Panellist Will Tao, a lawyer at Edelmann & Co. Law Offices in Vancouver, worries that international graduates or students have the most trouble advocating for themselves, and are unable to access the benefits on offer because their immigration status plays a role.
“I’ve heard from a lot of research assistants personally who had jobs and grants during the summer, and who had those unceremoniously cancelled because there are some of the stigmas around who are we helping in times of crisis,” says Tao.
Some students rely upon transfers from overseas accounts, says Tao. They may have been cut off, or can no longer get support from their families in the middle of their studies. They are now facing the challenge of extending their permits.
“Many of these issues are going to become more pronounced as we move forward, and these are almost not necessarily travel ban issues,” says Tao. “But they are things we will see the consequences of in the months and years to follow.”
You can read the rest of the piece: here.
Oh, the joys of our immigration practice and the frequent changes it brings along.
I am scheduled to speak on study permits this upcoming Friday for the Canadian Bar Association’s National Conference. I finished my materials a week and a half ago – presumptively thinking that I covered almost everything I could regarding study permits (combining both pre-COVID materials I had prepared and post-COVID guidance).
Friday rolled around and there is a whole new program delivery guide was posted. I found out Saturday morning as I was midway through watching the MJ/Bull’s documentary The Last Dance (I’m a bit behind on these type of things). H/T to Toronto-based immigration lawyer/specialist Robin Seligman for the Linkedin update that caught my eye.
I pulled a marathon Saturday, wrote about the Federal Court/prepared my judicial review Sunday, and now I finally have some time to breakdown the delivery instructions with you. I will also touch briefly on the CBSA’s guidance on international student entry subject to the Orders in Council that superstar litigator (someone who I personally foresee as a future Federal Court judge), Aris Daghighian received as part of his litigation against IRCC on the application of the Order in Councils (OICs) which refused the entry of a father to attend his child’s birth.
For reference materials, follow along here (for the Program Delivery Instructions). We will discuss the CBSA guidance/directives through screenshots shortly.
IRCC Not Refusing Applications for Non-Compliance
As stated on the instructions:
Until further notice, IRCC offices will not refuse an application for non-compliance. IRCC officers will continue to request additional supporting documents or necessary actions (such as biometrics and medical exams) as part of the application process and will keep the applications open until documents are received or evidence is provided that action has been taken.
This, along with the 90 day response periods are generous, but at the same time can create challenges with other third parties (employers, schools, etc.). While processing officers are also bringing forward the applications and paperng applications, you should do the same on your end as an applicant/study permit holder.
I would also make sure to save a copy of the instructions so you can share with those who may not be familiar with the changes and may challenge your ability to work.
Submitting Applications Without Certain Documentation
As I wrote in my post for Edelmann’s blog last week, updating files and timing further submissions is going to become an important skill.
As a temporary facilitation measure, students applying to extend their status will be allowed to submit an application without a letter of acceptance or proof of enrolment. In lieu of the letter of acceptance, the applicant should submit a letter of explanation indicating that they are unable to submit the requested document due to their school’s closure.
Once these documents become available, applicants should submit the documents using the IRCC Web form. If no documents are submitted by the time CPC-E is ready to process the application, the documents will be requested by the processing officer as per the instructions above.
It should be noted that this is a temporary policy. It is foreseeable that at a certain point in time these instructions will be rescinded. While it is hoped that applicants will have sufficient time to respond, it is not unheard of to have to have anywhere from one week, to two weeks, to a month to obtain documentation. This still may be an issue down the road so I see very little benefit in not trying to stay on top of things.
Post-Graduate Work Permits
IRCC has provided a helpful exception – allowing individuals to apply for a PGWP while they are awaiting a letter of completion or final transcript. This is crucial as it allows students to start working, assuming they still hold a valid study permit at the time of their PGWP application.
The relevant instructions state:
As a temporary facilitation measure, applicants who apply for a post-graduation work permit will be allowed to submit an application without their letter of completion or final transcript. Applicants should submit a letter of explanation indicating that they are unable to submit the requested documents due to school closure. Once these documents become available, applicants should submit the documents using the IRCC Web form. If no documents are submitted by the time CPC-E is ready to process the application, the documents will be requested by the processing officer as per the above procedures.
Restoration to Student/PGWP
I still think IRCC needs to provide more detailed ‘step-by-step’ instructions on how to apply for restoration to PGWP, via a restoration first to student.
The relevant instructions state:
IRCC has clarified that applicants who need to restore their status will also be eligible to apply without their letter of completion or final transcript.
Documentation – Designated Learning Institutions (“DLIs”) Need to Take a Bigger Role.
As the instructions state, there are going to be several points where international students are being requested to provide updated documents which largely originate from the institution.
Applicants may have to submit additional documents from the DLI confirming which part of the program was completed in Canada.
There is also an important note that states as follows:
Note: For applicants currently outside Canada who are scheduled to begin studying in May or June 2020 but who do not have either a study permit or approval on their study permit application, time spent pursuing their studies online will not count toward their eligibility for a post-graduation work permit.
Right now international students (both abroad and at home) are in a weird limbo around part-time studies and whether or not they need a permit to engage in online studies. While IRCC has given an exemption for students who are unable to study full-time as a result of institutional issues in maintaining their status, they likely be reminded of this only years from now when they are preparing their PGWP applications and recognize this huge gap. DLIs need to take added steps to document and be able to assist students in the preparation of letter of completions that may contain more detail than usual. Many times, and especially with turnover, these important notes to file are lost and students find themselves having to put the blame on the institution if their applications are refused, leading to both liability and litigation risk.
More on International Student Advisors (RISIAs) shortly.
One Policy Recommendation
IRCC states the eligibility to work after submitting PGWPs as follows. Note that the wording of ‘before the expiry of their study permit’ presumptly suggests that implied status applicants who were awaiting a study permit prior to making their post-graduate work permits. must wait until their PGWP is approved before they start working.
Work authorization after submitting a post-graduation work permit application
As per paragraph R186(w), graduates who apply for a work permit, such as a post-graduation work permit, before the expiry of their study permit are eligible to work full time without a work permit while waiting for a decision on their application if all of the following apply:
- They are or were the holders of a valid study permit at the time of the post-graduation work permit application.
- They have completed an eligible program of study.
- They meet the requirements for working off campus without a work permit under paragraph R186(v) (that is, they were a full-time student enrolled at a DLI in a post-secondary academic, vocational or professional training program of at least 8 months in duration that led to a degree, diploma or certificate).
- They did not exceed the allowable hours of work under paragraph R186(v).
Unfortunately, much of this processing time is out of the students control. Also, with many students having had to navigate COVID and changes to their final semesters, many have had to put in a last extension prior to graduating. The reality is it could be several (read: five, six plus months) before they are able to obtain their PGWP.
I suspect this is just a small gap but one that should be filled immediately.
The March 18th Rule
One of the reasons international students and their issues at the border may have been heard about less than other groups during COVID-19 is as a result of the firm date of March 18th, chosen by IRCC at which time either students must need to hold an existing study permit or have their letter of introduction dated before.
In a way, the strictness of this date, has masked the many challenges applicants in Canada are having with their study permits and as well the challenges institutions are having in predicting their numbers for Fall/Winter programs.
Disclosure from the CBSA Directives
We learned from the directives the following on international students who are seeking to enter Canada.
We know the situation is very dynamic with different provinces and schools taking different positions as it relates to online or in-person classes (with social distancing).
Notwithstanding the March 18th rule, student who hold valid study permits may still face challenges returning and are advised to bring proper paperwork to the Port of Entry.
Institutional and Applicant Mistakes On the Rise
As I discussed above, I think this a period of time where institutional and applicant mistakes may be magnified, with delayed consequences that may be felt even possibly several years down the road.
Unfortunately, in my own practice I have had to step in on many a recent case where the mistake emanated from a international student as the College/University. This may be as simple as endorsing the completion of forms without an adequate knowledge of the applicant’s entire immigration history, to advising a student to indicate an excessive set of available funds without those funds actually being available.
