Category Archives: Canadian Immigration Law Blog

Immigration Consequences of a Quarantine Act Conviction for Foreign Nationals

Canada Invoking Emergency Order under the Quarantine Act

Today’s posts looks at an interesting legal question.

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

Here are a few links for background to the announcement

 

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

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

Criminality

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

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

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

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

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

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

Application

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

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

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

So what does the Quarantine Act say?

 

Quarantine Act Offence Provisions

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

Section 67 states:

Offence committed intentionally

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

  • Punishment

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

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

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

    Section 72 states:

  • Contravention

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

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

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

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

Duty to provide information

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

  • Marginal note:Duty to disclose communicable disease

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

Obstruction of officer

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

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

Contravention of unpublished order

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

Case Law

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

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

 

How Strictly Will It Be Enforced?

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

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

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

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

See Below:

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

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

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

Health Insurance BC

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

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

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

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

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

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

So do it quickly and tell your affected friends.

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

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

Hello, VIB blog readers:

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

Photo I took in Varadero

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

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

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

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

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

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

Addressing Family Ties

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1.  Family Ties

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

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

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

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

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

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

Justice Diner writes:

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

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

Post-Script Note

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

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

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

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

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

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

 

Ntamag and Chief Justice Gagné’s Decision

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

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

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

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

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

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

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

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

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

 

Analysis

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

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

R. 182 IRPR states as follows:

Restoration of Temporary Resident Status

Restoration

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

What does that ‘restore that status’ ultimately mean?

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

Eligibility requirements for restoration of status

Applicant requirements

The applicant must

  • apply within 90 days of having lost their status;

  • meet the initial requirements for their stay;

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

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

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

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

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

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

      • type of studies or course,

      • educational institution,

      • location of the studies, and

      • times and periods of the studies.

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

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

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

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

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

Incompatibility with Current Practices

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

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

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

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

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

 

Conclusion

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

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

Canadian Immigration Crystal Ball #2020: 10, 5, and 1 Prediction for the Next 1, 5, and 10 Years

It’s early enough in the New Year and we’re still greeting individuals, so forgive me for the somewhat belated first substantive post of the New Year.

I simultaneously often write three to four at the same, often with only one making it to the website. I probably have a hundred different articles in some form of 5-10% completion but unfortunately never seeing the light of day.

However, this is an important one. This one is written knowing there are people watching who would like to know what I am looking at in terms of the next one, five, and ten years of Canadian immigration and refugee law (if I last that long in the game). I hope this also peaks the interests of the academics, policy-makers, and media who explore these a bit further.

This imperfect vehicle we call Canadian immigration only works through constant renewal. When we see challenges and opportunities forthcoming and don’t act upon them in a reasonable period of time we miss out on opportunity and create avoidable hardship.

Crystal Ball Approach

Recently I have been to (and participated in) a few Crystal Ball talks where I predicted a bit on where things are going.

I recently wrote a paper for the CLEBC B.C’s Immigration Issues in Depth 2019 Conference titled “On Safety Nets and Sped Up ProcessesOn Safety Nets and Sped Up Processes – Will Tao

In the paper I do some crystal-balling but I stick to general commentary. I’m going to be bolder in this piece and make actual predictions.

I have chosen 1, 5, and 10 years as various markers. I have also chosen 10, 5, and 1 prediction to reflect the greater difficult predicting things that are further away.

I’m also going to be actively (and perhaps with bias) trying to address/tackle some of these things in my own practice.

I will state these broadly (headline style) in this post and follow-up with more detail analysis on these discussion points through out other pieces this year.

One-Year Predictions

1) H&C Refusal Rates Go Up Significantly As Do Removals Before First-Stage Approval;

2) JR Leave Refusal Rates/Dismissal Rates Temporary Go Up Post-Vavilov But Straighten Out as (Un)reasonableness Better Understood in Case Law.

3) Self-Employed Permanent Residence Undergoes a Re-Think Much to Megan Markle’s Chagrin.

4) Parent and Grandparent Sponsorship Becomes (Returns) to a Random Draw  in April with Possible Weighted/Humanitarian Components in/or Follow-Up Draws;

5) DLIs Demand Greater Autonomy in Supporting International Students on Issues Such as Leave and Part-Time Studies;

6) Express Entry CRS Points Remain High – Creating Precarious Migration Issues. Government Contemplates Giving Additional Points for Low-Skilled Work Leading to Skilled Work;

7) The Pilots and Trial Programs (Caregiver Program, Municipal Nominee Program, Agrifood) Go Through Hiccups;

8) Exit Entry Regulations Lead to Deportations (including erroneous ones) leading to Litigation and Returns to Canada;

9) More SDS or Specialized Programs (Vulnerable Worker, VTIPS, etc) but Greater Concern over Veiled Bias/Credibility/Investigation Findings;

10) Inadequate (but possibly AI/Machine-Generated) Procedural Fairness Letters Get Challenged Frequently Under Procedural Fairness – Leading to Interesting post-Vavilov Interpretation Challenges/Opportunities.

