Category Archives: Canadian Immigration Law Blog

Yes, I Review Spousals – But Here’s What You Should Know (6 Points to Consider)

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More and more I have been approached by spousal (spouses and common-law partner) sponsorship Applicants and Sponsors asking me to provide a review of their materials in lieu of full representation. While I still recommend those that can afford it to pursue full representation if possible, I understand the benefit of hourly review during these times.

Yet, many lawyers and law firms I know are unwilling to do hourly review because of the risk and uncertainties this work poses. Many are afraid that having an incomplete picture that can lead to incomplete advice, and create liability problems down the road.

I believe spousal reviews is not only a necessary part of my practice but good for access to justice. However, because of the misalignment between the clients seeking the services and the lawyers willing to offer it, many times confusion is created.

In this piece, I put forward six points that will make it easier for self-represented applicants to approach lawyers and work through the review process.

Point 1: Understand Our Mutual Limitations and Constraints

The main constraint of the self-represented applicants seeking my assistance in hourly review is cost. They are unable to pay a full set fee, have exhausted public information (from forums, blogs, etc.) and now need help on specific pieces of their application. Most often times these specific issues include inadmissibility, letters of explanation, police certificates, etc.

From the lawyer’s perspective, the constraint is usually more based on risk. With only incomplete or piecemeal information, how can a proper job of assessing a file be done?  Is the time spent on this particular issue (usually clients will want reviews to be done in 2-3 hours or less) worth the possibility of not being able to see the application, the whole way through.

First, in order for this process to worth smoothly, an immigration lawyer must prepare a clear retainer that indicates the scope of work (limited scope retainer) and in subsequent emails continue to set and establish the expectations of both sides. Applicants and Sponsors should be aware that a full cover to cover review does take several hours (ideally 4-5 hours +) and limiting the budget of a review to only 2 or 3 hours may not allow for all the details to be adequately looked at.

In some cases, this will be fine as your issues are limited to particular areas. In a limited review, it is my practice to clarify with you both at the outset of my review and as well after providing my comments and recommended changes, that I did not see the full application and cannot be responsible for issues such as incompleteness.

This is a risk the Applicant must bear in a limited review, but ultimately where the cost savings also occur.

Point 2: Organize Your Files: Personal Checklists and Electronic Files

It is my practice to send a cloud-based link to my clients so they can upload the files they want me to review.

I can advise that from a time/cost-saving perspective, when these files are all over the place and not in the order of a personalized checklist or even the document checklist, this adds time to my review. I often see this manifested in things such as uploading relevant documents as unnamed jpegs and single page pdfs.

One of the best ways to save on costs is to put everything in your file into one very organized bundle or at least electronic subfolders that guide me into what I should review and in what order.

Point 3: How Do You Want to Structure Your Review?

Some lawyers prefer (and I prefer) at least a check in during the beginning prior to preparing the materials. It is so crucial to spend an hour at the front end going through materials to make sure everyone is on the same page.

I point out usual traps and where clients often make mistake, introduce standard form content for support letters, the importance of a photo essay, how to document shared finances, or cohabitation, etc.

I prefer these reviews because I am able to first give instructions and then meet the clients when their documents are drafted. Some add a session for a first draft and then a final draft.

I am bigger fan of more check in points on these hourly reviews as it usually makes the final review of the combined pdf package or paper package, much more effective and efficient.

Point 4: Do You Want to Disclose My Assistance?

There are mixed perspectives on whether an IMM 5476E – Use of Representative Form is required where an Applicant seeks legal advice but where counsel does not act as an authorized representative.

Currently, the IMM5476E form is only required to be signed by a paid authorized representative. Where only review takes places (especially partial review), many practitioners do not consider themselves as the authorized representative on the file. You will likely see this language in both retainers and as well on any advice letter you may receive.

My advice for clients is to choose for themselves whether they wish to disclose my assistance. For those that do request, I usually provide a letter at the end of the engagement confirming my assistance and services provided as counsel but not as the authorized representative for the file.

I do hope there is a fix down the road, where IRCC creates a form for the disclosure of assistance received. I do believe it is problematic that many unauthorized representatives are able to ‘ghost’ applications, but at the same time requiring all authorized representatives to be disclosed by self-represented applicants who may have sought piecemeal advice from various lawyers, seems also unsuitable.

On that final point, always ask to have direct communication with the individual behind the scenes – if it is a lawyer, or consultant. Check their name against the ICCRC consultant registry  or territorial/provincial law society lists. Always make sure to have direct contact established with the individual who is listed or authorized to provide immigration advice.

Point 5: When to Convert to a Set Fee

Depending on who represents you, this conversation may come up. Sometimes it will be a sales pitch, but in my practice I really do ensure to let the clients know when a file is of a significant enough level of complexity OR if what I am seeing in drafts is so poor that full representation is the ideal solution.

Make sure to ask (at the front end ideally) how it works when that switch occurs. A representative who is transparent and client-focused with their work will give you some sense of this at the front stage of an hourly retainer or else take some credit for time spent when quoting that set fee.