With international students bringing so much revenue to schools and program, the very least a DLI can do (from my perspective) is pay for the training of staff to the take the RISIA course or possibly even the RCIC course. Advisors themselves should build in as many caveats into their advice as possible. Twenty/thirty minute consultation sessions are helpful but I cannot count how many times I learned disclosure from clients weeks and months later. Many students have had little-to-no role in past applications that were coordinate by parents, family members, or agents.
I also recommend that schools consider engaging immigration lawyers as part of their staff team. The average immigration lawyer makes $75,000 (as I learned from Marina Sedai) from a recent talk for the CBA National Online Immigration Conference. That $75,000 is not coming easy either for many of my colleagues. It may be a good opportunity to get legal expertise and advice (particularly on the research/documentation/risk management side).
For student applicants, this is also a time to be extra diligent about document collection, storying, version management, form completion, among other areas.
I think it is also a time for student advocacy and for institutions to do a better job at listening to students and incorporating students into their programming and advisory services. I recently did an interview for a newspaper based in Montreal expanding on my some of my policy recommendations in general but I thought I’d tackle the new changes in this piece.
As discussed, I will be chatting more about Study Permits, pre/post-COVID this on Friday at the Online National Conference.
See you then :).
Chief Justice Paul Crampton in a recent piece for the CBA’s National Immigration Section’s COVID’s 20:20 A Vision for Lawyer Expertise During a Pandemic and Beyond presented a conference paper titled “Best Advocacy Practices on Judicial Review.”
Given this is an area I would like to pivot more of my work and that I have had some of my own very favourite practice experiences over the past five years (I’m a five-year call as of next Friday!) in this area, I thought I’d share my reflections.
I am purposely reflecting on only the Written Submissions portion. Many of my Edelmann colleagues have much more experience making oral submissions in front of the Federal Court (“FC”). I have only done a handful of hearings as first Chair so I will leave that article to be written either by someone else or later when I feel prepared to do so. Part of this has to do with the nature of the cases I take on, which tend to be in the temporary resident/permanent resident spectrum – often creating less actual hearings than more contentious cases in the refugee/inadmissibility area.
As a side note, I still find it somewhat problematic that reasons are not issued with leave decisions, and I am hoping (and it appears the FC is in conversations to step towards that direction) that more interim guidance from the FC and proposals towards settlement could be worked towards.
Further, I have a teleconference JR hearing next Thursday so the FC has been on my mind!
Without further ado, here we go.
CJ Crampton Tip 1: Never compromise your own credibility/integrity
This is a great tip reminding Counsel on their professional obligation towards justice and the court, and as well to practice with credibility/integrity.
There are a lot of areas that could be exploited by Applicant’s Counsel – altering dates when decisions were received, trying to add things into an Applicant’s Record that clearly were not in front of the decision-maker/not fitting any of the exemptions. The same thing goes with navigating between parallel reconsideration processes and going around Department of Justice Counsel to try and communicate with the visa office during a judicial review. There’s a fine line between good/creative advocacy and sharp practice and I think often times we have to strike that balance and pick and choose our battles. For example, the FC is opening up more feedback and routes for follow-up on systemic issues. Maybe an issue affecting many of your clients would be better brought up in those settings so as to influence the Courts/Stakeholders to make changes.
CJ Crampton Tip #2 – Understand that judges routinely deal with a broad range of different areas of the law. He recommends – “A brief overview of how the issues fit into the statutory framework can be helpful, especially for more complicated applications.”
This is an area where I am personally trying to work on and improve my written advocacy. My mentor (now Justice) Peter Edelmann did a great job of this in his memorandums. Often times, especially when we spot what we perceive to be egregious errors, we jump straight to them or start shooting at different issues without thinking about that broader framework. What is the broader framework within IRPA and IRPR that is leading to this decision being rendered that is problematic in your decision and perhaps has been in other decisions as well? This is particularly helpful when the case law doesn’t necessary go your way or if there is a split in the FC jurisprudence. Going back to the foundational principles (and foundational cases) can very much set the tone for your more pointed analysis. In some cases (and space depending), it may even be useful to specifically set out The Law and highlight which sections are relevant.
CJ Crampton Tip #3 – Respect the page limits – in fact and in spirit
This is another key tip that I have been learning the hard way recently. Especially pre-leave, there’s no need for a 30 page memo. A rule of thumb that was shared by my mentor Erin Roth (and I believe this was repeated by Peter Edelmann as well), is that you should be able to summarize your argument into 10-12 pages. Often times you will find that pages get eaten up by unnecessarily long case law citation or trying to argue 5 points instead of highlighting the top 3. My new Rule of Thumb is to keep Leave Memos to 10 – 12 pages and then only add additionally if there is something in the CTR worth highlighting.
It is to be noted that the FC is moving towards requiring red-lining (showing your changes within the memos) which may further limit your ability to back-end arguments after leave. It’ll be more important to be concise and strike a right balance between breadth and depth of argument.
CJ Crampton Tip #4 – Use headings and subheadings to organize your arguments
This one kind of speaks for itself but I would add that another tip that I would suggest is also to use headings and subheadings for the supporting affidavits to the written submissions. I find that anywhere block texts without guidance makes for difficult reading and then to have to extract it into arguments while making it difficult to trace adds another layer of annoyance.
One heading that counsel often forget too is the last one to address how the test for leave has been met. Ultimately, this is an administrative law exercise – and without drawing those in under appropriate headings, the entire piece can read as an attempt to have the FC re-weigh and redecide, which is not it’s function.
CJ Crampton Tip #5: Focus your written brief on your strongest issues – and keep those issues to a very small number (3 or 4)
I got a bit ahead of myself but yes, I have also learned this the hard way when I went to one JR hearing and it was clear I was trying to throw the kitchen sink rather than suss out the strongest three to four arguments. Sometimes you may have to abandon a strong argument for a stronger one. Other times you may want to briefly highlight residual arguments under one subheading rather than try and fully build out all of them.
CJ Crampton Tip #6: Ensure your references to the jurisprudence are up-to-date and on point
With the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65 and Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67 being the new foundations to Canadian administrative law and especially Vavilov’s direct link to immigration make those two cases a seminal starting point on standard of review. However, I think Counsel (when I say that, I am referring to myself in a self-critical way) can do a better job of extracting sections of the decision and moving beyond the one line/phrase repetitions of applicable principles.
For example, I think Vavilov paragraphs 133-135 where the Majority examines how the impact of the decision on an individual and how that affects the choices of procedure chosen to be an area that has not yet received its full due. I believe it expands on Baker v Canada (Minister of Citizenship and Immigration),  2 SCR 817 and would love to see the FC engage in bringing procedural fairness to light more in terms of recent jurisprudence.
I also similarly feel that Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 (CanLII),  3 SCR 909 isn’t often given it’s proper due in conversations of statutory interpretation/guidelines/and particularly the broad implications of best interest of the child (BIOTC). It’s tough to often revisit decisions when you feel yourself familiar enough with the underlying principles, but it is worth the exercise from my perspective to look at new ways and factual similarities.
CJ Crampton Tip #7: Ensure the relevant facts are sufficiently described
At the CBABC’s Spring Immigration Conference, there was a very good debate between Keith Reimer and my mentor Steven Meurrens. Keith was advocating for not flooding the memorandum of argument with unnecessary facts (and copying and pasting affidavits) while Steven argued that the facts section can be very crucial to setting out and preparing the legal argument and that they should be robust where possible. CRJ Crampton’s advice addresses this. Where the facts are particularly helpful or relevant, it is very crucial to set them out. Cases in the FC often turn on facts, less so on definitive precedent.
CJ Crampton Tip #8: Support your positions with the most reputable, objective sources of evidence
I often see counsel under-cite in their Memorandums of Argument. When doing so it increases of the risk that you are either speculating on the evidence or trying to re-argue/re-weigh. Setting out what is fact and then expanding on it with law should be practice. This tip is well-directed.
