Category Archives: Canadian Immigration Law Blog

Authorization to Return to Canada (“ARC”) – A Deep Dive

With an increase in individuals being removed from Canada on exclusion and deportation orders, the practice of filing Authorization to Return to Canada Applications (“ARC Applications”) is on the rise.

Per IRCC: 

A52(1) provides that if a removal order has been enforced, a foreign national shall not return to Canada unless authorized by an officer or in other prescribed circumstances. A removal order is considered to have been enforced whether the client either leaves voluntarily or is removed by the Minister.

R226(1) provides that for the purposes of A52(1) and subject to R226(2), a deportation order obliges a foreign national to obtain the written authorization of an officer in order to return to Canada any time after the deportation order has been enforced.

The consequences of trying to return to Canada after an exclusion/deportation order without having filed an ARC is a deportation order per the operation of R. 228(1)(c)(ii):

(1) For the purposes of subsection 44(2) of the Act, and subject to subsections (3) and (4), if a report in respect of a foreign national does not include any grounds of inadmissibility other than those set out in the following circumstances, the report shall not be referred to the Immigration Division and any removal order made shall be

…..

(c) if the foreign national is inadmissible under section 41 of the Act on grounds of

…..

(ii) failing to obtain the authorization of an officer required by subsection 52(1) of the Act, a deportation order,

As a specified removal order, this does not need to go the Immigration Division and can be issued by a CBSA Minister’s Delegate.

Going Behind the ARC Application

IRCC gives very little guidance (online) on what should be an ARC application.

Indeed, the online guidance is limited to the following as posted on their website.

Important information

When an officer assesses your application, they will consider, among other things:

  • the reasons for the removal order
  • the possibility that you will repeat the behaviour that caused the order to be issued
  • the length of time since the order was issued
  • your current situation
  • the reason why you want to enter Canada.

An incomplete or illegible application will be returned without being processed.

There is no guarantee that you will be issued an Authorization to Return to Canada.

There is another source – OP 1 – Procedures at 6.2 that sets out more details on what is assessed:

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Note how detailed the analysis at each stage and how it suggests that there is the need for significant documentation.

The above seem to follow the words of Immigration Lawyer, Richard Wazana who said recently in an Immigration Lawyer’s Listserve: “Do not take anything for granted on Authorization to Return to Canada (“ARCs). Make thorough submissions and support them with evidence, like you would an H&C.”

Who Can Issue an ARC?

OP 1 at 6.5 provides  the following:

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This makes it clear that there will likely be multiple Officers involved in a decision but restrictions around the decision-maker.

It also suggests that there can be other decision-makers other than at visa offices abroad, which a closer look at the Instruments of Designated Authority confirms.

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My experiences have been limited to overseas offices but the authority expands beyond that to members of IRCC’s CMB and senior CBSA members just to name a few. It will be interesting to better understand that decision-making/referral network.

Let’s look at it from the inside.

I’ve managed to get my hands on the training guide used (2017 results, so slightly dated and may not be what IRCC presently utilizes), but does add a little more conversation (especially processing-wise) to the resources we’ve been able to build.

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The above is important especially to remember that eligibility is assessed before ARC in the process so the need to file ARC does not diminish the need to file a strong baseline application.

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In this page remember the issue of paying removal costs and that this needs to be resolved before the ARC.

 

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These factors track OP 1, 6.2 and also refer to the Instruments of Delegated Authority that I pointed to earlier.

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Here, note ARC does not need to be filed each time. The first ARC  is all that is needed so a strong application is crucial.

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Remember too that a TRP can overcome the need for an ARC – but that an exceptional case needs to be made out for this.

Finally, here’s a helpful chart from the training guide that may be worth putting up on your wall to remind you of the interaction between ARC and removals.

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All the process is good to know but I would suggest that the most important parts of an ARC involve two stages – (1) making a strong case for initial eligibility; and (2) drawing those factors to make a compelling and exceptional case for why you deserve to return to Canada notwithstanding your past immigration history.

Hope this post helps guide you in that journey!

 

Non-Immigration Tribunal’s Immigration Confusion – Implied Status for R. 206/R.207 work permit

An interesting decision in a Alberta Workers’ Compensation Appeal Decision No.: 2017-0248, 2018 CanLII 87280 (AB WCAC)

raises interesting issues about how accessible or apparent are some of the nuances of the operation of the Immigration and Refugee Protection Act [IRPA] and Regulations [IRPR], especially around implied status.

Implied status (R.186(u) of IRPR in the context of work) is an often misunderstood concept. It is an area where I have had to write a lot of opinion letters for employers/employees in order to preserve the employees’ ability to maintain employment. As there is no “official” document confirming implied status, and the end of the period will often rely on a worker’s forthcoming updates to their employer about their application, it can be the source of some tension.

In Decision No.: 2017-0248, the status of foreign workers vis-a-vis their implied status is addressed in two major statements in the decision. Without getting into the applicability of the misunderstanding on the consequences, which it appears there may have been, it is important to clarify the law. I hope this piece is ultimately also an argument by getting an immigration opinion from an immigration lawyer may aid in understanding non-immigration law matters. This area of the law is not as simple as ‘googling’ IRCC’s website.

The Worker’s Representative’s made the following submissions as entered into the decision:

[106.12]   The worker’s employer had offered modified work duties.  The worker was committed to performing modified duties and signed a modified work agreement on March 19, 2015.

[106.13]   On the same day the agreement was signed, the employer advised WCB that it could no longer employ him because his work visa had expired and the worker had done nothing to renew it.

[106.14]   However, the worker had reported to his supervisor that he had applied for an extension, one month before his work visa expired.  He provided the supervisor with an email to support this.

[106.15]   An employer who hires temporary foreign workers should be aware that, once an individual has applied for extension of work visa, he or she remains entitled continue to work for the same employer until a decision is made on the extension.  The employer did not follow through with the worker’s implied status as a temporary resident entitled to work and removed the modified work.