Five-Year Predictions

1) Indigenous Approaches/Practices Become More Common in Canadian Immigration. More Indigenous Members of Tribunals are Appointed/Indigenous Officer’s Hired. Indigenous PNP Programs Replace/Complement Many of the Regional Programs;

2) Post-Graduate Work Permits are Limited to Less Schools for Shorter Durations (but Extendable with Employment);

3) Discretionary Jurisdiction (Particularly in Context of Rehabilitation Elements and Long-Term Permanent Residents) Under Goes a Re-Think;

4) Misrepresentation under s.40 IRPA moves to a spectrum approach – with Punishments Ranging from One-Year to Lifelong;

5) The Charter Continues to Fail to Properly Uphold Migrant Rights;

Ten-Year Prediction

1) Former Canadian Immigration Students Demand (and Obtain) a Group Exemption (think DACA) After it is Revealed Significant Numbers of Overstays Still in Canada

Hopefully I am around still doing this work in 10 years to check in to see how these predictions went!

Top Five Memories from 2019 and Some 2020 Pre-Year Reflections (Because Why Not)

I am a huge lists fan.

I also have a very short memory span so writing things is literally my way of carrying forward 2018 into 2019

Combining both, I will do a quick list of my top five work-related memories of 2019, in no particular order.

This list has also transformed into a more personal piece as I continued to write. I was going to go all professional but realized my worlds are so blurred and I cannot talk about things that occurred without the people that made it happen. So it’s now a mix of both personal/work related stuff.

  1. Initiating and Co-Running the Parent and Grandparent with my colleague Erin Roth

This was fun. The irony of this situation was that our Firm internet was not the fastest so none of us actually signed up clients for the Invitation to Apply, allowing us to carry on the litigation without conflicts.

I learned so much from Erin’s strong written advocacy and deep diving into s.15 Charter arguments. Somewhere I definitely hope to spend more of my time investigating how to better have judicial recognition of race equity issues – through training, re-examining concepts of bias, and unpacking s.15 of the Charter among other issues.

Links:

HuffPost  Article: https://www.huffingtonpost.ca/entry/outrage-builds-against-discriminatory-parent-and-grandparent-sponsorship-program_ca_5cd589f3e4b07bc729790228 

CBC Article: https://www.cbc.ca/news/politics/immigration-parent-sponsorship-legal-settlement-1.5154407 

 

2. Co-Writing a Piece About the Diverse and Divergent Experiences Lawyers Go Through with Linda and Tina

This project also took awhile and I took some shots for it.

I was reading The Advocate back sometime in 2018 and I remember wondering why our Law Society Fees paid for content that often times didn’t reflect our lived experiences. We met with them, expressed our concerns, and was told – ‘you want to write something, write it.’ The process of getting this published involved an uphill battle as well. We had to make a major revision in the face of new terminology, older readership, and what I can classify as white fragility.

To their credit, The Advocate did in this issue and has provided a platform to underrepresented issues in the legal community. In that piece and in follow-up pieces, they have taken efforts to write about legal issues affecting racialized communities. Hopefully this work can be continued with others who choose to write for the Advocate pushing their traditional readership.

This work writing with Tina kicked off other projects as well. We both went to Conscious Use of Power hosted by Inner Activist. We organized as well for Punjabi Market, where I met incredible femme activists and enjoyed the brotherhood of Ajay, Gulzar, and Pall among others.

This course was life-giving, perspective altering, a striking wake up call to my colonized mind. I met so many incredible community organizers and brave souls. I also that Brother Aslam Bulbulia has entered my life as a model, and the two Men of Colour groups that have taken space in my social life/healing work.

Returning, was able to present with Tina again to BCIT and work with her on a few D&I initiatives. Watching her and her South Asian Legal Clinic of BC (along with other colleagues of mine, Krisha, Guida, Rana, etc.) come together was a great joy of 2019. Through this work I also met and started collaborating with Parker Johnson who has assumed a Big Brother/Uncle figure in my life already and a relationship I hope to hone more in 2020. If Parker is the Big Brother, I’d appoint Minelle Mahtani the Bigger Sister for everything she has done for UBC and increasing the race equity focus within institutions and in the community. Her book is incredible and I am working through it with love and care.

