Category Archives: Canadian Immigration Law Blog

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

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

– the late, honoured, Toni Morrison

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

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

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

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

 

Why Migrants Should Be Careful Giving Media Interviews

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

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

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

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

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

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

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

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

 

TIP #2: Misrepresentation Doesn’t End at PR

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

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

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

Misrepresentation

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

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

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

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

    • (d) on ceasing to be a citizen under

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

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

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

  • Marginal note: Application

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

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

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

  • Marginal note: Inadmissible

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

  • 2001, c. 27, s. 40

  • 2012, c. 17, s. 17

  • 2013, c. 16, s. 16

  • 2014, c. 22, s. 42

  • 2017, c. 14, s. 25

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

Status of a person post-revocation

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

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

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

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

 

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

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

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

 

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

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

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

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

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

 

TIP #5: Seek Independent Legal Advice

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

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

 

Conclusion

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

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

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

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 – how 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 “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — 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 §§12:5330 and 12:5510).  It is a more organic exercise — 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 “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes” (para. 47).

[15]                          In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respect for the decision-making process of adjudicative bodies with regard to both the facts and the law” (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’s decision should be set aside if the decision itself is in the realm of reasonable outcomes.  Reviewing judges should pay “respectful attention” to the decision-maker’s 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 “avoid an unduly formalistic approach to judicial review” (para. 164).  He notes that “perfection is not the standard” and suggests that reviewing courts should ask whether “when read in light of the evidence before it and the nature of its statutory task, the Tribunal’s reasons adequately explain the bases of its decision” (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 – the result is to be looked at in the context of the evidence, the parties’ 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’Rour 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 “requirement of reasons, in whatever context it is raised, should be given a functional and purposeful approach.” 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’s 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 – touching 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’s 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’s 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 “allow the reviewing court to assess the validity of the decision” (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 “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” (Newfoundland Nurses at para 16). In order to provide adequate reasons, “the decision maker must set out its findings of fact and the principal evidence upon which those findings were based”, as well as “address the major point in issue” and “reflect consideration of the main relevant factors” (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’s 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: “[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” (Delta Air Lines Inc v Lukács, 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 “unauthorized” 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 – for 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 “six-month ban” 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 “six-month ban” 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 – but 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 ‘implied status’ at the time of your OINP application submission. ‘Implied status’ 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!

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

Dual intent is an important and increasing oft-used provision of the Immigration and Refugee Protection Act (“IRPA”) particularly for those applicants who straddle the pathway between temporary and permanent residence. I previously wrote about this concept more than four years ago with respect to a Federal Court case I was involved with called Jewell.

The Law

Section 22(2) of IRPA sets out:

Temporary resident

 (1) A foreign national becomes a temporary resident if an officer is satisfied that the foreign national has applied for that status, has met the obligations set out in paragraph 20(1)(b), is not inadmissible and is not the subject of a declaration made under subsection 22.1(1).

Marginal note: Dual intent

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

Is Dual Intention Applicable to Study Permit Applications? Is it Over-relied Upon?

Dual intent seems naturally applicable in the context of a spouse who seeks a visa or temporary entry into Canada while a permanent residence application is in process or a foreign worker seeking to extend a temporary work permit while awaiting an Application for Permanent Residence based on an Express Entry Application or Provincial Nomination Program nomination.

Recently in reviewing study permit applications made by international students, including those prepared by prominent and experienced authorized representatives, I realized that dual intention was being heavily relied on. Indeed, Minister Hussen in several speeches given last year about international students, seemed to suggest that it was no inappropriate for students to enter Canada with an ambition to eventually become permanent residents.

However, in this piece, I want to put a cautionary tale on the application of dual intention when the future intention (permanent residence) is years away and argue that any submissions on study permit applications should focus instead on future immigration compliance and strengthened/remaining ties to the country of citizenship and or permanent residence (if not Canada). I also believe that much of our over-focus on dual intention can also be inadvertently created by our own pathwaying (as representatives) of the permanent residence process.

IRCC’s Program Delivery Instructions on Dual Intention

IRCC has published instructions (as of the date of this post, last modified in March 2019). These instructions are quite detailed and worth a detailed read.

While the instructions set out it is not impermissible to have two intentions (one permanent and one temporary) and that it cannot be a standalone basis for refusal. The section titled ‘Example of a case for refusalsheds important light on the concept, especially in the study permit concept.

The instructions state:

An applicant for a work or study permit who indicates that they have no intention of leaving Canada has demonstrated only a single intent – permanent residence. Their application would be refused, even if the applicant might subsequently qualify for the Canadian experience class (CEC) or the Provincial Nominee Program (PNP). This is because the applicant has shown that they would not respect the terms and conditions of temporary residence, should they not qualify for permanent residence.

Section R179 is balanced by the flexibility of subsection A22(2), which allows the officer to consider an applicant’s intent in relation to the particular circumstances of the application. For example: an applicant for a study permit who may qualify for the CEC in 3 years has a different set of circumstances from that of a provincial nominee whose application is near completion and who applies for a work permit, with the support of the province, due to an urgent need for their services. Please note that all applications should be assessed on their individual merits.

(emphasis added)

The very examples provided by IRCC about when refusing an applicant may be appropriate focus on the international study permit applicant who is not eligible for permanent residency at the time of their application.  Furthermore, these instructions seem to suggest intent (where absent) can be imputed.

Therefore, even if the facts are presented in a balanced way – for example, half the family is in Canada vs. half the family is in the country of citizenship, or with the fact there may be a job opportunity available back home after graduation – there appears to be the needs for clear and explicit language that the Applicant will both be compliant with the terms and conditions of their temporary stay and can and will leave Canada at the end of their authorized stay. I have always interpreted leaving at the end of authorized stay as meaning as required under IRPA (i.e. if an extension is refused) rather than necessarily at the end of one’s study permit. A successful Post-Graduate Work Permit (PGWP) application, for example, would extend one’s authorized stay in Canada.

What Does Case Law Tells Us?

1) What you state and what you do must be aligned for dual intention to properly apply

In Pisarevic v. Canada (Citizenship and Immigration), 2019 FC 188 (CanLII), the Applicant, a lawyer who was applying for a Canadian paralegal program, was unsuccessful in judicially reviewing the refusal of his study permit application.

Arguably (although Madam Justice Simpson found otherwise), even the Applicant’s personal statement in this application sounded very much like a single intent statement:

Madam Justice Simpson writes at para 5:

[5] The Letter included the following statements which, in my view, express dual intent.