CJ Crampton Tip #9: Deal directly with the weaknesses in your case
I call this one the ‘elephant in the room’ advice. When you do not point out the elephant, it will make its presence felt. Especially when the Department of Justice has the ability to read your argument and reply and many of their counsel our seasoned practitioners, they will point out the deficiencies. Where there is weakness a good strategy is to acknowledge it and then seek to differentiate. For example, recently I did a case involving the Best Interest of the Child where I acknowledged that certain submissions were not made within a particular expert document, but that this did not impact the underlying decision of the Officer on another point. Failure to address weakness/different strengths from those weaknesses can open up counter-arguments that expose those holes and combine your strong arguments into those weaknesses.
CJ Crampton Tip #10: Pay attention to the standard of review
CJ Crampton advises to explain how the application of reasonableness leads to the result you are seeking, so as not to read like an appeal on the correctness standard. Jurisprudence from the FC now seems pretty clear that procedural fairness issues should still be argued on the correctness standard, something that wasn’t made apparently clear on the face from the wording in Vavilov‘s Majority judgment.
Another point CJ Crampton makes is to ensure pre-Dunsmuir jurisprudence is still good law. Many self-help JR guides and non-profit organization resources unfortunately are from many years back, many citing old case law. Especially for self-represented litigants, it may be worth trying to at least seek advice on that point. I am hopeful (and in gratitude) of work done by lawyers such as Michael Battista who have been doing wonders for self-represented litigants. I have been trying to figure out solutions as well for the legal clinic I supervise to take a bigger role in trying to provide resources, but this is certainly an area where law is complex and needs simplifying (across the board).
Again on this point, it is crucial to spend time with Vavilov’s expansion of the reasonableness analysis. It certainly is a decision that has created results on two sides of the spectrum, one supporting the DOJ’s position that errors must go to the heart of the decision and another helping Applicants where decisions are the necessary elements to allow one to apply reasonableness.
These are sage tips from CJ Crampton. I have not always agreed with his analysis on certain decisions, but I think the Crampton Court is taking all the right steps in trying to elevate the quality while making the process more accessible.
WT Tip #1: Find Senior Lawyers to Collaborate With and Bounce Theories Off Of
I think too often badly prepared JRs are a result of narrow examples and not enough time spent hashing out legal questions. Immigration law is complicated by the fact that most times it is one client and one lawyer, but the best litigators I know keep a strong network of mentors/partners with whom they share ideas and cooperate on cases with.
I am by no means a senior practitioner (recall earlier note on being in my fifth year of practice) but I would love to develop more networks among other junior to mid-level lawyers and as well to seek the wisdom and guidance of sage mentors and experts.
When I speak to older lawyers with more experience, I usually leave the conversation feeling more confident to put my foot forward. Most of my weaknesses in argument is in trying to do much or not digging beyond the surface on a legal issue, things mentors with more experience can help parse out. They are also very good at helping you trim the fat on unnecessary arguments that detract from the overall point you are trying to make.
WT Tip #2: The Incompleteness of a Rule 9 Opens Up Strategic Options
One of the major challenges in judicial review is that many times, as Applicant’s counsel, you must make your arguments based on a very thin Rule 9 which may just be the written decision you have an a short subset of electronic notes.
Unfortunately, leave decisions are made on this record, making the Applicant’s Affidavit and perhaps an Affidavit from your legal assistant even more important to put forth the key missing pieces (perhaps the information that makes very clear why the decision is unreasonable or not procedurally fair). In many cases, your emphasis of the fact the Respondent has not even made clear what is on the Record, can be part of a reply, and leave may be granted if there is a major question to be answered. Indeed, the publishing of the Certified Tribunal Record (or key omissions) may also be a settlement point shortly after leave is granted.
WT Tip #3: Don’t Leave the Memo for the Last Minute
As a rule of thumb I try to finish citations at least the day (ideally two days) before the final deadline, giving me one day to edit and put together the Applicant’s Record. The Applicant’s Record flows together – in that through a strong affidavit, and citations, you can highlight your key arguments with the evidence CJ Crampton mentioned in his advice.
If you can also finish early, you can send it around to a few others (other counsel, other lawyers in your Firm) for feedback. I find myself often refining arguments, only because I was able to finish early, think and read more following the first draft, and polish it off later.
While currently timelines are suspended for coronavirus, you cannot bank on being able to navigate extensions of time in all cases. On that related note, the Federal Court Registry is such a crucial resource for the little administrative hiccups (solicitor’s service, proof of consents, e-Filing, etc.) that often bog down the process. Finishing earlier allows for you to make sure those steps are done appropriately as well.
Conclusion: What do you think about the Federal Court? What are your tips for written submissions?
As we work to develop our practices here I invite you to join me in conversation. I’m still learning the ropes and would love to learn alongside all of you.
I wrote this hopefully relevant piece with five immigration tips on coming out of the pandemic.
While no one has a crystal ball, I would expect that there is a greater emphasis on the back end (people with status issues and difficulties staying in Canada).
What do you think? Are there ways we can collaborate on these areas for the betterment of access to justice?
Hi VIB Readers:
It’s been a minute.
A Recent Podcast
I wanted to share something I did not too long ago (Pre-COVID).
I recently joined Canadian Immigration Lawyer, Mark Holthe on his podcast, Canadian Immigration Podcast, to discuss some of the challenges international students experience when studying in Canada and some essential tips to avoiding the most common pitfalls.
I really want to thank Mark Holthe for his tireless efforts to bring the conversation about immigration law to the mainstream. He is an incredible mentor, a bastion of positivity, and a great lawyer – evidenced by recently winning the Best Lawyers – Best Lawyer in Alberta award. I am grateful that he took time to interview me and I am happy to share this conversation.
I will also will be speaking at the CBA National Immigration Section’s conference titled “20:20 A VISION FOR LAWYER EXPERTISE DURING A PANDEMIC AND BEYOND” on study permits.
You can register for the conference and find more information here: https://www.cbapd.org/details_en.aspx?id=NA_NA20IMM04J
My session is at 10:00am – 11:15am PST (1:00pm – 2:15pm EST).
My assistant Edris and I have been working on putting together new content and new materials to assist international students, along with migrant families and migrant workers – the focus of our practice moving forward.
As I discussed in my podcast, international students have a special place in my heart – part of both my late father’s journey to Canada (the reason I am here) and my own spouse’s journey to joining.
We’re going to be looking specifically at issues Post-COVID that affect these groups and brainstorm ways from policy and non-profit perspectives that we can help or push changs. I continue to represent individual students, workers, and collective families in achieving their immigration goals.
Thanks for all your continued support of my practice and the work we are doing for our clients and hope to do for community!
I did an earlier-COVID post about the criminal inadmissibility consequences of the Quarantine Act. In today’s post I want to update the Government’s approach here but also bring a larger critique – that we should be advocating for the right of foreign nationals to access the Immigration Division (R.229 of the Immigration and Refugee Protection Regulations [IRPR]) where it is clear their case requires a balancing of evidentiary facts and greater (if still minimum by administrative legal standards) procedural fairness.
I see a worrisome trend of addressing (ramming) new inadmissibility through CBSA Minister’s Delegate [R.228] because it is administratively convenient. As technology improves and the ability of more hearings to be run administratively efficiently, is it still fair to deny foreign nationals at the heart of these matters, the ability to have an independent decision-maker preside over their cases and to present their full evidence?
The New Inadmissibility – Violation of Emergencies Act or Quarantine Act
On 20 April 2020, the Federal Government introduced a new inadmissibility for foreign national (visitors, students, and workers) who violate the Quarantine Act.
The change adds an inadmissibility under s.41(a) of the Immigration and Refugee Protection Act (“IRPA”) and does so by also creating automatic inadmissibility for any Foreign National with a Quarantine Act conviction.
22.1 For the purpose of determining whether a foreign national is inadmissible under paragraph 41(a) of the Act for having failed to comply with the condition set out in paragraph 43(1)(e) or 183(1)(d) of these Regulations, if the foreign national has been convicted for having contravened an order or regulation made under the Emergencies Act or the Quarantine Act, the facts on which the conviction is based shall be considered to be conclusively established.