Link:

Article We Co-Wrote: “At the Intersection: A Conversation with Three Lawyers About Legal Practice, Purpose, and Their Pursuit of Passion”, The Advocate, May 2019At the Intersection – TP, LG, and WT piece

I think that my writing of this piece in a more vulnerable space helped inspired other pieces including I recently wrote in December 2019. For an audience of mostly decision-makers and Government lawyers, I presented a piece titled “On Safety Nets and Sped Up Processes.” It wasn’t a perfect paper by any means but moving from blog writing (with the specific A2J/public/quick read audience) to something a little more substantive had been on my radar for a while.

Link: On Safety Nets and Sped Up Processes – Will Tao

 

3. Writing a piece in the Vancouver Star-Metro Just Before the Federal Election

It was definitely weird seeing my face plastered across Vancouver and even more so having to have my mom tell me it looked like a prison shot. However, I remember most colleagues who said they sent it to their younger relatives or families reading about when together and sharing inspiration was fantastic.

I have to thank my brothers Gulzar Nanda and Davinder Sethi for their work on “South Van Should Vote” and starting the conversation of re-engaging residents in the community we live in.

I also want to thank my mentor Kevin Huang at Hua and the entire Hua Board and Staff for welcoming me on board. I’ve found a family there and I am grateful for it.

Link to Op-Ed: https://www.thestar.com/opinion/contributors/2019/10/18/will-tao-voter-exclusion-altered-the-lives-of-people-of-colour-this-election-we-need-to-show-up.html

Link to Wanyee Li’s fantastic (and raw) interview with me: https://www.thestar.com/vancouver/2019/10/18/we-want-to-speak-up-will-tao-on-the-need-for-more-people-of-colour-to-take-their-seats-at-the-political-table.html

 

4. Consulting on the Vulnerable Persons Work Permit and the IAD Rules

This year I was part of two government consultations in my role as a private lawyer.

The Vulnerable Persons Work Permit occurred as a last invite (Thank to Alison at SWAN!). Going there both as a SWAN rep but also wearing the hat of the CBA who were in the process of writing submissions. I was able to provide feedback and ultimately assist in reviewing the submissions.

The best part of the consultation for me (other than being in appreciation of the vast number of stakeholders involved in the process) was meeting Leanne Dixon Perera – someone who works for Government but bringing such a wonderfully rich and human perspective to it. Her research and the research of others (Sarah Marsden, etc.) has

I frankly showed up a little unarmed and under-prepared for the IAD Rules consultation but to be at the table to witness great minds from Government and Private Practice come together to improve processes was incredible. I was also able to share concerns about ensuring the Alternative Dispute resolutions process remained intact and that self-represented litigants would not be prejudiced by the speed of disclosure processes. I have also seen my IAD practice really pick up and I think that having a greater insight into the structure and processes has helped a lot.

 

5. Presenting to the CBIE and Developing My International Student Advocacy Lens

Working with a brilliant mentee  (Lily) to curate two workshops took a good portion of a month but I was able to look into international student issues across a vary wide range of topics. This has formed the underpinning of my current research on international students. Next year will involve me speaking on international students at Metropolis, CBA National Immigration Conference,  and again for the brilliant students of Cornell University.

On the point of mentees, I cannot give enough praise my mentee Tamara Yang who is an incredible future leader, academic, writer, and just someone I am super pumped on. She held up part of the CBA Twitter Days and as well was a big part of editing my many pieces alongside Lily, who I already predict will do incredible things in law.

Looking Forward to 2020

sans-Edelmann and Co.

Peter, as many of you know, is leaving to become a BC Supreme Court Judge.  His departure from our Firm is a huge loss to immigration law but a subsequent win for justice. I forsee him writing some of the best curated and thought out decisions on his way to a long career in the judiciary. I have much to learn from the way he practiced and thought out the law and also regret not learning more from my time here.

That being said “the safety net is gone,” and Erin and Erica the matriarchs of our Firm will certainly hold their own. We have a great team and to have us all back in the office again, in good health will be an incredible blessing and something I look forward to.

 

Family

There’s been ups and downs in the past few years but I am seeing the potential of a very strong family unit around my mother who is definitely Queen Bee. I look forward to spending more time with her and my sister as we all grow older and age.

 

Writing

I always have to end the year on a mea culpa. I haven’t written enough recently and I need to. Not only because of those who read this but writing is healing, learning, and growing for me. I was very surprised and happy to wake up this morning to a Best Law Blog and Commentary #Clawbies2019 Award.

I also cannot wait to continue reading incredible books. 2019 blessed me with some incredible reads/catch-up reads – Jenny Heijun Wills, David Chariandy, Minelle Mahtani, Arundhati Roy, bell hooks, to just name a few.