  • I have every intention of staying in Canada permanently but only, and I can’t stress this enough, if the Canadian authorities allow me to stay.
  • I have no intention of leaving Canada after graduating but only and for as long as Canada allows me to stay. I plan to do my best to finish school, work hard while I’m in school to maintain myself, apply for the PGWP, find a good job in the legal field and during that time to find a legal way to stay in Canada.

In the refusal the Officer wrote (paragraph 8 of the Decision):

Applicant is 37yrs old, graduate law program in 2010 and has many yrs of experience as lawyer. He now applies to do paralegal training. I note that applicant has four attempts to express entry. While the study program chosen is in same field as applicant’s previous studies and work, it is a step back – not coherent with career development. Given the applicant’s interest in immigration, the study program is meant only to secure entry to CDA and not obtain better employment/promotion in home country. In view of past applications history, study program chosen, I am not satisfied that dual intent exists. I am not satisfied that applicant is interested in returning in country of residence and will have incentives to leave CDA at end of authorized period of stay.

(emphasis added)

Madam Justice Simpson in rendering a bench decision and dismissing the Applicant’s judicial review, highlighted in the record the fact that the Applicant’s proof of finances to support his studies were from the winding down of his legal practice, which itself created a reasonable basis for the Officer to find that there was not an intention to return that could support a dual intention finding.

She writes:

[14]  I am entitled to review the record to make sense of the Officer’s Decision. In my view, although it is not referred to in the reasons, the fact that the Applicant proposed to finance his studies by selling his law office was reasonably treated by the Officer as a powerful determining factor. It gives the impression, in the absence of an explanation to the contrary, that he is winding down his practice and has no professional reason to return to Bosnia and Herzegovina.

(emphasis added)

Ultimately, not only in this case did the Applicant fail to adequately state out a clear temporary intention but the evidence provided suggested as well that the intention was primarily permanent. In the context of an international student, without a clear pathway or application in process – ultimately this represents a high risk approach to the application.

2) Dual intent requires a clear written statement of dual intent

One of the leading cases in this area of the law is Loveridge v. Canada (Citizenship and Immigration), 2011 FC 694 (CanLII) a 2011 decision that highlights my earlier observations that many study permit applications (and specifically letters of intent that I have reviewed) are entirely unclear, and possibly contradictory on the intent of the applicant. Indeed, for many students coming to Canada, the future may be uncertain but a reasonable pathway and understanding does have to be provided.

In Loveridge, the Applicant from the United Kingdom wrote a letter that led to a finding that the Applicant did not have dual intention.

Madam Justice Bédard writes in her decision:

[14]           The applicant contends that it was unreasonable for the officer, in light of the evidence that was presented, to infer on her part an intention to remain permanently in Canada. She insists that her motivation letter indicated, at a minimum, a willingness to return to the UK if required and that, as such, it was unreasonable for the officer to find that she had not established that she would leave Canada if she were required to do so. She argues that, in fact, her motivation letter clearly expressed her dual intent: she would stay in Canada if she had the opportunity to stay but would go back to the UK if required. She contends that she did not need to have a firm intent to go back to her country of origin in order to have a dual intent within the meaning of section 22 of the IRPA.

[15]           The applicant insists that she was credible and that she did not hold back any information in her application. She argues that there was no contradiction in her motivation letter but, on the contrary, that the letter clarified her intentions. She further argues that the officer made an error when concluding that the bank statements did not identify the owner of the accounts since the name NLoveridge appeared on the statements. She further points to the fact that her family and friends are located in the UK as demonstrating her strong ties to that country and her motivation to return there. The applicant also submits that no negative inference should be made from the fact that she and her husband were unemployed and that she did not have ownership of property in the UK. She contends that those circumstances could be viewed as reasons for wanting to migrate to another country, but that they do not support the contention that the applicant would refuse to leave Canada if required to do so.

[16]           The respondent, on the other hand, argues that the applicant’s motivation letter was vague, contradictory, and could not properly be interpreted as supporting a singular intention of returning to the UK. The respondent submits that the applicant had the burden of convincing the officer that she would leave Canada by the end of the period authorized for her stay and that she failed to discharge that burden.

[17]           I agree with the respondent that the applicant’s motivation letter is contradictory and unclear. In the first portion of her letter, the applicant indicates that her intention is to remain permanently in Canada. She speaks of “starting a new life in Canada” and states that she “will be happier in a country where there are more job opportunities”. If her sole intention was to stay in Canada only long enough to complete her studies, as is argued by the applicant, then the additional job opportunities available in Canada would be of no relevance. In the latter portion of the applicant’s letter, however, she indicates that “when” she returns to the UK she will be able to use the education received in Canada as a competitive advantage in her job search.

[18]           The motivation letter, thus, indicates both an intention to stay in Canada as well as an intention to leave Canada and return to the UK. This is different from indicating a “dual intent” within the meaning of subsection 22(2) of the IRPA, because that type of a “dual intent” is actually an intention to remain permanently in Canada, coupled with an intention to abide by immigration laws as required – i.e. a willingness to leave Canada if required to do so. The two intentions involved under subsection 22(2) are complementary, not contradictory.

[19]           Given that the intentions expressed in the applicant’s motivation letter appear to be contradictory, it cannot be said that the officer acted unreasonably in finding that the letter provided little support for the proposition that the applicant would leave Canada by the end of the period authorized for her stay.

[20]           Indeed, the burden was with the applicant to demonstrate that she would leave Canada at the end of her study period. As indicated by Justice Russel Zinn in Wang, above, at para 14, “The Officer is required to assess the evidence presented and weigh that evidence to determine whether it establishes on the balance of probabilities that the applicant will leave Canada at the conclusion of [the] study permit.” 

(emphasis added)

In this case, the Applicant did not interplay her two intentions properly in her letter. It was not a situation where she presented her ability to return primarily. Her letter gave the appear of having two separate intentions (a Plan A and a Plan B) rather than a Plan that considered both. Again, here is where authorized representatives can add value and applicants should think carefully before writing intentions into their study plans.

3) Officers still struggle with dual intention arguments

In Mahida v. Canada (Citizenship and Immigration), 2019 FC 423 (CanLII) , the Applicant’s study permit was refused. Among other mistakes (including the Officer’s failure to properly assess the online MBA she took and a letter from the University), it is clear that the Officer failed to understand dual intent by the following assertion (found at para 30 of the decision):

PA has failed to adequately demonstrate that proposed course of studies is logical or beneficial to their education or professional advancement as she states that she would like to live in Canada yet also intends to work in real estate in India.

Mr. Justice Russell in allowing the judicial review writes:

[31] There is nothing inherently illogical about the Applicant wanting to eventually live in Canada (a goal that she may or may not achieve at some point in the future) and her intent to work in real estate in India until that goal is achieved, and indefinitely if that goal is not achieved.

