Category Archives: Canadian Immigration Law Blog

Why Canada’s Punishment for Inadmissibility for Misrepresentation Needs to Be Both Tougher and Softer

Within the realm of Canadian criminal law there is a fundamental principle that the punishment should be proportional to the crime an individual convicted of. Under Section 718.1 of the Canadian Criminal Code it is written as follows:

Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

There are are also various sentencing principles meant to guide the discretion of decision-makers to ensure that the sentences are properly set down. These include factors such as potential rehabilitation and whether the punitive and societal aims of the proposed sentence are met.

During the previous government’s tough on crime focus, this led to the introduction of the Faster Removal of Foreign Criminals Act (FRFCA) which clearly was introduced with deterrence in mind when it came to punishing foreign nationals and permanent residents for misrepresentation. In my assessment, I believe that not enough attention was paid to the overall requirement of proportionality.

The Regulatory Impact Assessment Statement issued in support of regulatory changes states (my emphasis added):

1. Misrepresentation

An examination of the effectiveness of the IRPA’s current misrepresentation provision — that is, the two-year period of inadmissibility that bans a foreign national from entering or remaining in Canada because of directly or indirectly misrepresenting or withholding material facts that cause an error in the administration of the IRPA — determined that it is not sufficient to deter fraudulent applications, particularly for permanent resident applicants, as processing times in this stream can be in excess of two years. In those cases, permanent resident applicants who have been found to have provided false information can simply reapply almost immediately and wait in the processing queue for the two-year inadmissibility period to be completed. In practice, there is little or no consequence for these applicants.

Increase consequences for misrepresentation

Amendments to existing regulatory provisions related to misrepresentation would support legislative changes that provide a stronger disincentive for applicants to provide fraudulent information on their immigration applications. The changes would also help ensure that the processing of legitimate applications is not delayed by fraudulent permanent resident applicants who reapply and wait out their period of inadmissibility in the processing queue.

In addition, the increased consequences for misrepresentation would make Canada less vulnerable to immigration fraud by bringing consequences in line with Canada’s like-minded international partners. A stronger deterrent for misrepresentation would benefit Canadians by ensuring travellers and immigrants admitted to Canada meet the criteria established to support Canadian immigration objectives, and would increase public confidence in and support for Canada’s immigration program.

The two-year penalty is shorter than those imposed by Canada’s like-minded international partners, which makes the Canadian immigration system more vulnerable to abuse. Other countries appear to have more severe penalties, for example:

  • Australia: three-year ban on visas where false or misleading information is provided;

  • United Kingdom: 1-, 5-, or 10-year ban on re-entry (length of ban depends on severity of false representation); and

  • United States: lifetime inadmissibility (i.e. ban on entry) for visa fraud or misrepresentation.


I think one of the challenges is equating all of those caught under s.40 IRPA misrepresentation with fraudulent permanent resident applicants. There may be (and I have seen many) individuals who made genuine mistakes in misrepresenting themselves (or hiring the wrong person who misrepresented for them), when in fact they often had recourse to other routes such as their bona fide permanent resident applications.

Essentially, what you have amounts to a very broad provision under the immigration inadmissibility for misrepresentation (s.40 of IRPA) [separate from the immigration offense of misrepresentation under s.127 IRPA] which can cover several non men reus incidents such as unknowingly withholding material evidence or having a third party indirectly misrepresent on behalf of an unknowing applicant who has paid for the services.

In an overseas foreign national applicant’s situation, they can be issued a five-year ban in writing. This takes places, a majority of the time, after a procedural fairness letter is issued giving them the opportunity to make representations and supplements the refusal letter

In an inland situation, a foreign national applicant is written up for misrepresentation and referred to the Immigration Division who are usually bound to enforce the order. The first stage of this reporting process takes place at the Port of Entry or with the help of Inland Enforcement as coordinated by Canada Border Services Agency (“CBSA”).

Generally speaking CBSA is bound to pursue the misrepresentation allegation, but I have been successful in a few occasions to have them “commuted” (so to speak) to lesser non-compliance findings that can carry a one-year exclusion order. I strongly agree with this practice, but again I think without anything written down on paper to support it, it becomes a remedy that is difficult to ultimately rely on or seek – Good in effect, but not effective in law.

The Consequences of Misrepresentation are Heavy

As per A40(2) and (3) of IRPA, the inadmissibility period is five years. The FRFCA announcement added a five-year bar to applying for permanent residency.

Currently, there is a lack of clarity on whether IRCC has the discretion to ARC back a misrepresentation client as a permanent resident or only as a temporary resident. I have heard from various individuals in private practice that this is done but ultimately with some inconsistency.

I am currently in the process (by ATIP and coordination with various Immigration, Refugees and Citizenship Canada (“IRCC”) Offices/Officers to seek some clarity).  I believe there is some incongruity to allowing the ARC back of a temporary resident (a visitor or worker with a bona fide purpose), but not a permanent resident who may have been part of a genuine relationship unrelated to the misrepresentation.

I will not get to it in this piece, but there are also quasi-criminal, regulatory, and criminal punishments for misrepresentation that could render an individual inadmissible to Canada for criminality in addition to misrepresentation.


Why I like the U.K.- style Approach Better to Misrepresentation

I think applying a five-year inadmissibility and five-year bar on PR for misrepresentation is both too light and too heavy, all at the same time.

I am in favour of strict punishment of mens reus perpetrators of misrepresentation. Those that purposely committed or instructed the commission of fraud in order to seek entry or status in Canada. Individuals who are part of larger efforts to defraud fellow immigrants (in addition to being punished regulatory wise) should face the highest form of punishment.

However, there are simply too many cases where it really is the unfortunate promise of a purported “trusted immigration representative” or even cases of ignorance, albeit willful blindness, of Canadian law. I believe CBSA should have some legal recourse, written in legislation, to provide these individuals with a two-year bars or even a five-year inadmissibility period, but a waiver of the five-year PR bar.

I think the way to handle the issue of “discretion” is to make is clear that the Immigration Division/Visa Officer/Immigration Appeal Division’s decision is not subject to appeal in the case of a foreign national and that they have a broad ability to determine the reasonableness of the ban.

How would I re-write A.40(2) and (3) 

Disclaimer: this is not the law and merely my legislative rewriting for the purposes of this piece. Changes in italics.

  • Application

    (2) The following provisions govern subsection (1):

    • (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of between two and ten years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced. The sole discretion in determining the length of misrepresentation will fall to the Immigration Division or an overseas visa officer, in the case of a foreign national, or the Immigration Appeal Division, in the case of a permanent resident, and is not subject to the right of appeal.

    • (b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility.

  • Marginal note:Inadmissible

    (3) A foreign national who is inadmissible under this section may not apply for permanent resident status during the period referred to in paragraph (2)(a), subject to the discretion of the Immigration Division, in the case of a foreign national, or the Immigration Appeal Division, in the case of a permanent resident, to waive the requirement due to the Applicant’s mitigating factors.

  • (a) Mitigating factors can include, but are limited to:
    • (i) demonstrable evidence of the Applicant’s remorse;
    • (ii) demonstralve evidence of the Applicant’s efforts to come forward proactively with their misrepresentation;
    • (iv) demonstrable evidence that the Applicant has rehabilited themselves of the factors that have caused the misrepresentation and will not commit future misrepresentations; and
    • (v) demonstrable evidence that the Applicant’s misrepresentation is not related to the grounds by which they end to 
  • (b) The decision of whether to add section (3) as a term of the period of inadmissibility under section 3(a) will fall to the Immigration Division or an overseas visa officer,in the case of a foreign national, or the Immigration Appeal Division, in the case of a permanent resident, and is not subject to the right of appeal.

I think such a system would create a much more rehabilitative process for those who have made mistakes and are willing to correct them, yet at the same time can be used to punish those who have committed egregious misrepresentations.

What are your thoughts on this? Do you agree or do you like the one-size fits all, easy come easy go approach, that is currently written in law?

Responding to IRCC Procedural Fairness Letters – A Few Practical Tips


For many individuals making Canadian immigration applications, the receipt of a letter from Immigration, Refugees and Citizenship Canada (“IRCC”) highlighting the insufficiency of the evidence provided or the potential allegation or misrepresentation is a very stressful moment.

For those that have received these letters, particularly applicants that are self-represented or sought the advice from a representative that “kept them in the dark” on their applications, this is often where hiring an immigration lawyer starts becoming a major consideration.

Especially in cases of misrepresentation, where the consequences of a five-year bar are so serious and the definition of misrepresentation so broad, this is where the response has to be timed very carefully, and I dare say it, near perfectly.

Before reading my piece, I would highly recommend pre-reading a few pieces from my senior colleague Steven Meurrens (here – on responding to procedural fairness) and (here – on extrinsic evidence). Steven does a very good job of highlighting the key principles taken from Federal Court jurisprudence.He is indeed a master of administrative law.