 

Final Two Thank You’s for 2019

Edris –  I have an assistant who is also a friend. It’s a dream. Today we pulled a 30 dollar couch from Craigslist together and then submitted a study permit application that he played a huge role in preparing. He’s an incredible human and I have learned so much from him. I will do everything in my power to support him in 2020 and have the world (and himself) recognize his brilliance and potential.

My Olivia – You are my rock. I can’t wait to explore the world with you in 2020 and then breath life to this world. Thanks for always being supportive and always being very clear and frank in your ask (polite word) for my support.

I have written more personal resolutions (shared with my sister Afsoun, a tradition we’ve kept now since law school) but we’ll have to see how those pan out.

Have a safe and happy New Year! See you on the other side of 2019-2020 :).

Thank You – #Clawbies2019

I have decided I want to write a longer (more substantive piece) about where I see Canadian immigration 1, 5, and 10 years (next decade!) from now. I will keep it short and sweet by re-posting in public a more private thank you that I posted on Facebook.

Again – my gratitude and thanks

Go check out the other amazing award-winning blogs! https://www.clawbies.ca/

Happy New Year!

Law Student Legal Advice Program – Assistance for Low-Income Immigration/Refugee/Citizenship Applicants

Many of you may already know or have recently heard that I found a new home for providing legal services and mentorship. I am humbled to join a list of my respected professional mentors such as Tim Bailey (currently at the Law Foundation of BC) and Sarah Marsden (current Clinic Director/Professor at Thompson Rivers University Law) in becoming a part-time Supervising Immigration Lawyer here at the Law Student Legal Advice Program (“LSLAP”), a non-profit legal clinic which operates through UBC’s Allard Law School.

I work alongside incredible practitioners Chris Heslinga (Supervising Civil Lawyer) and Andrew Bonfield (Criminal Law) and am able to come UBC/Allard once a week to meet with students and prepare resources/strategies to assist more low-income and vulnerable clients. I try and stretch the five hours I have where I can 🙂

LSLAP offers summary legal advice and representation for low-income clients in a variety of legal areas (see: https://www.lslap.bc.ca/). There are income thresholds which those that operate phones and run summary advice clinics will screen for.

Specific to immigration, I supervise law student clinicians who are taking on cases ranging from refugee files to temporary residence, permanent residence, enforcement, appeals, and citizenship matters. We don’t currently do judicial reviews but I am working on some resources that may help self-represented litigants in this regard.

The benefit of LSLAP  is that our clinicians can take on cases that other agencies may not be able to. We take on a lot of student matters, assist on temporary work issues, and in particular specialize in some of the roadmapping that help low-income individuals avoid legal problems that could come at high costs. Another area where we do a lot of work is with humanitarian and compassionate grounds applications and those requiring relief on temporary policies. I suspect that with increased emphasis on enforcement, we will also be assisting more individuals with guiding them on restoration.

We also rely heavily on a strong referral network to ensure our clients are matched up with other legal service providers and are aware of their ability to apply for legal aid, or to seek representation in complex refugee matters.

I personally review every immigration matter that goes out the door to make sure the advice is accurate and that we’re providing timely assistance (although with students, we may not be able to step in on emergencies – stays, pending removals, etc!)

Other practitioners may also find some benefit in the manuals LSLAP produces. See the Immigration and Refugee Law Manual here and the Citizenship manual here.

In short, this short blog is to let you all know about this resource for your clients and get in touch with me at immigration.sl@lslap.bc.ca if you would like to refer a client directly. You can also call the switch board at the info below:

​Please call (604) 822-5791 to schedule an appointment.
Please call (604) 684-1628 to set up a Chinese language appointment at our Chinatown clinic.
如果你需要中文服務的話,請撥打(604) 684-1628 將會有人幫您預約時間.

Please note that LSLAP cannot give legal advice over the telephone. Also, please remember to bring a piece of ID. 
Our office hours are Monday to Friday from 10AM – 4PM. We are closed on all public holidays.​

​See you and your clients soon!

Guest Post: Randall Cohn on Volunteering for the Dilley Pro Bono Project for Detained Migrant Women/Children in South Texas

As many of you know, Vancouver Immigration Blog likes to highlight the experiences and perspectives of other migrants and migrant-supporting organizations/individuals. Today’s guest post, is a piece from Randall Cohn, a colleague of mine who I have a great deal of respect for. He recently came from a week working the front lines in Dilley, Texas at the South Texas Family Residential Center where he assisted in providing services to women and children in immigration detention. He shares a harrowing read and asks those who are interested in helping to contact him to get involved – please email him: randall@edelmann.ca

I spent the last week in Dilley, TX, volunteering for the Dilley Pro Bono Project, which provides legal services to the women and children currently in immigration detention at the South Texas Family Residential Center.