[32] Consequently, I simply fail to see how this supports the Officer’s conclusion that the Applicant may not leave Canada at the end of her period of authorized stay.

[33] Other reasons are given in the Decision for a negative conclusion but, as the Officer makes clear, he is weighing the incentive to remain in Canada against the Applicant’s ties to India. The errors I have mentioned are extremely material to this weighing process and hence render it unreasonable. The matter must be returned for reconsideration by a different officer.

(emphasis added)

While I think Mr. Justice Russell’s decision is right that the Officer failed to assess dual intention, I am a little confused still by para 33. It seems to be, by IRCC’s guidance, that the very exercise of dual intention is to examine whether the ties to the home country are strong, where there may be an incentives to remain beyond one’s authorized stay, and ultimately whether the Applicant’s stated (or unstated intentions) are credible.

The website states:

In assessing the applicant’s intentions, the individual circumstances of the temporary residence applicant must be examined; refusals of non-bona fide temporary residents may only withstand legal challenge when the refusal is based on the information related to the specific application before an officer.

In assessing an application for temporary residence, an officer should consider, among other factors, the following:

  • the length of time that the client will be spending in Canada
  • means of support
  • obligations and ties to the home country
  • the purpose and the context of the stay
  • the credibility of documents and information submitted
  • past compliance with requirements of the IRPA and the Immigration and Refugee Protection Regulations (IRPR) that are applicable to temporary residents (visitors, students and workers), as well as information available in biographic and biometric information sharing

Assessing an application where there are dual intent implications is no different from assessing any other temporary residence application. Each applicant receives the benefit of a procedurally fair, individual assessment. The applicant must, in turn, satisfy the officer that they meet all the requirements of the IRPA and the IRPR relating to temporary residence, before any temporary residence application is approved.

If an officer has concerns or doubts about the applicant’s intentions, the applicant must be made aware of these concerns and given an opportunity to respond to them. If an application for temporary residence is not approved, the officer will provide the client with a letter explaining why the application has been refused.

To me, I think it is all about the last paragraph of IRCC’s guidance that the ‘applicant must be made aware of concerns and doubts’ and the Officer must give the Applicant an opportunity to respond. This runs directly counter to some of the speculative decisions we see that extend beyond the evidence provided. Ultimately, this creates the whole dilemma between sufficiency of evidence and credibility which will be a topic of a future blog.

However, on this point,  it is worth highlighting Mr. Justice Campbell’s decision in Yaqoob v. Canada (Citizenship and Immigration), 2015 FC 1370 (CanLII). Very similar to many study permit refusals a trite, short summary was provided to a very detailed application which included very extension dual intention submissions that set out the pathway to PR. Here, Mr. Justice Campbell read between the lines that there must have been some credibility concern for which an opportunity to respond was denied. He also awarded costs to the Applicant. I read this decision as a bit of an outlier (where the dual intention submission was entirely ignored it appears). That being said, it would set a good precedent if more decisions would turn the way of Yaqoob. This would force IRCC either to refuse by properly addressing evidence or else cap the number of applicants if that is ultimately the concern, rather than arbitrarily refuse with pro forma refusal reasons and letters.

Nevertheless, this misunderstanding and confusion may be further reason to not create or counsel a ‘dual intention’ where none may currently exist. For example, many international students only learn about permanent residence options through counsel or advisors and do indeed wish to come to study and then decide their plans after. Presenting this single intention does not in any way hurt an international student’s study permit application. Of course, there may be other factors that do require addressing dual intention head on.

4) Dual intent not as effective as a back-end argument on judicial review. Courts still struggle with applying this concept in reviewing decisions.

In several cases I reviewed, it appeared that dual intention was not raised on the initial application but later argued on judicial review as a failed consideration by the Officer.

In these cases, it appears the Courts effectively sidestepped the question by stating that the Applicant’s failed to discharge their burden and/or the Officer took into account reasonable factors.

In Ali v. Canada (Immigration, Refugees and Citizenship), 2018 FC 702 (CanLII),  Madam Justice Strickland acknowledged the submission but stated that ultimately, the Applicant had to first demonstrate that he or she would leave Canada at the end of their authorized stay and that this was not demonstrated.

She writes:

[23] As to the written submissions of the parties as to dual intent, as stated by Justice Gascon in Solopova (at para 30) this Court has confirmed that a person may have the dual intent of immigrating and of abiding by the immigration law respecting temporary entry (Kachmazov v Canada (Citizenship and Immigration), 2009 FC 53 (CanLII) at para 15). The two intentions are complementary, not contradictory (Loveridge v Canada (Citizenship and Immigration), 2011 FC 694 (CanLII) at para 18 (“Loveridge”)). However, the burden lies on the applicant to first demonstrate that he or she will leave at the end of their study period (Loveridge at para 20, Wang v Canada (Citizenship and Immigration), 2009 FC 619 (CanLII) at para 14). In Solopova, as here, this threshold requirement has not been met.

Similarly in Cayanga v. Canada (Citizenship and Immigration), 2017 FC 1046 (CanLII), Mr. Justice Boswell did not delve into the Applicant’s argument that the officer failed to consider dual intention and that all temporary resident visas are premised on the idea that individuals may come to Canada to improve their economic situation (para 9). Nor, was the Respondent’s response that dual intention is permitted but reasonably found not to exist in this matter. Mr. Justice Boswell focused his reasons on the fact that evidence utilized was not extrinsic and that there was nothing unreasonable about the factors considered and applied deference to the officer’s decision.

Mr. Justice Boswell writes:

[13]           It is not unreasonable for a visa officer, as the Officer did in this case, to consider the availability of similar programs offered elsewhere at a lower cost; this is “simply one factor to be considered by a visa officer in assessing an applicant’s motives for applying for a study permit (see Zuo at para 23). Similarly, it is not unreasonable for a visa officer, as the Officer did in this case, to consider other factors such as the Applicant’s family ties in Canada and his country of residence, the purpose of his visit, his employment prospects in the Philippines, and his travel history.

(emphasis added)

5) Cases may be outdated to a time prior to detailed IRCC instructions.

There have been cases where dual intention was argued successfully in the context of international students and study permit applications.  However, I would warn these decisions as possibly being outdated or possibly not even re-occurring on the facts due to other mechanisms available to IRCC.

