Category Archives: Canadian Immigration Law Blog

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 ūüôā

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:

‚ÄčPlease call (604) 822-5791¬†to schedule an appointment.
Please call (604) 684-1628 to set up a Chinese language appointment at our Chinatown clinic.
Ś¶āśěúšĹ†ťúÄŤ¶Āšł≠śĖáśúćŚčôÁöĄŤ©ĪԾƍęčśí•śČď(604) 684-1628 ŚįáśúÉśúČšļļŚĻęśā®ť†źÁīĄśôāťĖď.

‚ÄčPlease 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.‚Äč
‚Äč
‚ÄčSee 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 ‚Äúdata about an ‚Äėidentifiable individual.‚Äô It is information that on its own or combined with other pieces of data, can identify you as an individual.‚ÄĚ 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 ‚ÄúIt May Be Too Late to Repent: Immigration, Tax, and Privacy Concerns in the Context of New Proposed Changes to Social Insurance (SIN) Number Sharing‚ÄĚ, Canada‚Äôs 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 РThey 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.

Rethinking the Metaphoric Roxham Road – Why I’m Voting Strategically in Van South with Migrants and the Marginalized in Mind

In this piece I am going to talk about strategic voting or at least my own strategic vote this election. I also will touch on issues of anti-immigration sentiment/misunderstanding as it results from a shift towards populism.

There’s been a lot of good writing in this area. This isn’t my attempt to try and match that. I won’t be linking to articles, talking about statistics, or even going into the theory. These are my views and my views only.¬† There are experts that are far more learned than I am on these topics. Competency takes time and I am on the beginning stages of that journey. I am still (to be fully transparent) trying to ground and negotiate my own identity as¬† Chinese Canadian Han male on these unceded and stolen lands.

What I want to meditate on in this piece is to speak from my experiences and one I hope will influence other voters, particularly those who may share progressive values.  Even for those who maybe socially indifferent or fiscally conservative, I think there may be something worth discussing here.

Thinking Beyond “Me” and the Problem of Voter Apathy

I know that in capitalist economic systems the focus is always on the ‘you.’ In fact I noticed it I believe in one of the campaigns is aiming to think about this. The reality is, however, empowering the ‘you’ often comes at the need to oppress the ‘other.’ Or to reframe it this way – in order vote for what I want, I need to vote against what I do not want or that does not benefit me. I find this perspective deeply problematic.

If I am voting for myself only, I would likely be a fiscal conservative, socially neutral voter. I am a CIS-gendered, heterosexual male, who in the past has taken full advantage of the ‘model minority’ label often attached to those in my community. I run my own corporation now, so lower taxes would likely help me. Making more money, and paying less taxes would help me put a larger roof over my head – fulfilling Maslow’s hierarchy in the process. I could probably have kids earlier and put my family’s financial security first and foremost.

In short, I know that this system itself helps me. Whether or not I try and squeeze myself into the ‘Middle Class Canadian’ label the reality is I am okay with any Government. I would do fine.

But…. if I take a broader lens on the ‘us’ – understanding that my own financial career has been built off a legal system and off clients who do not have these privileges, I cannot simply vote without thinking of those impacted most by Government. Other than in my legal work (where I profit OFF government processes), I can largely avoid Government in my day-to-day life. Those who are lower income, homeless, people (esp. women) of colour, Indigenous, persons with disabilities, and the trans-community (among many other marginalized communities) who cannot. Their lives can not be detached from reliance and the active role Government plays in them.

One of the reasons I am so much in support of political advocacy to drive more voters (and hopefully in the future, candidates) from these communities to step up – is that they need to voice out their concerns – even when the larger majority holding power may not be listening. The primary concern right now, is that a very dangerous force of white supremacist, nationalist, populist thought leaders are threatening to rid our political system of those on the margins or use their mere existence to perpetuate their own power.

These groups include refugees, religious minorities, those with different sexual and gender orientations. This force sees as a threat, not an opportunity, the difference among us. The reality is, in some of these communities, the other is simply not present. They have grown up in homogeneity and cannot fathom the mosaic that so many of us champion and celebrate as ours. They hold much of the voting power of Canada and – similar to the U.S. and the last election- can not be underestimated. However, I am hopeful that our nation and the ideals we have built around can shed a positive light rather than a negative darkness around these issues of who belongs and what belonging entails.

Immigration and Refugee – Largely Misunderstood Through Exploitative Lenses

Immigration is being and has been misunderstood. Our current national discourse shows it.

  • On mass immigration –¬† the levels have shown very little movement over the past decade. We’re really talking about minor percentages.
  • On illegal refugee ‘crisis’¬† – as a country we are not even among the Top 10 refugee welcoming countries, nor are those seeking entry illegal by any legal definition. Much of what is going on is reflective of a United States system/global unrest outside of our direct control or created a result of our historical actions/inactions.
  • On birth tourism – where it would take a huge logical leap to consider
  • On jobs – where Canada has a low unemployment rate, no one wishes to do the jobs that migrants do, yet we still blame them for our challenges and abusing our systems.

Roxham Road, itself, on the immigration front is a perfect example of how we have forgotten our sense of humanity in the midst.

Our discussion of immigration, refugees, and newcomers – a large variant topic that encapsulates everyone from asylum seekers to new citizens – has been dominated by concerns over a small border crossing in the United States.

I have difficulty fathoming how individuals can feel personally threatened by the fact others want to seek safety and security – given all of us, somewhere down the ancestral line, did the same. I cannot balance the fact we blame them for doing harm on our societies while ignoring our own settler roles in harming Indigenous communities in ways much more deep-roited then the fact Nigerians and Haitians in some cases may be seeking refuge from ‘hardship’ instead of ‘persecution.’

Why do some Canadians believe that this land is only for themselves and not for the coloured, for the migrant, and the marginalized? We have gone a step beyond the indifference to an act of differencing them down to a level below us in order to raise our collective outrage.

It isn’t just by chance that these surveys have found Canadians are concerned primarily with non-white immigrants. I see this as further indication that we have replaced our overt racism with one through attempted justifications of policy over a system that itself inherently racist and upholds systemic racist systems. Those who study migration will know that the big tent that was initially created to populate indigenous lands was narrowed through law and policy when too many coloured and dark faces began to show up to complicate the intended narratives of “White Canada Forever.” If one looks at our economic immigration system today (the one always ‘touted’ by those pro-immigration) – these too are built on the privileging of young, able-bodied, English-speaking, migrants over the ‘other’ who will never meet the criteria. Many of these others are my clients.

Immigration – and this is something you will only truly experience once you work in the margins or have recent experiences yourself –¬† is more than just what we think of our borders, what we want workers to do for our businesses. Immigration is a deeply human act of moving, separating, integrating, and conflicting systems and identities. it is about assimilating, without understanding our colonizing actions. Refugees and other marginalized groups have taken the hit as a result of our system of trying to pick ‘good’ migrants and alienate ‘bad’ ones.

I find that it is the absolute low of lows of gutter politics to use refugees and other newcomers (who do not have a vote or political power) to drive one’s political agenda against them.¬† If my own accumulation of power requires other humans harm – psychologically, physically – I need to rethink my use of power.

I urge some Canadian politicians to deeply have this conversation of their privileges, who they serve, and who they are excluding in upholding dangerous rhetoric.

Voting Strategically for a Candidate I Believe In

This election I was facing a difficult choice. Why? Politics over the past decades has not welcomed people like me but instead distanced us into background, single-issue advocates. We (and the big tent I am using I am very well aware are marginalized communities of which I do not belong and may show indifference/harm to in my work) are stuck fighting each other and our own differences and not the collective systems that oppress us.

