Category Archives: Canadian Immigration Law Blog

Complex Immigration Scheme or Applicant in Impossible Position ?

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Complex Immigration Scheme

Particularly in cases where a bad faith relationship pursuant to r.4 of the Immigration and Refugee Protection Regulations is being alleged, Minister’s counsel may begin on a process of what I call “scheme formulating.” A process by which they will theorize the primary purpose of immigration as an elaborate scheme.

First of all let me say flat out, I hate fake relationship schemes. As an immigration lawyer and someone who wishes to lawfully sponsor my genuine spouse down the road, nothing sickens me more than a fake sponsorship scheme. There are tons of companies out there that for a few hundred bucks can cook up a way to get someone into Canada – fake refugee claim, fake sponsorship. These individuals are the reason scrutiny is that much heavier on genuine applicants.

Because of the knowledge of these schemes, inevitably some individuals with genuine sponsorships have their relationship labelled schemes.  Particularly at the Immigration Appeal Division (“IAD”), the schemes end up making up a large part of the written decision.

Placing the Applicant in an Impossible Situation

How is an application put in an impossible situation?

In Sandhu v. Canada (Minister of Citizenship and Immigration) 2014 FC 1061 Justice Montigny sets out as follows (emphasis added):

[29]           It appears from a careful reading of the decision that the Board member was prone to speculation and disregarded significant portions of the evidence. For example, the Board member found that because the Applicant’s husband knew details about her life, including her address, that he “either memorized or read out the address of the applicant with its postal code in order to try to show he is knowledgeable” about her. Not only is this mere speculation, but it also puts the Applicant in an impossible situation: as was the case in Paulino v Canada (Minister of Citizenship and Immigration), 2010 FC 542 (CanLII), “[a] detail … that might support the genuineness of the relationship is turned around to support a negative finding because it is likely integral to a complex scheme of fabrication” (at para 58).

In Sandhu, the IAD decision both the stated knowledge of the Applicant about the Sponsor as well as an Affidavit from the Applicant nothing that an “uncle” was a family friend (the Board Member concluded was her ex-husband) were disregarded.

In Paulino v. Canada, cited in the Sandhu decision, provisions were made by the Applicant to support the Appellant’s son. The IAD member found that these provisions were part of a scheme.  At the Federal Court, Justice Russell, in allowing the judicial review, wrote (emphasis added):

[57]           For example, in paragraph 32 of the Decision, the Officer refers to different information which the couple gave “about the cause of the dissolution of the Appellant’s first marriage.” The Applicant has referred to a mental disorder and Mimi had referred to jealousy over the material possessions of neighbours and frequent arguments. There is nothing inherently incompatible about these explanations. Someone with a mental disorder can be jealous and initiate arguments. The Officer then goes on to speculate about the Applicant’s relationship with his ex-wife and mentions that he has made provisions for Mimi’s son. All of this is then subsumed by a general finding that whatever the couple says is all part of a general scheme of fabrication:

There is evidence that he has made provisions even now for the Applicant’s son. However, this is likely integral to the complex scheme the Appellant’s (sic) has fabricated; if he is to be believed, the full extent of which was not known to the Applicant. The panel finds that the couple’s shared knowledge, especially in the personal aspect of their lives, are not reflective of what one reasonably expects to be shared by a couple in a genuine relationship, who avers to be head-over-heel (sic) in love with one another.

[58]           Based on the Officer’s approach, it is clear that the couple cannot win. A detail (here the provision that the Applicant has made for Mimi’s son) that might support the genuineness of the relationship is turned around to support a negative finding because it is likely integral to a complex scheme of fabrication. All of their supporting documentation, and even positive factors, are left out of account because they are, according to the Officer, part of a general scheme of fabrication. The Officer says that “their answer about their mutual feelings for one other and their plans are vague: nothing is specific.” Yet there was considerable documentary evidence before the Officer, some of it pre-dating the visitor visa application, that spontaneously reveals the couple’s mutual regard and love for each other. All of this evidence is discounted.