Some of Steven’s highlighted principles include:

  • the requirement that the Applicant knows the “case to be met” and that the Applicant has the opportunity to respond to extrinsic (i.e. third party) evidence;
  • that there are exceptions to the classification of extrinsic evidence, especially where the Applicant ought to have know that material would be consulted (i.e. company website); and
  • the idea that a procedural fairness letter cannot “bait and switch” – allege a set of allegations and concerns and then refuse on allegations that were not put forth to you; and
  • that if you would like to provide further information (that is pending) you will need to indicate this in your procedural fairness response.

I wanted to add to (supplement) Steven’s work a practical step-by-step analysis of how I breakdown a procedural fairness letter. DISCLAIMER: As with any example, it is not to be treated as overall legal advice. It is not also to suggest that I recommend going at it alone based on my experiences. What I want to do is to encourage a deeper level of thought before the immediate impulse to send back a response the next day stating “it wasn’t my fault for the mistake, it was the consultants” or writing a letter to immigration pleading them to give you leniency. I see these responses too often and often cringe when it is far too late for us to do anything about it (word of truth: there is often a point of no return).

In this piece, I will focus on a situation where an applicant is refused in the context of an economic immigration application (i.e. CEC) but I would suggest these principles are broadly applicable. I also note that much of the case law and jurisprudence, predated Express Entry which has very sped up the process of adjudicating applications. I will not get into the whole discussion of incomplete applications (subject of another post) in favour of discussing solely concerns over the merits and credibility of an Applicant’s application.

My Usual Process

1.Setting out Perimeters Prior to Submission of Application

My recommendations do not start with just the letter itself. Before submitting any application, it is wise to be aware that a procedural fairness letter or a request for further information is very common and more common in complex cases where the facts are messy.

For self-reps, this involves keeping a very good record of all documentation submitted. Scanning copies of all files prior to submission and keeping a running tally of issues you are concerned of can help prepare for the response.

If you are represented by a legal advisor, I stress this time and time again in my posts that you not should have but must demand access to all the materials submitted. I would set guidelines with my advisor to make sure anything submitted in final form is reviewed before it is submitted. You can also tell this advisor that you are aware of the procedural fairness letter process, that you are aware of the process of utilizing Access to Information to obtain a full copy of your file, and that you would appreciate timely passing on of all correspondence in original form. If you do not speak English, find a translator or interpreter to work on your side.  You can even use this opportunity to gauge the understanding of your representative of this process and their experiences. A lack of knowledge of these should be an immediate red flag. Make sure to retain your own copy of your immigration file and keep it in an accessible place. I recommend physical scanned copies too as forms often will revalidate or adjust and eventually serve as proof of anything other than an editable form.

I have heard too many horror stories of unlicensed consultants withholding misrepresentation refusal letters or putting in additional documents not at the request of the Applicant. These practices could have a devastating impact on your future application.

2. Studying and Breaking Down the Procedural Fairness Letter

The format of these letters usually follows a set pattern

  • The first paragraph or two paragraphs will be rather template language, alleging that you do not meet certain requirements of the Act on the basis of what you have submitted;

Procedural Fairness letter

  • The next few lines will (ideally) set out the specific nature of the allegation. Note that IRCC is not under the obligation to disclose entire transcripts of telephone verification calls or active investigations. The amount of negative evidence disclosed and the source of that evidence should be documented at this stage. IRCC has the duty of procedural fairness with respect to procedural fairness letters and content. Rather than try and explain it, I want to highlight a good summary found in Federal Court jurisprudence. In introducing the law of procedural fairness, Justice de Montigny writes in Chawla v. Canada (Minister of Citizenship and Immigration) 2014 FC 434:

14 It is well established that procedural fairness requires that applicants for permanent residence be provided a meaningful opportunity to respond to perceived material inconsistencies or credibility concerns with respect to their files: Qin v. Canada (Minister of Citizenship and Immigration), 2013 FC 147 at para 38, Abdi v. Canada (Attorney General), 2012 FC 642 at para 21; Zaib v. Canada (Minister of Citizenship and Immigration), 2010 FC 769 at para 17; Baybazarov v. Canada (Minister of Citizenship and Immigration), 2010 FC 665 at para 17; Hussaini v. Canada (Minsiter of Citizenship and Immigration), 2013 FC 289 at para 5 [Hussaini]). This entails that an officer’s reliance on extrinsic evidence without allowing an applicant the opportunity to know and reply to that evidence amounts to procedural unfairness: Amin v. Canada (Minister of Citizenship and Immigration) 2013 FC 206.

  1. Indeed, the Respondent’s own guidelines provide as follows concerning extrinsic evidence:

The applicant must be made aware of the “case to be met”, i.e., the information known by the officer must be made available to the applicant prior to the decision being made. For example, if an officer relies on extrinsic evidence (i.e., evidence received from sources other than the applicant), they must give the applicant an opportunity to respond to such evidence

Overseas Processing Manual, Chapter OP-1: Procedures, s.8 “Procedural Fairness”

  • If misrepresentation is a possibility this likely will be drawn into the language of the procedural fairness letter.

Procedural Fairness letter 2

The importance for IRCC of introducing this potential allegation, is that it can cover off potential credibility concerns. If no misrepresentation is alleged at this stage (in content), then it is likely an issue with sufficiency of evidence. However, my experience is that they will do both in most cases.

3. Performing a Background Review

One of the first things to do is order an Access to Information request for the full physical and electronic notes on file. My colleague out in Alberta, Immigration Lawyer Mark Holthe, has put together a good guide on this.

Generally, clients will retain us to go through their previous submission and as well the Electronics notes of the Officer to better understand the discrepancies. The Access to Information process can take 30 days or longer so at this stage you also want to determine when and how you can ask for an extension of time to file a response.

Generally, IRCC is pretty good about giving decent extensions (as this is an important part of procedural fairness). Do not be afraid to ask and certainly do not think that you responding on day 1 vs. day 30 will impact the success rate. While, it may speed up the processing to respond quickly, it could also very well speed up the refusal process.

At this stage, the material and notes you saved from your earlier work will be also very useful.

4. Determining the scope of allegations – insufficiency of evidence, credibility, or both

Start by determining what the alleged concerns are with respect to. In some cases, it may be that the application is insufficient due to documentary evidence. In this case, your goal is to supplement the material. In some cases, there will be credibility concerns over whether you indeed performed the tasks you have stated in an employer reference letter. In those cases, you will need to provide proof by way of additional positive support. In many cases, it is actually your mistake (administrative error, forgetfulness) that has triggered a procedural fairness letter. I like to start by laying out all of the Officer’s concerns and coding them accordingly. Many times they will be lumped into a longer paragraph in a refusal letter so it is important to read over the middle sections of these letters a few times.

5. Corroborating positive evidence and explaining deficiencies

The final step is determining who will be providing support and in what means. In the case of a negative employer verification call, you may need to go to the source for clarification and to seek a rescinded letter of support. You may contact work colleagues or other individuals (customers, partners) with knowledge of your situation. You may want to show proof of projects you were involved with or duties you performed by way of photo evidence. You may have evidence that was not initially submitted that would make a huge difference at this stage.

6. Possibly seeking legal counsel

At this stage, it may be useful to start engaging a lawyer to set out the appropriate legal framework. This is particularly true if the procedural fairness letter leaves something to be desired or appears to be a “bait and switch.” If you do not know the case to be met, you need to indicate this in your response letter and ask for additional procedural fairness. Here, a lawyer can assist in setting out parallel cases and drawing relevant legal principles (such as those Steven epoused in his blog posts)

I Received a Refusal … What next

For an applicant for permanent residence, there is no right to an appeal provided under IRPA or IRPR. The decision at this stage is between the following:

  1. Seek Reconsideration;
  2. Seek judicial review
  3. Seek a new application

On point 3, there obviously has to be a consideration of current eligibility. For many applicants, the processing time renders them no longer eligible (although with the new Express Entry system) this has somewhat changed.

Individuals (and representative’s) have different opinions on this but I like to pursue reconsideration only when there appears to have been a clear or relatively apparent communication error made by IRCC or made as a result of an IRCC request.

While specific to the H&C context I have used the below guidance when seeking reconsideration and was successful on several occasions.

Factors to consider when deciding whether to reconsider:

You must first determine whether a reconsideration of a previous H&C decision is warranted based on the information submitted. The onus is on the applicant to satisfy the officer that the reconsideration should be done. You should consider all relevant factors and circumstances to determine whether a case merits reconsideration. The following is a non-exhaustive list of factors that may be relevant to consider:

  • Whether the decision-maker failed to comply with the principles of natural justice or procedural fairness when the decision was made.
  • Whether the applicant has requested correction of a clerical or other error (e.g. a decision was made by an officer who did not have the delegated authority).
  • If new evidence is submitted by an applicant, is the evidence based on new facts (i.e. facts that arose after the original decision was made and communicated to the applicant) and is it material and reliable. Decide whether that evidence would be more appropriately considered in the context of a new application.
  • When additional evidence is presented that was available at the time of the original decision, consider why it was not submitted at the time of the original application. Determine whether that evidence is material and reliable.
  • The passage of time between the date of the original decision and the date of the reconsideration.
  • Whether there were any concerns regarding fraud or misrepresentation relating to a material fact, in the original decision or with the new submissions.
  • If there is a negative decision from the Federal Court after judicial review, you may refuse to re-open if there are no extenuating factors to warrant reconsideration.