This operates through the adding of a General condition under s.183(d) which applies to all temporary residents:
(b.1) if authorized to work by this Part or Part 11, to not enter into an employment agreement, or extend the term of an employment agreement, with an employer who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages;
(b.2) if authorized to work by this Part or Part 11, to not enter into an employment agreement, or extend the term of an employment agreement, with an employer referred to in any of subparagraphs 200(3)(h)(i) to (iii);
The law also applies by way of adding a condition under Regulation 43(1)(e) in the context of continued examinations under s.23 IRPA.
It is important hear that the IRPA imposes an obligation beyond the criminal context, to require compliance with ‘all requirements.’ There are several Quarantine Act requirements that do not directly attach a conviction for. Furthermore, this brings into the realm of immigration inadmissibility several convictions found in s.67-72 of the Quarantine Act that would not have rendered a foreign national inadmissible by way of a sole summary offence conviction.
There are major questions of its overbreadth and as well whether the inadmissibility will be disproportionately pursued against low-skilled workers working in fields such as agricultural, largely at the whim of the direction of the employer or their agents. While there are also employer compliance issues (which this piece will not explore) it is foreseeable that a wrong of the employer could be attached to the employee by way of inadmissibility.
The Regulatory Impact Analysis Statement acknowledges as much in what I still feel is a severely short assessment:
Gender-based analysis plus (GBA+)
The power imbalance inherent in most employment relationships is intensified for foreign workers as a result of their temporary status in Canada, and in the case of employer-specific work permit holders, the conditional nature of their authorization to only work for one employer. This imbalance can be further exacerbated by factors such a lack of proficiency in English or French, lack of knowledge of their rights, and misinformation. Gender and intersectional factors (e.g. age, race, low-wage level) may further increase vulnerability to workplace abuse.
One of the policy objectives of these regulatory amendments is to protect temporary foreign workers to help ensure that they are not put in situations where they are at risk of being infected by COVID-19 and/or at risk of infecting others. The proposal is expected to safeguard against an employer encouraging a worker to violate any requirements under the Quarantine Act or the Emergencies Act.
Colour me sceptical but I do not see how putting punitive immigration consequences on foreign workers protects temporary foreign workers. I do see individuals who are racialized and in low-paying jobs (with assumed lower levels of language ability and presumed less shelter-at-home circumstances) being subject to greater surveillance and immigration consequences.
No Referral to the Immigration Division
Where I think this provisions steps into the line of being a major problem in my perspective is is listed as a R.228 IRPR inadmissibility rather than as a s.229 IRPR admissibility.
11 (1) Subparagraph 228(1)(c)(v) of the Regulations is replaced by the following:
- (v) failing to comply with subsection 29(2) of the Act as a result of non-compliance with any condition set out in paragraph 183(1)(d), section 184 or subsection 220.1(1), an exclusion order,
(2) Paragraph 228(1)(c) of the Regulations is amended by adding “or” at the end of subparagraph (vi) and by adding the following after that subparagraph:
- (vii) failing to comply with the condition set out in paragraph 43(1)(e), an exclusion order;
The difference between R.228 and R.229 IRPR is that R.228 IRPR allows a Minister’s Delegate of the Canada Border Services Agency (including at the Port of Entry) to issue an exclusion order.
Subsection 44(2) of the Act — foreign nationals
228 (1) For the purposes of subsection 44(2) of the Act, and subject to subsections (3) and (4), if a report in respect of a foreign national does not include any grounds of inadmissibility other than those set out in the following circumstances, the report shall not be referred to the Immigration Division…
R.229 inadmissibilities require the Minister Delegate to refer the matter to the Immigration Division (ID):
Paragraph 45(d) of the Act — applicable removal order
At an Immigration Division hearing, the burden of proof is on the Minister to prove that the person concerned is inadmissible to Canada. The ID Member who makes a decision is a third-party, impartial decision-maker. They are obligated to assess the submissions and the evidence submitted by the person concerned.
In a Minister’s Delegate-issued removal order, evidence is assessed but the MD’s are acting on the arresting officer, other law enforcement/public authorities, and other interviewing inland enforcement officers to render their decision. They are carrying out the decision effectively “in-house” thus eliminating a real need for additional procedural fairness (opportunities to respond) or in many cases adequate opportunities to provide further evidence. Most clients have no counsel for MD-issued removal orders and counsel are often given limited ability to advocate in this setting.
Continuing a Recent Trend of No Justification
One of the problems as well is that the RIAS does not provide further justification on why the inadmissibility was chosen for s.228 and not s.229.
The RIAS merely repeats four times a state similar to this:
The Regulations provide the authority for the Minister of Public Safety or the Minister’s delegate to issue a removal order for non-compliance with the new conditions that require compliance with an order or regulation under the Quarantine Act or the Emergencies Act, once a person has been found to be inadmissible.
The last inadmissibility added – in February 2014 (effective June 2014) for non-compliance and not actively pursuing studies (IRPA s.29(2) x. s.41(a) x IRPR s.220.1) also contained similar language in it’s RIAS.
The Regulations allow for issuance of a removal order by delegated officers in circumstances where students are not complying with new study permit conditions, rather than being referred to the Immigration Division of the Immigration and Refugee Board for a hearing.
In the international student context, this led to border officers removing international students for one-day trips to the United States during studies, poor grades, and until recently, as secondary admissibilities to inland admissibility investigations/matters (allegations of criminality, misrep, etc.).
I think a question needs to be legitimately asked about why two admissibilities both of which go against the usual R.228 black and white assessment (e.g. are expired permits – overstay, not holding required immigration document, failing to appear for examination, criminal conviction inside Canada as examples) are being put in the same box.
Given the limited application (at least documented) of the Quarantine Act as we explored last blog, should not an independent decision-maker who develops specific expertise to assess evidence be required? What happens if the allegation is not based solely on a conviction but actually on an issue such as the truthfulness of a disclosure or response (s. 15 -s.16 of the Quarantine Act). How would these proceed without witnesses and the type of evidentiary disclosure needed?
Remember when we frame this issue, we also look at the primary elements of procedural fairness as set out of by IRCC.
- Processing without undue delay
- The right to fair and impartial decision-making
- The applicant’s right to be heard
- Whoever hears must decide
- Legitimate expectation
- Decisions must be based on the Immigration and Refugee Protection Act (IRPA) and Regulations (IRPR)
- The right to reasons
The right to be heard or the right to reasons is not too hard in the context of an individual who violates a clear law on the face, but this law is far from clear and arguably with construction that is far from perfect.
It is my hope that it is used infrequently and that we move through this COVID period with discretion and seeking understanding before applying punitive measures, but we have seen in the ways that fines have been levied for COVID offences generally that this has not been the case.
In the interim, we need to hold the Government to account to explain and justify why the Immigration Division could not have been given jurisdiction to issue the removal order.
One of the main arguments for an R.228 removal in administrative efficiency. The idea being these issues are so important and emergent that they need to be dealt with quickly, and possibly even at the Border.
With COVID one of the things we are seeing is an improvement in the ability to hear cases virtually or leverage technology to make things more efficient. Subject to the very important aim of giving individuals the right to an oral hearing (and ideally in person) particularly in the context of long-term detainees and refugees, I don’t see why the administrative efficiency argument still stands.
Post-COVID I expect that we will see many more hearings (including admissibility hearings) operate via online video conferences. These conferences can include the ability to share and provide evidence quickly, disclose immediately, and likely timelines can be shortened for scheduling. With all these things, what is the continued justification for not referring cases that do require an assessment of evidence to render a reasonable and fair decision?
Judicial Review as a Possible Outcome
Unfortunately, if there is unfortunately a second wave or if the Quarantine Act becomes engaged increasingly for inadmissibility, I suspect that we will have quick removals and unfortunately little basis for stay of removals. For workers, it is likely that inadmissibility would also sever the employer/employee relationship removing the argument they likely had for significant harm. Students and Visitors will probably have similar difficulties establishing significant harm in most cases if their entry was for studies or family-based visits (which are already being scrutinized).
Ultimately, I believe we will probably get poorly justified removals that will require judicial reviews to sort out. However, unlike the actively pursuing studies provision of R.220.1 IRPR which the Federal Court has generally upheld in reported decisions, I think the Quarantine Act will be much more difficult to navigate. There are also holes around issues such as overbreadth and vagueness, and certainly procedural fairness issues, that will emerge in such litigation.