The following are several possible examples I have seen in addition to the two above cases:

  • Appellant opens a joint bank account for Applicant (Canadian spouse) – Shows financial interdependence, but can be construed as a credibility concern because shows financial scheme -;
  • Appellant provides financial support to Applicant (Canadian Spouse) – Sign of financial interdependence, but can be construed of evidence of ‘buying way into Canada’.
  • Appellant has a child with Applicant (Canadian spouse) – Shows purpose of relationship and love, but can be construed as “tool” for immigration;
  • Appellant states that they have no immigration purpose to be with Applicant (Canadian spouse) but lack of immigration purpose taken as negative credibility finding because “no other reason appears to exists” – Appellant being honest about purpose should be a positive factor, but honesty treated as dishonesty and grounds for negative credibility finding;

Some of these situations have not yet ruled on by the Courts but I strongly believe they fit the mold (assuming the finding contributed to the the unreasonableness of the overall decision and tainted the overall reasoning).

Challenges with the Argument

I think there are certain issues that will challenge the ability to rely on this decision as a blanket. First and foremost, the “reasonableness standard” still provides that the tribunal-member has discretionary jurisdiction to decide questions of fact. Decisions also generally will not be overturned on one or two unreasonable factual aspects if the decision as a whole is still reasonable. I believe that the difficulty will be in Counsel showing that the one interpretation of a positive primary purpose element as a negative primary purpose element had the effect of leading to the discounting of additional evidence which led to the negative finding.

Conclusion

Every negative credibility finding and negative primary purpose element should be carefully viewed in context. Is that element strictly a negative factor? Can it possibly be a possible factor construed to place the Applicant in a positive situation? It may be a difficult argument to establish (given only a few judicial precedents), but it is one that becomes increasingly important as marriages, relationships, and the ‘bad faith’ scrutiny gets stricter and more complex.

As a post-script, we used this argument in the above example involving bank accounts in recent Judicial Review and were successful. The decision was a brief one and it was only one of many factors the Judge considered, but we arguably ‘won’ on this issue. It has some legs for sure.

 

 

Opinion: Gentle Recommendation Not Firm Laws Should Guide the Citizenship Oath/Niqab debate

Niqab

Introduction and Background

The debate between the place of niqabs in Canadian Citizenship ceremonies is a complicated one.

Well-reasoned arguments have been put forth by both sides, some like Omar Aziz who pointed out in his piece that while a woman’s freedom to dress as she wishes must be protected, the niqab itself challenges our foundations of liberal democracy in Canada. Gerald Kaplan, in his piece admits that he was first put off by the niqab but that having met several Muslim women (many of whom proudly wore the niqab), he changed his views and believed that both the infringement of a woman’s right to choose how to dress and the making of the niqab a political issue was not appropriate.

Just recently, through a last-minute Bill introduced into the House of Commons prior to its pre-election summer recess, Minister of Multiculturalism and State Tim Uppal, has solidified that the Government’s position that the niqab must not be worn at a Citizenship ceremony. Bill C-75, or the Oath of Citizenship Act, would make it a requirement for all individuals to have their face uncovered and be seen and heard taking the Oath of Citizenship.  This comes in light of another recent development, which saw Tim Uppal support his fellow MP Lisa Raitt in a decision to waive a new CATSA requirement for individual who wear headgear (i.e turbans) to have them inspected during secondary screening.

What is very interesting about Bill C-75 is that it comes at a time where it has no possibility of being passed into law prior to the election in the Fall. It also comes at a time where the Federal Court of Appeal has yet to decide on the Federal Government’s appeal of the ruling of Justice Boswell of the Federal Court of Canada in Ishaq v. Canada (Minister of Citizenship and Immigration) 2015 FC 156.

In Ishaq, the Applicant filed a Judicial Review for declaratory relief of the requirement that she reveal her face during the Citizenship oath. She had completed all of her other obligations, and had even revealed her face prior in order for her identity to be confirmed. At the time there was both an Operational Bulletin and Manual which required as a  matter of policy that an individual visibly reveal his or her identity during the oath. Justice Boswell found that this policy was unlawful both in light of the Citizenship Act and Regulations which required only that the oath be sworn and that a signature be signed and contained no language regarding visual identification. Justice Boswell did not, however, tackle the Charter issues raised and decided it was sufficient to find the policy unlawful.

Bill C-75 thus represents the Government’s steps to address many of Justice Boswell’s concerns regarding the pre-existing policy. As discussed the Federal Government’s appeal in the case is still in process.

My Perspective

I think the main challenge we are having with this debate is that the harm principle (as set out by famous utilitarian political thinker John Stuart Mills) appears to split us two different ways. The harm principle although not enunciated word for word within our legal texts find its way into our case law and into our legal tests (such as the Oakes Test to determine whether it is acceptable to uphold a Charter violation).