I also very much like Justice Phelan’s analysis in Lim v. Canada 2016 FC 217 (see esp. paras 21-24) and try and fit it in wherever possible. As I have written previously as part of a successful reconsideration submission:

Justice Phelan

Judicial Review

Where I have been able to successfully challenge several refusals of PR applications is on judicial review.

My practice involves, as discussed above, looking closely at the Rule 9 Reasons and ATIP results to breakdown the Officer’s reasoning.

One of my favourite legal cases to cite is an old case, Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) 1998 8667 (FC), (1998), 157 F.T.R. 35. The principle that while not

¶ 16       On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.

¶ 17       However, the more important the evidence that is not mentioned specifically and analyzed in the agency’s reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact “without regard to the evidence”: Bains v. Canada (Minister of Employment and Immigration) reflex, (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency’s finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.

Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration) 1998 8667 FC at paras 16-17.

Your case may be one where the Officer has made an unreasonable decision by not weighing or balancing evidence that was positive and focusing only on small non-material details. These omissions are very crucial to challenging the overall reasonableness of the decision against the broad Dunsmuir threshold.

When an application is refused on the merits, there is generally no obligation to provide a running score. If the concerns rise from the Act or Regulations, you do not need to be given another opportunity to respond.

As per Justice O’Keefe in Vikas v. Canada (Citizenship and Immigration), 2009 FC 207 (CanLII)

[18]           First, the officer was not under any obligation to provide the applicant with a “running score” at each step or to stress all of her concerns which arose directly from the Act and Regulations that bind the officer’s assessment: Abanzukwe v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1181 at paragraph 11; Ali v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 7681 (FC), [1998] F.C.J. No. 468 at paragraphs 18 to 21; Ashghar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1091 at paragraph 21. The cases cited by the applicant are not applicable because they relate to concerns arising from extrinsic evidence, rather than the Act and Regulations.

However, if they do refuse you on the merits some assessment of the reasons for your refusal on the merits must be presented:

In the recent case of Singh v. Canada 2017 FC 132 argued by my mentor Raj Sharma, this was not done. In Singh, the officer had concerned about Mr. Singh’s qualifying work experience for the Federal Skilled Worker program. In response to the procedural fairness letter, the Applicant corrected his record relating to previously undisclosed work and provided substantial corroborating evidence. Justice Barnes found that the officer’s decision was unreasonable (emphasis added):

[8] Mr. Sharma contends that the Officer paid lip service to Mr. Singh’s response to the procedural fairness letter and that he failed to engage in a meaningful way with the evidence supporting his employment with M. Singh & Co. I agree with that submission. The Officer’s failure to refer to this evidence or to explain why it was insufficient to overcome the initial concern about Mr. Singh’s work experience renders the decision unreasonable.

[9] On its face, the evidence supplied by Mr. Singh was probative and corroborative of Mr. Singh’s declaration of prior work experience with M. Singh & Co. The evidence included a copy of the relevant employment contract, numerous pay stubs, the professional status of the firm, and, under company seal, Indian income tax records. These were the very things the Officer had requested to address his initial concern, and yet Mr. Singh was left to wonder why they were rejected as unreliable. Indeed, these documents carried all of the expected indicia of reliability and, therefore, required careful consideration.

[10] The Officer’s lingering concern about an overlap between Mr. Singh’s accounting studies and his employment was also misplaced. If the Officer had taken care to examine the relevant records, he could only have concluded that Mr. Singh’s accreditation studies required corresponding internship employment. The fact that he was studying and working at the same time was not suspicious – it was expected.

[11] The Officer’s failure to engage with the evidence presented in support of the application before him is fatal to the decision and the decision is, accordingly, set aside. The matter is to be redetermined on the merits by a different decision-maker.

 Singh v. Canada 2017 FC 132

In terms of procedural fairness, you want to make sure that any credibility finding or misrepresentation finding was put to you before a decision to refuse was made. There is good case law on situations where Employers or former employees (by way of extrinsic evidence) gave negative testimony and that the recantations or evidence provided in response by the Applicant needs to be examined. In order to determine that the Applicant had lied, there needs to be proof on the balance of probabilities suggesting that this occurred.

Note, however, that there is no automatic right to an interview by a visa officer. These interviews arise on the merit. As restated by Justice de Montigny in Chawla:

[21]           There is one further argument made by the Applicants that needs to be addressed. Counsel for the Applicants submitted that the Officer should have interviewed the principal Applicant regarding the credibility concerns after his telephone conversation with Mr. Naresh. There is no right to an interview in such circumstances, and the case law cited by the Applicants in support of their proposition goes no further than indicating that such a duty may arise where the credibility, accuracy or genuine nature of the information submitted by an applicant is the basis of a visa officer’s concern: see Ismailzada v Canada (Minister of Citizenship and Immigration), 2013 FC 67 (CanLII) at para 20, citing Hassani v Canada (Minister of Citizenship and Immigration), 2006 FC 1283 (CanLII) at para 24. The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways, in different situations. As long as an applicant is provided with an opportunity to respond and present his or her submissions, natural justice will be respected: Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 at para 33.


This is (as my post probably outlined) a very complex and often convoluted area of the law. Making sure initial applications are “judicial review proof” and pre-addressing any gaping holes is by far, the best strategy. Leaving a deficient application in the hands of an Officer can often take more work fixing than it originally would have taken to prepare a strong application in the first place.

I cannot emphasize enough that all Applicants (self-represented or represented) can no longer simply submit forms (or fill out the online eAPR form as it may be) and expect everything to explain itself. There are letters of explanation sections to Express Entry applications for a reason. Representative submission letters or covering letters explain for a reason. No Applicant or Application is ever perfect and the balance of probabilities, more often than not, turns on putting the proper preparation and time into the process and massaging imperfect facts into reasonable explanations.

New Can/Xun (Sunny) Wang and the Citizenship Revocation Process

The latest numbers show that Canada Border Services Agency (“CBSA”) is moving on the Xun “Sunny” Wang files. To date,  there have been 1632 Suspected New Can Clients and 503 Pending Investigations. The number of new cases has decreased and it is not expected that the total number will top 2500.

What is interesting now is the 219 citizenship revocation cases that CBSA has referred to Immigration, Refugees and Citizenship Canada (“IRCC”). IRCC is responsible for taking action on those files that they wish to pursue by initiating the citizenship revocation process. This is not in any ways unique, Similar citizenship frauds led to similar citizenship revocation proceedings in Eastern Canada in the past several years.

How the Revocation Process Works For These Types of Cases

Under the Citizenship Act, an individual can have their citizenship revoked for fraud, false representation, and knowingly concealing material circumstances:

Revocation by Minister — fraud, false representation, etc.
  •  (1) Subject to subsection 10.1(1), the Minister may revoke a person’s citizenship or renunciation of citizenship if the Minister is satisfied on a balance of probabilities that the person has obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances.

Worse yet, in the case for many of the 219 New Can/Xun “Sunny” Wang clients who fall under the fake employment to achieve PR category, if the false representation, fraud, or knowingly concealing material circumstances occurred in the context of obtaining permanent residence, the individual could fall under section 10.2 of the Citizenship Act. Under this section, the revocation proceedings could revert their status to foreign national.


 For the purposes of subsections 10(1) and 10.1(1), a person has obtained or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances if the person became a permanent resident, within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, by false representation or fraud or by knowingly concealing material circumstances and, because of having acquired that status, the person subsequently obtained or resumed citizenship.

  • 2014, c. 22, s. 8.
Marginal note:Effect of revocation

 A person whose citizenship is revoked under subsection 10(2) or paragraph 10.1(3)(b) becomes a foreign national within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.

  • 2014, c. 22, s. 8.

At that stage, s.40 (of the Immigration and Refugee Protections Act [IRPA]) misrepresentation could be initiated, for which a foreign national would have no right of appeal to the Immigration Appeal Division pursuant to s.64 and s.65 IRPA. Misrepresentation, if confirmed by the Immigration Division, would then lead to an exclusion and a five-year bar on entry and re-applying for permanent residence. Dependent family members (sponsored by the misrepresenting party) would also be caught by that provision rendering them inadmissible as well.

Expect Some Delay in these Cases

Putting my predictive lens on, I think that there will be some delay in IRCC pursuing those 219 cases. Currently, there is class-action litigation being launched by Lorne Waldman, BCCLA, et. al to challenge the constitutionality of the citizenship revocation process under the Strengthening Canadian Citizenship Act that was introduced under the Conservative government. Cases that are added to that class action litigation are being stayed by the Federal Court pending resolution of the legal questions. These questions, focused on claims that the revocation process violates s.7 of the Charter, will likely go up to the Supreme Court, it could be several years before those cases are finally decided.

Specifically, the revocation process is being challenged as summarized in Monla v. Canada (Citizenship and Immigration), 2016 FC 44 (CanLII) by Justice Zinn:

[79]           In each of the Initial Revocation Judicial Review Applications, it is alleged that the revocation procedure provided for in the Amended Act violates the rights to liberty and security of the person in section 7 of the Charter, and the right to a fair hearing under paragraph 2(e) of the Bill of Rights.  These claims are premised on the fact that the citizenship revocation process under the Amended Act does not require that the Minister to disclose to the affected person all relevant information in his possession, does not provide the affected person with a hearing before an independent and impartial decision-maker, and does not guarantee an oral hearing in all circumstances where it is required.