Point 6: Discuss How Follow-Up Would Work

Once the application is submitted, there could be other steps. In other cases, it might be the stage you decide to go it your own as the remainder of the application is simply administrative until a fire arises.

It is good to signal to your lawyer how you want to work moving forward. Perhaps you want to leave a small amount of money in trust for follow-up work? It is best to clarify these things in advance so there is not a last minute, unexpected request when something goes wrong, without certainty of when these steps might occur and capacity to step in to put out those fires.

 

Transparency is Key. That is Why I WRote This Piece.

I hope in reading this piece, it is not looked at through the lens of me marketing my services. Indeed, some within the lawyer-side of the industry would wonder why I would discuss in so much detail my thought processes and ways of work. For me, at the end of the day, it is about ensuring those who contact me know they are getting into.

We have had remarkable success to date on hourly review files that have saved both client fees and obtained the end results, while providing the key knowledge and training needed to complete the tasks. Again, this will defer, from client to client. Some will need extra hand holding. Some will have more complicated fact patterns and legal issues that require full representation as authorized representation. Yet, there is a very large demographic of clients that can seek just enough advice to keep costs affordable without compromising end product that I hope will learn a few things from this article.

What’s Happening in October?

Signing off until the end my tribunal matter tomorrow. October will be a crazy month of presentations and personal changes and I am really looking forward to sharing all of the news and updates with all of you. I have also working on a few legally technical/substantive pieces that I hope will you will enjoy!

Five Ideas to Improve the Outland Sponsorship/Temporary Resident Visa Problem

I want to begin this piece by stating that in a very purposeful way, I have not spent a significant time reviewing the different proposals to the problem I will be discussing today. I have been in touch with numerous stakeholder groups who have pointed me at different ideas. I am sure if I were to read those ideas I would agree many of them, but I wanted to first tackle this from my own perspective and my own experiences and understanding of the law/practice. There are certainly academic journals to be cited, research to be relied upon, but this piece is about the nitty gritty. Solutions I feel could be implemented to make a broken process better at this ever-so crucial time.

The problem we are talking about is the growing challenge being posted by outlandish (read: extreme) delays in processing outside of Canada (what I will refer to as “outland” or “outside Canada”) Sponsorships and how families are being separated because they are unable to obtain temporary resident visas and other permits to temporarily reunite with their family members pending processing. This processing is in many cases taking years.

This challenge has been exacerbated by COVID, where precarious work and travel options make leaving Canada impossible for the Sponsor. In this problem scenario most Sponsors are residing in Canada (as permanent residents or citizens) and their partners (common-law spouses, conjugal, and married) are overseas. Because of COVID, closure of visa offices, backlogs of biometrics, and general reticence to processing paper-based applications abroad – families are now at a breaking point.

For full disclosure, I was contacted by one advocacy group (of about 15 families) and told there were many more. Many of my own clients are in the same boat right now. This has prompted me to write on an issue that frankly we’re not talking enough about – a major consequence of the pandemic.

I am also someone with personal lived experience that combined with my professional experiences, gives me some authority to share. I was able to get a Temporary Resident Visa (TRV), then a study permit for my spouse (then girlfriend/fiancee), eventually choosing to apply outside Canada while she was residing with me in Canada – often times the best scenario, but unobtainable for so many. I am very cognizant that this was also a matter of luck – had my partner been from a different country – the Philippines, India, Nigeria, Iraq – just to name a few, I would likely have had to either marry abroad and have several years of long-distance.

Because of these overseas delays, I have also seen a great number of families choose to go inland – forgoing appeal rights, for the benefit of implied status provided by the Open Work Permit. Effective overseas processing has been a staple of Canadian immigration, yet due to delays – particularly from visa offices located in Global South/Middle Eastern/African countries – we’ve created an overburden on visa offices to assess complex and unnecessary visitor visa applications overseas and inland applications here here in Canada.

Which leads to my first idea for how we can fix things…

Idea 1: Seek to Reduce/Eliminate the Discrepancy Between Visa Office Processing Times Based on Country of Application/Origin

It used to take less time in a majority of a visa offices to obtain approval in an outland sponsorship than it did inside Canada with an inland application. In order for the overseas system to function effectively, as the Government would like it, this has to return to being the case in the majority of overseas visa offices.

Furthermore, in the past  it would take an American citizen 4 months to obtain an approval and land but take applicants from Africa several years.  Given the move to virtual processing, and as my colleague Steven Meurrens is pushing for – a move away from paper-based assessment to online assessment (see idea 5 below), perhaps files do not need to be referred to local visa offices unless there is a significant flag requiring local expertise. Having more processing of sponsorship across visa offices (by capacity) can serve to speed things up and reduce processing times.