[106.16]   Because of the employer’s decision, the worker had to relocate to another province as he had no way to pay his living expenses.

The Appeal Board later addresses the submissions and decides as follows:

[158]        We acknowledge the worker’s representative’s submissions with respect to the worker’s ability to continue to work past the date on which his work permit expired.

[159]        We note that the worker was issued a work permit on March 20, 2014.  The date of expiry was March 20, 2015.   The work permit explicitly stated that the work permit did not confer temporary resident status:

“. . .

Remarks/Observations:

DOES NOT CONFER TEMPORARY RESIDENT STATUS.  JP/OSC

. . .”

[160]        The Government of Canada information, supplied by the worker’s representative and copies of printouts of which were contained in the appeal documents package, stated what would happen if a temporary resident applied for renewal of a work permit which then expired.  However, there was no evidence before us to establish that the worker was a temporary resident at the time his work permit expired.  To the contrary, the permit stated he was not.

Implied Status is Available for a Work Permit Holder With a Condition “Does Not Confer Temporary Resident Status”

What the Worker Compensation Appeal Board does, in essence, is  equate the condition on the work permit indicating that the work permit does not confer temporary resident status to the presumption that implied status cannot be available as implied status requires pre-existing temporary resident status.

While it sounds good in theory, it is wrong on application of law. This is where implied status can sometimes be a misnomer.

*Warning – this part gets a bit reg heavy so if you hate regulations, you may want to avoid reading further.

First, the starting point – what type of work permit does the Appellant in this case have. We can do a preliminary deduction without seeing the work permit that is either a R. 206 of the Immigration and Refugee Protections Regulations [“IRPR“] and/or R.207(c) or (d) IRPR work permit. We are able to do this by looking at R.202 IRPR which sets out the impetus for the condition of not conferring temporary resident status.

This provision applies to work permits that often are applied for by refugee claimants or subject to an unenforceable removal order [R.206], is a protected person within the meaning of subsection 95(2) [R.207(c)], or is applying to become a permanent resident and has been granted an exemption by the Minister per s. 25(1), s.25.1(1), or s.25.2(1) of IRPA [R. 207(d)]. The later is commonly knows as the “first-stage approval” for a Humanitarian and Compassionate grounds permanent residence application, quite common when dealing with individuals without status who are applying for permanent residence.

The provision for implied status falls under R. 186(u) IRPR which allows a foreign national to work on the conditions of an expired work permit while awaiting a decision on a new work permit application. It is worth noting that this is a provision which does not mention anything relating to temporary resident status.

 A foreign national may work in Canada without a work permit

(u) until a decision is made on an application made by them under subsection 201(1), if they have remained in Canada after the expiry of their work permit and they have continued to comply with the conditions set out on the expired work permit, other than the expiry date;

In fact,  R.201 IRPR ties into R. 200, which states and Officer shall renew a foreign national’s work permit [note again – no language around an individual needing to be in status] if they continue to meet the requirements of section (R.) 200.

Application for renewal

  •  (1) A foreign national may apply for the renewal of their work permit if

    • (a) the application is made before their work permit expires; and

    • (b) they have complied with all conditions imposed on their entry into Canada.

  • Renewal

    (2) An officer shall renew the foreign national’s work permit if, following an examination, it is established that the foreign national continues to meet the requirements of section 200.

  • SOR/2010-172, s. 3.

In fact, four subsections of R. 200 specifically highlight section 206 and 207 and indeed in subsection (2) make it that the ability to leave Canada at the end of an authorized stay [i.e. or reframed –  maintain temporary resident status] is not a consideration in whether to issue a work permit.

In conclusion – it is very clear from the regulations that an individual with an R. 206 or R. 207(c) and (d) IRPR work permit that has a condition stating the work permit does not grant temporary status CAN still rely on implied status under R. 186(u) of IRPR.

It is unclear what Government of Canada documents were relied upon but websites don’t often tell the full picture.

What IRCC email “actively pursuing studies” compliance checks look like

Email Compliance Checks

As you may have seen from IRCC’s revamped study permit instructions website, the process of verifying whether a student is “actively pursuing studies” is finally being taken up by the Department. While some may find concern in this (given the broad nature of R. 220.1 IRPR), if it leads to less Port of Entry decisions and more assessment by those who understand the challenges of international students and can grant some of discretion, this can be a positive thing.

I have shared an earlier post – what the letter looks like but I want to provide some more details about what we know and what we don’t know. Hopefully, IRCC will also put up some sort of an information page that sets out the guidelines/thresholds to be met and what (if any) steps a student can take to explain peculiarities or normalize their study status when facing such a request. For one, it is not clear how a student is to address medical breaks, time outside Canada (when they are not subject to the requirement to actively pursue studies), or any other explanation in a manner that can lead to the exercising of positive discretion.

Step 1: Receive Email from IRCC

IRCC.DNISPCompliance-ConformitePEERN.IRCC@cic.gc.ca

  • On this a side note and tip- many international students utilize the email of educational agents, family members, etc. to apply for study permits. For many of them, once you are comfortably in Canada and in school their obligation ceases to exist, but yours still do. I would suggest creating a MyCIC and linking your application to your new MyCIC to ensure that you get communication. Alternatively, you may choose to contact IRCC by IRCC webform to change your contact information. Still, IRCC has been known to send emails to wrong/old addresses. Being proactive will do you well here.

Step 2: Read the Email from IRCC carefully, noting deadlines, format and documents required

Copy of a compliance check

In this sample request, there are two things requested – one proving current enrollment status and a second requesting transcripts from past dates. There is also under the “Please note” section the ability to provide additional explanations.

With a deadline, you want to make sure that if (for whatever reason) documents may not be obtained within the deadline [let’s assume your consultant sent you this email three weeks late and a transcript takes one week to obtain from your former institution], make sure to  email and ask for a reasonable extension of time. 