Yet, in the ways that populism has taken over, I have also seen a lot of light and potential. That some leaders are actively seeking to change the ways they lead and/or address negative change. One of those gems of light is in my riding of Vancouver South.

Ultimately, these past few days/weeks I  have looked at my neighbourhood of Vancouver South I looked at the coloured faces, the new businesses such as the amazing Filipinx restaurant I visited yesterday, and I asked myself Рhow can my vote help them. However can I foster their inclusion. What would I want if I were them?

In that light, I am going to be voting for a candidate that has demonstrated their commitment to equity and diversity, who is willing to stand up (and not look down) upon our values as Canadians. I want someone who will keep their constituent office open for newcomers and migrants to seek access, who is open/accountable, and who wants to widen the big tent of Canadian politics and ensure it isn’t one built on an “us” not “them” mentality. I want a leader who won’t accept the 30 years of model minority that I grew up in as a pathway to personal success but rather show concern to those who are seeking a voice and defend those voices. I want to vote for someone who when incidents of hate occur (as they will) or when we are forgotten in the political process, to remember their roots in Vancouver South. I want an individual who will have their eyes open to changing demographics, future challenges, respectful of our history, and willing to change the way we do politics.

I hope (and dream) of a Canadian politics that is able to serve as a balance to support marginalized communities in the same way corporate/economic forces hold up the majority (including myself). I’ll keep dreaming but until then keep on keeping on. I made to cede power, spend my billable time seeking justice rather than profit, but I believe we owe it to Our Creator to do this work.

Happy to chat with any of you offline about where I am leaning but I encourage all of you to look into the issues, where we’re going, and make a strategic vote for our collective future.

 

Inadequate Reasons for Decision – a Canadian Immigration Law Perspective

A common situation in Canadian immigration law is when you make an application or a request for something such a reconsideration and you get back a decision with reasons you believe are inadequate. This could be a visa officer who has first issued you a standard form refusal letter and upon an ATIP request you realize there’s but a few lines that say very little. This could be a Minister’s Delegate who refuses to reconsider a decision to refer a s.44(1) report to the Immigration under s.44(2) of IRPA. When are decisions considered inadequate? How can you raise inadequacy in the context of judicial review?

Short Overview of Context

The broader context of adequacy of reasons, specifically the shift from the historical requirement of administrative decision-makers to provide reasons for their decision in only the most exceptional/quasi-judicial circumstances to a legal obligation, was in fact routed in an immigration case heard by the Supreme Court in 1999, Baker v. Canada [1999] 2 SCR 817.

With the law of reasonableness in adminstrative law shifting post-Dunsmuir, in the 2011 Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) 2011 SCC 62, 3 SCR 708, the Supreme Court of Canada appeared to be weary of the implications of framing inadequate Officer reasoning with a breach of procedural fairness. The Court held that the poor quality of reasons provided by an administrative decision maker could not be a stand-alone basis upon which to quash a decision for lacking fairness.

The Court wrote:

[14]¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†Read as a whole, I do not see¬†Dunsmuir¬†as standing for the proposition that the ‚Äúadequacy‚ÄĚ of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses ‚ÄĒ one for the reasons and a separate one for the result (Donald J. M. Brown and John M. Evans,¬†Judicial Review of Administrative Action in Canada¬†(loose-leaf), at ¬ß¬ß12:5330 and 12:5510).¬† It is a more organic exercise ‚ÄĒ the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.¬† This, it seems to me, is what the Court was saying in¬†Dunsmuir¬†when it told reviewing courts to look at ‚Äúthe qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes‚ÄĚ (para. 47).

[15]¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show ‚Äúrespect for the decision-making process of adjudicative bodies with regard to both the facts and the law‚ÄĚ (Dunsmuir, at para. 48).¬† This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.¬†

[16]                          Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis.  A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391).  In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

[17]¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†The fact that there may be an alternative interpretation of the agreement to that provided by the arbitrator does not inevitably lead to the conclusion that the arbitrator‚Äôs decision should be set aside if the decision itself is in the realm of reasonable outcomes.¬† Reviewing judges should pay ‚Äúrespectful attention‚ÄĚ to the decision-maker‚Äôs reasons, and be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fateful. ¬†

In the oft-cited paragraph 18 of the decision, the Court cautions that the reasons should not be viewed in a vacuum and that perfection is not the standard:

[18]¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† Evans J.A. in Canada Post Corp. v. Public Service Alliance of Canada, 2010 FCA 56, [2011] 2 F.C.R. 221, explained in reasons upheld by this Court (2011 SCC 57, [2011] 3 S.C.R. 572) that Dunsmuir seeks to ‚Äúavoid an unduly formalistic approach to judicial review‚ÄĚ (para. 164).¬† He notes that ‚Äúperfection is not the standard‚ÄĚ and suggests that reviewing courts should ask whether ‚Äúwhen read in light of the evidence before it and the nature of its statutory task, the Tribunal‚Äôs reasons adequately explain the bases of its decision‚ÄĚ (para. 163).¬† I found the description by the Respondents in their Factum particularly helpful in explaining the nature of the exercise:

¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† When reviewing a decision of an administrative body on the reasonableness standard, the guiding principle is deference. Reasons are not to be reviewed in a vacuum ‚Äď the result is to be looked at in the context of the evidence, the parties‚Äô submissions and the process. Reasons do not have to be perfect. They do not have to be comprehensive. [para.¬†44]

            (emphasis added)

At paragraph 22 of the decision, the Court also confirmed that the post-Dunsmuir standard of review for inadequate reasons, where reasons were provided should be reasonableness:

[22]                          It is true that the breach of a duty of procedural fairness is an error in law.  Where there are no reasons in circumstances where they are required, there is nothing to review. But where, as here, there are reasons, there is no such breach.  Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis. 

             (emphasis added)

It is interesting comparing the SCC’s decision in 2011 with one made in an immigration context [refused H&C] four years earlier by Justice Shore, which seems to have parallel language. In Za‚ÄôRour v. Canada (Citizenship and Immigration), 2007 FC 1281 (CanLII), Justice Shore writes:

[19]           The reasons inform Mr. Za’Rour why his request was denied and has not prejudiced his ability to seek judicial review. It is well-established that reasons serve the two main purposes of letting the parties know that the issues have been considered and of allowing the parties to effectuate any right of appeal or judicial review. (Via Rail Canada Inc. v. Lemonde (C.A.), 2000 CanLII 16275 (FCA), [2000] F.C.J. No. 1685 (QL); Townsend v. Canada (Minister of Citizenship and Immigration), 2003 FCT 371 (CanLII), [2003] F.C.J. No. 516 (QL); Fabian v. Canada (Minister of Citizenship and Immigration), 2003 FC 1527 (CanLII), [2003] F.C.J. No. 1951 (QL).)

[20]¬†¬† ¬†¬† ¬†¬† ¬† Moreover, the Supreme Court of Canada held in R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869, paragraphs 33, 46 and 53, that the inadequacy of reasons is not a free-standing right of appeal, in that, it automatically constitutes a reviewable error. The Court held that ‚Äúrequirement of reasons, in whatever context it is raised, should be given a functional and purposeful approach.‚ÄĚ Where the record as a whole indicates the basis upon which a trier of fact came to his or her decision, a party seeking to overturn the decision on the basis of the inadequacy of reasons, must show that the deficiency in reasons has occasioned prejudice to the exercise of a legal right to appeal. (Reference is also made to R. v. Kendall (C.A.), 2005 CanLII 21349 (ON CA), [2005] O.J. No. 2457.)