I am interested to see how this will all pan out. If you have a case on the basis of this new inadmissibility, I am eager to hear from you: firstname.lastname@example.org
Take care and stay safe!
Recently, I haven’t been as active as I wanted to be. Partially because others have been doing a fantastic job and I am a huge believer in not overcrowding the information airways when others are doing such good work (shoutouts especially to Ravi Jain and the CBA Immigration Section Executives, Steven Meurrens, Julianna Daley and Migrant Workers Centre, Jim Wu, FACLBC, among many, many others). I am also grateful for the mentorship of my colleagues at Edelmann, and individuals such as Sam Plett (a brilliant lawyer out in Ottawa, formerly Toronto) who have given me a lot to think about with their words and imparted wisdom.
The other reason is that in my own way I have also been struggling with the pandemic. I have been struggling with staying healthy, motivated, and positive (crushing those ANTs!) among all the other things. I’m also in the middle of an internal/structural rebuild with many moving parts. Some of those parts include (like many courts have been doing) thinking about how to leverage technology,
Someone I assisted in the past, a creative mind, and film director Ritesh Matlani wrote this wonderful piece in the Medium where he graciously quoted some of my thoughts on the recent COVID pandemic. Ritesh has a growing network in the Film and Television industry where he often assists others and advocates for those within the broader Asian diaspora, such as writing for the Cold Tea Collective.
I wanted to just share a few of the quotes in Ritesh’s piece below. I also would recommend everyone to go watch his film Nana. I’m still in line to see it but from what I read and what I know of Ritesh’s journey it likely is a magical short [edit: he just sent me the link to watch it and it is incredible].
The Medium piece is HERE:
My quoted section is as follows:
Will Tao is a solicitor with Edelmann & Co. Law Offices in Vancouver and had assisted me in my immigration process, first as a temporary worker and then for permanent residency. My case was complex and his expertise really got me through what can be a dark and daunting time for many immigrants.
“Our pathways to permanent residency, especially in the economic stream, are based on employer endorsement or job offer. Due to the pandemic, HR offices at limited capacities to write support letters for permanent resident candidates, many of whom are losing eligibility as they are no longer employed,” said Tao about the current scenario.
For citizenship, unfortunately, the delays of applications will become quite pronounced.
“I would not be surprised if citizenship applications take at least a year to possibly a year and a half longer than usual. Ironically, one of the only positive effects I have seen has been the lowering of Express Entry scores,” says Tao, who engages with both workers and students at a community level. Worry and confusion afflict those who have a precarious status or expired SIN numbers as little information is provided on how they can access relief funds. There are students who are panicked for funds to support their studies. Many are isolated in rented rooms with no ties in Canada. Others are choosing to defer their start dates and stay abroad. Online learning is going to become the new norm.
I wanted to also give you a quick update on my new norm. I realized that Twitter has been killing my brain so I have temporarily deactivated it. I hope to jump back before the 30 days takes away my account but I’m likely going to move to a more Peter Edelmann (Justice Edelmann, now) approach of tweeting only important immigration updates. I am trying to find a new platform for my race/equity writing and as well hold some of my own political views more to myself and express them through various organizations/efforts I am involved in. In short – tweeting has overwhelmed me to the point of needing to step back and recognize the temporal nature of a Tweet versus the longer need of deeper systemic efforts. It’s time for the horse blinders!
See you all shortly.
Q&A with Canadian Immigration Lawyer, Lou Dangzalan
In today’s special blog, I am chatting with my friend and fellow immigration lawyer in Toronto, Lou Dangzalan. Lou and I went to the University of Ottawa Law School together and I was glad to find out a few years later that he also joined the practice of Immigration and Refugee Law. We reconnected in Winnipeg last year during the CBA Immigration Conference over Jollibees and shared stories of our respective diasporic communities.
I want to tell you a bit about my own love for the Philippines. It doesn’t come with the depth and foundations that I hope it will one day (when I immerse myself more in the culture and history) but it is built out of my own time there as a tourist. In 2010, I went to Manila, Angeles City, and Palawan (Puerto Princesa and El Nido). Spending time there and reflecting back on the diasporic community here in Canada, I realized that many of us really do not understand nor appreciate the complexities and the beauty.
We may recognize the tastes of adobo, but we do not understand the layers of colonial history, the effects migration has had on communities and families, and the often invisible stories of both struggle and resiliency.
Lou, a native of the Philippines who was also a former journalist, has spent an increasing amount of time in the Philippines. He spent time answering questions (not easy at all) that I posed to him as we unpack some of the issues of the Filipinx identity, local, and broader community.
Q1: I know many Canadians really do not understand the Philippines, the Filipinx diaspora. I know it is impossible for one person to represent an entire community but what kind of things can you share about the community to better educate the Canadian public? What misconceptions are out there?
The Filipinx diaspora is no stranger to a plethora of scholarly and investigative work. In Canada, I would tip my hat off to Phil Kelly at York University who has studied the Filipinx-Canadian community in detail.
Let’s start with the numbers: what I can tell you is that at any given moment, 10 percent of the Philippines’ population is outside the country’s boundaries. That amounts to about 10 million, and about 840,000 of them are in Canada as of 2016.
I will confess a feeling of discomfort in responding to this question as the Filipinx diaspora is chimeric and varies by geographic spread. For example, in East and Southeast Asia, the face of the Filipinx diaspora is deeply gendered as women are overrepresented as a lot of those who work in Hong Kong and Singapore for example migrate as domestic workers.
However, a grand majority of seafarers working in the maritime industry around the world are Filipino men. Contrast that to Filipinx migration to the United States after the Second World War: Filipina nurses comprised the majority and some of these nurses even ended up in Winnipeg, Manitoba on a visa run! As the story goes, they liked Canada and Canadians so much that they decided to stay.
That is unfortunately where the story of Filipinx-Americans and Filipinx-Canadians part ways: Filipinx-Americans are deeply entrenched and secure in the healthcare system in the US as reflected by the average median income of $84,620 USD, versus in Canada wherein the average Filipinx-Canadian median income is at $32,508 CAD. Filipinx-Canadians love to compare themselves to Filipinx-Americans, but at least in terms of median household income, the difference is staggering.
One thing that is a uniting thread in the disparate diasporic communities is that they are a reflection of the diversity and the complexity of the Philippines as a society. When people think about the Philippines, it’s easy to dismiss it as an inconsequential economy and that everyone in the country is poor. I’m sure that in your trip in 2010, you noticed the immoral levels of inequality in the chaos that is Manila, and in America’s Angeles City; and then you probably asked yourself why the working class have not revolted against the elites yet. Then you understand how it all works when you find equilibrium through the locals in El Nido – they surprise you by showing you a new level of humanity with a simple smile.
The Philippines is a country of multiple layers of contradictions largely owing to its (colonial) history, political economy, and demography. For example, it is hardly thought of as a multicultural country even if English and “Filipino” are official languages, while Spanish and Arabic are “auxiliary languages.” It isn’t so long ago when people from different parts of the Philippines wouldn’t understand each other owing to their different ethnolinguistic background and would only be able to communicate in English. My great-grandparents’ household spoke English as their common language.
Adding to that is how the Philippines’ demography has changed immensely in the last 20 years: there is now a sizable Korean community in the Philippines taking advantage of cheaper education in English, and hundreds of thousands of mainland Chinese nationals are now working in various sectors there. Of course, Manila has become North America’s preferred call centre and operates in lockstep with eastern standard time. This results into a bizarre chaotic melange of east and west.
This circles back to my point about my discomfort in describing the Filipinx diaspora as there are many vantage points from which you can interrogate it. I say that with pain as well given the heinous human rights situation under Rodrigo Duterte who has led the Philippines into a rabbit hole of catastrophe. Whenever I am asked about it, of course, there is a feeling of shame and anger, but above all, a feeling of resistance to be defined by a maniac who happened to win with an army of internet trolls. I left the Philippines in 2008 and while I do visit more often these days when work takes me there, I hardly recognize it from what I remember growing up, which is terrifying and fascinating at the same time.