Here are some reflections from my experience:

1) I volunteered for this project once before, in the summer of 2015. Following a steep rise in the number of asylum-seekers from Central America, and under pressure to show that they were protecting the border after expanding the DACA program, the Obama administration had recently implemented a policy of detaining families seeking asylum until they could be fully screened for admissibility concerns and complete a ‘credible fear interview’, which is the first-level administrative process in which an ‘asylum officer’ working for USCIS determined whether they had a prima facie claim. The major controversy at the time had to with the length of detention before claimants got their interviews, and the conditions at the facility (and at the CBP processing centers where they spent a few days prior to being transferred to Dilley) that many perceived to be designed to create a disincentive to seeking asylum in the US. Significantly, however — and I liked to think, in part because of the counsel that the detainees received from the volunteer lawyers — more than 90% of the detainees ultimately passed their interviews, and were released with a temporary protection from deportation that would allow them to apply for permission to work and build lives in the US while they waited for the opportunity to have their claims substantively evaluated in immigration court.

During the last few years, as public awareness of family detention increased and people directed their anger at the Trump administration’s cruelty, I have made occasional attempts to remind people that family detention began under Obama’s watch. I remembered the outrage that I felt in 2015 while I listened to these amazing and courageous women describe the reasons they fled Honduras, El Salvador, and Guatemala, as they clutched their young children, almost all of whom were sick from the days they had spent in the uncomfortably cold processing rooms known among claimants and their advocates as ‘hieleras’ (iceboxes). It seemed important to remind people that both cruel treatment of refugee families at the southern border and US culpability for the refugee crisis itself are rooted in US policies that preceded Trump, and have had more or less unbroken continuity between Democratic and Republican administrations for at least 40 years.

I expected that things would be worse this time around — that the whole situation would be more institutionalized, that the stories about treatment by CBP and ICE would be more offensive, and that the detainees’ prospects for eventual release would be reduced.

I was, however, not prepared for just how much worse things have gotten.

2) After months of litigation that led to contradictory opinions in different federal jurisdictions, and a toggling on and off of injunctions, USCIS is now fully implementing Trump’s ‘safe third country’ policy (not to be confused by my Canadian comrades with the controversial safe third country agreement between the US and Canada — there is no irregular entry loophole in this version). Under that policy, applicants are not eligible for asylum under the standards set out in the 1951 UN Convention on Refugees unless they first sought and were denied protection in at least one country that they passed through on their way to the United States. For most, that means that they would have first had to apply for asylum in Mexico, where refugees are routinely targeted for kidnapping and extortion. Both of the women I worked closely with this week talked casually about being kidnapped on their way to the US border and paying ransom as though this was just an expected leg on their itinerary.

Because most families fleeing from Central America do not believe that they will be safe in Mexico, this means that almost every person seeking asylum at the southern border from any country other than Mexico itself is barred, at the outset, from refugee protection under the convention. Instead, they must either seek asylum under the 1984 UN Convention Against Torture, which has much narrower requirements, or receive a ‘withholding of removal’ under a statute that restricts the US from refoulement (or returning people to places where they are at risk of harm) where it is ‘more likely than not’ that they will be persecuted for the reasons established in the 1951 refugee convention. In essence, this amounts to what lawyers call a ‘burden shift’. Instead of presuming that people are telling the truth and erring on the side of avoiding refoulement where there is a reasonable possibility that a person would face danger if returned to their home country (i.e. does their claim qualify on a prima facie basis), the US government is now requiring that asylum-seekers convince asylum officers that the danger constitutes a 51% or greater chance of persecution.

How is such a chance measured? What is the methodology? What counts as evidence of risk? Are there considerations for the obvious obstacles to people having such evidence, even if it exists, with them when they cross the border? Nobody knows. But the effect is that, just in the last few weeks, the success rate for credible fear interviews has plummeted from 90+% to less than half. To be clear: that means that the US is now, as a matter of policy, sending more than half of the women and children who have fled, at great peril and expense, from violence in Central American countries that is, arguably, the direct result of persistent US intervention in those countries’ domestic affairs, back to where they came from, and where many of them are very likely (say, 49% likely) to be abused, raped, tortured, trafficked, and/or killed.

3) One of the women with whom I spent the most time this last week is from Honduras, where she was raped and abused by both her domestic partner and his brother (who works for a local cartel), and held captive and forced to work as a domestic servant. When things started to get worse and she began to fear for the safety of her young daughter, she took her daughter and headed north.