This case is also significant as the inadequacy of reasons being prejudicial it appears – is still good law as per our section talking about requesting detailed reasons for refusal below.

While jurisprudence has clearly established now that a lack of adequate reasons cannot be a stand-alone basis to find a decision procedurally unfair and that the broad nature of the reasonableness analysis may allow reviewing tribunals to view the context of a decision, there have been several circumstances where Courts have not upheld the reasonableness of a decision where inadequate reasons were at play.

Conclusion Without Reasons

Recognizing the potential misapplication of Newfoundland Nurses, particularly where no reasons were given, Justice Rennie wrote in the 2013 decision of Komolafe v. Canada (Citizenship and Immigration), 2013 FC 431 (CanLII), where the officer only stated a conclusion that the Applicant did not meet a particular NOC code in refusing the decision. Justice Rennie wrote:

[9]               The decision provides no insight into the agent’s reasoning process.  The agent merely stated her conclusion, without explanation.  It is entirely unclear why the decision was reached.

[10]¬†¬† ¬†¬† ¬†¬† ¬† Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII), [2011] 3 SCR 708 does not save the decision.¬† Newfoundland Nurses ensures that the focus of judicial review remains on the outcome or decision itself, and not the process by which that outcome was reached.¬† Where readily apparent, evidentiary lacunae may be filled in when supported by the evidence, and logical inferences, implicit to the result but not expressly drawn.¬† A reviewing court looks to the record with a view to upholding the decision.

[11]           Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor is it licence to guess what findings might have been made or to speculate as to what the tribunal might have been thinking.  This is particularly so where the reasons are silent on a critical issue.  It is ironic that Newfoundland Nurses, a case which at its core is about deference and standard of review, is urged as authority for the supervisory court to do the task that the decision maker did not do, to supply the reasons that might have been given and make findings of fact that were not made.  This is to turn the jurisprudence on its head.  Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn.  Here, there were no dots on the page.

           (emphasis added)

Review of Positive Factors Without Stating Conclusion

In Chakanyuka v. Canada (Immigration, Refugees and Citizenship), 2017 FC 313 (CanLII), an officer refused the H&C application of an adult son, accepting the positive nature of the adult son’s establishment in Canada, listing out the positive evidence, but then finding there with insufficient H&C considerations in the officer’s conclusion. Justice Southcott writes:

[8]               The Applicants rely on the jurisprudence of this Court, in which judicial review has been granted in the absence of reasons justifying a decision (see Jasim v Canada (Minister of Citizenship and Immigration), 2003 FC 1017 (CanLII), at paras 18-19; Bajraktarevic v Canada (Minister of Citizenship and Immigration) 2006 FC 123 (CanLII), at para 18; Cobham v Canada (Minister of Citizenship and Immigration), 2009 FC 585 (CanLII), at para 26; Webb v Canada (Minister of Citizenship and Immigration), 2012 FC 1060 (CanLII), at para 31) and in particular Adu v Canada (Minister of Citizenship and Immigration), 2005 FC 565 (CanLII) [Adu], where Justice Mactavish held as follows at paragraph 14:

[14]¬†¬† ¬†¬† In my view, these ‘reasons’ are not really reasons at all, essentially consisting of a review of the facts and the statement of a conclusion, without any analysis to back it up. That is, the officer simply reviewed the positive factors militating in favour of granting the application, concluding that, in her view, these factors were not sufficient to justify the granting of an exemption, without any explanation as to why that is. This is not sufficient, as it leaves the applicants in the unenviable position of not knowing why their application was rejected.

[9]               I am conscious that adequacy of reasons is not a stand-alone basis for quashing a decision. Rather, the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes (see Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII), at para 14, [Newfoundland Nurses]). However, I do not consider these principles to detract from the reasoning in Adu, that a decision must contain analysis, explaining how the decision-maker arrived at his or her conclusion. Otherwise, the applicant has not received reasons at all.

[10]           I agree with the Applicants that the Officer’s decision on Simbarashe’s application suffers from precisely the same shortcoming identified by Justice Mactavish in Adu. The Officer referred to school documents and a letter of reference submitted in support of the application, identifying those elements as positive and granting them certain weight. However, the Officer then proceeds immediately to expressing the conclusion that, having considered Simbarashe’s personal profile, his personal circumstances, his establishment in Canada, and his links to Canadian society, there were insufficient H&C considerations to grant his application. The decision discloses no analysis explaining why the positive factors were not sufficient to grant an exemption on H&C grounds.

            (emphasis added)

However, in two recent and subsequent decisions, Justice Southcott has clearly indicated he is unwilling to extend the Abu argument to situations where Officer’s engaged in some prescriptive form of balancing. In Khokhar v. Canada (Citizenship and Immigration), 2018 FC 555 (CanLII), a decision where the Applicant attempted to cite his holding in Chayakunka to demonstrate the unreasonableness of the establishment analysis:

[28] I am unable to conclude that the Officer has erred in the manner described in these authorities. The Decision does not reflect an expectation that an extraordinary level of establishment would be required in order to grant H&C relief. Rather, the Officer concluded the level of establishment to be modest, explaining this conclusion in terms of the family’s financial circumstances, the relatively recent efforts by Mr. Khokar to upgrade his skills, and the fact that little information had been provided to substantiate the nature and extent of the family’s community participation. Further, the analysis as to why the positive factors identified by the Officer were not sufficient to grant relief is evident from the following paragraph at the end of the Decision:

With respect to establishment, I find the evidence is reflect of a modest level accordingly I give this factor low weight. I accept that the applicant is the sole breadwinner and further accept that his wife could be subject to numerous challenges which are experienced by other women who raising children as sole parents, including but not restricted to emotional and financially related issues. I also accept that the applicant is actively involved in day-to-day lives of his 3 daughters and in this regard find his absence could have some adverse effects on their best interests. However, I give more weight to the applicant’s criminal convictions and demonstrated dishonesty and disrespect with respect to the immigration laws of Canada.

[29] It is apparent from this paragraph that, although there were positive factors which operated in Mr. Khokar’s favour, the Officer found that these factors did not outweigh his criminality and misrepresentation.

            (emphasis added)

In Fray v. Canada (MCI) 2019 FC 1159, Justice Southcott applies the Newfoundland Nurses verbage of not reviewing decision within a vacuum and writes:

[15] While the adequacy of reasons is not a stand-alone basis for quashing a decision, a decision can be unreasonable if it does not disclose how the decision-maker arrived at his or her conclusion (see, e.g., Chakanyuka v Canada (Citizenship and Immigration), 2017 FC 313 at paras 9-10, relying on Adu v Canada (Citizenship and Immigration), 2005 FC 565 at para 14).

[16]  I recognize that the Decision does not expressly set out an analysis of the evidence explaining how the Officer arrived at the resulting conclusion. However, a decision maker’s reasons are not to be reviewed in a vacuum but are to be considered in the context of the evidence, the parties’ submissions, and the process giving rise to the decision (see Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 18).

Justice Southcott examines the GCMS notes, the requested documentation and finds that the decision is intelligible.  He writes at para 18 of his decision:

[18] …. Reviewing the Decision in the context of the larger record, it discloses the Officer‚Äôs reasoning, and there is no basis for a conclusion that the Decision is outside the range of acceptable outcomes. The Decision is therefore reasonable

            (emphasis added)

What the Respondent Minister May Argue or Judges May Say in Rejecting Judicial Reviews on Adequacy of Reasons

In this section I wanted to briefly look at a few cases to show how the Respondent Minister may respond to an argument that the reasons for refusal provided were inadequate in their submissions on Judicial Review. I also found a few cases with language from the judiciary that is a good summary of what we have discussed so far.