It is important to note that the Government did not amend the revocation process in Bill C-6, and I do not think that new government legislation changing the Citizenship revocation process is likely.

As it currently stands, those individuals if issued revocation intention notices by the Government would likely join in on the class-action litigation.

Pursuant to the Monla stay order, any case added to the class action will result in the Minister being enjoined from taking steps to act on notices to revoke Citizenship.  This is set out in British Columbia Civil Liberties Association v. Canada (Citizenship and Immigration), 2016 FC 1223 (CanLII).

[5]               By Order dated January 19, 2016 [the Monla Stay Order], the Court enjoined the Minister from taking any steps or proceedings under the notice to revoke citizenship in eight specific applications for leave and judicial review until they are finally determined.

[6]               Following a case-management conference held February 5, 2016, with respect to the Group 2 Revocation Judicial Review Applications, the Court issued an Order dated February 23, 2016, that effectively enjoined the Minister from taking any steps to act on any future notices to revoke citizenship provided the affected person brought an application for judicial review of that decision [the Case-management Order].  Paragraph 3 of the Case-management Order provided as follows:

The Minister shall take no steps or proceedings under a notice to revoke Canadian citizenship issued under the Citizenship Act as amended by the Strengthening Canadian Citizenship Act relating to an application for judicial review that is now or in the future included in the Group 2 Revocation Judicial Review Applications, until notice is provided to the applicant and the Common Legal Issues have been litigated on the basis of the Lead Cases have been finally determined.

However, failure to join the class action case can be detrimental to an Applicant who seeks to make similar arguments (abuse of process, s.7 Charter) at this stage.

In Chabanov v. Canada (Citizenship and Immigration), 2017 FC 73 (CanLII), Justice Strickland upheld the Minister’s decision to revoke the citizenship of an individual who was found to have obtained permanent residence status, and subsequently Canadian citizenship, by false representation, fraud, or by knowingly concealing material circumstances. In Chabanov, the Applicant did not declare a previous criminal record when applying for permanent residence of his dependent spouse, the principal applicant.

Justice Strickland set out early in his observation the following:

Preliminary Observation

[28]           In other, unrelated proceedings, the Revised Citizenship Act revocation process has been challenged on a number of grounds, including that it violates the Canadian Charter of Rights and Freedoms (“Charter”).  Eight of those challenges were heard together in Abdulla Ahmad Hassouna v Minister of Citizenship and Immigration (T-1584-15) on November 15, 2016, however, a decision has not yet been rendered in that matter.  In view of the challenges, this Court has also been proactively case managing applications for judicial review commenced by applicants who have received notices of intent to revoke citizenship under the Revised Citizenship Act, including the issuance of stays in certain circumstances.  In this case, citizenship was revoked pursuant to the procedure contained in the Revised Citizenship Act and prior to the filing of the application to review the revocation decision.  As the Applicant in this matter did not seek a stay, the matter proceeded (Monla v Canada (Citizenship and Immigration), 2016 FC 44 (CanLII); British Columbia Civil Liberties Association v Canada (Citizenship and Immigration), 2016 FC 1223 (CanLII)).

It is important to note however that in the same British Columbia Civil Liberties Association v Canada (Citizenship and Immigration), 2016 FC 1223 (CanLII)) that I cited from earlier above, Justice Zinn refused to issue an interlocutory Order staying the operation of subsection 10(1) of the Citizenship Act. The BCCLA had sought this order for the purposes of assisting those who had received a notice of intent to revoke citizenship and who did not commence an application for judicial review “either because they lack the knowledge, resources or skills needed to retain counsel.”

The order was barred in large part it appears from the fact the stay in Monla granted a way to avoid harm. Irreparable Harm is part of the tripartite test for a Stay.

Justice Zinn wrote:

[25]           Because the harm that may follow receipt of a Notice of Intent to Revoke Citizenship is now an avoidable harm, injunctive relief is not available and these motions must be dismissed.

Justice Martineau upheld a similar line of reasoning in a recent November 2016 decision in Al Madani v. Canada (Immigration, Refugees, and Citizenship), 2016 FC 1263 (CanLII)  where he dismissed a stay.

Ultimately, in the New Can group of cases should be prepared to receive IRCC’s  notice of intention to revoke and add themselves to the list of those cases where stays are being sought.

It does seem nonsensical, from a practitioners standpoint, that an individual who misrepresented and obtained permanent residence but not citizenship (who has the right to appeal on H&Cs) has more procedural rights than an individual who misrepresented, obtained permanent residence, and then applied and was granted citizenship who can become a foreign national simply by Ministerial action.

The Question of Intent in the Context of s.10(1) of the Citizenship Act

What will be interesting, irregardless of the outcomes in the class action suits, is how the Federal Court continues to assess the question of “intent” in the context of misrepresentation for Citizenship Applications.

This was one of the important findings by Justice Strickland in Canada (Citizenship and Immigration) v. Zakaria, 2014 FC 864 (CanLII) where a summary judgment motion was brought by the defendant seeking to dismiss the revocation action against two dependent children who argued that there was no arguable case against them. Justice Strickland dismissed the motion.

I strongly recommend reading this case, particularly paragraphs 55 to 84. The issue was whether any of the three heads of citizenship revocation due to false representation, fraud, and knowingly concealing material circumstances did not require “intent.” This is an important issue, as there are material differences between the wording of s.40 misrepresentation under IRPA which does not require intent by the use of the wording “indirectly.”

As you will note IRPA section 40 is written:

  •  (1) A permanent resident or a foreign national is inadmissible for misrepresentation

    • (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

Justice Strickland, disagreeing with the Minister’s position that intent is not part of false misrepresentation, finds that Parliament must have intended mental intent to be an element in all three (in the absence of language excluding intent from false misrepresentation).

However, he writes that this not preclude the fact false misrepresentation by a parent (who had requisite intent) could not be transferred to the child applicant, particularly where the Citizenship instructions appear to suggest they do. He writes:

[76]           I have some difficulty with this position.  It seems to lack logic that, if some but not all of these terms have been found to include intent by the Court, this demonstrates that Parliament would not have intended intent to be an element of the whole of the provision.  It seems more likely that if intent is an element of one of these terms then, viewed in the context of the object of the section in whole, intent would be an element of all of them.  I also note that none of the cases cited addressed this issue.  Further, section 10 reads: “…obtained…citizenshipby false representation or fraud or by knowingly concealing …” (emphasis added) which appears to group false representation together with fraud, the latter of which clearly includes intent.

[77]           In view of the foregoing, I find that sections 10 and 18 do include a mental element and, based on the evidence, that Sami and Karim Zakaria did not have intent in these circumstances.  However, this is not the determinative issue on this motion for summary judgment.

[78]           By way of section 5(2) of the Citizenship Act and section 4 of the Citizenship Regulations a parent is explicitly permitted to make an application on behalf of their minor child or children.  Therefore, it has to be assumed that the information contained in that application is and was intended to be provided by the parent.  In that event, the child clearly obtains citizenship based on that information, which is admitted in this case.  Thus, in my view, as section 10 states that where the Governor in Council is satisfied “that any person has obtained…citizenship… by false representation or fraud or by knowingly concealing material circumstances, the person ceases to be a citizen”, it must be understood to mean that a minor is “any” such a person and that any false representation or fraud or knowing concealment of material circumstances, regardless of whether intent is a requisite element, must be that of the parent.  Otherwise, the provision would read “that a person has obtained citizenship by…that person ceases to be a citizen”.  In this regard, I agree with the Plaintiff that the focus of the provision is on how any such person obtained citizenship.

It will be interesting to see how this case (and the others in the class action litigation) play out moving forward.

What Should New Can/Xun “Sunny” Wang Clients Do?

Obviously there are no blanket answers and each case needs and deserves its own individual assessment. Some cases will include individuals who misrepresented to get permanent residence while others will include only those who misrepresented to maintain permanent residence. Those latter individuals will likely still have a right to appeal when all is said and done.

What is important, and what is often overlooked by practitioners, is the decision of whether and when to do a mens culpa (i.e. assume responsibility) and how to put together strong humanitarian and compassionate grounds to facilitate a defense against the removal of Citizenship or permanent residence status, as it later may be.

Too many practitioners have gone in with a view that their client holds zero responsibility.  I would argue that this is a dangerous approach and that more care and thought needs to be put in at an earlier stage to properly chart out realistic outcomes for clients.

On the note of humanitarian and compassionate grounds, it is clear that best interest of the child and hardship need to be explored to a deeper level to avoid the possibility of a client’s situation being painted with the same brush as other New Can cases. Currently, the running tally at IAD is 4 cases brought before members, and 0 appeals allowed. More success, so far, as been obtained by those who CBSA has chosen not to refer.

I would suggest that there will likely be fact scenarios that do succeed, but that this will be determined by the efforts put in by counsel and Applicants to narrate the discretionary factors unique to individual cases.