When she arrived at the US border, she and her daughter — like almost all asylum-seekers — were held for several days in the hielara for processing. When she was having her fingerprints taken, the CBP agent told her that the US had just passed a policy ending asylum, that she would be returned to Honduras, and that they were just taking her fingerprints for records to make sure they could identify her if she ever tried to come back. He pointed to a group of women being led out of the processing center and said “Do you see that group there? That’s the last group who will ever be allowed into the US. You just missed it.” When they were transferred to Dilley, she thought she was being taken to the airport. She was scheduled for a credible fear interview only days after arriving, and was not able to meet with a lawyer before she found herself answering a series of aggressive questions about her experiences in Honduras, believing the whole time that the decision to send her back had already been made. She chose not to provide key details of her story — which she had never shared with anyone, and about which she was deeply ashamed — and she was quickly found ineligible.

My amazing interpreter Zoe and I spent most of two days with her after she got that decision, during which we finally explained the process to her and she realized what had happened. We took a detailed statement from her that described both her actual situation in Honduras and the reasons that she did not tell the whole story at her interview, which will be submitted to the immigration court along with a request for reconsideration of her decision. Even if the judge recognizes the cruelty of her treatment by CBP and accepts that as a basis for the contradictions between her new statement and what she told the asylum officer, the most likely outcome is that, because she did not apply for asylum in Mexico and has no documentary proof of her circumstances in Honduras, she will be sent back there within a couple of weeks.

No single part of this woman’s story is in any way unusual.

4) There are currently approximately 1700 people in detention in Dilley, composed entirely of women and their children. Many of them are heartbreakingly young — the women themselves are in their late teens and early 20s, and their children are infants and toddlers. There is a day care and a school on site where the kids can go during the day, but kids between 2 and 4 years old seem to be in a gap of services, where the mothers are most likely to bring their kids with them to the visitation trailer where legal services are provided. There is a small room in the trailer, its walls covered with colorful posters about personal hygiene, where Disney movies play, sometimes dubbed in Spanish, on a big screen. The kids frequently come wondering out, tears welling up, looking for their mothers.

Volunteers and employees of the Dilley Pro-Bono Project sign agreements, before being allowed into the detention center, that — among other things — they will not hug or otherwise comfort the children. If they are inconsolable, volunteers are allowed to lead them by one hand to go find their moms. I have been told that people who have violated this agreement have been permanently barred from the center.

Obviously, this was very hard for me. Much harder than it was in 2015, before the birth of my own son, whom I feel certain I would do absolutely anything necessary to protect from harm. Every single woman in detention in Dilley, TX feels that as deeply as I do. That’s why they are there.

5) The Dilley Pro-Bono Project is unbelievable. Every single week, a new group of lawyers, interpreters, mental health workers, and legal volunteers arrive in Dilley to staff the project, guided by a small on-the-ground staff who live in Dilley, and work 6 and 7 day weeks full of 14 hour days. In addition to training, supervising, and managing a new group every week, they coordinate with off-site pro bono counsel to bring litigation on behalf of the Dilley residents that has been and will continue to be directly responsible for slowing the Trump administration’s rollout of its cruelest and most obviously illegal policy directives.

When I volunteered in 2015, I left thinking that I had never seen as impressive an example of what effectively organized direct action can do. It remains so, but on a much larger scale, and with much higher stakes. There is no time or space for any bullshit, and everyone knows it. Everyone works incredibly hard. It’s a logistical nightmare full of constant crises and adjustments, and everyone just adapts. It’s a ridiculous model, but nobody can think of anything better, and the crisis isn’t going away, so it just keeps on going.

Those of you who know me well know that I am ambivalent about just about everything I do, but I am not ambivalent about this. In the midst of a historical disaster, this project is a model of determination, humility, mutual-aid, and resilience. If anyone reading this has even the slightest urge to join this project, please do it. Or send them money, or send money to support someone who is trying to go (thank you to those who supported me). Talk to me if you want my help making it happen.

Solidarity and love.

 

 

 

What are Personal Information Banks (PIBs) and Why Aren’t More People Talking About Them

A portion of this article is a modified summary of a presentation done in October 2019 where my colleague Karen Jantzen (Law Student, Allard Law School at UBC) and I  presented on ‘Privigration’.  Those that are interested are recommended to purchase the webinar. We’re still looking into this area of the law and refining as we go!

Personal information banks (PIBs) describe the personal information that a government institution controls and uses for administrative purposes in a program or activity. The description includes the procedure for collection, use, disclosure, and retention or disposal of the personal information. They can also provide specific instructions for individuals requesting information stored in the bank.

Personal Information Banks or PIBs are the central go-between/foreground in an area of law I have called ‘Privigration‘ – where Privacy and Immigration Law meet.