If overseas sponsorship processing can be reduced to 6 months in 80% of the cases like an economic immigration file used to be in the years before, you will see a drop in the number of applicants seeking to first come to Canada to apply inland, given a Spousal Open Work Permit can take about the same amount of time to receive and processing times to be at least a year to often a year and a half.

There’s a certain point of time, where even the generally discriminatory process of visa processing becomes too discriminatory. If any Government program inside Canada were to operate where individuals from certain countries or within certain subsections of the population were being processed at a much slower rater than individuals from another region, there would be human rights complaints. I do understand the need to vet for security, misrepresentation, etc. – but centralizing processing at least ensures we are not sorting entire populations through these processes.

I would call on the Government to try and centralize processing and be transparent with data on  such things  DNA requests, interview requests, security check backgrounds, to ensure that it is not disproportionately applied to Brown and Black folks, which all  current anecdotal evidence suggests it is. This would greatly ease the burden of Applicants and also alleviate the pressure on having to apply for TRVs to reunite.

Idea 2: Create a Designated Category of Spouses that Are Able to Obtain TRVs Upon Acknowledgment of Receipt and Allow Most Spouses to Reunite After First-Stage Approval Based on Dual Intention;

While I understand IRCC’s interest in vetting genuineness of relationships at an early stage, it is clear that there are relationship involving Canadian children currently in Canada and common-law partnerships/marriages of a significant long duration 2+ years)  where a TRV should be granted immediately, not withstanding R. 183(1) and (2) and the need to leave Canada at the end of their authorized stay. Dual intention should be made more clear to Applicants. A standard form could be generated for Applicants to provide their plans to leave Canada in the event of the refusal of their sponsorship application and loss of status. My suggestion is that this TRV is issued within acknowledgment of receipt which should take 2 months rather than the current 4-5 (note: COVID has pushed this even further).

For other couples, a TRV should become available upon first-stage approval (finding that the relationship is genuine, which ideally happens at the 4-5 month mark). However, IRCC could certainly introduce measures such as the need to convert the application into an office with longer processing period inside Canada IF and only if, they are able to keep shorter processing times overseas as an incentive to await full processing there. Again, it is my perspective that a family class sponsorship can be done in 6  months, if an economic class application be done in the same time and an applicant from the United States could take four months.

Finally, IRCC could issue shorter term duration visitor visas, tied to the processing of the sponsorship file. Should the sponsorship file breakdown, the Applicant would then lose status or have 90-days to restore themselves. This 90-day restoration period could be accompanied by the options available for Temporary Resident Permits (TRPs) for family class members who did face abuse leading to the end of their relationship.

Idea 3: Eliminate Primary Purpose Assessment

One of the reasons applications take an increasing amount of time to process is because of R.4s [Regulation 4 of the Immigration and Refugee Protection Regulations] specifically on the second primary purpose assessment.

Once a relationship is genuine, from my perspective, it does not need to matter how much immigration is or is not the primary or a secondary/tertiary purpose. If there are issues with intent, these will invariably affect the genuineness of the marriage and possibly be caught through misrepresentation. Stricter misrepresentation penalties (i.e. life-time bans instead of five-year bans) can themselves serve as disincentives for marriages of convenience. The current tests blurs and complicates the reality that a genuine marriage may only be able to sustain itself through immigration that reunited a couple.

Clarifying the test so the focus can be on genuineness can clear up processing and reduce the number of interviews needed. This would help shorten processing times and reduce the need to make TRV applications for those couples who want the quickest processing and landing as permanent residents.

Idea 4: Have Concurrent Processing of Medical/Security at the Front End – a Return to the Old Ways;

While IRCC has in recent years moved the  medical exam from the front end to the back end, perhaps having this request at the beginning alongside the biometric request and the police certificates could allow better vetting of the majority of clients that do not pose  security or inadmissibility risks. Those clients who do could be informed earlier on that they are facing further processing and then make required arrangements to possibly relocate.

The way the current process works with delays at certain visa offices really puts the 90% of non-problematic files in the same queue and position as the 10% that may create challenges, something that has net negative effects for family reunification.

Idea 5: Move Sponsorships Online and Utilize Tech Solutions to Make TRVs Easier to Apply For

One of the major challenges with sponsorships is that the entire process is paper-based, where as the majority of IRCC processes have moved online. As such, things such as original signatures and the mailing of documents between spouses living across the world from each other, add unnecessary cost, time, and stress to the sponsorship process.  There should be ways to make the entire sponsorship process (like the Express Entry process) accessible online to those that are able to navigate online forms. For Outside Canada applicants, the online system should allow for a TRV application to be generated right alongside an initial Sponsorship. This application can be held in abeyance, but tied to the Sponsorship in the same way an open work permit is tied to an Inland Sponsorship. When it hits a certain stage it is processed to presumed approval.

The form itself can be automatically populated with the same thing content/information on the inland sponsorship making the issue of discrepancy and misrepresentation due to error, less likely to occur.