Verifying Departure from Canada and Preventing a Deemed Deportation – There Must Be a Better Way to Do It


Canada is in the midst of finalizing preclearance agreements and exit control that will, in my opinion, be a game-changer for immigration.

Such a system, if implemented correctly, would make Canada Border Services Agency’s (“CBSA”) ICES Travel History reports more comprehensive and accurate. Individuals who do not meet the residency requirement would be held accountable for their dates abroad rather than hide behind the veil of uncertainty and passport stamps. Litigation over the exact number of days spent abroad will become a thing of the past. Ideally, as it is in many countries, a check in with CBSA would occur exist on the way out, allowing individuals who require it, to verify their departure in the context of a removal order.

The Procedure

In the interim, however, there is a huge gap that I think needs to be fixed with respect to departure orders, which are considered the low scale of departures from Canada.

As it stands, when an individual is issued a departure order from inside Canada (for example after an Immigration Appeal Division decision that the individual has not meet their residency obligation or met the threshold for discretionary relief), that individual has to meet with a removals officer at Canada Border Services Agency and provide documentation that allows for a Certificate of Departure (“IMM0056B” or “56” at CBSA commonly refers to it) to be issued. This “enforces” the removal order.

Without getting a 56, an individual, even if they voluntarily leave, has not complied with the requirement for voluntary compliance if they do not arrange a meeting with CBSA and get issued a 56. Their removal order is unenforced (R.240 IRPR). This has even occurred in cases where an individual checks in at the POE with CBSA, although ENF-11 Verifying Departures expressly states that an Officer should enforce a departure order.

As a consequence, if the individual has left Canada prior to the final decision or the decision is rendered on the same day the individual happens to be traveling, is they are effectively declared to have not voluntarily complied and can do nothing to keep their departure order from deeming into a departure order per R. 224(2) of the Immigration and Refugees Protections Regulations.

Pursuant to R.224(2) of the Immigration and Refugee Protections Regulations a departure order verified at a visa office outside Canada, regardless of whether within or beyond the 30-day applicable period, must be enforced as a deportation order.

The 56 can be only issued after an application for an Authorization to Return to Canada (“ARC”) which now must accompany any future application to return to Canada.

There are occasional exceptions that are granted for individuals (usually in the context of accompanying family members to principal applicants) to report their departure. However, these appear to be granted on a case-by-case basis.

My Thoughts

I entirely understand and respect CBSA’s need to facilitate the removal order process. However, I think it creates an incongruity where the punishment does not fit the crime.

Individuals that challenge their departure order for residency  non-compliance, in a majority of cases where there is a valid legal basis for doing so, are challenging on some sort of humanitarian and compassionate ground. Often times, this is an ill family member or presence of some compelling reason to be outside Canada. Sometimes these events meet the threshold for discretionary relief, other times they don’t. Still, I would submit that on the scope of immigration non-compliance, failure for a permanent resident, to meet their residency obligation is relatively low. Indeed, in many decisions, IAD panel members comment that there is no hardship in the individual returning as a visitor on a multiple-entry TRV.

To issue these individuals a deportation order is, in my mind, too harsh. This is particularly the case where it is entirely uncertain how long a decision will take to render. This is not in the control of the individual seeking to voluntarily comply. Indeed, some individuals who have a feeling that their appeal will be dismissed will need to take steps to facilitate return to their home countries. I don’t think this needs to be discouraged, per se.

I think, with a little coordination from CBSA and IRCC, there could be a secure, collaborative process for an individual to prove that they left Canada voluntarily pursuant to a departure order.  A one week window (for example) could also be established to allow the individual to return to Canada on their permanent resident card and formally sign away their permanent residency upon entry. More Officers overseas could be provided delegated authority to sign off on paper work.

It is my hope, again, that exit controls and pre-clearance or perhaps written direction provided to all applicants about the consequences or requirements around leaving before a hearing is over, can be provided. I don’t think the end (deportation order) are justified by the means in these situations. We can do better.


International Students – My Latest NCM Piece and the Pre-Edited (Elongated) Version

For those that have been following my work over the past two years, international students (and graduates) have become a huge part of my practice. Through my work I have gotten to speak to hundreds of international students about their experiences and their struggles. With my own wife now an international student, I see the challenges on a day-to-day basis.

I wrote this piece for New Canadian Media because I felt the stories of international students were not being told. The last thing any of them would do is contact media and many, before we pursue federal court to fight their refusals, always worry about their record and their future in Canada. They have told me about their episodes of depression, lack of support, few friends, and frankly it’s a devastating story. This has been compounded by media constantly citing international students for a multitude of societal ills. Most of these ills, I humbly submit are the fault of our entire society of which international students are just a subset.

Check out my piece here —

Limited by space, and edited, I left out a lot of things in the final piece for NCM which was well-edited by their Team. I wanted to put the original version below (raw, uncut, with no headings) so you can see some of my thoughts in more fuller form.

Why Canada Needs to Do More to Protect International Students

Over the past year, Canada’s 400,000+ international students, particularly those in major metropolitan cities such as Toronto and Vancouver, have been subject to intense criticism. They have been blamed (directly and indirectly) for being a major contributor to such social ailments as overheated rental markets, unaffordable home ownership, abuse of public services, cheating, and unsafe roads (just to name a few).

A bulk of these criticisms are focused, as understandably Canada is only recovering from her post-census statistical dark period, on what we can label as anecdotal accounts. These accounts come from professors who study and interview as part of their work and anonymous, retired institutional instructors who can now share stories with no need to self-censor. These accounts come from positions of privilege.

There is no reason to doubt the credibility of these individuals and experts or deny that international students, just like all young Canadian students regardless of citizenship, probably in some way contribute to the social challenges we are dealing with. Indeed, by issuing them visas, they become guests at our proverbial dinner party.

However, what bothers me, as the product of an immigrant who came as a Canada international student in the late 80’s and as someone who is now married to an international student, is that this ‘blame narrative’ is just one side of the story. In drawing many of our conclusions, we have not been good listeners of international students. In fact, we generally have silenced their perspectives and ignored their challenges.

To begin, it is easy to forget, with every news story attaching immigration status to the identity of the wrong, that the majority of Canadian international students are bona fide, meaning they are compliant with rules and regulations.  In 2014, when it was estimated by the Canadian Bureau of International Education there were around 336,000 students, Citizenship and Immigration Canada (as it then was called) estimated that there were 20,000 students at high-risk of non-compliance. This accounts for only about 6% of all students admitted into Canada. One would never guess this by reading mainstream media accounts.

Next, it is important to sit down and listen to the challenges of international students and share their stories as well. I believe this task is incumbent on my journalist friends to take on, which I hope this piece will stir. In my legal work advising international students on their immigration matters, I have had the opportunity to become trusted advisor and hear these stories. From first hand experience, I can tell you it takes work for them to share with me their stories in their own native language, let alone share with their own family members and counsellors and teachers in their non-native language.

From my work, I have noted the major barriers faced by international students as follows:

First, Canada’s own immigration policies have made it difficult for international students. On the front end, the financial requirements on international students are prohibitive, in many cases. Students generally need to show one year of international tuition (usually four times domestic tuition), funds for room and board, and at least CDN 10,000 additional dollars per applicant (and accompanying family member) just to be approved for study permits. Many of the world’s best, those with the stories of growing up in abject poverty and studying by candlelight, realistically can only study in Canada if they are given a full-ride scholarship to do so. By focusing the attention on what amount to ‘wealthy students,’ the fact that some of these students come with no motivation to study cannot be of no surprise. If we genuinely want better quality students with long-term intentions of becoming Canadian permanent residents and Citizens, Canadian immigration should provide more pathways for these prospective world-class students.

Once a student is here, Canada currently has a restrictive requirement that students ‘actively-pursue studies.’ While I believe the initial intentions of the regulatory changes were good, in practice it has hamstrung international students and in an alarming number of cases has even led to the removal of students from Canada. Educational institutions now have two-tiered policies, where international students are subject to what I believe is excessive (and costly) monitoring and reporting requirements with Immigration, Refugees and Citizenship Canada. Depending on the institution, international students have to take certain number of courses and maintain a certain attendance rate, while domestic students do not.

I entirely disagree with this two-tier system. I believe in substantive equality for all students and I think that equal treatment is in line with Canadian values. I often use the example of my own undergraduate studies, where I took an economic history course. Due to my intense course schedule that year I went to three classes all semester – one to get the syllabus, one to hand in the term paper, and one to write the final exam. With my 5% attendance record in the course, if I were an international student, I would likely have been kicked out and possibly expelled or removed from Canada. Students with family emergencies, mental health episodes, or who simply want to explore a different area are left helpless by restrictive and, ultimately, unclear policies.

Finally, once nearing graduation, eligibility to continue in Canada and obtain a post-graduate work permit for which permanent residency in almost all cases depends on, is tied to the individual’s past ‘full-time and continuous’ study. The way these Regulations work make it imperative for the international student to have remain enrolled at all times. Students with financial difficulties, who do poorly and fail classes, or who simply have been to different institutions and in different programs trying to figure out their pathway often face challenges at this stage.