In our information-sharing/AI generation, personal information becomes the central currency. The Office of the Privacy Commissioner (“”OPC”), as it stands, does not offer much by way of enforcement or remedy. Short of Privacy Commissioner investigations that can only report on wrongdoing but not institute wrist slaps, it is Government themselves (and their various agencies) that must regulate how they share information between each other in a manner that is consistent with the Privacy Act (see s.35 here). Meanwhile, legislative purposes (see various Regulatory Impact Analysis Statement(s)) and wording of legal provisions are providing even more expanded purposes to facilitate the sharing of private information of applicants without the need for consent or where individuals may not be aware of their prior consent.

It is important to start this multi-blog conversation by looking at Personal Information banks as the central vehicle by which information goes from one government body to another. With these different government bodies having information sharing agreements with other country, not only is this inside Canada but outside to other Government bodies.

What is Personal Information?

Personal information is defined by the Office of the Privacy Commissioner of Canada as “data about an ‘identifiable individual.’ It is information that on its own or combined with other pieces of data, can identify you as an individual.” It can be recorded in any form, and includes information about race, ethnic origin, religion, marital status, age, education, medical, employment, criminal history, financial transactions in which the individual was involved, identifying number or symbol assigned to the person, address, fingerprints, blood type, personal opinions or views of the individual, or of someone else about the individual, confidential correspondence with the government. Excludes info about the work of government employee or contracted worker, as well as someone who has been dead for 20 years.

Fundamental premise or values and principles is that PI shall not be shared with third parties without the consent of individuals to whom the information relates. This is because the sharing of personal information by government agencies with third parties could infringe on the personal rights, freedoms and liberties that exist in Canada today. However, there are a number of exemptions that allow government agencies to use personal information, without the individual’s consent, in order to efficiently administer programs, enforce the law, act to protect the safety of Canada and contribute to international peace and good order

Differing Definitions of PIBs

CBSA defines Personal Information Banks (PIBs) as:

Standard personal information banks: these are descriptions of personal information contained in records, and collected and used to support internal services.

It is to be noted that there is a hyperlink to the more comprehensive Treasury Board link below.

IRCC provides a little more detail but without a link to the standard personal information banks:

Personal information banks (PIBs) are descriptions of personal information under the control of a government institution that is organized and retrievable by an individual’s name or by a number, symbol or other element that identifies that individual. The personal information described in a PIB has been used, is being used or is available for an administrative purpose. The PIB describes how personal information is collected, used, disclosed, retained and/or disposed of in the administration of a government institution’s program or activity.

The Treasury Board of Canada provides the most comprehensive definition. Before we discuss this definition, we should look a bit into the Treasury Board of Canada.

The Treasury Board of Canada advises and makes recommendations on how government money is spent on programs and services. In its commitment to open government, to ensure tax dollars are spent effectively, it promotes transparency and accountability. The Treasury Board of Canada Secretariat (TBS) is responsible for preparing policy instruments, such as directives and guidelines, relating to the operation of the Privacy Act and the Access to Information Act. The TBS is tasked with publishing updates in Info Source, interpreting policy, advising on updates, regularly conducting policy evaluations, and monitoring compliance. The President of the Treasury Board is responsible for overseeing the government-wide administration of the Access to Information Act.

The Treasury Board defines “Standard personal information banks” as follows:

Standard personal information banks

Personal information banks (PIBs) are descriptions of personal information under the control of a government institution that is organized and retrievable by an individual’s name or by a number, symbol or other element that identifies that individual. The personal information described in a PIB has been used, is being used or is available for an administrative purpose. The PIB describes how personal information is collected, used, disclosed, retained and/or disposed of in the administration of a government institution’s program or activity.

There are three types of PIBs: central, institution-specific and standard. The following descriptions are standard PIBs. They describes information about members of the public as well as current and former federal employees contained in records created, collected and maintained by most government institutions in support of common internal services. These include personal information relating to human resources management, travel, corporate communications and other administrative services. Standard PIBs are created by the Treasury Board of Canada Secretariat.

Looking as Specific Personal Information Banks

We get a window on to the information sharing by examining various published personal information banks where this information is stored.

IRCC’s public list of personal information bank is probably the best starting point as it is laid out in a very navigable format.

An example, and of the ones I looked at the example with the most amount of shared banks with other institutions, is for In-Canada Asylum where PPU 009 is shared with the following Government bodies through the corresponding PPUs. Again, this gives credence to our theory that privacy concerns may be heightened among certain groups.

Now looking at a longer CBSA PIB on their removals program you will see information sharing under the IRPA, with CSIS, RCMP, DOJ, IRCC, Employment and Social Development Canada, IRB, Global Affairs Canada, and Health Canada. See below:

Privacy Notices and Inaccuracies

Within the immigration context, information is shared via personal information banks via the Privacy Notice

The 2017 Internal Audit of the Management of Personal Information highlighted inconsistencies between the privacy notice statements on various applications forms and the Personal Information Bank information. This appears to be an ongoing problem.