In Hernandez Bonilla v. Canada (Minister of Citizenship and Immigration), 2007 FC 20 (CanLII), Mr. Justice O’Keefe found that the Applicant (who affirmed through her guardian’s affidavit that she would return to Colombia once her studies were completed) was owed the opportunity to respond to the Officer’s concerns that her formative years would be spent in Canada and that she could not reintegrate into Colombia society and therefore would be unable to leave Canada. Mr. Justice O’Keefe found that this was a generalization that did not take into account the Applicant’s specific facts. Still, again, this decision had the Applicant confirming the intent to return in writing. While dual intention was framed successfully by the Applicant, it was procedural fairness rather than a failure to consider dual intention that won the day.

In Dang v. Canada (Minister of Citizenship and Immigration), 2007 FC 15 (CanLII), another 2007 case, Mr. Justice Kelen found an Officer’s assessment of a study permit extension patently unreasonable – in that it ignored dual intention. The Applicant, Ms. Dang, had a spousal sponsorship refused on bona fides and after an interview focused on that permanent residence application, the Officer refused the study permit extension – citing among other things, a lack of progress in learning English as proof she intended to remain in Canada. Mr. Justice Kelen found that inference patently unreasonable – yet in today’s day in age, with actively pursuing studies requirements and clearer guidelines, arguably an officer would be able to find other grounds to refuse. Dual intention did come handy and I do believe was properly applied in this case.

In light of new instructions and contexts, I am not sure that Madam Justice Heneghan’s decision in Moghaddam v. Canada (Minister of Citizenship and Immigration), 2004 FC 680 (CanLII), would be decided the same way especially now that it is clear dual intention requires looking at the totality of the applications situation including ongoing permanent residence applications. In Moghaddam, Madam Justice Heneghan found that the permanent residence application was not in front of the Officer and therefore was considered extraneous considerations.

Conclusion: Be Cautious Applying Dual Intent to Study Permit Applications

Ultimately, my review of the IRCC instructions and case law suggests that dual intention may not be the most effective argument when an applicant is not yet in the process or position of applying for permanent residency, as most international students would be. Emphasis should instead be placed on future compliance knowledge, individual knowledge of processes, and strong intentions and ability to effect a return at the end of the authorized stay. It is still my position that overemphasizing permanent residence does more harm than good and instead more creative ways to tie those ties to Canada (such as family, past immigration history, of courses) to a future career pathway or the possibility of employment in the country of origin should be explored. Those details should also be clearly stated, in a non-contradictory way.

While dual intention may have some back-end use in judicial review applications, it is also clear that these are usually secondary factors to underlying unreasonable assessments of evidence conducted by reviewing Officers. Proper caution should also be applied when reviewing case law to differentiate recent cases (which have or will have reference to a more robust instruction guide provided by IRCC) as opposed to those from a decade back where dual intention may have been a lesser understood concept. Still, dual intention (where there is not a permanent residence application pending) is a tricky word and evidence play that should ultimately be used very carefully by representatives and applicants alike.

R v. Singh 2019 ABPC 37: The Case DLI’s Should Make Mandatory Reading For Students/Recruiters

R v. Singh 2019 ABPC 37 is an Alberta Provincial Court decision involving an international student Mr. Surinder Singh who appeared at the port of entry in Calgary with a study permit approval letter to pursue a Masters of Chemical Engineering program at the University of Waterloo for which a letter of acceptance was purportedly issued. The problem – the letter was fake. He was not admitted to the University of Waterloo.

Also, the impugned study permit application suggested Mr. Singh had a Bachelors of Engineering from Panjab University and that he was currently a Processing Engineer working at Jagdambay Manufacturing Company. In actuality, he had only completed grade 12 and was working at McDonalds at the time of the application – as he later testified.

Analysis

This case is fascinating for several reasons.

First, it highlights the type of fraudulent schemes that are growing all to common around international study permits. While it is India in this context, the similar pattern of coaching from unlicensed consultants and local liaisons occurs throughout different communities around the world and in Canada. It highlights challenges with no oversight with the letter of acceptance process and how hard it is to detect fraudulent documents in today’s day and age. You see an established process unfold by which Mr. Singh enters Canada and then is coached on how to continue his stay here under different grounds (schools) than those by which he entered. It is also notable that this event took place in 2014 – with the trial and conviction happening some 4.5 years after the events in question took place and almost 3 years after the initial CBSA investigation began. These type of cases and situation simmer for years before being subject to public knowledge

Second, Mr. Singh’s situation represents a step up in terms of prosecuting the actual international student for criminal misrepresentation as opposed to the usual process of simply finding them inadmissible and giving them a five-year bar. No doubt, somewhere down the line, there would have been some consideration as to whether to simply pursue this as an inadmissibility matter but instead significant legal and departmental resources were placed in this case.

The Finding of the Consultancy Agency and the Network Involved

Many of us find it preposterous that individuals would engage with unauthorized practitioners but this case highlights how powerful word of mouth can be. Mr. Singh’s brother heard a friend from an adjoining village had he had recently landed in Canada as a successful immigrant. Mr. Singh and his mother went to the village where they understood the boy’s family lived, went to a shop owner – who then directed them to the family who directed them to the consultant Vicky  (paras 14-17 of the Decision). Again, this sounds very centuries ago in description but is the reality of small town life and demonstrates the desire by which some individuals often wish to leave their current situations.

The initial payment in this case was equivalent to 500,000 Rupees (CDN $10,000) which would be an incredulous amount to charge for any individual permit but again, considered so normal in the context of this case. So was the 25 lakh total price and the addition CDN $40,000 he owed after approval.

The other thing that is very common is the extended informal network of Canadian/international contacts that benefit and participate from these types of operations. The Consultant Vicky sends Mr. Singh to a “Gurjant” guy in Toronto (a purported friend) who ends up advising on education strategy (para 82 of the Decision). Vicky’s mother also assisted in the operation from India (para 51-53 of the Decision).

Judicial Knowledge of Immigration Processes Increasing

In the past where I have looked at non-immigration decisions at various courts and tribunals, I have often noticed language that makes it clear the Court was slightly uncomfortable with the immigration context. In this case, it appears that particularly Crown’s framing of the situation was done very effectively.

Crown put together this summary that looks like it was directly transposed (and or paraphrased) into the decision at para 7 of the decision:

[7]               The following is an outline of the student visa and study permit process.  I am indebted to the Crown for providing this summary in her written submissions.  I accept it as accurate based on the testimony I have heard and accepted and my review of the relevant legislation.  I have attached as an Appendix to these Reasons, all relevant sections of the Immigration and Refugee Protection Act, SC 2001, c 27 and the Immigration and Refugee Protection Regulations, SOR/2002-227

•        A foreign national from India who wishes to study in Canada must first obtain both a student visa and a study permit.