In one sense,  the niqab represents to many Canadians (what the Government has stated is a majority of Canadians) something they culturally disagree with as un-Canadian – i.e. it doesn’t make us happy and doesn’t bring us utility. They see the niqab as a symbol of misogyny, of a religious/societal modus where women are not recognized on equal footing and where men subject to patriarchally-created rules. For the record, I do not conform to this over-simplified belief and know both individuals who wear the niqab and the hijab out of free will and as part of their complex, strong identities.

Moving to Mills’s second tenant of the principle, the niqab does not apply in the traditional harm principle sense as it does not create any harm to the freedom of any individual or the operation of the state.  Ironically, wearing headgear through security is an issue that does possibly trigger the harm principle. The harm principle arguably came through and was applied in the 2009 case of Alberta v. Hutterian Brethren of Wilson Colony  2009 SCC 37 where a religious group argued its religious inability to appear in photographs exempted them from the requirement to take photo license pictures. The Province argued that highway safety and licensing problems were created for the Province and that it was a demonstrable legal concern. Within the Citizenship context is hard to say that the security of other individuals or the state is compromised. There is no harm to either fellow oath takers, the judge or the audience if an individual with a niqab does not show their face. The physical identity is revealed and confirmed in several steps prior to the actual oath taking. There are minimally impairing options that would allow an oath taker to reveal their identity right before in a private setting or through biometric technology.

On this point, I think the harm principle is not challengeable. It is difficult to buy an argument from the Federal Government that public safety is harmed by not confirming the individual’s identity at that exact moment they swear the oath. I don’t think anybody can put forth a strong argument that the niqab harms anyone’s freedoms other than the perceived “western-sensibilities” of Canadians.

The argument that the niqab harms the “liberal democracy of Canada” is also a little far-fetched (with respect to Omar Aziz’s argument). While the principles of democracy may have been formed in Ancient Greece through face-to-face talking circles of aristocratic white males, and arguably developed in Canada and North America by similar artistocratic white men in face-toface meetings, democracy does need to be spoken or expressed face to face. This is even more true in today’s diverse North American society. Individuals with disabilities, individuals from different religious backgrounds, from different countries of origin, can all participate in our democracy simply by wearing what they want, living where they want, and supporting politically whom they want. They don’t need to tell anybody or say anything, and importantly show their face and reveal their identities. Even the act of voting, once registered by name, is inherently private. If our only justification for the niqab requirement is anchoring on tradition, arguably we should be celebrating Citizenship ceremonies with Aboriginal traditions, dance, and drumming (by the way, which unrelated we should start doing).

What about the utility argument? What makes a majority of Canadians happy. The defense for the niqab-ban is that a majority of Canadians are supportive of this policy (in a sense, that it makes a majority Canadian’s “happy.”) This makes sense in the context of most decisions we have the unique democratic to vote on. We get to vote for elected officials, for transit reform, for support of certain policies. We vote for the individuals who bring us some utility.

However, there are two problems with this line of thinking. We don’t vote, and we shouldn’t vote, on issues that threaten to take away from the fundamental human rights of other individuals. This includes the Charter right of religion. Along this line of reasoning, the Government’s logic could be extended to things such as same-sex marriages. The Government could come out with a policy that banned same-sex individuals from taking the Oath simply because a majority of Canadians support it (which thankfully, which most Canadians no longer do). We cannot allow legal decisions to be made on the normative feelings of the tyranny of the majority and without a sufficient legal basis (which the Federal Court has yet to find in support of the policy).

Second, if this was indeed an issue where a “majority of Canadians” do not support the niqab, we need to ask ourselves where the statistical proof is coming from. Without any sort of reliable, independent census, we cannot rely on scattered polls of 1,000 individuals. Most immigrant families I know do not even bother or risk answering any of these questions by phone. I do not for one minute think that a small survey sample (regardless of whatever mathematical formula is used) can suddenly represent all Canadians. However, this same justification is being used time and time again to support new legislative change in immigration.

We are also forgetting, in all this debate (and that the Federal Court alluded to in Ishaq), that the Citizenship Oath itself is a celebration of the transition of an individual from one Country to another and many feel proud of being able to maintain both religious and cultural traditions. Individuals can choose to swear to the Queen of England upon any religious book of their choice, including the Quran. It is indeed a beautiful hybrid of our British tradition and our multiculturalism openness, one I hope is maintained (plus a little more Aboriginal perspective).