Q2: I know that the exclusion of family members (undisclosed spouses and children) have been a historical issue that have provided major immigration challenges. Can you give a little background on why these challenges seemed to be so entrenched in the Filipinx context?
I suspect that there are a variety of reasons and absent a methodical social scientific study, I will rely on anecdotal evidence and conjecture. What I have encountered in cases of sponsorship bars relating to failure to disclose family members is that they range from receiving faulty advice from ghost consultants, inadequately trained consultants, and foreign trained lawyers who operate in a community silo, amplifying a feeling of professional alienation from the immigration bar, for example, along with socio-cultural predispositions.
I’m sure you’ve heard of harrowing stories wherein representatives would advise their client to drop a member of a family in an application. The colloquial term is “laglag,” which literally translates to drop. I dealt with a case where a client who came in for a consultation revealed that her immigration consultant had advised her to drop her son because he supposedly had a criminal record. According to the representative, the “criminal” inadmissibility would result in the refusal of the PR application. The offence, it turns out, was a municipal ordinance (by-law) offence – smoking in a public theatre. I spoke to a lawyer in the Philippines and we were able to confirm that the offence was not criminal in nature and should not appear in the police certificate since it was such a minor offence. The fact that criminal legal equivalence was not even contemplated by the immigration consultant blew me away.
There is also an element of conservative social upbringing and shame. It is not a secret that a lot of Filipinxs are devout Catholics or evangelicals. Some Filipinxs are very hesitant to reveal that they have children out of wedlock. In another matter, a client sought my help to sponsor her son. She was an accompanying dependent to her parents, who were in turn sponsored by their daughter. My client’s conservative social background attached a lot of shame to her out of wedlock son. I should note that the prejudice and shame is entrenched in the Philippines’ legal system, deeming these children as “illegitimate.” Most of our colleagues in the bar are aware that there is no divorce in the Philippines. She was afraid of the consequences of her elder sister, the sponsor, finding out about her son as the latter had constantly supported her financially by paying for her education. My client was drenched in shame and guilt and as a result, she did not disclose her son to immigration authorities for fear of her sister disowning her. As it turns out, she was right: my client’s sister had resisted all my attempts to obtain documents pertaining to the original PR application in order to know the context and establish a roadmap for sponsoring my client’s son even after almost a decade.
Q3: Another issue we hear a lot about here in Canada is that there are challenges for migrant workers to seek adequate legal representation in the Philippines and that often times ‘agents’ or ‘middle-men’ take advantage of migrant workers. Can you give an example of why this is the case and your understanding of some of these challenges?
Filipinxs are almost always obliged to use an agent in the Philippines to secure a job and a work permit in Canada. This is a case of applicants being targeted aggressively by labour recruiters and because of institutional requirements. Since the 1970s, Filipinxs leaving the country for work were regulated by the government through the Philippine Overseas Employment Agency. In addition, since early 2019, workers leaving the country are required to have insurance for health, death and repatriation through a labour recruiter, adding another bureaucratic layer. There exists a culture of using agents and middle-men. It is so entrenched that the first question that Filipinxs ask immigration professionals – both consultants and lawyers – is whether they are an agent.
The latest iteration that appears to be problematic is when Canadian registered education agents who are in the Philippines recruit international students and provide legal advice in their immigration process.
In Canada, lots of Filipinxs self-represent in immigration matters due to lack of financial resources, and sometimes through the egging of online communities where negative stereotypes of lawyers are abundant. This is where access to justice becomes very real for Filipinx-Canadians. I am acutely aware of this and have assumed a lot of risks by dramatically lowering my rates when I started practising law. I have made the conscious choice of not joining a law firm, even though it would be in my financial interest, so I can control my rates and provide more flexibility through payment deferral schemes, and by providing very long payment terms.
Language barriers can also feed into the problem. While most members of the Filipinx community speak English, applicants tend to engage representatives, or worse: agents/middle-men within the community as they prefer to speak comfortably in Tagalog, Visayan or Ilocano. Even here in Canada, there is an alarming number of unlicensed representatives who present themselves as immigration consultants. This then becomes a challenge for the ICCRC and the various law societies as the language barrier is two-way: the problem becomes very opaque for regulators. In my experience in law school up to practice, I have never once met an agent of an immigration professional regulatory body who speaks Tagalog. Should a Canadian regulator one day wake up understanding Tagalog, they will realize how it’s like the wild west out there.
Upon searching various law societies, lawyers who self-declare that they speak Tagalog are close to non-existent. I did a quick search on various law society lawyer directories limiting the parameters to immigration and city. For the City of Toronto. There are only two lawyers listed who self-declare as Tagalog speakers practising immigration law, including yours truly. Montreal shows zero; so does Calgary. The Law Society of British Columbia’s Lawyer Directory does not even allow you to find a lawyer who speaks your language on their website.
The intersection of access to justice, language rights, and trust issues create a negative feedback loop where Filipinx clients would take the word of a “middle-man” or who may not know what they are doing as absolute truth. In my humble view, this is a huge blindspot for the various law societies and the ICCRC. It however presents an opportunity to represent the public interest through introspection and by being more proactive in engaging with immigrant communities and not just through platitudes.
Q4: With COVID-19, we have been hearing about many TFWs and other Personal Support Workers (“PSWs) and Caregivers who are risking their lives to save Canadian lives and put food on the table? From what you have seen who are these individuals and what challenges are they facing?
Who: these are PSWs, Registered Practical Nurses (“RPNs”) and support staff at long-term care facilities, among others. Their main challenge: precarity of immigration status and employment.
At the beginning of the COVID-19 outbreak, there was an almost universally accepted knowledge that the elderly will be some of the most vulnerable members of our society. Now, faced with the reality that most deaths so far have been in long-term care facilities, the sudden realization that an invisibilized workforce exists, much like seasonal agricultural workers, is deflating. From an immigration law perspective, I find the absence of a conversation on the disconnect between status and how grateful we are to these frontline workers morally disturbing.
In Ontario, one of the findings has been that the transmission of COVID-19 can be mitigated by banning long-term care facility workers from working at multiple locations. What everyone fails to ask is why these workers hold multiple positions in the first place. In dealing with my client’s employment histories, what I have noticed is that they hold on to multiple positions at multiple locations in order to cobble together a decent salary because they are mostly hired on a permanent-part-time basis. They rarely have job and income security.
Let’s be honest: even without COVID-19, working as a PSW is not easy. Between changing adult diapers and treating bedsores, these workers are exposed to some of the most harrowing mental health stressors. With the current pandemic, it’s even worse. I have a client who decided to stop working as a PSW because of her son – she fears that she may herself become a vector of transmission and infect him. As a result, her pathway to PR, as limited as it is to begin with, is in limbo.
Q5: At the same time, I think many individuals do not appreciate how the Philippines is creating very educated individuals who are seeking to genuinely visit and study in Canada? Unfortunately, there are still high incidents of refusals arising from the Manila Visa Office. We see this again for individuals seeking to connect with partners (boyfriends and girlfriends) abroad. Can you shed some light into this?
What most Canadians do not realize is that the Philippines, prior to COVID-19, is one of the fastest growing economies in the world, even surpassing China’s growth rates in some quarters in the last 10 years. This has resulted in better incomes and an uplifting of the quality of life for most Filipinxs.
As a result, the appetite for travel as a social status symbol, for better or for worse, has grown. It stands to reason that Canada could gain from this through tourism and education spending dollars. Unfortunately, the recent rise in socio-economic standing trickles down ever so slowly through the machineries of bureaucracy, including visa offices whose institutional biases are still very much entrenched.
I did an ATIP request last year to see what the statistics were like for the 2018 cycle. The refusal rate for the Philippines was 36% for study permits, largely the same compared to the global average refusal rate of 34%. This however masks the point that you made — that there are a lot of people who are genuinely seeking to visit and study in Canada.
I am due to request another ATIP report for 2019 to do a year-on-year analysis. 2019 is important because Canada announced then that it wants to diversify its source of international students from India and China to other countries such as Vietnam, the Philippines, and France. I will be monitoring this and I hope to have another conversation with you about the statistics and main reasons for refusals.
