Category Archives: Canadian Immigration Law Blog

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.

 

 

The Urgent Need to Create Leave Provisions for Undergraduate International Students

Since January of this year, IRCC has now provided instructions that allow for authorized leave periods of up to 150-days contingent on school approval. The problem now is that institutions have not kept up nor been held to account for not putting in policies that accord with these changes.

I believe they need a ‘call in’ so let me tell you why it is so pertinent right now to institute these changes.

The Current Policy

I have reproduced IRCC’s current policy on “Leave from Studies” below:

D. Leave from studies

Students may be required or may wish to take leave from their studies while in Canada. For the purpose of assessing if a student is actively pursuing their studies, any leave taken from a program of studies in Canada should not exceed 150 days from the date the leave commenced and must be authorized by their DLI.

A student on leave who begins or resumes their studies within 150 days from the date the leave commenced (that is, the date the leave was granted by the institution) is considered to be actively pursuing studies during their leave. If a student does not resume their studies within 150 days, they should do either of the following:

If they do not change their status or leave Canada, they are considered non-compliant with their study permit conditions.

In cases where a student has taken multiple periods of leave in Canada during their program of study, the officer should consider the student’s reasons for the various periods of leave. If the multiple periods of leave do not appear to support the expectation that the student is making reasonable progress toward the completion of their course or program of study in the time allotted by the course or program of study, the officer may determine that the study permit holder has not fulfilled the condition to actively pursue their course or program of study.

Examples of reasons for leave include but are not limited to the following:

  • medical illness or injury
  • pregnancy
  • family emergency
  • death or serious illness of a family member
  • change in program of study within the same institution, outside a regularly scheduled break
  • dismissals or suspensions (dependent on degree of severity)
  • postponed program start date (see Deferred enrollment for more information)

As you can tell these policies are short, broad, and open to the interpretation that was meant to be filled by school-specific policies.

Regarding just the instructions, I have recently tweeted some concern about a few important contexts that the instructions could do a much better job of breaking down to allow international students to recognize specific scenarios that they are facing:

However, in the piece I want to tackle the second part of this – that the schools need to authorize the leaves and they are behind on implementing the accommodation that IRCC has provided.

Current School Policies are Problematic – Particularly Considering Immigration Processes

Unfortunately, many institutions have not yet kept up. Their policies currently are either non-existent or restrictive in ways that are not defensible. Many discriminate based on perceived ‘levels’ of education – offering authorized leaves for graduate students in select programs but not undergraduate students. Many of these leave policies do not address mental health issues, the consequences of sexual assault, and other areas where options/knowledge is necessarily needed.

The challenge is that IRCC’s own instructions for students who are not actively pursuing studies and not authorized for leave, they should be changing their status to visitor within a reasonable time of no longer being enrolled or actively-pursuing studies. If the 150-days do not apply, international students really are swimming into uncertainty. Furthermore, their switching to visitor engages an application in which (as I alluded in another recent blog) creates a lot of uncertainty around self-disclosure and possible consequences.

Granting a school authorized 150-day leave has an added benefit of giving the student a gap before they have to make a disclosure. Perhaps in those 5 months, any illness or mental health challenges they are dealing with can have some plan or remedy that can fit within Canada’s medical inadmissibility regime particularly around excessive demand. Perhaps, in some cases switching to another status or even departure from Canada may be the interest of the students but a 150 days creates necessary space for those decisions to be made.

Another major problem, as a recent presentation to a set of institutions revealed is that while any of them claim to have leave provisions a disproportionate number of institutions don’t make those policies publicly accessible or transparent. This is problematic too when Officers are reviewing documentation from applicants which may (or may not) include these policies and are then unable to make informed decisions on granting extensions and post-graduate work permits. In my colleague Lily Le and I’s random survey last summer of 19 post-secondary institutions [all DLIs, all from the same organization, including both reputable universities and colleges] only 2 had any mention of leave with only one with unique information that was not a link to IRCC’s website.