What I Think Should Be Done – Set Non-Binding Recommendations. A Woman’s Right to Clothing Preference is Not a Legal Debate.

Laws are different than policy. That was made clear in Ishaq. Policies are problematic when they are attempted to be enforced as laws or defended by institutions as the only way or traditional way things operate. Recommendations serve a different function. They seek to recommend that certain things are not done but that the ultimate “right” lies with the individual to choose or not to choose to follow the guideline. Recommendations may suggest normative guidelines (you should wear clothes that allow you to show your face) but do not ultimately impose normative laws. There are no consequences to an individual who does not follow a recommendation.

A recommendation could be made and disseminated as follows: “Applicants are recommended to wear to the Citizenship Oath, clothing that allows individuals and the Judge present at the Oath to visibly see them and to celebrate the important event alongside them. Individuals are permitted to wear religious clothing and are encouraged to do so in a way that is respectful to themselves and the other new Canadians who are in attendance.”

This recommendation achieves several goals. It suggests, without specifically pointing out a specific article of clothing, that what should be worn should be done so respectfully with an eye to those in attendance. It strengthens our resolve as a country that recognizes cultural differences. It shows respect to those who may feel “offended” by certain outrageous pieces of clothes without any justification (a bikini for example or some sort of gang-related clothing). Ultimately it provides the oath taker freedom to choose what to wear without legal restriction: a fundamental right of today’s liberal democracy.

We are not and cannot all be scholars of Muslim history. Even within Muslim circles, there is debate over the niqab. There is social debate between Muslims over whether wearing a niqab is a symbol of strength or weakness and arguably it is different for every Muslim. The Federal Government appears to have polarized Muslims as either “respectable normal muslims” or “jihadi terrorism”, a dichotomy that does not exist and I argue is very hurtful to believers of the religion.

Make no mistake, the religion and many of its religiously-dominated and ruled societies aren’t perfect, but I put forth none is. Canadian society itself is far from perfect. However, for me a step towards a perfect Canada is one where we allow individuals to make decisions for themselves, gently prod but never push individuals to make decisions about their Canadian identity. Recommend that individuals reveal their faces during the Citizenship Oath and allow them the right to choose whether they wish to do so.

Counsel’s Increased Liability under the new Citizenship Act/Regulations

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Many of you have may have noticed that I have been quite active in writing about the recently in-force Strengthening Canadian Citizenship Act [“SCCA”] and how it may affect Applicants. Earlier this week, I wrote this piece for New Canadian Media where I looked at good, bad, and ugly provisions of the SCCA and ultimately concluded that it’s contradictory effect on immigration policy may be more harmful than the provisions themselves.

I’ve also been looking at how the SCCA may affect the work of Counsel (which I will use interchangeably with the term Authorized Representatives) for Citizenship Applicants. In my forthcoming article in the Citizenship and Immigration Law Bulletin for Thomson-Reuters, I present a case that Counsel may be drawn into greater responsibility for tax law issues now that Social Insurance Number-sharing provisions have been introduced into the Citizenship Regulations.

In this piece, I want to look briefly at another issue which may affect Authorized Representatives as a result of the changes to the Citizenship Act and Regulations, the issue of ethical and professional liability and regulations that now allow for disclosure of wrongdoings from CIC to the regulatory body.

The Changes

As a result of amendments via the SCCA, The Citizenship Act now provides that it is illegal for an individual who is not designated as an authorized representative. to represent a Citizenship Applicant for consideration, whether this advice is direct or indirect.