In a refugee refusal context in Kemenczei v. Canada (Citizenship and Immigration), 2012 FC 1349 (CanLII), the Respondent’s argument as summarized by Justice Russell was as follows:

[51]           The Respondent submits that a functional approach should be taken in analyzing the adequacy of reasons; the inquiry is not abstract, but should address the live issues in the case (R v Dinardo, 2008 SCC 24 (CanLII) at paragraph 25). The Applicant must show the deficiencies in the reasons prejudiced her right of judicial review (Za’rour v Canada (Minister of Citizenship and Immigration), 2007 FC 1281 (CanLII) at paragraph 20); she has not done so in this case. Deference requires that the matter not be examined microscopically (Ayalal v Canada (Minister of Citizenship and Immigration), 2012 FC 183 (CanLII)), and reasons are to be reviewed in the context of the evidence, submissions, and process (Veerasingam v Canada (Minister of Citizenship and Immigration), 2012 FC 241 (CanLII)).

[52]           The Decision in this case informs the Applicant as to why her application was refused, and how the RPD weighed the evidence that led it to its conclusion. The reasons demonstrate the factors considered, and how the RPD conducted its analysis. As such, the reasons are adequate (Ragupathy v Canada (Minister of Citizenship and Immigration), 2006 FCA 151 (CanLII) at paragraphs 13-15). Essentially, the Applicant is simply complaining that she would have weighed the evidence differently, and this is not a reviewable issue. The Respondent requests that this application be dismissed.

In Vo v. Canada (Citizenship and Immigration), 2018 FC 230 (CanLII), a judicial review invoving a refused Immigration Appeal Division spousal appeal, Justice Diner writes:

[52]  On the point of adequate reasons, the IAD’s reasons must be read together with the record and the outcome of the decision (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII) at paras 14-16 [NLNU]). The IAD does not have to make explicit findings on every piece of evidence submitted (NLNU at para 16; Tang at para 33). Here, the reasons were comprehensive on the issue of res judicata, as well as intelligible, justified, and transparent (see Tiwana at para 40).

            (emphasis added)

In Basanti v. Canada (Citizenship and Immigration), 2019 FC 1068 (CanLII), Justice Gascon summarizes the law relating to suffiency of reasons in quite a comprehensive way Рtouching on many of the themes this piece has talked about including the interplay between Newfoundland Nurses push for increased deference and not viewing decision in a vacuum and the Komolafe dots on a page critique of decisions.

C.  Adequacy of reasons

[38]  Mr. Basanti’s last argument deals with the adequacy and sufficiency of the IAD’s reasons. Mr. Basanti submits that the lack of a proper analysis of the evidence by the IAD does not allow one to understand how the IAD reached its conclusions, and that the Decision therefore does not have the required attributes of justification, transparency and intelligibility.

[39]  I again disagree with Mr. Basanti. As I explained in previous decisions such as Benko v Canada (Citizenship and Immigration), 2017 FC 1032 (CanLII) and Al-Katanani v Canada (Citizenship and Immigration), 2016 FC 1053 (CanLII) [Al-Katanani], the law relating to the sufficiency of reasons in administrative decision-making has evolved substantially since Dunsmuir. It is now trite law that the inadequacy of reasons is no longer a stand-alone basis for quashing a decision.

[40]¬† In Newfoundland Nurses, the Supreme Court of Canada provided guidance on how to address situations where decision-makers provide brief or limited reasons. Reasons need not be fulsome or perfect, and need not address all of the evidence or arguments put forward by a party or in the record (Newfoundland Nurses at paras 16, 18). Reasonableness, not perfection, is the standard. An imperfect decision may still be immune from judicial review, as the standard of review is not concerned with the decision‚Äôs degree of perfection but rather its reasonableness (Bhatia v Canada (Citizenship and Immigration), 2017 FC 1000 (CanLII) at para 29). Even when the reasons for the decision are brief, or poorly written, the reviewing court should defer to the decision-maker‚Äôs weighing of the evidence, as long as it is able to understand why the decision was made (Al-Katanani at para 32). Reasons do not need to be lengthy either. Even a sentence or two can be enough to provide adequate reasons (Vancouver International Airport Authority v Public Service Alliance of Canada, 2010 FCA 158 (CanLII) at para 25). Short as they may be, reasons will be sufficient if they ‚Äúallow the reviewing court to assess the validity of the decision‚ÄĚ (Lake¬†v¬†Canada (Minister of Justice), 2008 SCC 23 (CanLII) at para 46).

[41]¬† In other words, adequacy and sufficiency of reasons are not measured by the pound. No matter the number of words used by a decision-maker or how concise a decision may be, the test is whether the reasons are justified, transparent and intelligible, and explain to the Court and the parties why the decision was reached. The reasons for a decision need not be comprehensive; they only need to be comprehensible. Reasons are sufficient if they ‚Äúallow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes‚ÄĚ (Newfoundland Nurses at para 16). In order to provide adequate reasons, ‚Äúthe decision maker must set out its findings of fact and the principal evidence upon which those findings were based‚ÄĚ, as well as ‚Äúaddress the major point in issue‚ÄĚ and ‚Äúreflect consideration of the main relevant factors‚ÄĚ (VIA Rail Canada Inc v Canada (National Transportation Agency), 2000 CanLII 16275 (FCA), [2001] 2 FC 25 (FCA) at para 22).

[42]¬† Reviewing courts may also look to the record for the purpose of assessing the reasonableness of the outcome. In City of Edmonton, the Supreme Court has even posited that a tribunal‚Äôs failure to provide any reasons does not, in itself, breach procedural fairness, and a reviewing court may consider the reasons which could be offered in support of the decision being reasonable (City of Edmonton at paras 36-38). That said, I am mindful that the Supreme Court has also recently cautioned that the requirement that respectful attention be paid to the reasons offered, or that could be offered in light of City of Edmonton, does not empower a reviewing court to ignore them altogether and substitute their own: ‚Äú[w]hile a reviewing court may supplement the reasons given in support of an administrative decision, it cannot ignore or replace the reasons actually provided. Additional reasons must supplement and not supplant (emphasis in original) the analysis of the administrative body‚ÄĚ (Delta Air Lines Inc v Luk√°cs, 2018 SCC 2 (CanLII) [Delta Air Lines] at para¬†24 [emphasis added]. It is thus important to maintain the prerequisite that, where decision-makers provide reasons for their decisions, they do so in an intelligible, justified, and transparent way (Delta Air Lines at para 27).

[43]  I agree that Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor a licence to guess what findings might have been made or to speculate as to what the tribunal might have been thinking (2251723 Ontario Inc. (VMedia) v Rogers Media Inc, 2017 FCA 186 (CanLII) at para 24). As this Court stated in Komolafe v Canada (Citizenship and Immigration), 2013 FC 431 (CanLII) at paragraph 11, Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn. I am satisfied that, in the case of Mr. Basanti, there were dots on the IAD’s page and that the reasons enable me to understand how the IAD reached its conclusion, and have the proper factual foundation in the record for reaching it. There is therefore no inadequacy of reasons.

Requesting Detailed Reasons for Refusal

Another nuance about a complaint via judicial review about the inadequacy of reasons is a requirement for requesting delivery of reasons before making a complaint about it.