Rise in Compliance Challenges on the Horizon

We know right now there is a major challenge because the number of international students attending #DLIs is not commensurate with the number of student being selected for Express Entry.

Per my colleague Dave Sage, highlighting the 2018 Express Entry End of Year Report:

“Only 29% of all ITAs issued to people in the EE pool were to those who claimed additional points (this means having completed studies in Canada, for one).”

In a recent IRCC talk, Dave Sage highlighted IRCC provided a figure of 1 out of 4, suggesting it is about 25-29%.

Given those percentage challenges, one way to address this bottleneck may be to refuse more students in the middle of their studies or sort out those students who do not have reasonable prospects of completing their studies. I suspect and predict, particularly with exit controls coming in and with more policies now in place, a corresponding increase in enforcement.

I suspect international students to increasingly run into challenges at the border, facing removal orders, and subject to compliance where educational institutions report them or when the information on forms, such as visitor records and student extension forms, triggers them.

Writing Public Policies to Respond

I have heard from a lot of institutions that the challenge comes from bringing together academic staff, international student staff, and administration.

The fear is that writing these types of policies may expose the University to further administrative challenges, start creating situations where students seek leave in overly excessive numbers, and also create possible disputes.

From my perspective, the bigger risk is not in tackling the avoidable challenges students will face but staying silent to them. I do believe students will begin choosing institutions based on the safety nets they can provide and that this is a positive, not negative thing, given the treacherous waters international students often have to navigate. I believe universities and colleges will lose business and open themselves up to risk of challenges to their practices (including perhaps legal) that will cost much more in the long-run then providing clear and transparent accommodation.

Schools that do not already have a team of RCIC, RISIA,  outside counsel, and international students who provide lived experience input should form these teams and start drafting leave provisions immediately.

IRCC Needs to Better Coordinate with Provinces

One of the concerns we have heard is that IRCC has dropped some of these new policies without enough time for Provinces to advise their ministries and also for Schools to consult. Changes such as undergraduate leave take time and take consultations that require balancing financial incentives to do so, the number of stakeholders that this involves, and also to determined whether this is indeed in the school’s best interest.

This will not take months for some schools.

I would suggest in the interim IRCC does provide either an H&C exception for those students who are not covered or authorized by universities/colleges OR instead involving the Province on an assessment for students who are excluded due to institutional rules.

Five Immediate Steps IRCC Could Take to Make Forms/Application Processes More User Friendly

Recently in Sbayti v. Canada (MCI), 2019 FC 1296, Justice Pamel (a recent appointee to the Federal Court earlier this year) had a bit of a field day with IRCC’s forms and processes. In this case, an individual who was in a grey-area situation with respect to a previous departure/possible removal from the United States was unable to properly answer a check box “yes/no” question while providing an explanation.  Justice Pamel allowed the judicial review and found the Officer’s assessment unreasonable.

This case got me thinking – what are some of the ways IRCC can change their forms to make it user friendly? I have five ideas of where to start.

1) A Catch All Box at the End of Forms

The challenge cited by Justice Pamel comes from forms that turn many questions that are of some confusion to an applicant into a binary “Yes” or “No”. The answering of “No” then greys out the box that allows you to provide any explanation.

One of the immediate solutions that I would suggest is to adopt what is currently being used in the IMM 5532 relationship box to ask clients if they have anything else they would like to share. Adding a catch all box could also serve to gather some of the important information to dig into compliance-related data and positive disclosure.

Again, because self-represented clients get a “Client Information” instead of a “Representative Submission” box [which I argue a separate “Cover Letter” section may be appropriate as well], these further explanations can often be missed throughout the application. A catch-all box on  a form would provide that added benefit, although possibly will provide challenges to the ways applications are filtered and triaged.