Step 3: Review the Letter/Transcripts You Get Carefully

Not all letters and transcripts are self-evident when under review. It is possible the educational institution themselves may not have undergone an immigration audit of their letters, attendance records may be inaccurate/missing, or the transcript may have some issue that you were previously not a party to. Schools also may have very unique semester systems that are not captured in their enrollment letters or transcripts. It is important before you pass it on directly to IRCC that you review it for possible flags that may need explaining.

That being said, IRCC’s technology to catch fraud is increasing, comes with high consequences (a possible 5-year bar from Canada for misrepresentation and/or regulatory offense/charges). I would highly advise against any one seeking to alter anything for the purposes of trying to cover up a record of underwhelming studies. There is sufficient enough grey in the legislation that you may be better off providing an explanation of your ongoing intent and explaining short periods of non-compliance than to cover up or hide it.

Step 4: Provide a Response or Determine if You Need Legal Assistance Providing Said Response

Next comes responding. If there are straight forward documentation which clearly establishes your attendance with no issue, you may be okay sending in just the transcripts. However, in many cases a cover letter or timeline may be beneficial to provide. Your job is to make the Officer’s job easier and as well advocate for your own past studies and ongoing-pursuit of studies. Again, at this stage, there are no clear cut rules as to the standard of proof. It is unclear whether students on academic probation, students who failed, and students who were wait listed or prevented from studies due to registration/health issues will be able to get a hall pass. Hopefully, in time these issues clarify themselves and as well IRCC also clarifies their communication with CBSA on students seeking entry who may have violated the actively pursuing studies requirement. In an ideal world, I would like to see CBSA cease issuing removal orders at the Port of Entry and referring cases to IRCC to pursue, giving students fair and reasonable opportunities to respond to concerns and/or make necessary efforts to change their status, if required and available.

Summer ’18 – Study Permit and International Student Law Federal Court Case Law Summary

Global_Education

By Desmond1234 – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=46866616

As Canadian students ease their way back into studies and as school staff and administrators start thinking about the million responsibilities that come with a new cohort of international students, I thought it would be useful to review Federal Court Case Law over the past few months and uncover a few points.

I will focus on four points.

[1] PGWP regime not unconstitutionally vague, does not trigger s.7, and refusing a graduate from a private institution that was  not eligible under guidelines, not unreasonable. Brown v. Canada (Citizenship and Immigration)  2018 FC 452 [link to decision] – Manson J. presiding.

Jeremiah Eastman (a former DOJ lawyer for over 11 years)  appeared to make a valiant effort attacking the PGWP regime from all sides, but Manson J upheld the reasonableness of the decision and constitutionality of the PGWP regime. It is important to note that IRCC has now proactively addressed the issue at the heart of this matter by adding a list that sets out whether the DLI is PGWP-eligible and/or if certain programs offered are eligible.

[2] In the context of the requirement of  “actively-pursuing studies,” it is often parallel proceedings that will trigger investigation. CBSA Officers found to have broad discretion by Courts.  – Kone v. Canada (Citizenship and Immigration) 2018 FC 845 [link to decision] – Locke J. presiding.

 

Kone is a fascinating decision because it occurs in a context that I have lectured on for several years in my international student presentations. The Actively-Pursuing Studies requirement (which I have written about several times as being problematic) is most problematic when triggered by CBSA. There are many cases of international students who have missed one or two semesters (due to scheduling/health issues) but have not had issues entering new programs or getting student renewals. Kone gets triggered, not by an investigation into his studies initially, but by a related fraud matter where he is arrested.

Once this occurs, the books become open and the actively-pursuing studies allegation was sought after. We have seen this occur in other contexts as well – border entry incidents, criminal charges, arrests, etc.

The individual at that stage is often in a situation where their ability to provide further explanation is compromised. IRCC’s own process (triggered by compliance reporting and their own investigations) is much more fairer and consists of a PFL that often looks like this.

IRCC actively pursuing studies PFL letter

Students can then present a timeline including explanations as to why certain programs were unavailable or registration was delayed.

I also find the decision fascinating because, it does not (it appears) parse out the statutory requirements of what defines a failure to actively-pursue studies. At one point Justice Locke writes about one period of study:

[62]  First, I note that the applicant makes no reference to any authority indicating that his absence from Canada could excuse him.

The very provision of R. 220.1(1) of IRPR requires actively-pursuing studies only when in Canada on a study permit. Indeed, one of IRCC’s pieces of advice on this issue is to depart Canada or seek a visitor record if there is major gap due to issues such as illness or inability to enroll.

Finally, one thing that still needs to be resolved (in my mind) is whether this type of non-compliance can be cured by leaving Canada in the same way as other unauthorized work or study. IRCC’s Enforcement Manual – ENF 2- Chapter 11 states as follows:

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If a student who has not been actively-pursuing studies leaves Canada and returns either as a visitor (awaiting the re-engagement of their studies) or at a time prior to studies commencing, can the Border Officer go back to previous periods of study and render a decision that they were not actively pursuing studies while holding their study permit. It seems like an area where there is still not absolute clarity, and I’ve certainly seen most border officer’s take the later approach. Even IRCC’s PFL letter suggests that this assessment can be made irregardless of the Applicant’s travel history.

It is also worth noting a second case came out this summer El Kamel v. Canada (Public Safety and Emergency Preparedness) 2018 FC 730 [see attached link occured in the context of a student who was advised by his consultant to seek to amend his study permit at the Port of Entry (likely by flagpole) where he was subsequently issued a s.44 report and exclusion order.  The Officer noted the student’s good faith action at the Border, but noted that there were no grounds for review of the decision finding Mr. E-K did not actively pursue studies.

Expect that the actively-pursuing studies issue continues to be pursued as a ground for refusing non-compliant students but in many cases capture students that border the cusp of being also unfortunate, unhealthy, or unsuccessful which the provision can also apply to.

[3] Study Permit Refusals Should Continue to be JR’d – Raymundo v. Canada (Citizenship and Immigration) 2018 FC 759 [see linked decision] – LeBlanc J. presiding.