•        The foreign national must successfully apply for the study permit before entering Canada and studying in Canada.

•        The foreign national must also apply for the visa, or any other document required, before entering Canada.

•        By law, a study permit will not be issued to a foreign national unless they have written documentation from the educational institution at which they intend to study that states they have been accepted there.

•        A study permit will not be issued to a foreign national unless they demonstrate they have sufficient financial resources for the proposed study period.

•        Canadian visa officers review applications for study permits from foreign nationals.  If an officer is satisfied an applicant meets the criteria for a study permit, the officer may issue a student visa to the foreign national, which is placed in the foreign national’s passport before they come to Canada.

•        Once the foreign national has received their student visa outside Canada, they may present themselves at the Canadian border.  At the border, the foreign national makes an application to enter Canada and to obtain their study permit.  In other words, the student visa is issued outside Canada and the study permits is issued at the Canadian border.

•        Every person seeking to enter Canada must appear for an examination to determine whether that person has a right to enter Canada, or is or may become authorized to enter Canada.

•        When a foreign national presents himself or herself at the border seeking a study permit, the Canada Border Services Agency officer must satisfy themselves that the foreign national meets all the criteria for the student class (the criteria that would originally have been assessed to determine that a student visa could be issued to the foreign national).

•        Every foreign national entering Canada must establish that they hold the visa or other document required under the legislation and will leave Canada by the end of the period authorized for their stay.

•        Foreign nationals are inadmissible to Canada for misrepresenting or withholding material facts relating to relevant matters that induce or could induce an error in the administration of the Act.  [Footnotes omitted]

Even though we dealing with very particular regimes within immigration, it appears that knowledge around immigration is becoming more widespread. It is important that defense counsel similarly work closely with immigration lawyers when working on cases with an immigration component to ensure they match the resources Crown can often bring with their access to intergovernmental resources and knowledge.

Common Areas of Consultant Fraud

In this decision you get the ‘Rolls Royce’ of ways consultants advise their clients on study permit applications:

  1. Non-disclosure of representative – In this case, in the study permit questionnaire [page 5 – of the document which at the time may (or may not) have looked like this] was declared N/A. It is common for unauthorized consultants to ‘ghost’ a file in that they assist and prepare it without their name or address ever showing up on the file.
  2. Misleading address – A Canadian address was indicated for Calgary on the fraudulent letter of acceptance;
  3. Creating fraudulent documents/letter of acceptance – The fraudulent acceptance letter contained a student number that did not follow standards. We have seen similar issues with fraudulent photos and copy and paste graduation certificates;
  4. Lack of procedural transparency/expertise –  Mr. Singh wanted a work permit and indicated that he believed he would have trouble with the IELTS. He never knew he was going to the University of Waterloo (para 62)
  5. Submitting fraudulent documents to IRCC -Mr. Singh submitted a fraudulent IELTS exams and fraudulent bank statement;
  6. False promises – Even after the consultant Vicky indicated Mr. Singh was ineligible for a work permit, she recommended a study route to learn English (“ESL”) and then ‘get work permit’ (para 59). He then mentioned that ESL was part of the pathway to permanent residence and citizenship (para 60).
  7. Advising  on questionable travel plans – Mr. Singh was advised to fly to Calgary first (where the mailing address was purportedly indicated to be Calgary) to meet with Vicky.
  8. Getting rid of evidence – Vicky asked Mr. Singh for his password to his email account and started deleting emails.
  9. Undisclosed fee splits to third parties – while not directly stated, it is reasonable to assume that Gurjant was a benefactor – either through Vicky’s direct fee payment and/or through the schools he recommended Mr. Singh to attend;
  10. Asking a client to sign without reading – paragraph 92 is an all too common scenario and thread through common refusals.

Flag on File – Tracking Down Subject of Investigation

Many of us have seen IRCC’s efforts to track entries and exits. In this case, at paras 35-36, we see how this can work in practice in the summary of CBSA investigator Jolene Northfield. Having had difficult tracking Mr. Singh in July 2016, he came to CBSA’s attention 2017 thanks to a flag at the Windsor border. Mr. Singh’s Calgary address was obtained and supported the arrest warrant.

Wilful Blindness

Before I go into wilful blindness, there are a few things worth pointing to in the preceding section of the decision titled “credibility.

Judge Skene impugns Mr. Singh’s credibility with a couple lines including  the following:

[139]      I accept that Singh did not fully read his Application, including his supporting documentation, for a student visa and a study permit, although it would have been hard to miss the statements in English directly above each of his signatures.  I find this was an intentional act on his part.  He had no intention of reading it. 

[141]      He signed under the statement “I declare that I have answered all questions in this application fully and truthfully.”  Did he read that declaration?  I am uncertain.  As stated, it is hard to miss.  If he did, he made a material misrepresentation on his Application.  If he did not read what he was signing, in this part of his Application, or any of the other signature lines, that act and those acts were intentional – a deliberate choice.  

I cannot walk into the shoes of the defense counsel in this case in terms of whether they should have pursued a different strategy – one involving preparing Mr. Singh in order to have him understand the mistakes he made and how he had been led into making these various mistakes. It is clear that the lack of sympathy the judge had towards Mr. Singh’s position of blaming the consultant and blaming the visa office for processing his visa did not win over sympathy or create reasonable doubt.

I do feel sympathetic for the manner in which Mr. Singh assumed the ghost consultants who represented him knew what they were doing were licensed. The process of figuring out is licensed is not easy, word of mouth referrals often accepted without background checks, and representatives (including the ghost consultants here) do not often do a good job of telling clients what it is they are actually signing and/or to review carefully materials before signing. Students, especially those eager to leave their situations for Canada at a younger age, have the tendency to be impatient.

For me this is a classic case of s.40 IRPA misrepresentation but to convict him also of the criminal provision s.128 IRPA seems heavy handed.

That being said, the wilful blindness sections of the decision from paragraphs 147 – 161 are an important read. It highlights the vulnerability students face but that those factors of vulnerability (lack of knowledge, dissociation, willingness to follow instructions) can be the very foundation of fraud and contribute to their own roles of perpetrators. Clients (and for students, especially their families) should be asking many questions along the way of those who purport to help them and pose difficult questions. Obeying or Acquiescing to instructions without any active efforts to challenge or clarify those instructions can lead to a judge impugning motives, intent, and wilful blindness. There is also a major benefit to documenting questions to your representatives or to those assisting you by email to clearly demonstrate your actions through your own paper trail.

Exposing a Major Policy Gap – Ease By Which Study Permits Allow Students to Change Institutions

In paragraph 106 of the decision, a major policy gap in Canada’s international study permit is exposed and pointed to by Mr. Singh to the Court. In his testimony Mr. Singh states:

“Vicky consultant told me you are coming here on study permit, you can go anywhere to study.”