As you may know many individuals are being found inadmissible for misrepresentation for mistakes that arise out of what are more akin to uncertainties. This has a dual benefit of giving clients  space to express uncertainty but also giving further proof that a second question was reviewed and answered before alleging an individual was not truthful or made a material omission. Counsel will likely continue to utilize submission letters but for self-reps this will be a major added benefit.

2) Clearer Transparency on Information-Sharing

I have recently done a talk and am drafting an introductory article on how privigration (i.e. the meeting of privacy law and immigration law) is one of the most under-studied yet on the up and up areas. Via our interactions with border officers (which now will involve exit controls) and immigration application forms, our information is transferred through ‘personal information banks’ (PIBs)  to different government agencies and could be used for a variety of purposes that may or may not be justifiable under the Privacy Act. Right now this information is disseminated via small barely visible box. The number of different PIBs in which information from a migrant is being shared would astound the lay-person. Indeed, through the Gazette’s and various pieces put out by IRCC and CBSA that a major part of these changes are to increase cross-collaboration to track those who are abusing government social services. It also increases the tracking on refugees and other vulnerable migrants. There needs to be transparency around this and either the forms or accompanying instructions should provide that.

3) Specific Reasons for Refusal in a Separate Box (copy and pasted from GCMS)

One of the major challenges with temporary resident refusals is that the form does not contain full and detailed reasons to allow an individual to, in most times, even begin to address their refusals. Individuals need to file Access to Information requests that can take lengthy periods of time and for those without Canadian contacts or addresses be nearly impossible to submit.

I would suggest that IRCC move to a model other than the bullet point or the check boxes and into one where a small box where the Officer’s reasons can be copy and pasted from GCMS. This would decrease the strain on the ATIP system and allow applicants a clearer window on to how a new application can assist them. The unforeseen consequences of a system where applicants are denied these reasons is not only their lack of knowledge of judicial review and reconsideration as pathways but the continued exploitation at the hands of agents who are able to coax new applications and fees on the basis of ‘a few less check boxes’ to go.

It is not clear, as well, particularly in the context of Canadian refusals that written reasons can be requested. When you also place a 15-day time limit on judicial review and then refuse with no reasons it creates major procedural fairness issues for applicants to know the case to be met.

My solution would be to add a box and copy what is usually in the GCMS notes of the Officer – to put that section forward and let the applicants know. It cannot be up to counsel to advise their clients to know that this can be done, particularly where refusal letters are silent.

4) A Separate Uploading Section for Attachments to IMM Forms;

Online uploading is another notorious challenge. IRCC has made some major improvements (especially through their Express Entry portal) in clarifying where certain things are to be uploaded. One of the ones where I think changes can be made is in either making many of the standard forms drop down for the 10 year Personal History or else create a clear template/upload for the Attachments that we often add.

The consequences of not having this upload/process apparent are two-fold. First, applicants are unaware that failure to disclose relevant work/employment/volunteer history could have major consequences as they interface with permanent residence applications. Second, visa officers have consistently missed when these attachments are added to submission letters. Third-party Visa Application Centres (“VAC”) can through communication mistakes mis-shuffle/accidentally remove these important attachments.

5) Clarifying the Issues that Affect the Most Vulnerable Students and Workers

With workers and vulnerable students, there major concerns that revolve around particularly mental health (for both), attendance/continuous employment (for , and also for workers, whether or not they have “worked without authorization.” The problem with all three of these are that neither the forms or law provide clarity on the best manner of disclosure on the forms. When is a student required to disclose they are not ‘actively pursuing’ studies? This would not be considered “attending school without authorization” by technical definition.

Similarly, if a worker may be uncertain whether or not their employment is unauthorized if those contours are not made readily available how is work without authorization self-declared? The forms should not create a punitive ‘all-or-nothing’ proposition but instead serve to genuinely provide transmission for concerns and possibly corrections.