In Za’Rour v. Canada (Citizenship and Immigration), 2007 FC 1281 (CanLII), Justice Shore writes:

[23]           Second, Mr. Za’Rour’s argument cannot be sustained because of his failure to ask for more detailed reasons. The principle that reasons must first be requested was clearly stated by Justice John Maxwell Evans in Liang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1301 (T.D.) (QL), which dealt with an overseas H&C application that had been refused:

[31]      First, the administrative exhortation in the Immigration Manual to program managers that they provide a rationale for their decisions on waiver requests appears to envisage that they should enter their reasons in the file as a matter of course. However, in my opinion the duty of fairness normally only requires reasons to be given on the request of the person to whom the duty is owed and, in the absence of such a request, there will be no breach of the duty of fairness.

[32]¬†¬† ¬†¬† There is nothing in the application record before me to indicate that the applicant requested reasons for the program manager’s decision. If the applicant or his representative had regarded the decision-letter as an inadequate explanation, a request should have been made for further elucidation.

[24]           The Federal Court of Appeal explicitly adopted this proposition in Marine Atlantic Inc. v. Canadian Merchant Service Guild, [2000] F.C.J. No. 1217 (C.A.) (QL). Although it was dealing with a different tribunal (the Canadian Industrial Relations Board), the Court’s agreement with the reasoning and conclusion in Liang, above, could not be more clear:

[4]        Based on the rationale outlined in Baker, while not required in every case, it will generally be a salutary practice for tribunals to provide reasons for their decisions. However, it is not necessary for this Court to determine whether this is a case in which reasons are required. The applicant concedes that it did not ask the Board to provide reasons. In fact, although the applicant sought reconsideration by the Board, the absence of reasons was not one of the grounds for that application

[5]        In Liang v. The Minister of Citizenship and Immigration [1999] F.C.J. No. 1301, Evans J. (as he then was) stated at paragraph 31:

However, in my opinion, the duty of fairness normally only requires reasons to be given on the request of the person to whom the duty is owed and, in the absence of such a request, there will be no breach of the duty of fairness.

We agree with Evans J. Before seeking judicial review of a tribunal order on the grounds of failure to provide reasons, there is an obligation on parties to request reasons from the tribunal. If the tribunal refuses or provides inadequate reasons, resort to the Court may be appropriate. However, it would unduly complicate the administration of justice if parties could resort to the Court to seek to quash orders of tribunals on the grounds of failure to provide reasons without first requesting them from the tribunal.

[6]        A request to the Board may be met with reasons or alternatively, an explanation why reasons are not, in the view of the Board, required in the circumstances. We see no prejudice to a party before a tribunal having to request reasons before resorting to judicial review in the Court.

[7]        We should add that while a request to the tribunal for reasons is the usual requirement, there may be circumstances in which the obligation of the tribunal to provide reasons is so plain and obvious, that upon no reasons being provided, recourse to the Court without a request for reasons from the tribunal may be appropriate. Perhaps there may be circumstances in which a party for some reason cannot request reasons from the Board. Such situations, we think, would be exceedingly unusual.

[8]¬†¬† ¬†¬† ¬† In this case, the failure to request reasons is fatal to this aspect of the judicial review application. While the matter may be of significance to the applicant, there is no satisfactory explanation why the applicant could not have requested reasons from the Board. This ground of the applicant’s judicial review must be rejected.

[25]           In the present case, there is no evidence to indicate that Mr. Za’Rour requested a more detailed explanation for the refusal of his application. Applying the above jurisprudence, Mr. Za’Rour’s failure is fatal to his argument.

Similarly in Tran v. Canada (Public Safety and Emergency Preparedness), 2009 FC 1078 (CanLII),¬† Justice Mosley writes about a failure of counsel to seek reasons for a Minister’s Delegate’s s.44(2) referral:

[21]           There was no clear and specific request for delivery of such material made by the applicant before either the referral decision or the admissibility hearing. No request was made by the applicant for an explanation of the 44(1) and 44(2) decisions. In my view, the applicant can not be heard now to complain about the failure to disclose the officer’s notes or to provide such an explanation when he did not request that they be produced.

[22]           In Liang v.Canada (Minister of Citizenship and Immigration), (1999), 91 A.C.W.S. (3d) 141, [1999] F.C.J. No.1301, Evans J., as he then was, noted at paragraph 31 that the duty of fairness normally only requires reasons to be given on the request of the person to whom the duty is owed and, in the absence of such a request, there will be no breach of the duty if reasons are not provided. This view of the duty was endorsed by the Federal Court of Appeal in Marine Atlantic Inc. v, Canadian Merchant Service Guild, (2000), 258 N.R. 112 (C.A.), [2000] F.C.J. No. 1217 and has been applied in other decisions of this Court:; Za’rour v. Canada (Minister of Citizenship and Immigration), 2007 FC 1281 (CanLII), [2007] F.C.J. No.1647; Gaoat v. Canada (Minister of Citizenship and Immigration), 2007 FC 440 (CanLII), [2007] F.C.J. No. 629.

[23]           As noted by Mr. Justice Pinard in Gaoat, above at paragraphs 10-11, the rule in Marine Atlantic applies where the reasons given may be insufficient. The applicant is required to request further reasons before he can complain in Court that they are inadequate: see also Hayama v. Canada (Minister of Citizenship and Immigration), 2003 FC 1305 (CanLII), [2003] F.C.J. No. 1642.

Is There No Hope for Procedural Fairness?

Perhaps it is also time for us to challenge the inadequacy of reasons for refusal no longer as a procedural fairness issue. Where applicants are being deprived of reasons in a decision and further being deprived through Privacy Act and Access to Information Act legislation of being able to have those reasons in a reasonable time to even proceed to judicial review. ATIP/Privacy Act requests are routinely taking several months longer than the legislation provides for, in many cases without an extension request.

Where visa offices are refusing to follow-up with requests for detailed reasons and forcing us into judicial reviews, we may want to start raising this as a parallel issue regarding the severe prejudice this creates.

What Are Your Thoughts?

Have any further thoughts about the inadequacy of reasons and where this is going? Perhaps we need to update this in the Fall when the SCC’s decision is received in Vavilov. Let’s chat.

Understanding the Six-Month Ban on Work Permits and Study Permits

In today’s bit of a fun exercise for people who like to dork out on these things, let’s take a look at the six-month on work permits and study permits – what the Regulations (IRPR) say, what the IRCC website says, and try and make sense of all of this fun stuff. I have tried to interlace [somewhat witty] commentary in between the analysis.

TL;DR – I feel sorry for those who have to work with this on a daily basis.

[1] Work Permits

The relevant Regulation is R200(3)(e)(i-iv) of the Immigration and Refugee Protection Regulations. 

Exceptions

(3) An officer shall not issue a work permit to a foreign national if

 

  • (e)¬†the foreign national has engaged in unauthorized study or work in Canada or has failed to comply with a condition of a previous permit or authorization unless

    • (i)¬†a period of six months has elapsed since the cessation of the unauthorized work or study or failure to comply with a condition,

    • (ii)¬†the study or work was unauthorized by reason only that the foreign national did not comply with conditions imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c);

    • (iii)¬†section 206 applies to them; or

    • (iv)¬†the foreign national was subsequently issued a temporary resident permit under subsection 24(1) of the Act;

We know that the six-month period from the end of the unauthorized work/study and failure to comply with a condition becomes relevant [more on this later]

We also know that there are exceptions for those on ‘No other means of support’ permits¬† – refugee claims and those those subject to an unenforceable removal order. We also know that there are exceptions for subsection 24(1) of IRPA – Temporary Resident Permit holders.