18. The Act is amended by adding the following after section 21:
18. La même loi est modifiée par adjonction, après l’article 21, de ce qui suit :
Representation or advice for consideration
21.1 (1) Every person commits an offence who knowingly, directly or indirectly, represents or advises a person for consideration — or offers to do so — in connection with a proceeding or application under this Act.
21.1 (1) Commet une infraction quiconque sciemment, de façon directe ou indirecte, représente ou conseille une personne, moyennant rétribution, relativement à une demande ou à une instance prévue par la présente loi, ou offre de le faire.
Représentation ou conseil moyennant rétribution
Persons who may represent or advise
(2) Subsection (1) does not apply to
(a) a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec;
(b) any other member in good standing of a law society of a province; or
(c) a member in good standing of a body designated under subsection (5).
(2) Le paragraphe (1) ne s’applique pas aux personnes suivantes :
Personnes pouvant représenter ou conseiller
a) les avocats qui sont membres en règle du barreau d’une province et les notaires qui sont membres en règle de la Chambre des notaires du Québec;
b) les autres membres en règle du barreau d’une province;
c) les membres en règle d’un organisme désigné en vertu du paragraphe (5).
Students-at-law
(3) Subsection (1) does not apply to a student-at-law who offers or provides representation or advice to a person if the student-at-law is acting under the supervision of a person described in paragraph (2)(a) who is representing or advising the person — or offering to do so — in connection with a proceeding or application under this Act.
(3) Il ne s’applique pas non plus au stagiaire en droit qui représente ou conseille une personne, ou qui offre de le faire, s’il agit sous la supervision d’une personne visée à l’alinéa (2)a) qui représente ou conseille une personne, ou qui offre de le faire, relativement à une demande ou à une instance prévue par la présente loi.
Stagiaires en droit
Agreement or arrangement with Her Majesty
(4) Subsection (1) does not apply to an entity, including a person acting on its behalf, that offers or provides services to assist persons in connection with an application under this Act if it is acting in accordance with an agreement or arrangement between that entity and Her Majesty in right of Canada that authorizes it to provide those services.
(4) Enfin, il ne s’applique pas à l’entité — ou à la personne agissant en son nom — qui offre ou fournit des services relativement à une demande prévue par la présente loi si elle agit conformément à un accord ou à une entente avec Sa Majesté du chef du Canada l’autorisant à fournir ces services.
Accord ou entente avec Sa Majesté
Designation by Minister
(5) The Minister may, by regulation, designate a body whose members in good standing may represent or advise a person for consideration — or offer to do so — in connection with a proceeding or application under this Act.
(5) Le ministre peut, par règlement, désigner un organisme dont les membres en règle peuvent représenter ou conseiller une personne, moyennant rétribution, relativement à une demande ou une instance prévue par la présente loi, ou offrir de le faire.
Désignation par le ministre
Regulations — required information
(6) The Governor in Council may make regulations requiring the designated body to provide the Minister with any information set out in the regulations, including information relating to its governance and information to assist the Minister to evaluate whether the designated body governs its members in a manner that is in the public interest so that they provide professional and ethical representation and advice.

The above-language used in the SCCA suggested that further  regulations governing the conduct of authorized representatives would be introduced.

The new Citizenship Regulations now in-force (supplementing the corresponding SCCA changes to the Citizenship Act) provide those further details.

Among the Citizenship Regulations introduced are those which clarify that ICCRC-designated Immigration Consultants can advise on Citizenship for consideration. Also, there is clarification that any application where an Authorized Representative listed is not in fact authorized will result in applications being returned, unprocessed.

REPRESENTATIVES AND ADVISORS

Purposes of subsection 21.1(5) of Act

19. For the purposes of subsection 21.1(5) of the Act, the ICCRC is designated as a body whose members in good standing may represent or advise a person for consideration — or offer to do so — in connection with a proceeding or application under the Act.

Person not authorized under subsections 21.1 (2) to (4) of Act

20. If an applicant is represented or advised for consideration in connection with a proceeding or application under the Act by a person who is not referred to in subsections 21.1 (2) to (4) of the Act the application will be returned to the applicant because it is not accepted into processing.

The new Citizenship Regulations also create that vehicle by which CIC can privately disclose to professional regulatory bodies such as the Immigration Consultants of Canada Regulatory Council (ICCRC) and provincial law societies, conduct which may raise ethical and professional concerns [emphasis added] (see full language of regulations: here).

DISCLOSURE OF INFORMATION

26.1 If the Minister determines that the conduct of a person referred to in any of paragraphs 21.1(2)(a) to (c) of the Act in connection with a proceeding — other than a proceeding before a superior court — or application under the Act is likely to constitute a breach of the person’s professional or ethical obligations, the Minister may disclose the following information about that person to a body that is responsible for governing or investigating that conduct or to a person who is responsible for investigating that conduct:

  • (a) their name, postal address, telephone number, fax number and email address;

  • (b) the name of the professional body of which they are a member and their membership identification number;

  • (c) any information relating to that conduct, but — in the case of any information that could identify any other person — only to the extent necessary for the complete disclosure of that conduct.

Increased Risks

I believe this later provision may pose some risk to authorized representatives who advise on Citizenship.

For example, the ICCRC Code of Professional Conduct (here) contains several provisions regarding competency and quality of service. I don’t see anything preventing Citizenship and Immigration Canada (CIC) from disclosing to ICCRC poorly or incompetently filed applications or where a representative has failed to meet deadlines or Citizenship Act requirements. This could ultimately be used against the Authorized Representative, either if the regulatory body or an upset client decides to raise a complaint against the Authorized Representative.