The same goes with mental health issues. I will do another blog specifically about the interaction with disclosure and admissibility challenges but the nature of the form continues the historical discrimination against those with mental health related challenges. It creates uncertainty.

It is my recommendation that IRCC provides separate instructions for the admissibility. Whether or not this reassures students at the very least it adds some clarity as to what should be disclosed and what possibly does not need to. Especially because these form questions are connected to triaging and possible delays. It would also strengthen the case for misrepresentation and lead to less confusion for students.

 

Five Tips for Immigrants to Protect Themselves Against the Media’s White Gaze

“Our lives have no meaning, no depth without the white gaze. And I have spent my entire writing life trying to make sure that the white gaze was not the dominant one in any of my books.”

– the late, honoured, Toni Morrison

I read a lot of stories and news reports involving migrants and newcomers. A lot.

I also am very conscious of those who are writing those stories and are not immigrants or the direct descendants of immigrants themselves. I’m speaking particularly about white people. If this makes you feel somewhat uncomfortable, I have a recommended read before you continue on here.

Whether sub-consciously or not, white people write about the coloured bodied or immigrants in a different manner than those lives are experienced by those who share their stories. There are different variations of how this looks. For some it is in condescension, others exoticism, others in a sympathetic-leaning white knight or virtue signal. There are other writers who ostracize, criticize, and expose colour and migrant lives in a way that they would never dare do to a leading business person, politician, or celebrity. Perhaps it is the fear of lawyers or the open vulnerability of migrants, yet this is a growing concern and one that needs to be addressed on a more systemic level. From the U.S. cheating scandal where there was a clear difference in treatment shown between writing about the celebrity actresses and the wealthy daughter of Chinese migrants, to the overwhelmingly graphic details of her life and upbringing to the constant stories of migrant and coloured wrong-doings that splatter across front pages in this countries – I notice it as a visceral reality.

This week I have been looking a bit at the way Courts want to open document transparency and how media is taking an active role in trying to open up migration cases to the public’s attention. Indeed, a local journalist recently tried to open up a refugee hearing, a private proceeding meant to protect the identity of a claimant, in order to try and get the details of a gory crime to the public. These migrant scoops  serve a public appetite for those who are not us, here with us, doing things we would like to admonish them for doing. They are a white Canadian gaze on a increasingly changing definition of Canada, and a fear of losing it’s historic ‘whiteness’ particularly in mainstream media. I can’t blame the authors and I am not blameless. I too actively do work that profit off migrant mistakes, a stark reality of the colonial work that pays my bills and rent. Media, as an institution, unfortunately also does the same.

 

Why Migrants Should Be Careful Giving Media Interviews

In the past, I have provided my perspective on why Media Must be Cautious Covering Individual Immigration Cases

Today, I will change this to the migrant perspective. I have deep concern that migrants, in attempting to feed the narratives of journalists, are exposing themselves to not only personal risk but also compromising their own immigration status in Canada. I have a few pieces of advice for migrants, newcomers, refugee claimants and others who might be facing this double vulnerability.

TIP #1:  Recognize Journalists are (Generally) Not Your Friend – They Are There to Make News and Gain Views

This is the starting point. I am able to provide interviews now (including some I openly regret giving) to try and provide a voice for migrant communities. However, I am not a migrant myself and am not at risk when I speak and share experiences. When you are an international student, when you are on a work permit, when you are making a refugee claim – your voice is tied innately to your immigration status. Your published name alongside your transgressions is enough to have attention drawn to your immigration file from authorities.

Part of the work journalists are increasingly engaged in is advocacy. Their primary goal (other than sales and readership) is to try and gain market share of a topic. Several local journalists have gained notoriety by exposing wrongdoing and having their work lead to changes in Government policies. While much of this may have great long-term implications, the short-term implication may be use of you as a poster-person for a problem.