Second, there are major societal barriers against international students. I have worked with many international student advisors who have told me anecdotal stories of students breaking down in their advising sessions as a result of mental health issues. Without family and often adequate knowledge to seek professional help, these students are particularly vulnerable. A common theme from students that have seen me is that they are receiving poor academic support services and have even been subject to discrimination due to their country of origin and their inability to speak English fluently. I think all Canadian institutions need to do more to make their faculty more diverse, and their student services more culturally sensitive and accessible to those dealing with the challenges of being temporary immigrants to Canada.

Finally, and it has to be acknowledged, there there is an underbelly of poor, and in some cases fraudulent, third-party services to international students. Many of these purported advisors are untrained and unqualified educational consultants and agents, many of whom operate abroad without any regulation or in Canada with little care or attention paid by regulating bodies to their practices. They charge exorbitant fees, often keep international students entirely in the dark, and structure their arrangements so students assume and absorb all the risk. International students, especially when in desperate situations and without family or friends to assist them, find themselves trapped in cash schemes. These advisors are paid by the institutions and potential employers to set the students up, without full disclosure to their client, the student. Inevitably, if not now than later on, these students find themselves in situations akin to fraud or misrepresentation, for which there are severe criminal and immigration consequences.

Regardless of the economic questions and the political questions raised by student immigration, we must not forget that these students need to be represented in the decision-making process. We have seen as an example down south, what happens when immigration law is mandated by public opinion, fear, and top-down orders.

If we continue down this path of blaming and not accommodating, I foresee only increased fracturing within our already fragile mosaic.

List of Post-Graduate Work Permit Eligible Designated Learning Institutions in British Columbia – September 2016 Version

In what I think is great move that should be paralleled by other provinces,  Live Learn BC has posted on their website a link to institutions that are accepted for the Post-Graduate Work Permit Program (“PGWPP”).


I have reprinted the list below:

Accepted Post-Secondary Institutions for the Post-Graduation Work Permit Program
BRITISH COLUMBIA– Revised September, 2016
Public Institutions
 British Columbia Institute of Technology
 Camosun College
 Capilano University
 College of New Caledonia
 College of the Rockies
 Douglas College
 Emily Carr University of Art and Design
 Justice Institute of British Columbia
 Kwantlen Polytechnic University
 Langara College
 Nicola Valley Institute of Technology
 North Island College
 Northern Lights College
 Northwest Community College
 Okanagan College
 Royal Roads University
 Selkirk College
 Simon Fraser University
 Thompson Rivers University
 University of British Columbia
 University of Northern British Columbia
 University of the Fraser Valley
 University of Victoria
 Vancouver Community College
 Vancouver Island University
Private Institutions
Private Institutions Authorized by Provincial Statute to Confer Degrees – Specific Programs Only
 Acsenda School of Management
o Bachelor of Business Administration with Concentrations
o Bachelor of Hospitality Management
 Adler University
o Master of Arts in Counselling Psychology
o Master of Arts in Organizational Psychology
o Master of Arts in Community Psychology
o Master of Counselling Psychology
o Master of Counselling Psychology: Art Therapy
o Master of Public Policy and Administration
o Doctor of Clinical Psychology
 Alexander College
o Associate of Arts
o Associate of Science
 Art Institute of Vancouver
o Bachelor of Design in Graphic Design
o Bachelor of Applied Design in Interior Design
o Bachelor of Science in Game Programming
 City University of Seattle
o Bachelor of Arts in Management
o Master of Counselling
o Master of Education in Leadership and School Counselling
 Columbia College
o Associate of Arts
o Associate of Science
 Coquitlam College
o Associate of Arts
 Corpus Christi College
o Associate of Arts
 Fairleigh Dickinson University
o Bachelor of Science in Business Administration
o Bachelor of Science in Information Technology
o Bachelor of Arts in Individualized Studies
o Master of Administrative Science
o Master of Science in Hospitality Management Studies
 Fraser International College
o Associate of Arts
 New York Institute of Technology
o Master of Business Administration
o Master of Science in Information, Network and Computer Security
o Master of Business Administration (Finance & Tourism)
o Master of Science in Instructional Technology
o Master of Science in Energy Management
 Quest University Canada
o Bachelor of Arts and Sciences
 Trinity Western University1
o Non-theological degree programs ONLY
 University Canada West
o Bachelor of Arts in Business Communication
o Bachelor of Commerce
o Master of Business Administration
1In addition to being a theological institution, Trinity Western University is authorized to offer secular degrees.

Why this is so important is that Officer processing for students, particularly of private colleges and university, has been inconsistent. Some designated learning institutions (remember just because an institution is designated, does not mean they are eligible for the PGWPP), were actively advertising to their students and the public that post-graduate work permits were available. In other institutions, students would submit post-graduate work permit applications regardless of school policy and would in many cases receive it.
This obviously creates a system ripe for problems and, unfortunately in some cases, even fraud.
Dissemination of clear information and hopefully the sharing of this information with IRCC officials who process the post-graduate work permit applications will make a big difference to ensuring that the PGWPP works effectively and students are incentivized to pursue quality education at an institution that is held to higher standards of review. It protects all stakeholders and, most importantly, it protects international students who are vulnerable to misinformation.
Students, particularly before enrolling in private colleges, should ensure their programs are on the list of eligible PGWP programs.
I suspect this list to expand, and I would be happy to assist educational institutions looking for advocates and immigration advice to try and get on the designated list.

Life as a Canadian Immigration Lawyer – Is it for you? (Follow Up)

Life as a Canadian Immigration Lawyer – Is it for you?

Last year I had the unique privilege of being part of Mark Holthe’s awesome podcast. For those that don’t know Mark, he’s an incredibly warm-hearted, passionate lawyer practicing in Alberta and I would argue is among the “go-to’s” for business immigration matters in this country (caveat: outside of our Firm’s lawyers of course!)

Since recording the podcast and sharing my experiences with Mark, I have had a lot of law students, NCA’s, and even young lawyers looking to transfer practices ask me about practicing immigration law. I an humbled that they enjoyed listening to my podcast appearance. I have also had several months (during my social media hiatus) to think about what I was doing with my practice.

In this post I just wanted to add a few more reflections from the Mind of a Young Lawyer looking to make a big impression in the deep sea of very competent practitioners. No short order and indeed a very daunting task!

I also wanted to share with all of you a few areas of my practice I am hoping to grow and expand. I’d love to chat with young mentees and indeed I am engaging a few to assist me on some projects. Over the next little bit, you will see my blog develop into a stronger Hub for discussion. In addition to being a safe place for immigrants to chat, I want to better highlight some of the immigrant narratives and tackle the ‘elephant-in-the-room’ topics such as racism and diversity.

Without further ado, here are a few more lessons from my last year in practice:

Lesson 1: Building Client Relationships

I want clients that work with me to know they are getting someone who is literally stepping into their shoes. For couples, I’m an immigration third wheel. For individuals, I become a trusted advisor and mentor. I want you to call me when things aren’t going right or you have questions. Both uncertainty and overcertainty are terrible feelings that could lead to terrible consequences. I like providing that middle ground, where a client is certain of the possibilities and have their pathways and back up plans drawn out, yet at the same time are aware and are educated in the often tumultuous, discretionary landscape that is Canadian immigration.

For me, building client relationships is also about learning life stories and engaging head-on in cultural conversation. There is some narrative underlying every application, every individual, and every business. Clients bring their cultural expectations and cultural assumptions into the mix. I need to set aside my own preconceived notions but appreciate the gaps that can exist and counsel them accordingly.

I often here my lawyer colleagues (some of the at bigger firms) complain about no face time. I can assure you immigration law, and particularly handling individual client files is the complete opposite reality.

Lesson 2: Learning to Manage Emotions

Emotion is not bad. I’m an emotional guy. It’s part of what makes me do what I do for a living.  I have used pleas to emotions in at least two key moments I can remember, both involving oral submissions made to CBSA officers, to secure positive results.

However, mismanaging emotion or turning real-life immigration into some sort of a pass/fail course is not useful. Understanding client emotions, means paying attention to their words and their communications. Knowing their likes and dislikes. Similarly, when dealing with immigration officers, bureaucrats, and other professionals, it is important to be adaptable to the circumstances.

It is important to know that emotions can only go so far. In an appeal process you can play to emotions, but ultimately you can focus on it to much and forget to cross your i’s and dot your t’s.

From a practitioner standpoint, keeping level-headed helps develop a longer-term, more sustainable practice. I have been grateful to learn this, especially from colleagues such as Steve who seem to thrive under pressure and be wholly unfazed.

Lesson 3: Knowing Your Stakeholders

I think knowing how to escalate, knowing when to escalate and when not to escalate, and knowing how to navigate the world of stakeholders is so crucial. I look at some of my mentors (Steve, Ryan, Peter, Chantal, Raj, Peter E, Mario B, Ronalee, just to name a few) and I believe this is one of their greatest traits.

They are able to streamline processes to ensure employers, applicants, translators, family, members of parliament, CBSA, IRCC immigration officers, hearings officers, Department of Justice, IRCC program managers, overseas program managers, and litigation experts etc. all are coordinated on challenging matters. Especially on the more difficult cases this is incredibly important.