As discussed in my last post on the Omijie case [see link here], there has been an increasing judicial scrutiny around study permit refusals. It is understandable. There are now increasing number of study permit applicants, and while Canada has pledged more seats, within a global context it cannot take all applicants. Rates of granted study permits in many countries are still very low (15% or less, and in some cases close to 5%).

Many of these applications will begin with the starting point that the visa officer will likely refuse the application and assume the applicant will not leave Canada at the end of their stay, unless the applicant can demonstrate otherwise. While this is not how the laws and regulations should directly apply, it is a reality of the over-extended demand on a Canadian study permit.

In Raymundo, a study permit applicant from the Philippines applying for Centennial College’s International Business Program was refused a study permit. He had explained in his application why he intended to return to the Philippines to start a marine transportation business. It appears he had family in Canada who would be providing financial support but Mr. R’s wife and kids would be staying in the Philippines. The Officer found that the proposed studies in Canada were not consistent with a logical study plan and that the Applicant did not demonstrate significant socio-economic ties to the Philippines.

Justice LeBlanc found that the decision was not reasonable, rendering the following lines:

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The Applicant directly addressed his attempts in his personal study plan that he tried to find a similar program, yet the program was still found not to make sense.

The Officer also took major issue with the fact that the Applicant had left his wife and son in the Philippines and that this factor was not mentioned at all in the reasons for refusal.

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These are such common reasons for refusal that I see in many study permit consultations. Even with the Federal Court’s guidance with these cases, I still believe that visa officers will continue to refuse study permit applicants with short, trite, and little explained reasons knowing that 95% of them will either abandon their plans or re-apply to a similar refusal. I think the only way to challenge the system is to bring up these cases to judicial review.

I note a second decision this summer, Demyati v. Canada (Citizenship and Immigration) 2018 FC 701 [see link to decision] where a 18-year old Syrian national with a scholarship was refused a study permit.  Justice Roy seemed very concerned with the lack of transparency and intelligibility in concerns that the individual would not return home because of the country conditions. Justice Roy also appeared pertrubed by the type of requirements IRCC was expecting of a young student with respect to his employment history, etc. This is particularly true as parsed out in the facts presented by Justice Roy.

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One of the key differences in this matter that the officer appeared to also go too far in presuming the Applicant would not “actively pursue studies” in Canada without pointing to any evidence. The speculative nature in which was done was criticized by Justice Roy, ironically in the context of s. 7 of the Charter which is rarely ever in the same context of international students, who have no Charter rights in a context of a study permit application. Yet, his criticism, highlights the very real concerns about arbitrary reasoning that comes with many temporary resident visa refusals.

I expect more and more judicial review of these types of decisions. It may be worth considering whether the Government eventually is better off with a per country quota system (that allows for the ceasing of intakes) as opposed to needing to find reasons to refuse applicants that often times will prima facie meet statutory requirements, pending issues about credibility or misrepresentation.

[4] Students Need to Better Pathway Their Studies –  Masam v. Canada (Citizenship and Immigration) 2018 FC 751 [see link to decision] – Walker J. presiding.

I will not break down this case too much (as it is somewhat related to what occurred in Brown above). Ms. M appeared to, likely on the cases of other students, transition from a DLI, George Brown College, that was on the PGWP list to a non-eligible DLI, Canadian College for Higher Studies (CCHS). Upon completion of that second program, it had already been 90-days + since the completion of studies at a DLI. While the Applicant tried to add to the JR record an affidavit from CCHS attaching proof that other students were successfully, this did not render the assessment unreasonable in the Applicant’s circumstances.

This case makes it even more important that students, especially who are seeking to do add-on programs or transition between institutions are aware of how this may affect their overall eligibility for PGWPs.

 

 

The Need to Show Study Progression and Judicially Reviewing a Study Permit Refusal – A Closer Look Through Omijie FC

In  the recent case of Omijie v. Canada (Citizenship and Immigration) 2018 FC 878 [CanLII link], Mr. Omijie is a 26-year old citizen of Nigeria who sought to study at Alberta’s NAIT for a Bachelors of Business Administration program after he had previously graduated, three years prior, from a Bachelors of Science from a university in Nigeria. Mr. Omijie’s student permit application was rejected, and not for the first time [as will be discussed below].

This case highlights the dilemma faced by many study permit applicants, particularly from countries such as Nigeria, where the last figures we have from January – March 2017 show that the number of successful applicants (371) compared to unsuccessful (2,174) and total applications lodged (2,545) leads to a 14.5% success rate.

371 2,174 2,545 53%

I would assume that rate has worsened since with the volume of students seeking entry into Canada from all over the world.

One of the major issues under scrutiny was the fact that the Applicant was seeking a degree to continue studies in a related area at a related level.

It is also important to put into context that the Applicant’s study permit refusal had already gone back once to the visa office for reconsideration after a decision by Justice Diner. The reason it was sent back by the Federal Court was due to (as we will see also from this decision) a lack of explanation for why the “educational and employment history” was problematic.  As summarized in this decision about the first judicial review:

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Justice Pentney (former Deputy Minister of Justice and Deputy Attorney General of Canada many of those practicing will recognize from filing previous Judicial Reviews) made two very interesting points, set out over three paragraphs of his decision, as to why judicial review should be granted and the matter sent back to the visa office for redetermination.

In paragraph 23, Justice Pentney exams the evidence that was put forth by the Applicant for explaining why he wishes to pursue studies in Canada – specifically a desire to pursue hands-on, practical, and technologically advanced training.  The Visa Officer does not question the evidence provided but finds fault in the cost of relocating to Canada to undertake study at the same financial level.

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This is very common among international students who do often come with Bachelor’s or ther advanced degrees from abroad but wish to gain Canadian specific qualifications which may require them to start at a lower level or pursue diplomas.

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Justice Pentney acknowledges that the Applicant may not have set out the grounds of why there was a logical progression between the two studies clearly but that the Officer’s decision to reject what was presented without adequate explanation was itself unreasonable.