What makes this challenging is that CIC ultimately stand on opposite sides of the coin when it comes to assessing an application. I’ve read of numerous occasions in case law where counsel for the Applicant takes a perfectly legal, but highly risky approach, on a file and CIC has taken a position against the strategy or approach is abusive or frivolous. The line between what is considered “incompetent” and what is considered “abusive” or “frivolous” is in my mind very thin.

Further interesting questions are also raised. Will the ICCRC inform the consultant immediately of any CIC report so that the consultant can fulfill his/her obligation to advise the client immediately on errors and omissions? Or will this mistake sit in the coffers of the ICCRC until the application is ultimately refused. How will such misconduct affect the Applicant’s overall case?

Of course, what I have pointed out is the extreme use of this disclosure mechanism by CIC. It is both impractical and imprudent for every non-competent act to be reported by CIC to the regulatory bodies and application refusal is the more likely option.

Furthermore, misrepresentation is likely the main “culprit” that this new regulation is aimed at. However, even the law of misrepresentation is not straight forward. For misrepresentation to be made out, there must be a finding that the direct or indirect misrepresentation was material to the Officer’s overall decision. Under the new regulations, for the disclosure to be made to the regulatory body only a “likeliness” that it violates the ethical or professional obligations of the representative is required.  A much lower standard.

Furthermore, what happens to the fact that ICCRC-designated consultants (this affects lawyers too) are prevented from disclosing who their clients are without their client’s consent or required by law. Do these disclosure requirements constitute an application of that exception that the client’s name can be openly disclosed to the ICCRC (or in the case of lawyers, law societies)?

A lot of questions, few answers, but definitely an area I am very interested in analyzing further. I don’t think similar regulations exist (as far as I know) for the Immigration and Refugee Protection Act. I can definitely see a “chill” felt by practitioners if this disclosure mechanism is in place though. While it may have some positive effects (reducing errors, frivolous and bound to fail applications) it may also be too much unnecessary, non-independent oversight that detriments client representation.

Guest Post: “Marouf” by Abigail Cheung

I’m proud to feature today the guest post of a friend of mine and soon-to-be lawyer extraordinaire, Ms. Abigail Cheung. Abigail has a long-standing interest in immigration law, and I am sure will continue to be very active both from a legal and policy perspective for years to come. Currently, Abigail is a Summer Articled Student at one of Canada’s top law firms based out of it’s Vancouver office.

In this piece, Abigail talks about her work in U.S. Immigration Law and at an Immigration Law Clinic while she was an undergraduate student at Yale University.

afghanistanman

Kabul does not have mailing addresses the way other cities do. So imagine my surprise when I received a response to a letter I’d sent to the address “opposite the Dutch Embassy, Kabul,” a week after mailing it from the US to Afghanistan. Even more incredible than the package’s arrival were its contents: three intifadas handwritten by members of the Taliban. I know these things because, in my third year of university, I met Marouf.

Although I had taken a course on US Immigration Law before participating in a clinic called Immigration Legal Services at Yale Law School, no amount of training could have prepared my partner or me for the man we would come to know intimately over the next four months. The first time we interviewed Marouf, Scarlet and I were nervous, but Marouf was positively skittish. It quickly became apparent that the questions we had prepared weren’t altogether appropriate. Before us was a man who told us he had been kidnapped and tortured and had left everyone and everything he knew behind because people had threatened to kill him. And here we were, wanting to know details like how long Marouf had lived in a refugee camp, and whether or not he had a graduation certificate from the school he’d attended there to prove that.

Sometimes, Marouf would get frustrated. Why were we asking prying questions about his family members’ lives? Why were we asking him to delve into memories he had tried to forget? Sometimes, we would get frustrated. Marouf told us his story one way; the next time we met, his story, or its chronology, had changed. Was it possible, we wondered, for someone to forget how many times his kidnapper had beaten him? Could one fail to remember the contents of a personalized death threat?

For months, we worked feverishly. We made timelines and checklists. We found translators who helped us maneuver between Farsi and Dari. We perused country of origin information, sought out expert testimony and outlined the basis for Marouf’s claim. Four months later, we had a comprehensive story.