Finally, rather than assuming clients have an understanding of the complexities of dual intention under A22 of the Immigration and Refugee Protection Act and these IRCC guidelines, this question could be directly assessed on the form with the requirement for a plan presented in the event of a refusal, to leave Canada. Officers could satisfy themselves where an Applicant and Sponsor agree (and can put in writing) that if the application is refused that they will leave Canada and re-apply. While it may hold limited legal weight (and intentions can change), it is something that can be brought up on enforcement if necessary.

On the note of interviews, in this day and age of digital contact, I do not believe there should be the need for in-person interviews or at the very least this can be a choice depending on the seriousness of the matter.

Indeed, virtual interviews allow for the partners to be together to attend the interview together, for the Officers to gauge the relationship on the basis of their attendance together. If  spoual appeal hearings can go virtual, there’s no reason interviews must stay in-person. Indeed, in most refusals it is the stressful nature of an interview at the Government office that leads to the refusal (often forgetfulness due to stress) rather than the actual non-genuineness or primary purpose.

What Do You Think About My Ideas? What Are Yours?

Perhaps you may have other ideas. I have heard some around TRPs being issued and waiving certain IRPR provisions. What is key to remember here is that family class sponsorship has been the staple of Canadian immigration for many years and before our Express Entry system and the Government focused shifted to economic immigration, it was the crown jewel. We had a system that allowed sisters and brothers to reunite, families to grow organically, and communities to develop from that. We have largely limited the pie, and even today made parental sponsorships more difficult. If we can do anything to make family class sponsorship easier for partners and spouses – we should do it. The ability to remain unified during stressful times (which COVID has revealed) is essential and at the very least needs to elicit the same kind of urgency that we have placed in other areas during this pandemic.

 

Exclusive VIB Preview: Latest Blog for Edelmann on Non-Discretionary Travel for International Students

This blog will be going up shortly on Edelmann and Co’s Law Blog. I thought I’d give VIB readers a sneak peak!

On 2 September 2020, Immigration, Refugees and Citizenship Canada (IRCC) released new instructions which help to further clarify that Canada Border Services Agency (CBSA) and partner Airline companies, would be responsible for ultimately determining whether international students would be able to travel to Canada to begin/resume studies as a result of COVID-19 travel restrictions.

This is welcome news, given IRCC’s instructions previously did not clarify or advise on CBSA’s own criteria, leading to issues for international students at Canadian Port-of-Entries and general confusion around the ability to return or move to Canada to begin studies for the Fall semester.

The updated Program Delivery Instructions (PDIs) now indicate:

Border services officers will assess the circumstances surrounding the student and their accompanying family members’ travel and may consider, for example, whether any of the following apply:

  • they are established, residing and studying in Canada. If they are established in Canada, their return is non-discretionary
  • they expect to begin studying upon arrival after completing their quarantine
  • their presence in Canada is necessary for their continued participation in the program (such as in laboratories or workshops)
  • pursuing online studies is not a reasonable option for their school or program or is not possible from their home country
  • the semester has been cancelled or the person will begin studying later in the year

I want to focus this piece about what I perceive as the challenge with the requirement to prove establishment in Canada to gain entry as an international student.

That is not to say the other criteria set by CBSA do not themselves create barriers.

For one, educational institutes will largely be pushing for students to return, yet, I worry that without adequate evidence or strong supporting documentation that many DLIs are not offering, questions will remain about the necessity of in-person ‘laboratories or workshops.’ With CBSA’s past application of discretion around issues such as the ‘actively-pursuing studies’ requirement and with Port-of-Entry Post-Graduate Work Permit (PGWP) determinations, one often saw very inconsistent reviews of transcripts, program structure, and technical details. Many times, in the name of enforcement, Border Service Officers took on the duties of academic counsellor, in ways I believe Immigration never intended them to. The COVID discretion for international students raise the same concerns.

Second, it is unclear how the argument that online studies are not possible from the country in which international students reside will factor in. We know and expect that these arguments will largely come folks from technology-challenged Global South countries or other countries that may limit free access to online materials. I expect international students who may have been successful in obtaining a study permit, still largely uncertain and unequipped to address Border Services Officers on these points.

Looping back and framing the discussion of establishment, another concern is that IRCC apparently has apparently stated that they do not want to, or need, to see the argument for discretionary nature of travel in study permit applications.

They have written on their instructions:

Travel will be deemed discretionary or non-discretionary depending on individual circumstances. IRCC case processing officers will not assess whether the applicant is exempt from the travel restrictions when processing a study permit application.

Yet, the Program Delivery Updates (PDUs) announcing the updated PDIs seem to paint a different picture.

September 2, 2020

The instructions have been updated to provide additional guidance on the issuance of study permits while travel restrictions are in place.

Clarification has been made to the non-optional and non-discretionary guidance to include factors taken into consideration by the Canada Border Services Agency when assessing whether students are permitted to enter Canada based on the current travel restrictions.