A recent trend of overseas visa office refusals that I have seen (both on the student and TRV side) is that the decisions are generally becoming more and more trite, with less and less reference to evidence provided. While a decision-maker is presumed to have reviewed all evidence, silence with respect to evidence that can corroborate the Applicant’s statements and that directly contradicts the visa officer’s decision, can render a decision unreasonable.

That being said, with judicial review being a costly procedure, and with the possibility that matters such as these can end up in a loop of judicial reviews and refusals, it is pertinent to put the best foot forward in the first application and make it abundantly clear how the Applicant meets the statutory and regulatory requirements of a bona fide student (or visitor as the case may be) that will leave Canada at the end of their stay.  In this matter, reference to policy and to previous refusals (if any) is crucial. Whether it is putting a succinct cover letter or organizing the online submission in a manner where the visa officer  is clear as to where documents are located, these small steps when a visa officer has only a few minutes to review a file and render a decision, goes a long way.

The Omijie decision also highlights another issue (and common point of misunderstanding) for those who pursue judicial review and expect that either the process will allow the judge to grant the study permit or else that once it is returned for reconsideration a student permit will be shortly granted.

As discussed by Justice Pentney, granting the study permit (which was sought b y counsel) is simply not an available remedy.

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S. 18.1(3)  of the Federal Courts Act states:

Powers of Federal Court

(3) On an application for judicial review, the Federal Court may

  • (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or

  • (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

In a case of this nature there has been no unlawful failure, refusal, or delay in performing the act of approving a study permit under (a), this is clearly a case of (b) where the setting aside for the re-determination is the only appropriate remedy.

Back at the visa office, it is likely (but not always the case) that the Applicant will be granted the opportunity to provide further documentation. The Applicant will need to re-demonstrate that they still hold an LOA to this program, and likely update (in a matter such as this one) proof of finances, study plan, etc.

With the Federal Court now having clearly indicated that the missing piece appears to be the brevity of the decision and no indication why the Officer found the Applicant’s failure, it would be very likely for a more detailed examination of why the Applicant’s study plan fell short. In the alternative, other areas of the decision could be re-examined (proof of finances, etc.), and possibly even an interview set up to determine the Applicant’s credibility in presenting this plan, in person. The other option is for the Visa Officer to simply stop the litigious process and approve the study permit application. Again, neither option is clearly guaranteed through a process like this.

Too often, unauthorized or underqualified representatives will never advise judicial review and end up having their client go through a slew of repetitive refusals that very much harm the prospective chances of ever getting a temporary resident visa.  If not early on, at a certain point in time, there needs to be an acknowledgment of whether the application deficiency is a factual one (i.e. the facts are bad and can’t be fit to meet the requirements – but can also be “improved” upon) or if there are legal deficiencies that lead a visa officer to be unable to budge on their interpretation of the law. In the later case, judicial review (and the heavy expenses that go with this process) may be the only way to go.

I will be posting other cases of judicial reviews in a second (Summer 2018 in International Student Federal Court Litigation) so you will better see the nuances of how the Federal Court process works.

The Extent Unauthorized Immigration Agents Go to Hide Your Situation – A Case Study in Fraud

Recently, I was on Global News, talking about international student fraud (often times originating from overseas) where students get lured into Canada on a study permit and end up as precarious, exploited workers. You can find that piece here: https://globalnews.ca/news/4409552/aldergrove-subway-allegations/

In today’s piece I want to tackle a related issue that I have first hand knowledge of is affecting individuals across the spectrum – from individual seeking TRVs to study permits and work permits, and even to applications for permanent residence/permanent resident cards. This fraud takes place both inside Canada and outside Canada, although predominantly with unlicensed agents abroad or those agents who claim to work with “Canadian registered consultant partners.”

This type of fraud has affected a recent client of mine. I’m sharing his story (with permission). I’m modifying the facts so this will have no impact on his future immigration yet it can still serve as a warning to those who get caught up in these type of situations.

Scenario

You are a citizen of China seeking to visit Canada where you have a sibling who is currently on a post-graduate work permit. You engage in the services of a local agent in the service of your small town on the outskirts of Qingdao. He says he is an immigration service. They have a 95% success rate and they can help you with the process. They say they will go to the Visa Application Centre (“VAC”) VAC on your behalf. It is easier that way and you will not need to do anything other than to give them documents.

You provide them the documents. They tell you that they believe you will be granted a visa and to wait approximately three to four weeks for notification. They do not provide you any receipt or file number other than a brief voice message indicating it has been sent. You have not seen the final package.

They notify you on 29 April 2016 that your application was unfortunately refused but that the refusal was out of their control. They say that refusal decision appears to put the onus entirely on you for not providing enough financial documentation.

You see the letter. The heading says:Scrubbing Refusal 0a

 

 

 

The letter is addressed to you, it has the file number.

The content of the letter says:

Scrubbing Refusal 0a Scrubbing Refusal 2

You accept the refusal as par the course. You don’t blame the agent. Your family accepts it (they got their visas after all) and you let the matter go.

Several years later you find a licensed Canadian representative. You now wish to visit Canada again to celebrate your brother’s wedding. Your brother hired a representative in Canada who assisted him on his PR paperwork (economic immigration) which went smoothly.

As part of the process, your new representative recommends that you do an access to information request to get a copy of the Officer’s Electronics notes and the refusal letter. You ask for a copy of the physical file as well. you pay $5 dollars for this request.

A month later, IRCC responds stating that they have unfortunately disposed of your information in correspondence to their data retention policy. 

Two years have passed since the last administrative action. However, they do send you a copy of the refusal letter as per below:

Scrubbing Refusal 0

This date is 6 days before the date of the refusal letter you received from your consultant.

There is also a different address located on the top of the letter – not just your name listed.