Lessons 4: Knowing to Be Concise

This is was one of the hard lessons I learned. I would have to say it was a two-stage lesson. Law school taught me a bit about being concise. I did my Bachelors in International Relations, but primarily History. I learned how to craft narratives and research from limited sources. However, a lot of history was in turning a small historical moment or a short period of time into a large thesis or paper. In Law School, I was taught at an early stage by one of my big sister mentors Jules, that marking was a bit of a video game. You had to hit the points.

This is even truer today in practice.

In law, particularly immigration law from an application standpoint, I find that getting to the point is so crucial. Recently, as I am sure many of you have learned in the courses, judges at all levels of court are focusing on rendering shorter, easier to read decisions. Even at the Supreme’s, I find judgments are much less verbose (and arguably less academic) than years past. Practicality is a virtue.

I still have a long way to go in this area but it’s very important for Canadian immigration law. We forget that the Immigration Officers (and often even hearing officers) we deal with are not lawyers yet are trained to catch the A, B, C’s required for them to render their decisions or agree on consent. Trying to be too nuanced or too cheeky or trying to speak down to a decision-maker can yield undesirable consequences.

Lesson 5: Knowing Your Laws and Regulations Inside/Out

This is in my mind what separates the amazing practitioners from those who dabble. Immigration, from a conceptual level, is easy to understand. There are only so many applications. The website is full of instruction guides that purport to break immigration down to easy steps and checklists. It’s a system meant for the layperson. However, followed blindly or worse yet, inaccurately, mistakes can easily occur.

Members, judges, decision-makers, and border officers will all know the regulations or have their interpretation as well. Contrary to what it may appear, there is actually a whole lot of grey in Canadian immigration. One of my favourite parts of immigration is working through the grey area.

For example, I’m currently in litigation on two provisions of legislation and regulation relating to the definition of an ‘assignment’ and the working for a Canadian business abroad exemption to the requirement to for permanent residents to spend two out of five years physically in Canada.

This provision itself is a microcosm of the story of immigration. It was introduced as a good-will gesture to recognize the fact that some Canadian permanent residents needed to work abroad for Canadian companies and could not maintain their status. Later, this status was abused and misused by several Canadian ‘companies’ as a way to help permanent residents remain abroad while maintaining their status. Today, this exemption is one of the most difficult to establish. Contracts purporting to support valid transfers must be drafted to a ‘T.’ However, the case law has itself been in many cases in consistent. Decision-makers have taken cases which turned very much on facts to now stand as large, catch-all concepts. This area of the law is very much messy and ripe for the type of litigation my client is currently launching.

Similar parallels can be drawn in the realm of international student litigation, likely to the litigation that will arise from the new sponsorship processes, and likely with employer compliance (an area I’d like to develop greater core competencies in).

What Does 2017 Hold in Store for Me?

This year I hope to work to be a more patient practitioner. I want to pay more attention to detail and also be better at streamlining processes and providing clients with more accessibility but more effective advice and communication, particularly in a virtual setting.

In terms of areas, I am really trying to challenge myself to be a better litigator. I really enjoy immigration litigation but I can’t purport to be blessed with natural talents.  I need to spend more time in the trenches, particularly reading case law and the laws/regulations, to carvel out stronger more, novel arguments in Federal Court. In my appellate work, I want to be better at organizing documentary evidence to support my client’s cases. Often times, it’s documentary nuances and details that make or break appeals and I want to become an expert at decoding and predicting issues. I would also like to add a human rights/Charter component to my practice but I know that will take time.

Overall, I want to continue to ensure my practice is client-focused. As many young practitioners I face the dilemma of building a business that is volume driven and building a client-base and set of experiences that is results driven. Overburdening on volume negatively impacts results UNLESS time is better managed, processes better handled, and ultimately more effort is put in as an input.

I also want to develop closer relationships with my clients. I’ve started a new tradition of having lunch or dinner with clients who successfully obtain permanent residents after my help and I want to continue this trend. I see clients through some of their darkest moments. Being able to share a meal at the end of a long journey, once they are carefree, is simply my definition of happiness.

As I tell all my clients, I cannot guarantee the results or predict the future (too much has happened in practice and in my greater life for me to even believe I have that power), but I believe in leaving it on the line. I was never a good athlete, but this is one sport I am determined to thrive to be better in.

With love,



IRCC’s Parent and Grandparent Sponsorship Process 2017 – Preliminary Thoughts/Critique


Expression of Interest – Possible Issues

Immigration, Refugees and Citizenship Canada (“IRCC”)’s Expression of Interest Webform is now open  (until February 2nd).

It asks for only the following information for those wishing to participate in the random draw of 10,000 applicants:

  • Last Name;
  • Given Name;
  • Date of Birth;
  • Country or Territory of Birth;
  • Main Home Address;
  • Postal Code;
  • Email address;
  • Email address (re-entered); and
  • Digital Signature.

Initial Concerns

One of the major concerns raised by those by several lawyers (including one of my mentors, Chantal Desloges in this CBC article). is that with the current expression of interest system we will likely see a lot of those selected deemed ineligible or not meeting the requirements. As Nova Scotia Immigration Lawyer Liz Wozniak tweeted (on point, I may add), the Parent and Grandparent sponsorship program requires “less information than an eTA.”

One of the challenges, I see is that without the forms or the back-end of the process being made available to applicants now, it is difficult for interested applicants to even predict what the process will look like. I think in future years IRCC may be wise to put up all the update forms and process first before accepting interest. I’m also a fan of having some sort of preliminary questionnaire (similar to Express Entry) to at least assess baseline eligibility. I understand the privacy concerns of having individuals disclose income on an initial form but at the very least I think individuals who are interested should demonstrate that they are aware and knowledgeable of the requirements before they click submit. I have had several individuals contact me wondering if all they need to do is put their name in the hat. I have cautioned them to read about the program first before doing so.

Minimum Necessary Income to Sponsor Parents and Grandparents

One of the major stumbling blocks that I see, particularly in today’s economically challenging environment, is the meeting of the Minimum Necessary Income (“MNI”) to sponsor which is equivalent to the yearly Low-Income Cut Off (“LICO”) plus 30% and differs based on the number of family members in a household (including the ones you plan to sponsor).

As of the date of this post, IRCC has not put up the updated Parent and Grandparent MNI for 2017, which should be based on Notice of Assessments for the years of 2015, 2014, and 2013. Eligible sponsors (and their co-signer spouses if applicable) must meet this amount for each of the three years and as well meet and exceed for the years in which an application is in processing until the parent or grandparent has their application approved. Historically, at some visa offices, this could mean the next three to five years with the MNI more often than not increasing each year.

We know this much about previous years:


For 2017 we can estimate as follows (my table below):


This is based on the LICO figures put up by IRCC in the Federal Income Table, 2016:


As per Guide 5722 (which hasn’t been updated for 2017 yet), the calculations for self-employed and also the quirks between period of employment and unemployment within the 12 calendar month period where you are supposed to show your available income, is not as straightforward as it appears and does require some careful reading.


Living in Canada Requirement

I also think greater clarity needs to be included about the “living in Canada” requirement.


I did several consultations last year relating to refusals where the individual left Canada (due to school or work) during the process of sponsorship and then struggled to provide sufficient answers to procedural fairness letters.

Concluding Thoughts

As per my article back in December 2015, and reflecting on it more, there’s absolutely no reason why we cannot due a split system. Dividing the quota into a first-come first serve, a random draw, and a discretionary humanitarian and compassionate grounds/urgent family unification. Perhaps more needs to be done to facilitate the parents and grandparents of recent refugees, who will not have met the MNIs based on their recent arrival and likely have the greatest need for an additional helping hand for their young families.

Canada’s New Spousal Sponsorship Forms/Process – The Good, The Bad, and The To-Be-Determined

With the new Spousal Sponsorship Process having been formally rolled out, it is a good time to look at the changes and share some insights about what I like, what I dislike, and what I’m curious to know more about or see in-action moving forward.


I will defer to IRCC and their handy charts and guide to explain how things have changed.


My understanding is that the focus on the new process was on eliminating unnecessary or duplicating forms, reducing the length of guides and other forms, and changing around the order of the process to avoid new medical requests or expired police certificates that would delay applications.

Importantly, for applicants, the processing times are projected to go down to 12 months for 80% of applicants. Prior to these changes, as illustrated, in-Canada applications and applications at select visa offices abroad took longer to process, many times 26 months and beyond.

Indeed, one of the major incentives for individuals who lived in Canada with status was to still pursue the Outside Canada process was that decisions would be made faster than they would inside Canada while preserving appeal rights.

Specifically, the changes are as follows:



Less Onerous Front-End Requirements

I like the movement of medicals and police certificates to the back end. I also like the fact that less forms are required.

Within the forms, there is less requirements for supporting evidence and now Applicants will be limited in the number of pages of documents and photos they send in.