The updated instructions will assist officers in applying the 2-stage assessment process for study permit applications, including refusals, following the stage 1 preliminary eligibility assessment. (emphasis added)

From the above, it looks as if IRCC will consider how the Applicant’s situation (while not considering the travel exemption itself) may factor into the 2-stage assessment process to approve a study permit.

Establishment, then becomes a tricky point.

A bona-fide temporary resident to Canada has to demonstrate that they can leave Canada at the end of their authorized stay (Immigration and Refugee Protection Regulations at R. 183(1)(a), R. 216(1)(b);). While there are provisions for dual intention under the Immigration and Refugee Protection Act at S.22(2), it can be a difficult argument to establish without both pointing to significant ties in the country of residence/citizenship AND being able to credibly present a plan for permanent residence – increasingly difficult for students on future PR pathways. Generally, potential students or renewing students who show too strong a tie to Canada (i.e establishment) in their overseas applications can be refused on study permit applications.

Yet, this very establishment is what CBSA would like to see to authorize entry pursuant to their interpretation of the COVID-19 travel restrictions. This proof of establishment could presumably come from demonstrating that they have a home, job, bank accounts, lease, partners, family members, future plans to stay, etc.

Should a study permit applicant put this proof in a study permit application to seek approval and explain why they are applying now – and at the same time risking refusal by the overseas visa officer?

Should that same student, who did not include this proof, suddenly approach their entry to Canada or the time between approval and their entry to Canada – with these documents which may contrast and contradict with what was in the study permit application. Will this lead to the possibility of misrepresentation or the reassessment of study permit eligibility down the road?

I do not know and if I do not know as someone who has practiced in this area for over five years, I do not expect international students to know.

The root of the problem is, and has been highlighted time and time again in the field of immigration law, is that the left of IRCC and the right hand of CBSA are not coordinated. We have seen this play out earlier in COVID-19 with the cases of family members seeking reunification.

The best case scenario is that CBSA lowers the threshold for establishment or does not hold it against applicants who now have proof of establishment when that proof may not have been disclosed on an application.. Furthermore, it would be beneficial for IRCC to clarify what it means by taking into account the updated instructions regarding travel restrictions when deciding the study permit application, but not considering the application of the travel restriction itself. This seems contradictory and at the very least confusing to the reader.

Finally, we have to consider the overall picture and potential of the time. Eyebrows would raise (and litigation would likely follow) if the two-stage study permit application process turns into one where students were consistently approved to study overseas during the COVID-restrictions and then refused on second-stage assessment preventing them from ultimately seeking entry to study. There is nothing in the instructions to suggest a re-assessment of basic eligibility could not change, which would be the unalleviated fear.

While such a plan/strategy would short-term serve institutional cash injection through COVID’s potential second wave in Canada, it wouldn’t serve the opportunity Canada currently has, facilitated by questionable approaches taken by other Five Eyes countries, to recruit the world’s brightest international students and support them through enhanced permanent residence pathways. I hope we take the right steps moving forward on the issue of facilitative, and safe, border entry for international students.

New Post (via Edelmann Blog), Some Updates, and Some Thoughts

Hello VIB Readers:

I have been on a bit of a summer hiatus with writing new posts. I am currently teaching two courses and as well winding down a third job supervising law students at Allard’s Law Students Legal Advice Program.

I am going to be shifting my attention back (hopefully) to trying to get a grasp on how to shift my practice more sustainably in the new digital-COVID age and as well pick up a few more tools in my toolbox (a proper critical race theory lens/possibly opening up a few more economic streams to balance out the heavy litigation/H&C work). I am looking forward to it. I have always been ‘busy’ for the sakes of being busy, so it is quite difficult for me to to try and carve out time to just think, but it is that time that I believe is so precisely important for me right now.

August and September are also panning out to be very busy on the appeals front with a few matters coming down the pipeline.

In this post I wanted to share three things.

1) New Blog Post;

First, I wrote a new blog post. I have been thinking a lot about judicial reviews recently and dissecting my own experience in the recent case of S v. Canada (Public Safety and Emergency Preparedness), 2020 FC 718. I read Justice Favel’s decision in Ouansa v. Canada (Citizenship and Immigration),2020 FC 632.

The post is available here.

2) News About Vancouver Immigration Blog

After 5+ long years, I am finally doing a major revamp of Vancouver Immigration Blog. I am working with a local website/business development company to rebuild my site, make it more navigable and more accessible. It is probably the biggest investment I have made in my online presence since starting the blog so I am excited for it and hoping it inspires more creative content;

3)  On Laws, Regulations, and Enforcement

I have had a very interesting long weekend. I went out to the Sunshine Coast for a little fishing. I did not realize how big the Filipino/Vietnamese/and Chinese diasporic and tourist communities are there. Fishing (it turns out) is a social gathering spot. There is a very interesting place in Davis Bay on the pier. Half of it is dedicated to swimming, mostly local kids jumping off incredible heights into the water. The other half is for fishing, mostly Filipino families gathering and sharing knowledge and stories. Recently, this place has come under some fire with efforts made by the local Davis Bay community to try and regulate an end to fishing off the pier.