Currently, there are no rules, regulations, or policy directives which limit or dissuade students from switching universities. In fact, many schools (especially privates) have continued to operate under a seat sale process where the offering of more letters of acceptance increases the chance of converting an enrollment. Indeed, one of the reason more letters of acceptance need to be issued is with the understanding that students are likely obtaining other letters of acceptance which they may (or may not) accept.

On the flipside, many students are being coached (as it appears Mr. Singh was here) that once you obtain one letter of acceptance a student is free to ‘change their institutions.’ In other cases, after a student enters Canada on a study permit they have been advised that they are able to switch to a work permit quite easily. While they attend classes, a consultant is busy securing them a labour market impact assessment. Not only is this application difficult (for someone who has limited work experience and is still a student), but the positions that the work is organized for almost never actually assists a student in obtaining permanent residence. Most are low-skilled food service/hospitality positions that have the actual effect of culling any academic progress the student may have wanted (or ultimately needed) to pursue.

IRCC needs to step in by creating some sort of compliance process before a student is automatically allowed to switch programs. While I understand the flexibility of issuing study permits that are not tied directly to a college or university, I do believe there needs to be more than an administrative ‘update’ to IRCC after the change and that changing primary institutions (with exceptions for cases where students cannot register because a program is full, for example, or unable to offer their required courses) should be an exceptional circumstance. Furthermore, I am a big proponent of centralizing Letters of Acceptance for international students so that they have some sort of unique identifier and cannot be simply recreated and copied.

There may be some benefit to looking into the Australia model on this particular point and their rules around this.

Anti-Fraud Initiatives

IRCC has since the decision was rendered in February 2019, introduced a new campaign in India to try and curb the use of unregulated consultants.

Unfortunately, heartbreaking stories of immigration fraud too numerous to document in one short blog post. The takeaway from Singh is that there’s not too much stopping the pursuit of the students for whom fraudulent study permit applications may be submitted for as a manner of future deterrence.

Take Away

Schools – private, public, PGWP eligible or not – need to take a hard and deep look at their practices in engaging agents. Regardless of who they have a contract with (could be someone like Gurjant), students are contacting friends and family for word of mouth advice. The process isn’t always clear and that is where schools (and their advisors) ultimately have an important role to play providing basic straight forward instructions so that student have somewhere other than their neighbourhood agent to get advice from.

I think IRCC can also take major steps to make their website much more intuitive and use click down menus to better organize the content. I have been reviewing website content in light of a talk and as someone who spends way too much time on the internet and searching for information, IRCC’s website is not among the best organized. Again, Australia has a lot to offer us in this regards.

I will be presenting this case (along with several other immigration-related cases on the 30th at a session I am facilitating called Taking Stock of International Student Regulations in Canada on July 30th and August 20th. I look forward to seeing everyone there.

The Final Regs for TFW Vulnerable Work Permits = Good, But a Lot Rests on Implementation/Anti-Fraud

Today, via Part II of the Canada Gazette, the Government released the final regulatory amendments for an open work permit regime for vulnerable temporary foreign workers experiencing abuse as defined by R. 196.2 of the Regulations. See link here: http://www.gazette.gc.ca/rp-pr/p2/2019/2019-05-29/html/sor-dors148-eng.html

The changes, which come into effect 4 June 2019, create an effective national regime. The regulatory changes themselves are quite simple.

Regulations Amending the Immigration and Refugee Protection Regulations

Amendments

1 (1) Subparagraph 200(1)(c)(ii) of the Immigration and Refugee Protection Regulations footnote 1 is replaced by the following:

  • (ii) intends to perform work described in section 204 or 205 but does not have an offer of employment to perform that work or is described in section 207 or 207.1 but does not have an offer of employment,

(2) Section 200 of the Regulations is amended by adding the following after subsection (3):

Non-application of paragraph (3)(e)

(3.1) Paragraph (3)(e) does not apply to a foreign national referred to in subsection 207.1(1) who engaged in unauthorized work in Canada or failed to comply with a condition of a previous permit or authorization.

2 The Regulations are amended by adding the following after section 207:

Vulnerable workers

207.1 (1) A work permit may be issued under section 200 to a foreign national in Canada if there are reasonable grounds to believe that the foreign national is experiencing or is at risk of experiencing abuse in the context of their employment in Canada and if they

  • (a) hold a work permit issued under subparagraph 200(1)(c)(ii.1) or (iii); or
  • (b) previously held a work permit issued under subparagraph 200(1)(c)(ii.1) or (iii), have applied for a renewal of that permit under subsection 201(1) and are authorized to work in Canada under paragraph 186(u).

Family member of vulnerable worker

(2) A work permit may be issued under section 200 to a foreign national in Canada who is a family member of a person described in paragraph (1)(a) or (b).

3 Subsection 299(2) of the Regulations is amended by striking out “and” at the end of paragraph (j), by adding “and” at the end of paragraph (k) and by adding the following after paragraph (k):

  • (l) a person described in section 207.1.

Coming into Force

4 These Regulations come into force at 00:00:01 a.m. Eastern daylight time, June 4, 2019, but if they are registered after that time, they come into force at 00:00:01 a.m. Eastern daylight time on the day after the day on which they are registered.

It interesting to note though that the changes amend R. 200 but don’t directly reference R. 199 which creates some interpretative questions/challenges. While I think in practice, a broad interpretation of R. 199 could still support in-Canada processing under R.199(a), (b), family members under (e) and (f) if R.207.1 was read in, I agree with a Twitter commentator who noted several amendments and wording issues could create uncertainties.

Here are some thoughts I provided on Twitter:

Three Good Changes Emanating From the Regulatory Amendments

1. Providing Recourse to the Six-Month Bar to these Workers – Allowing individuals who may have violated previous work permit conditions or unauthorized work to still access a work permit under R.200(3.1). This would likely forgive 3(e) unauthorized work which may arise from where unauthorized work is necessary as a result of an abusive employer.

2.  Program Delivery Instructions Fluidity/Consultation Process – recognizing the need for strong Program Delivery Instructions and fluidity. I think this came out of a very effective consultation. process.  Full disclosure – I was in attendance for the Vancouver consultation (on behalf of a sex worker organization I assist) and also contributed my thoughts/notes to those drafting the Canadian Bar Association’s position which Deanna, from McRae Law, did a fantastic job on.