Remember, not all exposure in the context of vulnerable persons – is good exposure.In some cases, journalists may be in fact looking for a migrant voice to express disdain/anger towards other members of one’s own community. Particularly in this day and age where expressing one’s own non-popular views comes under heavy scrutiny (particularly around issue of race/status), it is a common journalist trick to get someone else to say it or better yet – someone within the same target community.

It is not all negative. There are several cases where the media have been able to put external pressure on the Government and encourage them to stop removals and grant extraordinary relief. In most those cases, there was some active litigation or strategy incorporating the media. These cases did not come from the mouths of individuals being interviews as part of some pending investigation.

I know saying no is difficult. Many of us are enthralled by the opportunity to be on TV – but think twice before agreeing to be in the media and expose your life to the media’s gaze.

 

TIP #2: Misrepresentation Doesn’t End at PR

One of the things I have seen recently is several immigrants, with their published legal names, admitting to having paid for their jobs or to working excessive hours in order to qualify for permanent residence. In some of these cases, it appears that the individuals have now obtained permanent residence and possibly even citizenship.

An individual admitting that he or she may have paid for part of their qualifying work experience can have major impacts on permanent residents and even citizens who obtained permanent residence on the basis of this information. Paying for one’s job or receiving support from an employer to falsify duties would be considered material misrepresentations that have a direct impact on the assessment of a permanent residence application. Many of the large scale frauds in which permanent residents are finding themselves  Immigration Appeal Division involved third-party/employer wrongdoing.

Remember that s.40 of the Immigration and Refugee Protection Act covers both foreign nationals and permanent residents:

Misrepresentation

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

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

    • (b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;

    • (c) on a final determination to vacate a decision to allow their claim for refugee protection or application for protection; or

    • (d) on ceasing to be a citizen under

      • (i) paragraph 10(1)(a) of the Citizenship Act, as it read immediately before the coming into force of section 8 of the Strengthening Canadian Citizenship Act, in the circumstances set out in subsection 10(2) of the Citizenship Act, as it read immediately before that coming into force,

      • (ii) subsection 10(1) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act, or

      • (iii) subsection 10.1(3) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act.

  • Marginal note: Application

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

    • (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and

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

  • Marginal note: Inadmissible

    (3) A foreign national who is inadmissible under this section may not apply for permanent resident status during the period referred to in paragraph (2)(a).

  • 2001, c. 27, s. 40

  • 2012, c. 17, s. 17

  • 2013, c. 16, s. 16

  • 2014, c. 22, s. 42

  • 2017, c. 14, s. 25

For citizens too, when an individual obtains permanent residence and later citizenship by virtue of this fraud, revocation proceedings that be initiated. It is a little difficult to trace with all the Citizenship Act amendments but a good summary is below:

Status of a person post-revocation

If the person’s citizenship was revoked due to false representation or fraud or knowingly concealing material circumstances during the citizenship process only (e.g., lying about residence in Canada during the relevant period), the person becomes a permanent resident as per subsection 46(2) of the Immigration and Refugee Protection Act (IRPA). Revocation in such situations does not itself jeopardize the right of the person to remain in Canada; however, the person must meet all obligations under the IRPA. For the residency obligation under the IRPA, the five-year period begins on the date the person becomes a permanent resident. If the person’s citizenship was revoked on the grounds they became a permanent resident by false representation or fraud or knowingly concealed material circumstances, the person will revert to foreign national status. If the false representation or fraud or concealing of material circumstances was with respect to a fact described in sections 34, 35 or 37 of the IRPA, the Federal Court, in certain cases, may also declare the person inadmissible and issue a removal order.

If the person is a dual citizen and the person’s Canadian citizenship was revoked due to convictions for terrorism, high treason, treason, or spying offences, depending on the sentence received, or for serving as a member of an armed force of a country or organized armed group engaged in armed conflict with Canada, the person becomes a foreign national.

If the person, who is a foreign national, is in Canada once citizenship has been revoked, the person is in Canada without status. The person may be reportable under subsection 44(1) of the IRPA and may be subject to removal from Canada.