Over the course of our interviews, I noticed changes in Marouf. Scarlet and I worked on building trust with Marouf until he was willing to volunteer information without prompting. Initially afraid of the dark, Marouf eventually overcame his fear and even drove to one of our interviews at night. Gradually, Marouf opened up and excitedly told us about his brothers, sister and nephew.

Marouf also changed me. When you realize that failing to complete your homework to the highest standards could result in your client’s deportation and potential death, you develop a new type of work ethic. When someone calls you on a Friday night to ask you if committing suicide might protect his family members from danger, you gain a new level of compassion. When someone explains what it’s like to have handwritten death threats posted on his family home’s door on three separate occasions, war takes on new meaning.

Marouf attended his immigration hearing in December 2010. One month later, Marouf was granted asylum.

After meeting Marouf, it was hard not to think about war and migration in human terms. The summer after I met Marouf, I met a Rwandan who ran a computer shop in South Tel Aviv. A long, framed photo of men dressed in traditional costume and their cattle hung over the store’s entrance. After he caught me looking at it, Sentwali invited me to sit down. He explained that it was his only picture of him in his hometown, which had since been razed to the ground. Two years ago, I met an Eritrean woman in Hong Kong. During one of our interviews, she rolled up her sleeves to show me scars she had had gotten from having been tied to a tree and left under the baking sun for hours—punishment for being a Copt in a country that didn’t recognize the religious sect.

Several years after first meeting Marouf, I am no longer satisfied with listening to immigrants’ stories; I’m determined to change them. A few months ago, I attended a rally in downtown Toronto where participants spoke out against the governments changes to live-in caregivers’ pathway to permanent residency. My hope is that by speaking up, we can make sure immigrants’ stories are not just stories on a page.

Cultural Challenges at the IAD

Two weeks ago, I attended a very interesting workshop held at the Law Courts Centre discussing the issue of how issues around ethnic diversity and race may affect the overall judgment of a legal decision-maker. Given that the speakers were a current judge and a former judge (now lawyer), I expected a very cautious discussion. I was surprised to find that both admitted there were significant cultural competency challenges facing decision-makers, particularly around such things as cultural traditions (re: marriages and families) as well as the importance of effective interpretation/intepreters.

The Use of Interpreters

I recently had the privilege of sitting in on an Immigration Appeal Division (IAD) spousal appeal where I witnessed interpreting challenges in practice. The interpreter admitted at the forefront that there were dialect issues and in general was having difficulty keeping up with the fast pace of the witness (who was testifying by phone). The decision-maker was noticeably irritated by the witnesses inability to be concise and cooperate with the interpreter. Cantonese for many who do not speak it comes off very fast and harsh (even to someone who speaks mandarin like myself). The Member at the hearing was noticeably unamused by the tone of the witness.

At the workshop, the judges both recommended that if the witness is able to speak English they should use that as the language of testimony. I completely agree. The individual used (particularly in immigration hearings) is not a professional certified interpreter. Furthermore, many terms and human emotions simply do not pass through interpretation. I believe that the credibility of the witness is is inevitably weakened and definitely not aided.

Mental Illness

Another cultural challenge that I have seen in several IAD cases (a few that have led to Judicial Reviews) is the issue of mental illness and disability. In the West, we have a very advanced view of mental illness and disability compared to many countries of the world. While undoubtedly  stigma and prejudice still exist, parents generally know from an early age from their family doctors and educators what the child suffers from and what type of treatment options are available.

In much of the world this is not true. Mental illness is not well-studied nor understood and it is often not an issue that families enjoy discussing at the dinner table. Rather than relating to the specific name of the disease, the Chinese name for many of these illnesses is simply the blanket term “mental illness” or “personality illness.”

Consequentially, I have seen quite a few cases where family members and spouses were unaware of the diagnosis of the mentally-ill/disabled individual and only able to describe several of the key effects (i.e lower IQ, trouble functioning in public, etc.). These factors were later turned around and used as signs that the underlying relationship (in the immigration context) was non-genuine and therefore excluded the family relationship and rejected the appeal.

I think decision-makers, particularly at the IAD stage need to be very aware of the different cultural stigmas around mental health and how lack of knowledge of diseases may not necessarily be a sign of a non-credible witness or a non-genuine relationship.

The ‘I Love You’ Factor

Another issue that I have seen arise in the IAD is in the assessment of the types of actions which demonstrate love.

Perhaps to the archaic nature of case law in the area, the genuineness of a relationships is still defined in large part on things such as telephone records and love letters. Importantly, the relationships must be centred around love and the need for proof of the “I love you’s.”