3.  Processing Times and Duration of Work Permit – Near the end, there is a discussion of five business day processing standards in 80% of the case. There is also some discussion earlier about the importance of case-by-case discretion. There seems to be acknowledgement that ESDC and LMIA-processing times are heavily intertwined. Cross-departmental coordination to encourage a reduction in processing times (which the LMIA processing moving online as it is expected to do) will play a big part of.

My Major Concern – Program Misuse

One of the concerns I possibly see is in coming up with an effective mitigation strategy against program misuse is that the problem may go deeper than limiting false claims to use this program inappropriately.

While I appreciate the multiple language access (especially for those who self-represented), I think we under-estimate two important factors:

1) Literacy of Those Who Will Likely Fall Under the Policy

  • Just because instructions are available in many languages that applicants may speak – it does not mean those individuals will interact with them.
  • In fact, when these materials are available in different languages this can also encourage more peddling of this information by community consultants and other individuals who this type of work.
  • This won’t be an easy PDI to put into English let alone other languages. There will be discretion. There will be cultural nuances to navigate as well.
  • We have to remember as well that many individuals who work in the SWAP program or in positions such as cleaners and attendants can often lack high school education or literacy to read through the length of a documentation that will be required to breakdown the definition of abuse into various related real-life, and relatable scenarios.

2) Pathways to Abuse – the International Student Parallel

  • One of the challenges I foresee is that the abuse may legitimately occur in Canada but that the roots of the abuse could be overseas through unlicensed agents and ghost consultants.
  • We saw and/or are seeing this with international students with respect to their humanitarian and compassionate grounds or refugee claims. Many of these claims cannot be said to be fraudulent and/or even without basis but were created when the individual first received a letter of acceptance to a college/university they did not know and were not prepared to necessarily attend.
  •  I do see lawyers, consultants, and community organizations legitimately using this application to try and ameliorative exploitative situations. There will be threshold issues. However, what this does not stop is the trend of bringing in individuals by third-parties who know/or are wilfully blind to the fact that exploitation or deception will happen. Agents are actively working to set up students into schools and employees into employers knowing that students will leave for LMIA-based jobs or that that the LMIA conditions will not be met. These potential workers can either be not aware of this, aware of this, or even strategizing their pathway to Canada around this. In short, there’s nothing to stop an unscrupulous agent abroad from utilizing the Vulnerable Open Worker Permit as a safety net (which it is clear from the RIAS this is not supposed to be).
  • In order to make sure this is done properly, I don’t think you can create a safety valve without controlling the front end floodplains. I worry about this being another part of the pathway to PR that it is truly not meant to be.

I am working with several community organizations/non-profits and organizing around this from a public service perspective. The LMIA process (which requires an Employer to pay for the processing fees and not reduce the costs of the processes from an Employee’s wages) can create major conflicts when both employer and employee want to go forward but cannot financially support the process. It is still very likely that several vulnerable workers will still be forced between the decision as to whether to stay in Canada (via a humanitarian and compassionate grounds and/or refugee claim) or whether to leave.

Keep me posted as this program moves forward.

Would love to engage with you and/or your orgs on this.

 

What Recent IRCC Program Delivery Updates Tell Us About the Direction of International Student Regulations in Canada

Much of Canadian Immigration Law and Regulation around international students in Canada is given life through program delivery instructions that set out the relevant policies. I have explored in recent blogs how posted policies can conflict with the operation of the law under IRPR and IRPA, which often constrain the efficacy of changing law.

I have written blogs about the 7 January 2019 change to assessing the ‘actively-pursuing studies’ requirement and the 14 February 2019 changes to processing instructions for the Post-Graduation Work Permit Program.

Since then there have been several other new program delivery updates that affect international students:

1. Co-op work permit – 7 March 2019 – https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/updates/2019-co-op-permit.html 

Co-op work permits previously came with acondition (condition 21) that holders were ‘not authorized to work for any employer other than stated.’

The problem with this previous condition was that it created confusion among employers who did not see their name on the permit and as well created confusion as many co-op programs required multiple employers.

This is a welcome clarification that assists students and their co-op employers alike.

2. Co-op work permit clarification – 1 April 2019 https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/updates/2019-co-op-permit.html

In a follow-up clarification, IRCC then posted new instructions on a page titled Work related to a research, educational or training exemption code C31, C32 and C33 (International Mobility Program)

One of the unique elements of this new page is that under a subheading titled Post-secondary co-op – exemption code C32 eligibility, updated instructions are provided to clarify conditions to be entered by the officers in Canada on GCMS when issuing the work permit.

In addition to the requirement of leaving Canada (condition 18), it is interesting that condition 26 – again going to blanket ban on foreign workers engaging in employment in businesses related to the sex trade, such as strip clubs, massage parlours, and escort services” is re-emphasized as a condition. I am working some potential litigation involving individuals who are not employed (i.e. self-employed) in these areas in order to support themselves and their studies financially and would love to speak to anybody subject to enforcement on this basis.

The rest of the focus on these conditions is on designated and non-designated countries (i.e. those countries where you have lived or traveled in the past six-months). The conditions on the work permit will be different depending on both of them, with an additional condition of ‘not authorized to work in agricultural occupations’ (condition 16) added to those individuals from designated countries.

Hidden in a bit in the last point, IRCC also wants to ensure that the duration of the co-op work permit and study permit should be the same. It was in the past not uncommon for students to have a co-op work permit valid for several months after their study permits expired, creating confusion as to whether those permits authorized continuing work in Canada.

3. Post-graduation work permit length for 2 combined programs – 5 April 2019 – https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/updates/2019-post-grad-length.html  

While the posted changes affect Quebec vocational programs with a diploma of college studies (DCS) and an attestation of college studies (ACS), it is important to read this particular page carefully as it provides important information about the length of a post-graduate work permit vis-a-vis the program.

There are a few takeaways of note:

[1] The letters written by DLIs become very important especially around the issue of accelerated studies and to clearly lay out that the students completed the program in accelerated. Failure to do so can lead to shorter post-graduate work permits. These issues are resolvable through applications to extend and amend but could create new graduates uncertainties and hardship in the interim.

[2] IRCC has appeared to give a blanket rejection to laddering programs.

Prior to these these clarifications (implemented in February 2019, I believe with the new changes), a common practice was for private colleges who were not PGWP-eligible to partner up with programs that were to sign matriculation agreements. IRCC was previously giving credence to the length of the combined programs these schools. Meaning that a 1-year ineligible program combined with a 1-year eligible program (in which the individual received the equivalent to a 2-year diploma), did in many cases result in a 3-year post-graduate work permit. This door appears to be closed with the clarified instructions.