For example, IMM 5669, which is the Schedule A used for most applications, lists 3 specific personal information banks on the disclosure statement. However, 2 of those correspond to existing banks, but reflect the incorrect title for those. The third listed bank does not exist. IMM 5409, the Statutory Declaration of Common-Law Union lists in the disclosure statement 3 incorrectly named banks and 2 non-existent banks. IMM 5444, the Application for a Permanent Resident Card, lists a bank that doesn’t exist.

This also runs against 5(2) of the Privacy Act if the disclosure statements are not consistent and/or not complete when comparing it to the PIBs.

What I would suggest is that IRCC create a resource that more explicitly, clearly, and accurately confirms which forms provide information that can populate which personal information banks and what the implications of this may be. As it stands, these fine-print waivers are not serving their purposes and creating consequences unbeknownst to client and representative alike.

Retention

Each of the different PIBS list their own schedules for retaining and disposing of the information they contain.

For example, personal information that appears in the economic resident PIB has several retention schedules. Express Entry profile information is kept for 5 years. For applicants who are approved as permanent residents, the information is saved for 65 years. For inadmissible individuals, the timeline for retention is 5 years. Biometrics are saved as per the the next slide.

The CBSA will retain the personal information contained through the entry/exit traveller processing PIB for 15 years, unless there is still an ongoing investigation.

In the IRB’s Refugee Protection Division’s Records bank states that the standard paper-based case file or electronic record is maintained in the regional office for six months after the final action is taken. It is then transferred to Library and Archives Canada where it is retained for a further ten years after which it is destroyed. Cases that have archival or historical significance are retained for 50 years.

Shortcomings of PIBs?

When individuals are submitting documents, there might be information that is disclosed that doesn’t fit in the administrative purpose of the existing banks. For example, in sponsorship agreements, many applicants submit additional documents, such as joint personal banking statements that may not be related to the proof. What happens when info doesn’t fall in? That information is supposed to be destroyed by the government.

However, there is no formal guidance on how program officers should handle the additional documentation provided by applicants. As such, officers use their discretion and, in the majority of cases, officers decide to keep the information on file as additional support for their decision rather than destroy it. As a result, IRCC maintains information that has no retention and disposition schedule and that should not be maintained in accordance with the program’s PIB.

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/reports-statistics/audits/management-personal-information.html

Fixing Your Personal Information

Part of the Privacy Act requirements include being able to correct personal information that is held by the Government about you.

You do so through the following link: https://www.tbs-sct.gc.ca/tbsf-fsct/350-11-eng.asp

IRCC did not initially have this information available on their website but kindly clarified that they have the same process which utilizes the same forms.

What Should We Do With this Information About PIBs.

This may seem overly cliche, but before I can draw some larger recommendations I need to know more and learn more as to what happens behind the curtain. I think it is not enough for Applicants to know that their information is being stored but they need to know what purposes it is being stored for and what cross-implications these can have. Doing so in a transparent way can also have the added benefit of deterring wrongdoing. Applicants who are aware that information sharing via personal information banks or otherwise through Memorandum of Understandings (MOUs), legislative provisions, or inter-governmental agreements would be more likely to pause before rushing through an immigration form or engaging professionals to do different aspects without coordinating (the Tax Accountant vs. the Immigration Rep is a classic example).

I think the current treasure hunt that is piecing together PIBs and tracing the information sharing should be replaced with greater education and greater assurances that this information will be protected.

In 2015, along with my colleague Krisha Dhaliwal and Jason Shabestari, we wrote a piece called “It May Be Too Late to Repent: Immigration, Tax, and Privacy Concerns in the Context of New Proposed Changes to Social Insurance (SIN) Number Sharing”, Canada’s Immigration and Citizenship Bulletin (June 2015) after SIN-Sharing was introduced to IRCC.

Just recently, we’re seeing some of these concerns come to fruition to Canadians who have been victims of SIN fraud. See: Cornwall, Ont., woman loses life savings to terrifying ‘SIN scam’

The consequence of ‘not knowing’ or ‘not being able to confirm’ where privacy breaches have occurred and what usage/sharing/collection of personal information is justified is a greater likelihood of privacy breaches, of the sort that IRCC is not immune too [see: Privacy Act, Access to Information Act, Annual Report 2017-2018 (PDF, 1 MB) which documents 7 material breaches which occurred between 2017-2018].

In this age of data mining, information sharing, and the use of information for artificial and other intelligence, IRCC must ensure that immigrants, by virtue of their status and their interactions with Government, are not left in the dark on issues of privacy rights and protection of their personal information.