There seems to be some tension on the face with the mention of a condition in (e), (e)(i), but the use of conditions [plural] in (ii).

Let’s then dive back into subsection (ii) – a section I looked at back in 2016.

I’ve¬†bolded¬†the out clauses and¬†underlined¬†a couple of interesting sub sections.

Specific conditions

 An officer may impose, vary or cancel the following specific conditions on a temporary resident:

  • (a)¬†the period authorized for their stay;

  • (b)¬†the work that they are permitted to engage in, or are prohibited from engaging in, in Canada, including

    • (i)¬†the type of work,

    • (ii)¬†the employer,

    • (iii)¬†the location of the work,

    • (iv)¬†the times and periods of the work, and

    • (v)¬†in the case of a member of a crew, the period within which they must join the means of transportation;

  • (c)¬†the studies that they are permitted to engage in, or are prohibited from engaging in, in Canada, including

    • (i)¬†the type of studies or course,

    • (ii)¬†the educational institution,

    • (iii)¬†the location of the studies, and

    • (iv)¬†the times and periods of the studies;

  • (d)¬†the area within which they are permitted to travel or are prohibited from travelling in Canada; and

  • (e)¬†the times and places at which they must report for

    • (i)¬†medical examination, surveillance or treatment, or

    • (ii)¬†the presentation of evidence of compliance with applicable conditions.

 

(B) The Website

Unauthorized work or study

There are several factors that could be applied under paragraph R200(3)(e). Only 1 of the following factors [R200(3)(e)(i) to (iv)] needs to apply for the officer to refuse the work permit.

We see from the website interpretation that they are going to harp on the fact any violation could constitute a six-month bar.

(i) Unauthorized work or study and 6 months not elapsed

As per subparagraph R200(3)(e)(i), the officer should not issue a work permit if either of the following applies:

  • the foreign national worked or studied in Canada even though they never held a previous work or study permit, nor were they authorized to work [R196]
  • the foreign national worked or studied in Canada under authorization but did not comply with the¬†imposed conditions¬†[R200(3)(e)(ii)]

The officer may issue a work permit as long as 6 months have passed since the foreign national stopped their unauthorized work or study.

…….

(ii) Failed to comply with more than 1 imposed condition

As per subparagraph R200(3)(e)(ii), if the foreign national has failed to comply with a condition of a previous permit or authorization, unless the study or work was unauthorized only because the foreign national did not comply with conditions imposed under paragraph R185(a), subparagraphs R185(b)(i) to (iii) or paragraph R185(c). Paragraphs R185(d) and (e) are not included in these exemptions.

If the foreign national did not comply with only 1 imposed condition, a work permit can be issued as long as they have applied for restoration of their temporary resident status.

However, if the foreign national did not comply withmore than 1 imposed condition, they may not be issued a work permit under paragraph R200(3)(e).

Example

A temporary worker was authorized to work for employer A as a waiter until July 15, 2017, and continued working beyond July 15 without applying for a new work permit.

If the foreign national otherwise meets eligibility and admissibility requirements, they could be issued a new work permit without waiting for 6 months to elapse.

However, if the temporary worker was authorized to work for employer¬†A as a waiter until July¬†15, 2017, and on August¬†15, 2017, they began working for employer¬†B as a waiter, their work is considered ‚Äúunauthorized‚ÄĚ and they must wait for 6¬†months to pass since the day the work for employer¬†A stopped before a work permit can be issued.

Source: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/prohibitions.html#unauthorized

My statutory interpretation differs from IRCC’s in that I still see R.200(3)(e)(ii) as standing for any combination of those conditions not being enough to find one subject to the six-month bar. I don’t see how the lack of plurality in the 200(3)(e) language does any more than suggest the violation of 1 condition is enough for the six-month bar. I don’t see any impetus for this 2 or more imposed condition violations create a six-month bar.¬† That being said, this policy as it is currently written¬† will mostly capture workers who for example have overstayed plus a second violation. Given the open work permits and study permits involved, it is hard to come up with a scenario that captures international students.

However, it is clear from the language of those two exception sections that there are a lot that are not caught.

Which moves met to my next point of….

[2] Post-Graduate Work Permit

If it is determined that the student has not met the conditions of their study permit, they may be banned from applying for a post-graduation work permit for 6 months from the date they stopped their unauthorized study or work, per subparagraph R200(3)(e)(i).

An RCIC colleague sent me this gem of a response from Immreps.

Immreps Response dated 06 March 2019

Response: Examples of conditions that students may violate could be working without authorization (e.g. continue to work after they completed their studies but before applying for a PGWP) or not actively pursuing their studies.

I do think this is right.

Students who work when not authorized Рfor example between knowledge of completed studies and when they applying for a PGWP appear to be captured under R.185(b)(iv) IRPR [no exception].

However there can certainly be some grey read in on another provision. Does actively pursuing studies fall under s.185(c)(iv) IRPR [exception granted]  or s.185(e)(ii) IRPR [no exception]. In my mind it likely falls under a separate section s..222(1) IRPR but would that create overbroad consequences?

I do have a question about why this is not currently available on IRCC’s website in plain letter wording setting this out. I think all Immreps responses should be accessible publicly and/or immediately incorporated to updated instruction to lessen any confusion.

[3] Study Permit

The six-month study permit bar (or ‘failure to comply with conditions’) is similarly worded and not worth repeating in full but worth looking at in terms of what IRCC’s website has to say.

The Regs:

Failure to comply with conditions

 Despite Division 2, a study permit shall not be issued to a foreign national who has engaged in unauthorized work or study in Canada or who has failed to comply with a condition of a permit unless

  • (a)¬†a period of six months has elapsed since the cessation of the unauthorized work or study or failure to comply with a condition;

  • (b)¬†the work or study was unauthorized by reason only that the foreign national did not comply with conditions imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c); or

  • (c) the foreign national was subsequently issued a temporary resident permit under subsection 24(1) of the Act.

IRCC’s website:

Six-month ban [R221]

The first step in processing an application is to determine the admissibility with regard to section R221.

A FOSS or GCMS check will provide a case history. If the applicant is not described in R221 and there is no inadmissibility then proceed with assessing their documentation.

If the applicant has lost their status while in Canada (see¬†section 47¬†of the¬†Immigration and Refugee Protection Act¬†for loss of status), determine whether the ‚Äúsix-month ban‚ÄĚ on the issuance of a study permit applies.

Side note from the Immigration and Refugee Protection Act. 

Temporary resident

 A foreign national loses temporary resident status

  • (a)¬†at the end of the period for which they are authorized to remain in Canada;

  • (b)¬†on a determination by an officer or the Immigration Division that they have failed to comply with any other requirement of this Act; or

  • (c)¬†on cancellation of their temporary resident permit.

If the applicant has engaged in unauthorized work or study in Canada or has failed to comply with a condition of a permit, officers cannot issue a study permit unless a period of six months has elapsed since the applicant ceased engaging in the unauthorized work or study, or since the applicant failed to comply with a condition that was imposed on them. See section R185 for details on the conditions that may be imposed on a temporary resident.

However, it is to be noted that there is no requirement to wait for the passing of six months prior to the issuance of a study permit if the unauthorized work or study in which the applicant engaged was unauthorized because of non-compliance with any of the following conditions [R221(b)]:

  • period authorized for their stay [R185(a)];
  • type of work permitted to engage in, or prohibited from engaging in, in Canada [R185(b)(i)];
  • the employer for whom they were permitted to work or for whom they were prohibited to work [R185(b)(ii)];
  • the location of the work [R185(b)(iii)];
  • the type of studies or course[R185(c)(i)];
  • the educational institution[R185(c)(ii)];
  • the location of the studies [R185(c)(iii)];
  • the times and periods of the studies [R185(c)(iv)].