Scrubbing Refusal Address

You also note the number of pages in the refusal is very different

Scrubbing Refusal 1There is another page that you are surprised to see – that the refusal is not just one page long:

Scrubbing Refusal 1bIn the electronic notes, you learn from the notes that a large portion of the refusal was actually due to the submission of unclear photocopies.

The reasons for refusal were entirely the same as the one included in your letter for the consultant. Why was the refusal letter transferred to a new form?

Breaking Down the Fraud

There are two major elements to this particular fraud case. These likely are the reason why said fraud agent

1) The Date of Refusal – this allows these fake agents/consultants to sit on refusals. They can pass the decisions within their networks and decide how to scrub them before sending it to you. While in this case they did not adjust the reasons for refusal, it would be very foreseeable that they would scrub it for wrongdoing (misrepresentation, poorly submitted documents, etc.);

(2) The address of the agent involved. You did not ask a Beijing firm for support. Why is there a Beijing address? By scrubbing the refusal letter and writing their own fake one, they were able to preserve their network of addresses. This would stop a line of investigation from IRCC. This would insulate the fact that the individual in Qingdao was not doing the work potentially and may have been a sub-agent for someone in Beijing.

Best Practices

As a client, you should always review everything that goes out, demand a copy of everything that is sent on your behalf, and require a file number as soon as possible. If you are passive and don’t take these steps, these are the types of frauds that will be perpetrated on your behalf.

While in this case, the only misrepresentation was a passed on refusal letter (not anything directly submitted to IRCC), it would not be out of ordinary for a fraudulent document to have been submitted on your behalf. With two years having passed, you will have no way of ever knowing.

I encourage all applicants to act prudently. Immigration works very differently than likely in your own countries where the process may be done in person, or through a process where you know exactly what is being passed on and when. With the move to electronic communication, and the lack of regulation of overseas agents, expect to see much more of this moving forward until preventative steps (such as sending a copy of the entire file to the client as well as the agent) are implemented. by IRCC.

Beware of a Newer Type of Immigration Fraud – Employer-Recommended Consultant Scheme (“ER-C Scheme”)

Vancouver_Block_05

There is a new type of immigration fraud out there, particularly affecting graduating international students who are desperate to seek grounds to extend their status in Canada and obtain work.  I will call it the (ER-C) Scheme.

The fraud works this way. IG (international graduate) gets an interview with a Potential Employer (ER). Employer mentions there is a possible job offer coming and that they have a consultant (C) who can assist on the work permit extension application (let us assume IG went to a school that does not offer a PGWP and cannot afford further studies at this stage). (IG) books (C) for a consultation and engages them with legal fees to prepare the entire application. At the very last minute (ER) backs out. (C) acts as though this is entirely out of their control and that this is an unfortunate situation. IG is left stranded. (C) later splits earnings from those legal fees with ER. The IG is now dealing with a status issue and is desperate to find a new opportunity – for which (C) the recommends another option that will bring her further legal fees.

This diverges from traditional fraud methods (fake documents, fake job, fake tax returns) and is dangerous in that it insulates those perpetrating it from the direct attention from immigration unless the victim directly contacts IRCC to report this matter. Given the victim themselves may have status issues precluding them from wanting to make their situation too obvious, there is that additional layer of disincentive. The paper trail between ER and C can be hidden through case only transfers or other gifts exchanged.

How do you prevent this type of fraud?

Always ask the Employer whether the representative they are recommending is their own representative and will be assisting on a dual representation agreement. If not (or if not clear) seek independent legal advice or perform an independent verification of the representative before engaging their services.  Ensure that you do not sign any contracts without clear indication that there will be no financial benefits shared between ER and C.

Reframing the “Problem” of Birth Tourism – a Few Alternative Perspectives

Recently, there has been another media influx relating to the “problem” of birth tourism. In the past, I have commented on this issue twice publicly – for Chatelaine/Macleans Magazine and CTV News.

Unfortunately, much of the debate again has revolved around what I strongly to believe strong ethnocultural tensions, particularly through Richmond where tensions have been brewing for quite some time and understandably so, with various related debates or controversies no doubt fueling the fire.

Positively, some media have been very clear about distinguishing between birth tourism and non-resident births. It is understandably easy to view all problems as coming from the same source – illegally planned and operated birth tours and birthing hotels. In actuality, however, the situation is much more complicated and the numbers of foreign billing addresses cannot correlate directly to the problem of birth tourism.

I want to highlight just a few modified situations that are very common, that I have seen, and would lead to non-resident births.

  • A is an international student and her husband B is a permanent resident. They have lived in Canada for 15 years. Because of an immigration matter, X has lost status. She is ineligible for MSP, even though her husband is a permanent resident. They want to have a baby because both are heading to an age where must have a child or else fear not having a dependent. If A leaves the country, she would never be able to return;
  • C is a temporary foreign worker in Canada. She had a one night stand with a fellow club go-er and found out she was pregnant. Her work permit is set to expire and she has no grounds to renew her status. Her MSP is expiring. Religiously, she is pro-life and does not believe in abortion. She chooses to have the baby but cannot afford the fees.
  • D has returned back from her home country. She recently returned with her son and uncovered that her husband had been having an affair with a younger woman. This occurs after the couple has sex. She returns to Canada and on the advice of her family members decides to keep the baby.

The above are all situations where the mother would be non-resident that have nothing to do with birth tourism.

In my opinion, the fact individuals are avoiding bills should be considered a separate issue from that of who is giving birth. Theoretically, if they are utilizing birthing hotels and paying exorbitant (and highly illegal fees) to these underground birthing houses – why is this money not flowing to hospital. Who is trying to cover up the paper trail here? Are women subject to minimum standards of care at these facilities? If the women who are arriving to give birth are truly low income and unable to pay bills, what are the circumstances that have created this?

Second, this issue should not also mask a deeper problem of complex diasporic families that has arisen as a result of immigration. It is not uncommon for a mother and her children to be left in Canada while one spouse obtains work or manages affairs from abroad. In this sense, the fact that they would seek assistance (if they have financial means) of some third-party help seems reasonable. Yet, why are these individuals seeking services that appear not to hold legitimate business licenses? Are there barriers/distrusts of local services and how do we create a more inclusive environment?

