under which they are currently applying to be restored as a temporary resident.

  • have lost their status because they have failed to comply with any of the following conditions:

    • Paragraph R185(a)The period authorized for their stay.

    • Subparagraphs R185(b)(i) to (iii)The work that they are permitted to engage in, or are prohibited from engaging in, in Canada, including the

      • type of work,
      • employer, and
      • location of work.
    • Paragraph R185(c)The studies that they are permitted to engage in, or are prohibited from engaging in, in Canada, including the

      • type of studies or course,

      • educational institution,

      • location of the studies, and

      • times and periods of the studies.

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/visitors/restoration-status.html 

When IRCC’s own policies are asking Officers not to be too literal, the Court is still returning to the legal provision and taking a literal interpretation.

As Nookala’s counsel provided, IRCC’s instructions (still up four years later) suggest:

The phrase “initial requirements for their stay” should not be read too literally when it is being applied in the context of a restoration application, and the requirements of section R179 should not be applied rigidly in that regard. The preferred interpretation in this context would be that the person seeking restoration must meet the requirements of the class under which they are currently applying to be restored as a temporary resident. The desired approach to the restoration provision of section R182 is to be facilitative and consistent with the current approach to extension applications of the provision in section R181, since the two provisions are similar in nature and section R181 actually refers specifically to the requirements of section R179.

See: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/visitors/restoration-status.html 

Incompatibility with Current Practices

IRCC’s current recommendation on restoring post-graduate work permits is actually the very process Justice Mactavish found problematic in Nookala. As per, this Immreps response below, a transitory restoration to student is now the preferred process:

Last year, while this process was unclear I was successful in restoring someone via a transitory visitor status doing the same thing that the Court in Ntamag found problematic except for the fact I attached a post-graduate work permit application. That cannot be, however, the principled difference – especially if the Applicant has 180 days rather than 90 days from completion of studies and could arguably complete both a restoration to visitor and make a new post-graduate work permit application within the applicable period [subject to R.199 IRPR].

This cases also raises questions about IRCC’s many other programs that operate on a model where restoration to a status not held is a basic tenant. For example, spouses who have lost status but are applying for Inland Sponsorship are able to restore their status to work permit holder. We frequently assist out of status workers who no longer have an employer/arrangement in Canada to restore their status as a visitor while awaiting a new employment opportunity.

It is important to note that while the case law so far has been negative (particularly of late) on the PGWP matter, I would suggest that many cases have not yet seen (and may never see) the light of day. I still believe in some of these cases pursuing either settlement with Department of Justice or reconsideration options might seek remedies better than having the Court need to reconcile two presently irreconcilable provisions.

That being said, if Justice Gagné and the Nookala impossibility of restoring to a transitory status is continued, all of IRCC’s guidance on restoration through a transitory study permit status and the regulatory changes that allow an individual not holding a valid study permit to apply for a PGWP, are rendered irrelevant in the context of restoration.

 

Conclusion

I believe that for the interest of fairness and to reflect practice, restoration should be given a broader interpretation than that meaning one can only restore to a status held. It should be forward looking.

I think IRCC should urgently clarify instructions for Post-Graduate Work Permit restorations (something they should have done years ago) and then hopefully lawmakers can amend the R.182 language to clarify that the restoration of these statuses is a forward (not backward) looking endeavour.