Not the easy to miss formatting issue as they did not have a separate heading but put the actual application of the six-month ban as a bullet point (per below).

  • The six-month ban does apply to the issuance of a study permit when the work or study was unauthorized because the applicant did not comply with the following conditions imposed :
  • the times and periods of the work [R185(b)(iv)];
  • in the case of a member of a crew, the period within which they had to join the means of transportation [R185(b)(v)];
  • area within which they were permitted to travel or prohibited from travelling in Canada [R185(d)];
  • times and places at which they must have reported for medical examination, surveillance or treatment, or the presentation of evidence of compliance with applicable conditions related to medical requirements [R185(e)(i) and R185(e)(ii)].

If the ‚Äúsix-month ban‚ÄĚ applies on the issuance of a study permit and six months have not elapsed, officers should refuse the application and proceed as follows:

At an overseas visa office

Officers should advise the applicant of the date when the six-month ban ends in order for the applicant to be eligible for a study permit.

If six months have elapsed, or if the applicant has failed to comply with one or more conditions imposed on them, other than the ones leading to a six-month ban, then officers may issue a study permit to the applicant, provided the applicant meets all the requirements for the issuance of a study permit at the time of the application and the applicant is not inadmissible.

At a port of entry

Advise the applicant of the date when the six-month ban is due to end in order for the applicant to be eligible to apply for a study permit.

The applicant may become the subject of a report alleging that they are inadmissible pursuant to section A41.

If six months have elapsed, or if the applicant has failed to comply with one or more conditions imposed on them, other than the ones leading to a six-month ban, then officers may issue a study permit to the applicant, provided the applicant meets all the requirements for the issuance of a study permit at the time of the application.

What will be very interesting to see is how something like the ‘actively pursuing studies’ requirement is assessed with respect to a six-month bar. From my understanding is not cured simply by leaving Canada if re-entry is sought as a student and there were period of the authorized study that occurred during a period the study permit was held in Canada. This raises a question for those individuals who are now ‘activelY-pursuing studies’ (per. R.220.1¬†IRPR but previously did not). Some further clarification from IRCC will be helpful here.

At an inland office

The lapse of six months would not apply in the case of inland applications because the applicants would first have to get their status restored prior to being issued a study permit.

I understand in circumstances where a study permit holder has stayed beyond their authorized stay and how a student who was not authorized to study and loses status would have to restore themselves to get their status back. However, I am still not convinced we have figured out how this interacts with the ‘actively pursuing studies requirement.’ Someone who is caught still has a valid study permit and would not require restoration but would still need to do a study permit extension if their study permit was approved. Would they be subject to the bar or just refusal/and the possibility of a non-compliance finding? Questions remain. It also seems somewhat inconsistent with the ability to apply the six-month bar to the obtaining of a post-graduate work permit (usually an extension) but not to a study permit extension.

Source: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/assessing-application.html 

Conclusion

I hope you enjoyed this piece. We dove quite deep into the wording of the six-month bar. I expressed some concern over IRCC’s that violation of more than one imposed condition could render the six-month bar active on the basis of their interpretation of ‘a condition.’ I looked at the purported six-month bar for PGWPs and how the non-coverage of ‘actively pursuing studies’ as an exempt category would become increasingly relevant. Finally, I looked at the study permit six-month bar and highlighted how the difference of instruction may be incompatible and again create grey areas around non-enumerated exceptions to the six-month bar.

Is it Possible to Go From a Failed Refugee Claimant to an Economic Immigrant? (REVISED)

I revised this post on 6 August 2019. Thanks to fellow colleague Tess Acton for pointing out R. 209 (the work permit parallel to R.222). I’ve worked with this provision before. It goes to show that (a) don’t rush a blog before the long weekend; and (2) read and reread and fall on your sword. Thanks for the assist Tess!

With the increase of refugee claimants to Canada, there will naturally be an increase in failed refugee claimants. The pathway for remedy for failed refugee claimants, as advertised by IRCC,  includes at various stages (and subject to various bars) applying for an appeal to the Refugee Appeal Division, Judicial Review, a Pre-Removal Risk Assessment, and an Application for Permanent Residence on Humanitarian and Compassionate Grounds.

Increasingly, a question I have been receiving is why is there not an economic pathway available? Many refugees are working on work permits with employers. These employers may have indicated that they wish to support them. Why are these pathways not feasible if a refugee claim is to be abandoned or lost.

I want to try and breakdown the operation of this in a manner that refugee claimants can understand. I have definitely heard of at least a few agents abroad who advise clients that this is possible and feasible, so I want to show why this is so difficult with as much reference to plain letter wording and the regulations as possible.

That being said, as my analysis will over there are several sections of the Immigration and Refugee Protection Act (“IRPA”), Immigration and Refugee Protections Regulations¬†(“IRPR”), Ministerial Instructions¬†and Provincial Nomination Program program guidelines that make this a non-straight forward exercise. It is also an interesting exercise in statutory interpretation of which I won’t fully engage on but have alluded to.

 Refugee Claimants are Subject to Conditional Removal Orders until Their Claim is Accepted Рbut What About their Possibly Pre-Existing Temporary Status?

A refugee claimant is subject to a conditional removal order per s.49(2) IRPA.¬†The ability to work while awaiting the refugee determination system falls under the category ‘no other means of support’ per R.206(1)(a) of the IRPR.¬†This is the permit that is now applied for alongside the making of a refugee claim.

It is important to note that refugee claimants are also caught under R. 202 IRPR which indicates that the work permit issued to them under R.206 does not confer on them, in itself, temporary resident status.

R.202 IRPR states:

A foreign national who is issued a work permit under section 206 or paragraph 207(c) or (d) does not, by reason only of being issued a work permit, become a temporary resident.

This seems to suggest that those who hold an R.206 IRPR work permit are not by the issuance of that work permit itself granted temporary resident status – which makes sense. What about if they held a permit prior to making their claim?

From this, I had an interesting premise… what if someone came into Canada on a three-year work permit and one day one claimed refugee status inland. Would their work permit still be valid? Would they be still be considered temporary residents under IRPA?

This question came up after a presentation where I examined the context of students. Because for students, there is a clear regulation R.222(1)(c)¬†IRPR that allow one’s study permit to remain valid even through a refugee determination process because of the emphasis on enforceable¬†removal order for which the conditional departure issued to refugees is not. Regulation 222 of IRPR¬†states:

Invalidity

 (1) A study permit becomes invalid upon the first to occur of the following days:

(a) the day that is 90 days after the day on which the permit holder completes their studies,

(b) the day on which a removal order made against the permit holder becomes enforceable, or

(c) the day on which the permit expires.

That is not to say that the student who holds the study permit while making a refugee claim still has temporary status but we know at the very least that the study permit is not invalidated as a result.

There is a parallel section (R.209) which also confirms that a work permit is not invalidated until a removal order is enforceable.

Given this I moved to R. 183 and R.184 of IRPR which places conditions on all temporary residents.

Reading IRPR¬†alone, one would be misled to think that the making of a refugee claim does not end one’s authorized stay as a temporary resident. Indeed no cross reference is made to IRPA¬†at all in this section nor ties the permit to the issuance of a removal order.