Government resources, in my perspective, should not be focused on creating legislation that curbs non-resident births but instead severely punishes those who engage in the exploitative practice of encouraging (for profit) individuals to risk the lives of their children to come to Canada to give birth. Inputting intent to individuals who legitimately want to have children in Canada because they have “non-resident” status here as international students (short-term students – awaiting MSP), are awaiting spousal sponsorships as visitors, or have lost status is going to be a necessarily overbroad solution.

What worries me – is that there is so much that occurs in the underground economy – that takes years for government officials from different levels to respond to. Those years of bureaucracy create a perfect breeding ground for exploitative businesses. Add into the mix many newcomers and/or local residents struggle to make ends meet at survivor jobs, the prospect of being able to run a business outside of the view of regulatory bodies at a higher income starts appearing more attractive. This is an issue that goes beyond one community and is very rampant in Vancouver – be it the drug trade, illegal loan sharking, barely above water investments, etc.

Returning to the main point – should Canada have citizenship by birth? For me this is a foundational principle that should not be altered. Rather than allowing our citizenship to simply flow through descent and passed through generations, those born here with real physical connection to the country should be allowed to obtain citizenship. Indeed, for a country of settlers that arrived the same way, to now try and alter laws to preserve some sort of uniformity would be highly contradictory and deeply unaligned with the Canadian values that I firmly believe in.

 

 

Why IRCC Should Pay Attention to the B.C. Small Claims Case Li v. Dong 2017 BCPC 285 – Re: Custodian and Unauthorized Immigration Practice

Picture from Wiki Commons
Picture from Wiki Commons

Background of the Case

Li v. Dong, 2017 BCPC 285 (CanLII), <http://canlii.ca/t/h6ftb>  was a five-day small claims matter between two educational agents, Ms. Chunmei LI and Mr. DONG.

Without delving too much into the myriad of messy facts – Mr. Dong was an educational agent and Ms. Li was a sub-agent. They had primarily verbal and one written agreement between them to split the cost of recruitment fees and percentage of tuition fees for minor students recruited from China.

Among part of this play was the fact Ms. Li charged students (who were from her own English language institute in China) $5000 to $6000 for “supervisory services” including custodianship. Ms. Li (new to Canada as a PR) wanted to better understand the educational market in Canada and therefore assisted Mr. Dong for various amounts per school. Some schools offered their own student services/custodianship services but this did not dissuade Ms. Li from charging her pretty penny.

Mr. Dong also benefited by charging CDN $300 for a custodian notarize fee from Ms. Li and CDN $1200 for a custodian fee of the CDN $5000 wanted to charge the students she referred to Mr. Dong.

Adding another layer to the mix, was Ms. Cindy Lii, who testified on behalf of Mr. Dong at Small Claims Court, discussed the fact she prepared documents for student visas and school applications for the students. She would refer students to Mr. Dong and also collect a cut [side note: there is no one last name Lii on the ICCRC registry]. Ms. Lii also took fees from Ms. Li to help prepare study permit applications.

Why should IRCC care about this?

From my perspective, the current rules around minor children – where, unlike with Universities there is no #DLI or sense that a student has to meet certain bona fide requirements in order to qualify – is broken. With no regulation of educational consultants and the cross-border movement of children and money, the natural consequence is the type of taking advantage of (I would deem it exploitative to call it mildly) that is ultimately being done at the expense of young children and their unbeknownst parents.

In the same way that a recruiter cannot charge both the employer and the employee, somehow in the business of minor students and educational agents, we have lost all control. This same problem affects post-secondary students but at least there are some safeguards and students themselves can advocate for themselves in a complaint.

Why are educational agents charging funds to have an immigration (custodianship document) signed?

Given notaries are all able to sign them (they don’t require any s.91 rep) – who is keeping track?

How is someone who is presumably not a designated immigration representative able to not only charge students to do visas, but charge other agents to do visas on their behalf and simultaneously collect funds from the very schools these students are obtaining visas for through agents?

I actually wrote this in part of a s.44 submission to CBSA not so long ago – but the fact is these agents are being inherently authorized by allowing to practice (without investigation by authorities), given business licenses, and provided advertisement space. How much fault can you really pin on the end user when 90% of what is provided in your own language in front of you is falsely claiming to be legitimate.

Why are schools not being regulated in the amounts they can charge for services and what these services are directed at?

We talk so much about big money – and rightfully so – through casinos and real estate, but the impact of money being washed through innocent children in the name of the education should raise some sort of moral conundrum that IRCC would want to step in on.

I would suggest IRCC make major clarifications to the custodianship process and indeed require clear third-party legal advice prior to accepting the form.

To go a step further, I would suggest that with the looming influx of minor students that will become university students and later put upward pressure on our economic immigration system, that schools be issued quotas for minor international students consistent with a prescribed ratio – based on Canadian students, with an emphasis on schools outside metropolitan areas that may require economic assistance or greater diversity.

Schools should also require designations in order to ensure minimum standards are met prior to enrolling minor international students. Private Schools, especially should have to provide some sort of compliance update to the Ministry.

Whether the Provincial/Federal Government knows it or not – education has become an exportable commodity. Therefore just like goods require taxes, tariffs, and customs law – so does education and especially international education. I think the Governments should reach out to one another and strike up a working group. I know I’d sign up given the stories I have been hearing and the type of preventable catastrophes that are looming around the corner.

Hopefully IRCC puts focus on this issue as I definitely see the snowball and these type of cases increasing without clearer guidelines and stronger deterrents.