Overfishing is certainly a problem. I witnessed some very bad practices – including fishers that took the lives of two shark as bait. Others openly defied the ban on crabbing after dark. I was grateful that a few local members of the Filipino community (who lived there) made sure to emphasize the regulations. At the same time, I could not help but think a total ban (mostly in favour of the non-POC children swimming and sending it off cliffs) also comes from a place of privilege. Several local (more affluent) community members own boats allowing them to fish and crab in the Ocean rather than use the pier. Yet, the pier was where I saw multi-generational families – young adults with their elderly grandmas and grandpas, share an activity together. Regulations that ultimately re-enforce privilege, from my perspective, turn into a sword rather than a shield, cutting apart communities of colour and re-asserting spacial dominance.

At the same time, I had another experience on B.C. ferries where every driver coming in was required to carry masks and there were several announcements of the requirement for all those not socially distancing within their cars to wear a mask. Other than one other Asian brother, I think I was the only mask I saw during the whole ferry boarding and ride. The staff themselves did not wear masks. No one was enforcing as a whole slew of non-POC gathered at the front of the boat, not socially distancing, and not wearing masks. Given where this regulation was coming from, I found it ironic that in this case it could be easily ignored or not complied with – with no consequences.

What type of society are we building where those that institute policy and regulations (often side-stepping the arduous process of needing to go through the introduction of instituting laws) don’t follow them and do not want to lose their own freedoms, but at the same time will institute the same policy and regulations to control the freedoms of others for their own benefit.

I am starting to really think we need a stronger race equity lens to be able to formulate the language of opposition, the language of pointing out the blatant double standards. To show that colourblindness has been leveraged against POCs to maintain white privileges.

Until then, we will continue to be in this situation where we are defending and enforcing against our own rather than challenging the foundations and improving them in a more equitable way.

Lots that I am chewing on – on this B.C. day long weekend.

Federal Court’s Decision in Lo and Three of My Interpreter/Interpretation ‘Best Practices’ at the Immigration Appeal Division (IAD)

The Lo Decision

In Lo v. Canada (Citizenship and Immigration) 2020 FC 684, Justice Elliot heard the judicial review of a Sponsor who received a negative decision from the Immigration Appeal Division relating to his sponsorship. The IAD found that the Applicant did not demonstrate on a balance of probabilities that his marriage was genuine and not entered into for the primary purposes of acquiring status under the Immigration and Refugee Protection Act [IRPA] also colloquially known as a ‘R.4 refusal.’

The main issue in this case was interpretation. Mr. L argued that there was inadequate interpretation from Cantonese to English that led to a breach of procedural fairness thus leading the IAD to conclude erroneously that they were providing vague answers in their testimony (para 11).

Justice Elliot sets out the law for adequate interpretation citing the seminal case of Mohammadian v. Canada (Minister of Citizenship and Immigration, 2001 FCA 191  at paras 4 to 6.

Paragraphs 18-20 of the decision set out the relevant law in this area:

[18]  It is accepted that while interpretation must be continuous, precise, competent, impartial and contemporaneous it is not required to be perfect. Nor is proof of actual prejudice required to obtain relief: Mohammadian v Canada (Minister of Citizenship and Immigration), 2001 FCA 191 [Mohammadian] at paragraphs 4 and 6.

[19]  To ground a finding that there has been a breach of procedural fairness, the Applicant must show that there are serious, non-trivial, problems with the interpretation: Siddiqui v Canada (Citizenship and Immigration), 2015 FC 1028 [Siddiqui] at paragraph 72. The Applicant is not required to demonstrate that an interpretation error underpins a key finding if they can establish that there was a real and significant interpretation error: Mah at paragraph 26; Siddiqui at paragraph 68.

[20]  In Mohammadian, the principle or purpose of interpretation was acknowledged to be “linguistic understanding”, based on statements made by Chief Justice Lamer in R v Tran, [1994] 2 SCR 951.

Paragraph 21 of the decision is particularly important giving a precursor to Justice Elliot’s decision that linguistic understanding can still be found while there are problems with the interpretation:

[21]  An example of when linguistic understanding may be found, despite there being a variety of problems with the interpretation, is provided by Mr. Justice Boswell in Dhaliwal v. Canada (Public Safety and Emergency Preparedness), 2015 FC 157 at paragraph 67:

[67]  In my view, the interpretation was not as precise as it could have been. The interpreter occasionally interpreted in the third person instead of the first person; she paraphrased a lot; she sometimes added information that was not said; and she was sometimes mistaken. However, as the Supreme Court has recognized, interpretation is “an inherently human endeavour which often takes place in less than ideal circumstances” (Tran at 987). Despite the imperfections in this case, I think the Applicant always understood what was being said and was herself understood. There was linguistic understanding between the parties on the essential issues before the IAD. (emphasis added)

There are some strategic issues with the decision that I will not spend too much time delving into. The Applicant relied on an affidavit from the Applicant’s daughter who created an unofficial transcript to compare to the hearing transcript. I likely would have utilized a different third party (official interpreter) assuming costs were not an issue.