R.184 states:

  • Authorized period ends

    (4) The period authorized for a temporary resident’s stay ends on the earliest of

    • (a)¬†the day on which the temporary resident leaves Canada without obtaining prior authorization to re-enter Canada;

    • (b)¬†the day on which their permit becomes invalid, in the case of a temporary resident who has been issued either a work permit or a study permit;

    • (b.1)¬†the day on which the second of their permits becomes invalid, in the case of a temporary resident who has been issued a work permit and a study permit;

    • (c)¬†the day on which any temporary resident permit issued to the temporary resident is no longer valid under section 63;

    • (c.1)¬†in the case of a person who is required by section 10.01 of the Act to provide their biometric information, the day on which the period of 10 years following the latest day on which the person provided their biometric information under section 10.01 of the Act ends; or

    • (d)¬†the day on which the period authorized under subsection (2) ends, if paragraphs (a) to (c) do not apply.

  • Marginal note:Extension of period authorized for stay

    (5) Subject to subsection (5.1), if a temporary resident has applied for an extension of the period authorized for their stay and a decision is not made on the application by the end of the period authorized for their stay, the period is extended until

    • (a)¬†the day on which a decision is made, if the application is refused; or

    • (b)¬†the end of the new period authorized for their stay, if the application is allowed.

From this I gathered only that leaving Canada and the expiry of a permit, or the second permit would end an authorized stay of a valid temporary resident.

However, the¬†important provision¬†often missed in this analysis is s.47 of IRPA¬†which specifies when a temporary resident’s status is lost. s. 47 states:

Temporary resident

 A foreign national loses temporary resident status

  • (a)¬†at the end of the period for which they are authorized to remain in Canada;

  • (b) on a determination by an officer or the Immigration Division that they have failed to comply with any other requirement of this Act; or

  • (c) on cancellation of their temporary resident permit.

As you can see, s.47(b) does not appear to be captured in¬†IRPR. It also¬†leads to the follow-up question – what is ‘a determination.‘ We assume it is not a first level s.44¬†IRPA report issued by an Immigration Officer/CBSA Officer but is it when the Minister’s Delegate confirms the report and issues the applicable removal order. The inclusion of Immigration Division suggests that this is the proper interpretation. However – the wording does not say ‘final determination.’ It leaves room for statutory interpretation, particularly where a refugee’s removal order is conditional.

What happens in the case of refugees with previous status prior to making their claim? If the refugee never had status in Canada they may have never had authorization but what about the student or worker who came in with a permit and that permit is never invalidated. Is that permit still valid but their temporary resident status lost? This appears not readily reconcilable.

However, as I will look at below – moving now to eligibility for economic immigration – there may be some major implications for this area of grey.

Express Entry Requires Work to Be Authorized and that a Foreign National Had Temporary Resident Status During Work Experience in Order to Count for Points

Continuing on the premise of a failed refugee claimant – what happens if they wish to try and rely on work done in Canada.

Would time on an R. 206 work permit count? If not, as a standalone, what if the work permit was still technically valid (if such an argument could be made)?

Let’s take a look at the 2018 Ministerial Instructions for Express Entry.

Subsections 15(7) and subsections 17(8) of the MI’s talk about eligibility for Canadian Work Experience to count for CRS scores. Pulling just ss. 15(7) [as the language is identical], the section states:

Express Entry – Canadian Work Experience Requirements

Work Experience Requirements

(7) For the purposes of this section,

  • (a) a period of employment during which the foreign national was engaged in full-time study is not to be included in calculating a period of work experience;
  • (b) a period of self-employment or unauthorized work is not to be included in calculating a period of work experience;
  • (c) the foreign national must have had temporary resident status during their period of work experience and any period of full-time study or training; and
  • (d) the full-time equivalent for part-time work experience is 30¬†hours of work per week.

We know that holding a work permit authorizes the work but the key question remains – did the foreign national have temporary resident status during work and study. This creates a dual problem. Not only must the work have been while holding temporary resident status but also the study in order for the work to count. This draws in the question again of whether someone can hold a valid permit (study permit/work permit) but by virtue of making a claim and being subject to a conditional departure order – lose temporary resident status.

Provincial Nomination Program – B.C. and Ontario

Another common option for economic migrants is the provincial nomination program. I wanted to take a look at two provinces (BC and Ontario) but I do hope to replicate this look into other nomination programs.

The BC PNP is much clearer on refugee claimants and failed refugee claimants. They state in their program guide.

The BC PNP will not nominate you if you:

– are prohibited from entering Canada
– are in Canada and are out of status
– if your status has expired, and you cannot demonstrate you have applied for restoration of status within the 90-day eligibility period, you will be considered out of status
– are working in Canada without authorization
– have an unresolved refugee claim in Canada
– are under a removal order in or outside of Canada

Under this broad wording a refugee claimant and a failed refugee claimant would be excluded from applying for nomination under the BC PNP.

With respect to the eligibility of past work experience there are no specific indicators of whether certain work experience in Canada will count. There is only another reminder of the requirement to be authorized and in status:

Please note that your application will not be approved if you are in Canada and do not have valid immigration status, or if you are working without authorization.

This seems to suggest that at least the work performed (if on a R.206 IRPR refugee work permit) could support the required work experience requirement for BC PNP. However, as discussed the unresolved/under a removal order would make that not possible to do from inside Canada.

Moving on now to Ontario and their PNP. Ontario states the following in their program guide:

2.6 Legal Status in Canada (if applicable)
If you are residing in Canada, you must have legal status in Canada at the time of application submission and you should maintain it until the time of nomination.

Legal status means that you are authorized to enter and remain in Canada as a temporary resident for a specific period of time, either as a visitor, worker or student.

You may apply to the OINP if you are in ‚Äėimplied status‚Äô at the time of your OINP application submission. ‚ÄėImplied status‚Äô means that you submitted an application to IRCC to renew/extend your temporary status document (i.e. visitor record, work permit, study permit) before its expiry date. You can remain in Canada and continue to work or study under the same conditions as your existing permit until a decision is made on the pending application.

IMPORTANT: NOTE ON REFUGEE CLAIMANTS
Refugee claimants with a pending application to remain in Canada are not eligible to apply to the OINP. Refugee claimants will need to resolve their refugee claim before applying to the OINP.
For more information related to refugee claimants, please visit IRCC’s website.

As to the definition of whether the work experience is eligible or not. Under the Canadian Experience Class section of the Human Capital Priorities Guide it is written:

You must have had legal status in Canada while you were working in Canada.

Technically speaking, a failed refugee claimant while holding a refugee work permit and subject to a conditional departure order would have had legal status at that time (per Ontario PNP’s definition) if the A47 ‘determination’ of IRPA did not kick in. It again goes to show how important that one section is particularly in light of a disconnect with the wording of¬†IRPR.¬†

Why Is This So Important for Failed Refugee Claimants?

Subject to very few other limited options (the most popular of which is an in-Canada Humanitarian and Compassionate Grounds application under s.25 IRPA – if they are eligible and not barred) the chances of returning to Canada on temporary resident status are practically nil in the case of a failed refugee claimant. Their pathways back to Canada will most likely need to involve permanent residency. As many of you will know, a refugee claimant who does not leave within the 30 days after a removal order becomes enforceable has their departure order automatically deem into a deportation.

While my initial review suggests little option for while there are here (subject to anyone feeling like challenging the ‘a determination’ provision with me!) there definitely appears to be some pathway for utilizing that work experience in a future outside Canada application (at least in the BC and possibly Ontario contexts).

I will be looking at this issue more carefully but I am eager for you to share your two cents on this interesting topic!