 

Lessons from Losses – Importance of Good Interpretation in Immigration

I recently was counsel on a multi-layered case named Zhang v. Canada (Citizenship and Immigration), 2018 FC 502 (CanLII), <http://canlii.ca/t/hs2j6>

In Zhang, the client (my client) attended an in-Canada spousal  interview with former counsel and as well with an interpreter who former counsel had assumed was certified, but was actually not.  In-Canada spousal interview have a heightened level of procedural fairness. Only a few cases to through to this interview stage. Without appeal rights, this interview serves as the final decision, and often with clients that have status issues, a refusal could be a trigger point for enforcement and possibly long-term separation.

The Officer in the matter decided to proceed, even know the interpreter was unqualified. This lack of qualification was not shared with the Applicant, only the Sponsor, who himself conducted his portion in English. For the Applicant, the Officer asked merely if she “understood the intepreter.”

While Justice Phelan did not rule our way, I found it interesting how this case and my recent experiences with my new Firm have really opened up my eyes to interpretation and the importance of certified interpretation.

Interpreters can truly make and break cases. Even for something as seemingly simple as a client consultation (and where you yourself may have a working understanding of the language), having a certified interpreter present is crucial.  Even where an assistant may be fluent in a language, having an independent certified interpreter available to provide accurate accounts and swear required affidavits. I have seen in too many cases the haphazard signing of affidavits in the English language where the affiviant has little clue of the content.

The case law around interpretation, from my preparation on the file, is very scattered. I won’t go into too much detail here, but it appears that it is only in cases where Tribunals or Government’s are providing the interpreter, where the interpretation is not clear and contemporaneous, and where the Applicant attempts to draw this to the attention at the earliest possible time that procedural fairness/Charter rights are ultimately triggered.

In Huang, the Federal Court set out the requirement as follows:

[8]                The Applicant has a right, under section 14 of the Charter, to continuous, precise, competent, impartial and contemporaneous interpretation. The Applicant is not required to show that he has suffered actual prejudice as a result of the breach of the standard of interpretation in order for this Court to interfere with the decision of the Board (Mohammadian v. Canada (Minister of Citizenship and Immigration), 2001 FCA 191 (CanLII), [2001] 4 F.C. 85 (C.A.), leave to appeal dismissed, [2001] S.C.C.A. No. 435 (QL) ; R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951 ).

Huang v. Canada 2003 FCT 326 at para 8

However, this is contrasted by another decision, Baloul, that applies a much higher standard for mistakes made by the Applicant (any by extension, their counsel) themselves:

[22]… The applicant had sufficient time to obtain an interpreter, but chose not to. The risks associated with this choice were spelled out in unequivocal terms and the applicant chose to assume these risks. I would add that the onus placed on the applicant to provide an interpreter has been upheld by this Court (Kazi v Canada (Minister of Citizenship and Immigration)2002 FCT 733(CanLII) at paras 16 -18, [2002] FCJ 969).

[23]  When it became apparent the applicant was having difficulties understanding and answering the immigration officer’s questions, for the benefit of the applicant and though she was not required to, the officer offered to invite a colleague to interpret. The applicant agreed to this suggestion of her own volition and cannot now question the quality of this interpretation when she was well aware of the consequences of not arranging for her own professional interpreter. Furthermore, it is well established law that where there are translation problems, the complainant must raise the problem at the first reasonable opportunity (Oei v Canada (Minister of Citizenship and Immigration)2002 FCT 466 (CanLII) at paras 40 and 42, [2002] FCJ 600Kompanets v Canada (Minister of Citizenship and Immigration)2000 CanLII 15377 (FC)[2000] FCJ 726 at para 9, 196 FTR 61; which the applicant did not do in this case.

I don’t change my own legal position (that I presented) that this requirement should run both ways. For an Applicant who does not speak English and a Counsel who does not speak the Applicant’s first language, interpretation is a complicated exchange. I do believe that there needs to be a clear instruction to IRCC Officers that if the interpreter is not qualified and upon confirmation that this was not a bad faith error, that the Sponsor and Applicant should be fully advised of the fact and asked to sign a document either confirming a new appointment or waiving the requirement for certified interpretation.

This level of heightened procedural fairness is consistent with IRCC’s position at the Port of Entry.

OP4 of IRCC’s Port of Entry Manual states:

A border services officer who is using a non-accredited interpreter to conduct an examination should suspend the examination if it becomes apparent that the person may be inadmissible. The examination can be continued once a competent interpreter is available. This is important for the following reasons:

  • When making a decision on admissibility, the border services officer needs a reliable and trustworthy interpreter in order to be sure that information provided by the client is accurately translated. Inaccurate translation could result in a decision based on misinformation, which is detrimental to the person. This would constitute a breach of natural justice.
  • Information obtained at examination is often used as evidence in admissibility hearings and, less frequently, in criminal prosecutions. If a competent interpreter is not used, the evidence can be discredited or rendered inadmissible.
  • All immigration decisions relating to admissibility are subject to judicial review by the Federal Court. The Federal Court reviews the fairness of the process leading to the decision and will strike down any decision based on evidence obtained through an interpreter whose competency is in doubt.

Not ironically, in a June 2018 update not long after my case was published, IRCC put an additional section regarding complaints about an interpeter.

Complaints about an interpreter

Complaints regarding interpreter competency or comportment can generally arise before, during and/or after the interpretation services are delivered. The complaints could range from no-show or last-minute cancellations, to poor interpretation, to after the service when the interpreter could engage with clients and claimants in communication that could be a ground for conflict of interest.

Authorized IRCC users and clients/claimants must raise concerns with respect to interpretation during the course of the interpretation service, at the first opportunity, unless there are exceptional circumstances for not doing so.

Where concerns arise regarding interpreter competency based on information that only became available after the service is rendered, the authorized IRCC user should discuss these with an interpreter as soon as possible.

It is so very crucial for counsel to clarify that their interpreters are properly engaged. I strongly recommend familiarizing yourself with the STIBC (https://www.stibc.org/).

Hopefully, with more counsel utilizing interpretation and clients realizing how important this additional $50 dollars an hour (or so) could be to their immigration cases, that we reduce the types of mistakes that could have devastating impacts, particularly on those without financial means to seek legal support and advice.