Justice Elliot’s Decision 

Paragraph 38 of the decision highlights the common challenges in this area, reflective of the case law.

[38]  Keeping in mind that adequacy, not perfection, is the required standard for interpretation I find that the interpretation was adequate. I also find that any errors were not material to the outcome, therefore it is not necessary to consider the question of waiver. (emphasis added)

Justice Elliot then goes into three specific areas – a disagreement over the discussion of financial support by way of rent, pauses on questions related to compatibility, and information relating to the Applicant’s stepson.  Justice Elliot compares the two transcripts (the official and the unofficial) and finds that in many of these sections where concerns were raised, the transcripts said essentially the same thing. Justice Elliot did not see any differences as affecting the vagueness of the answers.

She concludes in her written decision:

[86]  As I have set out in these reasons, I am unable to agree that any interpretation errors were material or that they prevented the Applicant from having a linguistic understanding of the hearing or his ability to express himself. The interpretation at the hearing was not perfect but it was adequate.

[87]  The Applicant contributed to the difficulties experienced by the interpreter. The transcripts show that at several times during the hearing the IAD and the interpreter each had to caution the Applicant and remind him: (1) not to interrupt whoever was speaking; (2) wait for a question to be completed before answering and (3) use short sentences, with pauses between them.

[88]  The Decision was based on the Applicant’s answers. When an answer was not clear or was not detailed, either the Respondent or the IAD persisted with questions to clarify the answer or obtain more detail. By that process, any uncertainty or interpretation error that might have left a wrong impression was corrected. The Applicant’s failure to provide sufficient detail cannot be traced back to the quality of the interpretation at the hearing.

[89]  Notwithstanding the able and clear arguments of counsel for the Applicant, I am unable to conclude that the IAD hearing was procedurally unfair to the Applicant or that an unreasonable finding was made about the genuineness of his marriage. (emphasis added)

 

Three Interpreter Best Practices for the IAD

With the decision and case law being where they are, how does one prevent, if possible interpreter issues coming up at the IAD.

Below I will outline three tips I try to utilize in most cases

(1) Practice Oral Examination/Cross-Examination at least Once  with Certified Interpretation

As much as we or our office staff may speak the third-language of the appeal, we ultimately are not certified and many times can assume our questions asked are being asked the way we have framed them and the answers we hear are the ones we want to hear.

Ensuring that at least one round of examination/cross-examination is done with a third-party certified interpreter with no history of the case can provide at least a context or understanding of the way questions can be asked in a confusing manner and responses can often appear vague. It also provides the Applicant an opportunity to practice the very hard task of separating statements for which they wish to speak for a significant time into one sentence at a time. Trust me when I say this skill does not come easily, particularly with older clients who have poorer memories and require streams of thought to spur memories. It is also good to have the Applicant hear what other individuals are answering and be able to correct them on factual mistakes.

The cost of interpretation is often around $30-$50 dollars per hour. While it does cost an additional $200+ dollars is expensive, in the scope of how much legal fees are for appeals and how crucial it is to the client’s success, it is a necessary disbursement from my perspective.

(2) Find a Family Member/Friend as a Liaison Who Speaks Both English/Second Language of Appeal Fluently

Knowing certified interpretation is expensive but that most clients do need time to work on their testimony, I also employ the practice of having a trusted family member/family friend be part of interpreting until that final session. Many of my clients that I work with on appeals speak no English (ironically a factor that the Minister often tries to attack establishment with). I find that there are several benefits of having a family member/friend act as a liaison, particularly when they themselves are also involved as a witness and more clarity can be gained by hearing the principal applicant/sponsor talk about their situation. Remember though that as a result of their involvement, they need to be careful to separate what they knew before and what they knew after assisting. I find that time continuum/dates are a major issue in appeals and testimony congruity.

Remember also to seek the client’s written consent to bring the individual into preparation or assistance. In some cases materials shared made be very sensitive and by having the third-party in the room, it may affect the manner in which the evidence is received or responses are provided.

(3) Have Someone in the Room During the Hearing

One recommendation I always make is to have one of the family friends who attends as a witness be fluent in both languages. They themselves will not be a witness (allowing them to stay in the room through the proceedings). They will hear the interpretation

Ensure to let them know that they are not to interrupt the Member or proceedings with their responses/reactions during the hearing. Those reactions are not addressed positively.  Create some sort of code signal or utilize breaks to confer with them on interpretation. As counsel, you should not be afraid to approach the Member with your concerns.

It also is worth mentioning that in many law firms there are second language skills – either with support staff or with lawyers themselves. This is a good opportunity to allow support staff to get some practical experience of attending a hearing or for more senior lawyers to allow junior lawyers with language skills to showcase their litigation abilities. Being Mandarin-speaking myself I have attended several hearings for clients and in circumstances was able to step in to correct interpretation on the spot or ask for clarification.