4. Study permits: Making an Application – 11 April 2019  and 5. Validity periods and acceptance letters for study permit – 16 April 2019 –

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/updates/2019-validity-letters-study-permits.html

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/updates/2019-study-permit-application.html

There is a lot packed into this update and I think it deserves it own article frankly.

I’ve posted a series of tweets to highlight some points I looked at. I will try and do a deeper analysis later – especially on new interpretation of R. 215 IRPR and studies which opens up a slew of opportunities for applicants in various situations.

I also did a series of tweets previously on this topic, but the validity period information was also amended to clarify that Officers should be entering the study permit expiry date as the date of expiry of the study or the applicant’s passport, whichever occurs first.

Reading this in conjecture with the Study permits: Final decisions page, there seems to be a little confusion as to how to reconcile program completion with validity period.

The appropriate step, from my perspective, is to ensure that the expiry of the study permit should still be 90 days after the end of the program of study. This will ensure that the expiry of that study permit will be consistent with the statutory expiry date under R. 222(1) IRPR. If the study permit is given a shorter expiry date (program of study end date), students will have to file an extension that creates more administrative work for studies they may have already completed. Most students will need to have a valid a study permit to both take advantage of the ability to apply inside Canada (R.215 IRPR) and to work according to R.186(w) IPRR prior to a decision made on their PGWP. The instructions are not currently written in the clearest form for Officers to interpret.

Several institutions, understandably to try and protect their students from running into study permit expiry issues, recommended putting a date that was after the actual completion date in study permit forms – meaning students often received study permits that were 120-180 days after the completion of studies. This should put an end to this practice.

With IRCC now clarifying that study permits expire 90 days after completion of studies but also clarifying that they will need to re-engage in studies within 150 days of completion, we will see an important extension window in those 60 days for students to get back into school if they are not eligible for PGWPs or are refused PGWPs and unable to restore their status. I am clarifying how restorations will work under this new regime and will update that in a future blog!

Takeaways

What you are seeing now is the Government really tinkering with the details (the grey areas) that previously left students and institutions unclear when advising on work and study. In most of these areas, we have seen a shift towards flexibility and giving students and officers more specific instructions, especially on timing.

I do believe that we will continue to see issues with students transitioning between studies and to post-graduate work permits in this interim period – as these timing issues are not always perfect.

I also do predict that there will be a period of time where institutions, and then to their students (through relevant channels such as student presentations, consultants, agents, etc.) will need to disseminate these new rules changes to their students. I would suggest seeking professional help from lawyers and consultants and coming up with a comprehensive strategy for this process.

 

Why the 180-Day Post-Graduate Work Permit Application Period Will Create Problems for IRCC/Applicants

In past pieces I have lauded IRCC’s extension of 180 days for students to apply for post-graduate work permits. From a policy perspective, I believe it gives students more time to find a job and prepare a decent application rather than to have to rush and base such an application off an expiring study permit that may or may not be easy to extend based on an institution.

IRCC’s new rules are that the study permit must have been valid sometime within the past 180 days but do not need to be valid at the time of application. I also wrote about how the lapse of a study permit automatically 90 days after completion of studies may also complicate the policy switch and require some sort of extension regardless.

What I didn’t realize at the time, but only did with some more reading and cross-referencing is that some of the policy likely does not work in theory with respect to the regulatory provisions of the Immigration and Refugee Protection Regulations which hold power of law.

Let’s start with the issue of what a student whose study permit is expiring (either naturally or on the basis of the 90 days) who wants to stay in Canada needs to do and how that affects their post-graduate work permit (“PGWP”) eligibility.

For those who switch to visitors in Canada, that means that their PGWPs should not (technically) be processed inside Canada unless they are accompanying a family member which permits them to make an application after entry under R.199 of IRPR.

Application after entry

 A foreign national may apply for a work permit after entering Canada if they

  • (a) hold a work permit;

  • (b) are working in Canada under the authority of section 186 and are not a business visitor within the meaning of section 187; – They don’t meet this subject to my analysis below on a possible loophole created.

  • (c) hold a study permit; – this is expired

  • (d) hold a temporary resident permit issued under subsection 24(1) of the Act that is valid for at least six months;

  • (e) are a family member of a person described in any of paragraphs (a) to (d); – this depends on family members

  • (f) are in a situation described in section 206 or 207;

  • (g) applied for a work permit before entering Canada and the application was approved in writing but they have not been issued the permit;

  • (h) are applying as a trader or investor, intra-company transferee or professional, as described in Section B, C or D of Annex 1603 of the Agreement, within the meaning of subsection 2(1) of the North American Free Trade Agreement Implementation Act, and their country of citizenship — being a country party to that Agreement — grants to Canadian citizens who submit a similar application within that country treatment equivalent to that accorded by Canada to citizens of that country who submit an application within Canada, including treatment in respect of an authorization for multiple entries based on a single application; or

  • (i) hold a written statement from the Department of Foreign Affairs and International Trade stating that it has no objection to the foreign national working at a foreign mission in Canada.

(emphasis added – comments in underline)

The student whose study permit is expired without a family member to boot has no regulatory authority for their PGWP to be processed in Canada unless they utilize an exemption.

Moving on….

Adding to these challenges is the interplay between R. 186(w) which is the provision that allows a former student to work in Canada while awaiting their post-graduate work permit creates major timing issues.

No permit required

 A foreign national may work in Canada without a work permit

…..

(w) if they are or were the holder of a study permit who has completed their program of study and

  • (i) they met the requirements set out in paragraph (v), and

  • (ii) they applied for a work permit before the expiry of that study permit and a decision has not yet been made in respect of their application; or

(emphasis added in underline and bold)

In short, if I am not mistaken (and correct me if I am wrong) – a student who has let their study permit expire (90 days after completion of studies) and is applying within 180-days after graduation is under IRPR at least, in a situation where they have to make an outside Canada application.

Even more contradictory, they cannot work after they submit their PGWP application because they no longer meet the requirements of 186(w)(ii) as their PGWP application is coming after the expiry of their study permit.

Unless…..

My third point. A loophole emerges where it actually makes logical sense for a student who wants to take advantage of the whole 180-days they have to submit their post-graduate work permit to submit another paper-based application (which may be without merits – such as a Significant Benefits WP or frankly any WP application such as an accompanying spouse of a student) that would then authorize them to work until R. 186(w)(ii) until a decision is  made.

In short, it is my reading that these helpful policy changes (with good intention) will require regulatory amendment (in addition to just policy) and there may be some individuals caught in the middle of this crossfire of law and policy. Hopefully those regulatory amendments will capture that.

I will have to wait for the Gazette for those instructions.

Immigration law is fun isn’t it?