With regards to the partners who are seeking to reconnect, I will note that the threshold where convincing a visa officer that the applicant would return back to the Philippines due to strong pull ties is almost always a losing proposition. What I have noticed instead is that because meeting this onus is almost always a fool’s errand, most people would rather omit an important reason as to why the applicant is seeking a visa in the first place.
Q6: What types of policy solutions do you think would benefit the first-generation Filipinx migrant communities?
An overhaul of licensing and degree equivalencies.
It puzzles me that a Filipinx nurse would have an easier time obtaining a licence in California or New York than in Ontario. To add insult to injury, the starting salaries for nurses in New York and in California would be much higher than in Ontario. I should note that there are historical reasons for this: the US did after all build the education system in the Philippines during the American colonial period under Governor-General William Howard Taft (yes, the late US President was a colonial governor in the Philippines).
Much can be said about regulatory checks and ensuring standards, but when Filipino nurses have easier access to the profession in the US or in the UK’s National Health Service, one begins to question why bother with Canada.
I have some clients who are even asking me for help in obtaining a treaty visa under the then NAFTA as nurses in the US. Another one related that after having gone through hell and back to obtain an Ontario nurse’s licence, she felt that the process diminished her allegiance and belief in “Canada’s propaganda” (her words) of inclusion. The College of Nurses of Ontario’s process has left her jaded and very salty.
Q7: We have been talking a lot, in our conversation, about racism, class, and gender-based prejudices as an issue with all clients, but specifically affecting the intersections of communities such as ours. To the extent you are comfortable sharing, how do you see these factors affect the Filipinx community today?
The Filipinx community is what I like to call an invisible visible minority group. In a way, this translates to a strategic avoidance of public ire when things are bad. However, invisibility is in its own way a form of institutional and social violence.
I’d like to think of myself as a half-glass full kind of person. There is certainly a lot of room for improvement, but I am starting to see more effort from some long standing institutions in acknowledging the contributions of both our communities to the mosaic that is Canada.
In dealing with the issue of invisibility, the only logical countermove is to promote visibility through advocacy and inter-cultural dialogue.
Q8: I have also heard in various community organizing efforts that the Filipinx community continues to go often unheard or underrepresented at the top echelons of business, politics, and the judiciary? I know recently a Filipinx judge was elevated to the Court of Appeal in Ontario. How do you think the community can push for this change and how do institutions themselves need to open up to the diaspora?
I believe you’re referring to now Justice of Appeal of the Court of Appeal for Ontario, Steve Coroza. I first met him in 2013 during a Federation of Asian Canadian Lawyers conference in Toronto. I was fortunate to have received valuable advice and mentorship from him over the years when I was unsure about my career trajectory while I was still in law school, and as a first generation immigrant.
I think that in this case, visibility, continued engagement, and mentorship are key strategies. At least for the Filipinx-Canadian community, the problem is invisibility and as a result, the community is largely ignored. I defer to the wisdom imparted by Justice Sandra Nishikawa who said at one FACL event that senior lawyers in racialized communities need to step up and serve as role models. I think that this applies across all professions and trades. It will be hard for institutions to ignore us if we speak up more and more.
Finally, one of my former professors in law school gave me a valuable piece of advice that I would like to impart to my fellow young lawyers and advocates: we should not shy away from providing mentorship ourselves as even young lawyers, we do have something to offer. For example, a fresh perspective. This is critical as it allows us to consolidate our gains in transforming our institutions to be more attuned to the realities of our society by welcoming the various perspectives from Canada’s diasporic communities.
Thank you Lou!
I want to thank Lou for taking so much time out of his day to share with us a bit about his practice and his community. Lou has already been turning heads in Toronto, running his own Firm as a Sole Practitioner, and is bilingual in both English and French. Lou will be a social justice advocate and lawyer to watch for and I look forward to litigating with him down the road.
To find out more about Lou, follow him on Twitter @ljansdan
COVID and Migrant Workers as a Starting Point
While we rush to seal our loosely-defined borders and legal exceptions, let us not lose sight of the reality of who it is ‘doing the work‘ as low-paid essential service workers in Canada – temporary foreign workers (TFWs). Accordingly to a Government of Canada official, over 60,000 temporary foreign workers have come to Canada to work in our agriculture and agri-food sector.
I begin this piece by rejecting the term, ‘low-skilled.’ Anyone who at times like these is contributing putting food on to our table and taking care of immunocompromised seniors at senior’s home and care facilities, I hold to the highest esteem.
From 2019 Open Data, we know Canada and British Columbia’s are coming from five countries – Mexico, India, Jamaica, Philippines, and Guatemala. Asides from the correlation that they are all from the Global South, they also all represent countries where racialized folk – brown and black – are primarily entering Canada to do the work Canadians are not doing. While I understand some are floating around the idea of a national work program to get Canadians into these positions over TFWs, we must admit the reality that the exposure of risk to COVID-19 of this work (not to mention the low pay) would drive most away. This reality also creates a contradiction that Chris Selley questions in the subheading for his recent National Post article titled, ‘Ottawa’s plan for quarantining temporary foreign workers is more bizarre than comforting,’ where he writes:
If we can identify a group of people without whose labour we literally wouldn’t be able to feed ourselves, why are we denying them a path to citizenship?
I share the same question. Through this pandemic we have already had one TFW outbreak at a Kelowna greenhouse/nursery and countless stories of senior home outbreaks which make up half of Canada’s confirmed deaths from COVID-19. We have not said so much of a thank you, other than discussion of how to quarantine them effectively upon entry and pay back employers for lost wages.
However, worse yet, we’ve been left an invisible image of who these workers are, what their races are, and their migration histories that have led them to heed the call into action. While we are all in this as Canadians, I am eager to know who these individuals are and eventually reward them with pathways to permanent residence or at the very least create new pathways that honour that work.
Indeed, if we are putting racialized migrant workers on the front lines of COVID-19, I argue we should putting these same migrant workers in the front line of new immigration programs to facilitate their transition as permanent residents.
The Invisibility of Canadian Racism and the Misapplication of Intersectionality
However, there appears to be preferred invisibility – something that runs deep when it comes to issues of immigration and race in this country.
The Canadian Government approach to immigration continues to be one that on the outside adopts a Gender Based Analysis (“GBA”)+ framework that states an intention to take into account intersectionality, but a reality that race is the unspoken, untouched, undelved into dark space – a Pandora’s Box.
IRCC does not collect data on religion or race.
Zoomed in, in case the footnote is hard to see:
We know only what countries applicants are coming from, not who they are by way of their race, ethnicity, and colour, and how discrimination factors into visa refusals and availability of pathways to permanent residence. We know anecdotally from client experience and those cases that end up published as case law that visa officers discriminate against individuals from minority racial/ethnic groups, particularly when the visa office responsible for processing the applications is not located in the same country.
How are we purportedly taking into GBA+ if we have not looked further at what the + entails. How can we claim to even be applying an intersectional lens?
The GBA+ touts itself as applying an intersectional lens in various Government training materials, but one questions how Kimberlé Crenshaw would view this given her conception of intersectionality was focused on the intersections of gender (yes), but very and just as importantly class, and race.
When you go back to the foundations of Crenshaw’s underlying work, the research was centred heavily on race and migration status. She examined how immigrant women’s vulnerability to spousal violence and the fear of undocumented women were exacerbated by legislation aimed at subordinating the sponsor, creating ‘double subordination.’ (See: Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color)
Much of intersectionality has unfortunately become what has become what sociologist Sirma Bilge calls “ornamental intersectionality,” a neoliberal approach that “allows institutions and individuals to accumulate value through good public relations and ‘rebranding’ without the need to actually address the underlying structures that produce and sustain injustice.”
Currently, proposed regulatory and legislative amendments do go through a GBA+ lens through Part 1 of the Gazette Regulatory Impact Analysis Statement (“RIAS”) stakeholder feedback process but this process is primarily based only on Gender, which itself is a primarily a supplement to other economic and resource considerations. No one asks in these pieces how racialized communities of women or non-binary folk will be affected, nor are most organizations who will provide feedback putting racialized or non-binary gendered migrant communities at the centre of their analytical lens. The centred lens on immigration continues to be white and able-bodied, from it’s legal practitioners to the immigrants held in the highest demand and sought after.