One of the recommendations I gave in my paper titled Re-Centering the Resilience and Resistance of Migrant Women of Colour: Exploring the Potential of Intersectionality and Indigenous Approaches to Immigration Appeals  was the possible employment of community elders (particularly within one’s ethno-cultural community) in cases where appellants are unrepresented. This also may (if my recommendations are pursued in the future) be something that can be implemented.

What are your tips?

Share them with is and hopefully we can create more best practices to ensure our clients are able to put their best foot forward through immigration appeals.

 

CBA Immigration Section Founder’s Award Paper and Some Sharing of Gratitude

Hi Readers:

I have been relatively quiet of late, grappling, as many are with the  deaths of George Floyd, Breonna Taylor, Ahmaud Arbery, Regis Korchinski-Paquet, Chantel Moore and thinking about how my own work and positionality as a lawyer requires me to do more and say more with respect to Anti-Black and Anti-Indigenous racism. I have been working on drafting a response for an organization but even those words seem like they fall short, as I have.

It is with these complex feelings that I wish to share an award I received today, but I hope to divert attention from the award itself more to the paper I wrote, before drawing on a few Thank You’s.

 

Paper – Re-Centering the Resilience and Resistance of Migrant Women of Colour: Exploring the Potential of Intersectionality and Indigenous Approaches to Immigration Appeals

I have shared the paper below. It is shared with the permission of the Canadian Bar Association and I am grateful for their support.

WT – Founders Award Paper – FINAL

The reason I wanted to share this paper is that it represents for me a first major (academic/creative) deep dive into the issues of intersectionality, racism, and Indigenous approaches to Canadian immigration law. I have been thinking about these topics for some time, tweeting and blogging, but in this piece I tried to mold it into something more prescriptive. I also wanted to take a critical lens, something we often fail to do when we simply celebrate diversity and multiculturalism without seeing how it is working below the surface and in white spaces.

With organizations considering how they can respond to recent events, particularly in taking anti-Racist approaches, I do hope we can begin through looking at long-standing institutions/laws and how they may not be creating space for resilience, resistance, nor recognizing the experiences of migrants of colour.

I ask you to spend some time with my paper, particularly if you are a decision-maker or a Government official (particularly from the Immigration Appeal Division, for the purposes of this piece) with the ability to implement change. I do feel that this is an area where Canadians can demonstrate anti-racism is more than just a current rhetoric and to work towards past reparations by resourcing (read: paying/investing) for Indigenous advisors to help rethink our Immigration system. This is just a start, but I hope it sparks something or some ideas for needed reform.

I also wanted to specifically highlight that I was influenced by writer Gloria Anzaldúa’s Borderlands/La Frontera, The New Mestiza’ for the way she mixes literature and prose.

 

Thank You’s

I want to start by thanking the CBA (the Award’s Committee, Exec/Table Officers/Staff) for this award and the below generous write up. I do not do this work for the accolades, but to know others are watching is great.

I am continuously cautious of the effects of when organization’s difference you up and how that could impact your work and what you say. I am being very careful to not compromise for me the core value of living/practicing with authenticity and transparency at all times.

I would like to my mentors/colleagues at Edelmann and Co., including now-Justice Edelmann and my former mentor/colleagues at Larlee Rosenberg and Heenan Blaikie prior to that – as well as the University of Ottawa Faculty of Law for being such a beautiful place to learn the law and for supporting my work.

I would also like to thank my mentees who assisted on helping me review my paper and give me feedback. Specifically, Karen Jantzen, Tamara Yang, and Astitwa Thapa were instrumental for this particular piece. Chats with the exceptional Partner at my firm Erica Olmstead and the ideas of the brilliant researcher/thinker Leanne Dixon Perera helped shaped this piece as well.

I also wanted to thank those at the UBC’s Allard School of Law where I serve as a Supervising Lawyer for the LSLAP Clinic for inspiring me to look beyond the sometimes too-safe practice I do as part of my regular work.

Finally my best friend Davinder,  my Assistant Edris, my spouse, Olivia who supporting me through thick and thin, and my mother and sister. I did not dedicate the paper to my late father (he hated public attention), but I want to recognize his influence in raising me the right way.

I am taking most of today off to write (although some of it is for my case work). I hope to publish the piece on anti-Black racism and experiences in my circles shortly as I think that is the conversation we need to have today.

I hope you do not mind this short interlude.

Recently quoted in CBA National Magazine’s: ‘The pandemic and the long-term impact on immigration’

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.

I look forward to continuing the conversation at the CBA Conference this Friday at 10am PST (1pm EST)

Study Permit: COVID-19 Program Delivery – What It Says and What It Doesn’t

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 :).

Reflections on Chief Justice Crampton’s “Best Practices on Judicial Review (Written Submissions)” and My Own Three Tips

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), [1999] 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), [2015] 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.

Overall Thoughts

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.

 

My Tips

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.