In short, there are major implications of disclosing something so seemingly innocent as confirming a history of having been exploited. It is a double-edge sword that applicants face which makes it pertinent that proper advice is obtained before publicly speaking on these types of issues.

 

TIP #3: Know about the Process of Contacting CBSA Criminal Investigations and Applying for Work Permits for Vulnerable Persons

There are many options for workers and other individuals who have been abused and taken advantage of. This includes work permits for vulnerable workers and for victims of family violence.

Many individuals also unaware that Canada Border Services Agency has a Criminal Investigations program that operates as an arms length investigation where there is fraud, criminal activity, and other sensitive situations that may require further investigations. While they cannot provide immigration relief – they may be much more sensitive than the media may be around your personal situation. Of course, adequate legal advice should be sought before approaching CBSA Criminal Investigations – which may involve a more holistic review of your immigration status in Canada, weighing pros and cons of approaching Criminal Investigations. There may be some benefit to making a written affidavit statement before approaching authorities to set out the material facts. See also Tip 5 below.

 

TIP #4: Know that  IRCC/CBSA Tracks the News

Immigration (IRCC) reads the news. Indeed, that is how much of their programming responds to changes – through gathering feedback from social media (Twitter), reading news stories, and meeting to discuss them. If your name is part of an expose, you can best believe you are on IRCC’s radar. From my perspective, until you  understand the legal ramifications.

I still remember one time I was outside CBSA (unable to enter the detention center because it was full) and tweeting about it. Before I could even enter, the Senior Manager came out and said he recognized the problem and saw my tweets.

I have been able to leverage social media somewhat successfully to push change but I can tell you that the analysis, the criticism, and the choosing what to say and what not say is an art. When your name is provided to a journalist for the front page – that control is now out of your hands.

In admissibility hearings, the filing of newspaper articles as evidence before the Immigration Division and Immigration Appeal Division is very common. Your own words and actions could create challenges for you down the road, particularly when you try to introduce new evidence and sworn testimony.

 

TIP #5: Seek Independent Legal Advice

I recommend that every migrant asked to speak to the media about their personal situation and in doing so disclose sensitive personal information take adequate steps to seek independent legal advice. This advice can guide you as to whether there can be some advocacy benefits to media. A legal advisor can also help you determine whether your personal immigration matter requires steps such as confidentiality motions in Federal Court, simplified procedures for anonymity, or applications for private proceedings (among other steps).

I do hope that more institutions exist on both sides – not only to try and push more nuanced journalism and train on some of these ethical issues for journalists, but also to utilize some of that knowledge to provide media training for newcomers and migrants. It would also be beneficial for more established organizations, unions, and support networks to consider helping shield individual migrants where necessary or provide media spokespeople/translators to assist.

 

Conclusion

I am a friend of the media and consider many journalists friends, supporters, and colleagues. I support open transparency and generally am glad that our democracy is one where we can talk about the crevasses. Ultimately, I think the more we talk about rather than ignore issues of migrants, the better our collective understanding will be and the barriers that exist between us will be broken down.

I also know that much of what journalists do may not be conscious. It may not be a product of their own ill-beliefs or fantasization about migrants but rather the economics of the newsroom or the culture of seeking the strange or exotic. I expect (and hope) many of my journalist friends will be taken aback by my words, start justifying by stating they have a spouse who is a POC or that they are a POC themselves, and they would never do that. I’m going to say that we all do this – and this is the norm. We do not offer newcomers, migrants, and marginalized community the same expectations of privacy, representation, and voice that we do those we work with, befriend, and hold to higher authority. This is a historical and naturalized human response.

Whether we can unlearn it and choose – on occasion – to put our own careers and scoops on the side to allow an interviewee to seek legal advice or community support before speaking to us – is how we will demonstrate how far we can go to changing the role of journalism as projecting society’s white gaze.