Furthermore, the very idea of intersectionality has been to view the different social categorizations as separate and distinct boxes for us to parse ourselves into, rather layers and true intersections – a mistake we continue to repeat in our misclassification and misapplication of the term.
Colourblindness as a Racist Policy
Ultimately, without identifying race as an important social stratification, that centres other discrimination – which could include language, migration status, and gender – we remain stuck in colourblindness.
You may have heard about colourblindness recently with respect to COVID-19. In the context of COVID-19, Ontario’s chief medical officer of health, Dr. David Williams, recently stated:
“Right now we consider our main risk groups (to be) the elderly, those with other co-morbidities, regardless of what race they are,” he said. “Regardless of race, ethnic or other backgrounds, they’re all equally important to us.”
But what got us to this colourblind (regardless of race) approach? What got us to normalize the one human race (we’re all the same) theory?
Writer Ibram X. Kendi explores the foundation of racism as a mode for power holding, and writes poignantly in his book, How to Be in An Anti-Racist at page 10:
“The common idea of claiming “colorblindness” is akin to the notion of being “not racist” – as with the “not racist” the colorblind individual, by ostensibly failing to see race, fails to see racism and falls into racial passivity. The language of colorblindness – like the language of “not racist” is a mask to hide our racism”
Constance Backhouse, whose seminal work, Colour-Coded: A Legal History of Racism in Canada, 1900-1950, on the history of racism and the law in Canada, similarly examines how immigration help served to help aggrandize white power. She writes:
“Immigration laws shaped the very contours of Canadian society in ways that aggrandized the centrality of white power.” (Backhouse, at page 15)
She provides example in her book many instances where the lines between races were either purposely blurred, combined, or in some cases written out, to achieve this power. In my perspective, colorblind is not only a neoliberal feel-good strategy, but a tool that has been used historically to justify racist policies.
For example, Canadian Immigration laws led to the closure of borders for Asian and Black immigrants in the first half of the 20th century, while anti-immigrant sentiment and racist legislation severely policed and controlled communities from being able to operate businesses (for example laws preventing the hiring of white women) and adding restricted covenants preventing them from owning property (just to name a few examples):
Laws such as B.C.’s above An Act for the Protection of Women and Girls in certain Cases (which was in place until 1968) were indeed purposely amended as a result of criticism that it was too critically aimed at the Chinese community, and replaced with more universal language with the same intentions and substantive effect.
The law was colourblind, and by today’s Charter standards, a claimant would therefore need to ‘do more’ to prove it was indeed racist, but we know from the history it most definitely was. I would argue that the assumption that we have stepped out of racism due to legal reform is a dangerous myth and one we must continue to breka down.
True s.15 of the Charter, formally added equality rights that were supposed to apply regardless of “race, national or ethnic origin, colour,” language mirrored by other employment and human rights legislation. There were historical apologies and reparations, but I would argue there has never been a race equity lens applied to immigration law – to study, if you so well, of whether and how laws continue to discriminate against racialized marginalized communities.
Built Off the Back of Coloured Bodies
Applicants who have tried to bring racism up in Courts (environments that bluntly speaking do not at all reflect Canada’s racial diversity), have faced significant evidentiary hurdles. One thinks of the Federal Court of Appeal’s decision in Begum v. Canada (Citizenship and Immigration), 2018 FCA 181 (CanLII),  2 FCR 488, which upholds the higher burden on claimants where the a law applies neutrally on its face, and simultaneously criticizes a lack of specific evidence on race, where as we have seen none is being collected from official sources, leaving case studies and academic formulations the only current pathway forward (both of which the Court criticized).
At the same time we have seen our case law build up various areas off the backs of racialized individuals. Using humanitarian and compassionate grounds as just one example, the leadings cases in this area involve Black Jamaican woman, Ms. Mavis Baker, where the visa officer wrote blatant racist marks into the applicant’s file [Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC),  2 SCR 817], a Black Jamaican woman, Ms. Daphney Hawthorne [Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475 (CanLII) that helped define the scope of the Best interest of the Child (“BIOTC”),  2 FC 555,], and a former Sri Lankan child, Mr. Jeyakannan Kanthasamy, [Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 (CanLII),  3 SCR 909 which has become the leading case of BIOTC.
Unfortunately with the framework for humanitarian and compassionate grounds as it stands, little can be done other than to criticize the structures within countries of citizenship and former habitual residence. We will continue to see Brown and Black applicants held down by Canadian system with no recourse other than to blame foreign systems in order to seek discretionary relief. These same blames are then perpetuated on other visa applicants and refugee claimants from those countries in what becomes a very problematic cycle. Canadian racism or the intersectional challenges of migrants, particularly those with precarious status, again gets whitewashed through forced positive explanations of ‘establishment’ and ‘ties to Canada’
I know racialized migrants are the ones struggling most because I viscerally see them. I constantly receive migrant workers in my office, whom facing their first work permit extension, visitor record extension (in order to facilitate their on-going status in Canada). They are the ones who ultimately end up in admissibility hearings and that we must run detention reviews for.
Returning back to the COVID reality, it is a real shame that the temporary foreign workers coming from around the world or who are here and finding themselves suddenly unemployed are receiving little in the way of Government-funded legal support. The minute the employer lifeline is removed for many workers, the void is filled only by good willed non-profit organizations, many with limited capacity to take on individual cases let alone try and advocate on a more systemic basis. Access to services itself is often marred by racist interactions, preconception, and barriers. Many organizations do not even have materials translated into key languages such as Spanish, Hindi/Punjabi, and Tagalog. With limited funding and now a limited staff as a result of their own COVID consequences, they have had no choice but to turn many people away.
The reality is most of these foreign workers affected are Brown, Black, and from countries in the Global South, with major linguistic barriers. Many talk about difficulties there, difficulties here, but generally have ended up in the whirlwind of challenges of identity, hopes of assimilation, and experiences of harm-causing racism.
Centering Race Post-COVID
Taking race into account when we look at these cases will allow us to examine processes in a more systems-driven way rather than simply focusing on individuals. For example, we can look at Personal Service Worker (PSWs) and caregivers right now as a collective community rather than individuals who have suffered negative consequences or come from complicated pasts.
Until Canada can prove it is taking anti-racist (not just non-racist) steps to tackle immigration and COVID, we’re stuck in invisibility. The same invisibility women of colour feel when they are under recognized and first to be blamed at their workplaces (Dr. Tam, comes to mind). COVID and the migrant workers who were part of helping us get through these times will fade to collective memory as a large part of the fault, a small part of solution, a consequence of their failures, and the results of our success. Our only ‘thank you’s’ will be in the form of temporary extensions and expiring permits, a few Canadian dollars to bring back to homes already ravaged as a result of western colonialism and imperialism. The mental health and trauma being experienced by workers being shepherded into the fields to work at increased productive capacity or migrant personal service workers having to watch individuals take their last breaths and expose them to illness, a distant memory.
I really hope this is a good opportunity to rethink our way of moving forward post-COVID. As another Indian writer Arundhati Roy so eloquently put it, we can break with the past and imagine the world anew, taking anti-racist (not just not racist and colourblind) steps to eliminate the historical and present day prejudices of anti-blackness, racist immigration policies, and barriers for darker-skinned migrants from the Global South. We can re-examine why we refuse so many Black African visitors and students, and why our rush to Artificial Intelligence has not adequately taken into account factors such as inherent racial bias. We can start building ties with migrant communities and Canada’s Indigenous communities creating solidarity, rather than let the State divide and conquer us into separate groups fighting over scarce resources that neither of us control.
I have submitted for approval a conference paper where I discuss how intersectionality can be rethought of in the Immigration Appeal Division (“IAD”) context. Much of this expands on what I talked about in this piece. I hope that when this paper is published I can begin expanding this conversation to other areas so that once we are prepared to re-engage with each other and our systems, we can make sure to keep racism at the front, not back, or our collective societal consciousness.