However, I think that it will be useful to add more clearer instructions to applicant to begin gathering those documents well in advance. In some countries, the police certificates can take several months to obtain. These certificates could then delay the process well over a year. The reality is, the police certificate process is more onerous in countries with stricter governmental controls over information or increase bureaucracy/control around individual movements. In these countries, there is the added challenge of getting adequate translations or certificates that all can rear their ugly head into the process.

Better Forms and Clarification

The creation of one set of instructions (rather than two) in mind is a positive factor. Instructions are now much clearer – aesthetically and in terms of content.

The revised Document Checklist (although requiring more filling in) is now split into one for spousal sponsored spouses and one for common-law sponsored spouses.

Spouse Checklist


Common-Law Check List


I still suspect (in the transition period) a little confusion over the two out of three and three out of four requirements in the above forms. Reading the fine-print becomes even more important now.

It will be interesting to see how this affects completeness of application (see below) and also whether documents will be rejected for not entirely meeting one of the criteria and thus necessitating a whole new requirement of additional information. Specifically, proof of important documents showing same address seems very broad.

Four Month Processing for Spousal Work Permit

The guide is also promising four month processing which is an improvement on the six months (and often longer) that was the earlier standard.


As you may have read from my previous pieces, I am a huge supporter of more bridging options and the fact that all spousal sponsorship where the Sponsor has been approved should facilitate some sort of visa to allow temporary reunification.


Basic Guide Leaves Out Important Information Found in Comprehensive Guide

Immigration, Refugees and Citizenship Canada (“IRCC”) has two guides out – Guide 5525 (the “Basic Guide”) and Guide 5289 (the “Comprehensive Guide”). The Basic Guide essentially attempts to summarize the information in the Comprehensive Guide in an shorter/easier to read format.

As my good friend and legal colleague, Ronalee Carey, points out – there is a lot left out in the Basic Guide which if relied upon without consulting the Comprehensive Guide can create major problems. She highlights the fact that the basic guide ignores the exemption for Minimum Necessary Income pursuant to R. 133(4) of IRPR.

She also highlights the way that it is not accurate/nor clear when an individual should be applying outside Canada or inside Canada, specifically where an individual has legal status in Canada (student, worker) and can apply outside Canada for the purposes of preserving appeal rights and possibly seeking faster processing at a less-burdened outside Canada office.

The Basic Guide states the following:


This issue appears to be repeated in the forms.


I would suggest however that even in the interest of space, it is important to re-iterate that the decision of which process and the consequences are much more important as we discuss immediately below.

Incentivizing Inside Canada without Explaining Legal Consequences

This is likely the biggest issue I see with the new system.

As per OP 21 – If a Canadian citizen or permanent resident makes an application to sponsor a foreign national as a member of the family class, and the application is refused, the sponsor may appeal the refusal of the application to the IAD [A63(1)]. The sponsor must be given the reasons for the refusal and also told of their right to appeal the decision to the IAD.


If IRCC were to go very strict and start refusing inside Canada applications for misrepresentation or even rejecting/refusing applications for genuineness or document sufficiency, these applicants (or their sponsors) would be limited to judicial review or seeking reconsideration.

I believe that there are still very real reasons to apply for the outside sponsorship process while inside Canada that are not explored in the instruction guides as they currently stand.

Not Enough Information re: Public Policy and Importance of Staying in Status

There are a couple areas where the status or maintaining of status for sponsored applicants it important:


And this:


However, in my opinion it is not enough. Very few applicants I talk to know about IP8 – Manual and have read the public policy (pages 64-79). I think there should be a greater onus on IRCC to educate on a very important provision.


In fact, in a case I dealt with last year, the Call Centre instructed an inside of Canada spousal applicant who was out of status to turn himself into the Border, a move which would have been devastating for their future in Canada.

There needs to be clarity on “out of status” spouses for inside Canada to be more effective, particularly in the stricter manner in which they are assessing application completeness (see below).

Technical Issues

Normally, I would put something like this in the “to-be determined” category, but my predictive wisdom tells me that if Express Entry and the eTA are any indication, there will be major issues with linking accounts and the receipt of email documents.

One of the changes is that the Schedule A is now being moved to a mid-processing requirement, requested after the linking of a paper application to the electronic system.

I have seen linking issues time and time again delay Electronic Travel Authorizations and Express Entry Applications. It will become very crucial for applicants to accurately and adequately keep record of what they submit for their sponsorship and at the very minimum keep a copy of their physical application.

Also, with technology even the type of internet browser used can affect the process.

For example with Mozilla Firefox right now, the select your documents page looks like this:


Where as with Google Chrome, and it as it is supposed to look like, the select your documents page looks like this:


Incomplete Applications

IRCC has indicated that it will take a stricter approach to returning incomplete applications and have emphasized that in order to meet processing times, they may not be as generous with making information requests.

If Express Entry is any indication (where early estimates in the first year of roll out were that in the bull-park of 25% of applications were returned as incomplete), this could be a serious problem. This is particularly true for out of status spouses in Canada or where a refusal will leave a client out of status.

Again, I think more clarity needs to be introduced clarifying the completeness check process for spousals and also what an out of status spouse can do in the circumstances.

I can see very real situation where an Applicant submits only 3 out of 4 where the documents require 4 or prove only 1 out of 3 instead of 2 out of three of one requirement. If they mail this application in, they may only find out months later when the individual then begins to run into status problems.

Is an application where the individual sends more than the required documents considered incomplete and returned? How strictly will some of the requirements be enforced?


Who Falls into the 20%?

It will be interesting and I hope IRCC does some tracking to see what type of applicants fall under this – if specific nationalities or visa offices are not meeting their targets or if specific type of relationships (long distance, inter-nationality etc.) trigger delays more than others.

The fact is that many visa offices will follow-up with much more onerous documentation requirements. For example, Hong Kong asks not for a 10-year personal history but for a personal history since the age of 18. Many relationships that I see now begin with a Canadian having met the accompanying spouse while living/studying/visiting/working abroad. They marry early, based on their inability to spend time with each other and a source of commitment to each other, and finally they try and apply visas which get refused for inability to demonstrate dual intention. It’s a cycle that is very difficult to break with subsequent re-applications.

Online relationships are more frequent now. There may be a meeting in-between, but the entire relationship cannot be understood in 20 pages or 10 pages. How are these relationships going to be assessed, particularly inside Canada?

These marriages are understandably difficult to assess. Interviews (performed abroad) are high stress and particularly unrepresented applicants are wholly unprepared for the type of questioning that often can occur.

For those 20%, this new process may give them less opportunity to front-end proof. My hope it is that visa offices will give increase procedural fairness, but that will have to be seen as the system rolls in.

How will Temporary Resident Application Increases and Public Policy Cases Affect the Overall Immigration System? What Happens When In-Canada Gets Backlogged Again.

I recently applied to sponsor my wife. She had valid student status in Canada for a year (which we looked to extend) and for us avoiding the in-Canada backlog was the primary motivation. Hong Kong has been historically processing sponsorship applications quite fast and while we wanted in-Canada processing we weren’t surprised or disappointed.

The way the new program is being marketed, there is absolutely an incentive created towards applying in Canada. For those with Electronic Travel Authorizations (“eTAs”), I would suspect more visits to Canada first and then applications inside Canada. For those applying outside Canada, I would suspect many would want to seek study permits or Temporary Resident Visas (“TRVs”) first and then apply while in Canada.

There is some talk that eTAs are now becoming must stricter for married spouses, similar to the challenges of getting a TRV once married.

There are also consequences of refusal. Where a self-rep does not understand the rules or submitted a deficient application and could use H&Cs to overcome the rules, now the only path is judicial review, where H&Cs have little to no relevance on the overall decision other than establishing the factual basis of the impugned decision’s reasonableness or fairness. I also expect a whole slew of new Document Request letters emailed/mailed but not received cases that could make for interesting litigation and arguably reshape the IRCC’s processes for collecting documents from clients.

Finally, with incentive, also comes the possibility of abuse. The situation we do not want to see, from the standpoint of legitimate Canadian couples, is an influx of in-Canada applications used as extensions for temporary statuses, where the promoted option should be to file the extension on it’s own merits and proceed with an outside Canada sponsorship.

From an A40 misrepresentation front, more needs to be done to ensure those who are practicing immigration are not creating immigration pathways based on non-genuine marriages/common-law partnerships designed to keep applicants inside Canada.


It will take some getting used to and a lot of reading but I generally like the idea of making processes more user-friendly and the idea of better tracking for Applicants (e.g. the use of cellphone confirmations that applicants were received).

I like shorter guides, only so-far as they don’t omit important information. I think right now it does omit important information. I would stick to one guide and cut the concept of a Basic and a Full. The legitimate expectation of applicants will be that both are the same and one is equivalent to the other, which can never be the case when trying to summarize important information that is all relevant.

I look forward to seeing faster processing. Yes, I might be a little bitter that I did not apply in-Canada myself (if only I waited a month!), but I still think competent visa offices abroad play an important role in assessing a relationship and where appropriate need to step in to play investigative roles.  It’s unclear how this can or will be done when in-Canada applications become the norm.

Let’s see. It might have been too early to be writing a 2200+ word essay on a program as I have just done. Just trying to stay on-top of things for the blog followers 🙂