In the modern day however, this evidence of genuineness may not always be true. Several couples use Whatsapp, Skype, or some cultural chat software (QQ, Kakao Talk, WeChat) to communicate. Many of these platforms do not allow for message histories to be effectively kept and furthermore some of the sending of media images back and forth and video chats, and conversations in foreign languages, are not readily transcrible. In one IAD refusal decision I read, the sending of media back and forth between a couple was described as “illogical.” The individual Member had likely never used Whatsapp before.

A second challenge that bogs many foreign couples (particularly older ones), I find, is the actual use of the words “I love you” in various contexts. Even in my own parent’s generation, the words I love you are rarely ever said or heard around the house. If asked why they are together or attracted to each other, I am sure my parents would come up with issues related around responsibility, similar view on household chores/economics, etc.

I think it is important to be sensitive to the way love is expressed in different cultures and not draw negative inferences based on different understandings.

Just a few thoughts on this Sunny Sunday in Chongqing, China.

Canadian Film or Video Production Tax Credit and Canadian Immigration (Part 2)

Introduction

In this section, I will look at the Canadian Film and Video Production Tax Credit’s (CPTC) provisions around Key Creative Personnel and why, consequentially, Telefilm Treaty Co-Production Agreements are desirable from an immigration perspective.

Telefilm Treaty Co-Production Agreements

The first stage in determining whether the Key Creative Personnel are met is to determine what type of production is in question. the CPTC Guideline sets out two different types, Live Action Productions and Animation Productions, each with their own set of scoring rules.

For a Live Action Production the following positions are considered for a maximum of 10 points. To qualify, one of two of the director positions and one of two of the lead performer positions must be filled by a Canadian.

  • Director – 2 points

  • Screenwriter (see s.4.06) – 2 points

  • Lead performer for whose services the highest remuneration was payable (see s.4.05) – 1 point

  • Lead performer for whose services the second highest remuneration was payable – 1 point

  • Director of photography – 1 point

  • Art director – 1 point

  • Music composer (see s.4.07) – 1 point

  • Picture editor – 1 points

For a Animation Production the points are as follows:

  • Director – 1 point

  • Screenwriter and storyboard supervisor (see s.4.06) – 1 point

  • Lead voice for which the highest or second highest remuneration was payable (see s.4.05) – 1 point

  • Design supervisor (art director) – 1 point

  • Camera operator (in Canada) – 1 point

  • Music composer (see s.4.07) – 1 point

  • Picture editor – 1 point

  • The following points will be allotted if the work is performed solely in Canada.

  • Layout and background – 1 point

  • Key animation (must be in Canada) – 1 point

  • Assistant animation and in-betweening – 1 point

With respect to Animation Productions, there are some additional requirements. Either the director or the screenwriter and supervisor must be Canadian. Either the highest or second-highest remunerated lead voice must be Canadian, and all key animation must be done in Canada.

There are also several general rules that apply to all types of Key Creative Personnel. Among the general rules are several important for immigration purposes. No points are to be awarded for Canadians who share key personnel roles for other non-Canadians. Also, the camera operator role for Animated Productions must conduct his work in Canada. Also, scoring on a collection of films or a series of films must be done individually and the production company should make a separate list of individuals who worked on each production.

Why are Telefilm Treaty Co-Productions So Valuable from an Immigration Perspective?

Canada has currently 55 Co-Production Agreements and Memorandum of Understandings with several countries. The full list can be found here.

The benefit of a Treaty Co-Production Agreement is that pursuant to the CPTC Program Eligibility Requirements, these films operate under the specific Treaty Co-Production Agreement rather than the CPTC Guidelines with respect to the Key Creative Personnel and Producer-Related Personnel. The CPTC Guidelines regarding the Key Creative Personnel point system and the rules surrounding production-related personnel need not apply.

The language in these agreements is generally much more favourable than the CPTC Guidelines. For example, in the 2014 Audiovisual Co-Production Agreement Between the Government of Canada and the Government of the Republic of India ( the “India Agreement), Articles 3 and 5 provide that producers and participants can be a national of one of the parties and that through mutual consent in writing by administrative authorities, can also include third countries.

The India Agreement also provides in Article 6 that the Parties shall facilitate temporary entry and residence in the respective territories for creative and technical personnel and performers.

Importantly, one of the countries that does not have a Treaty Co-Production Agreement with Canada is the United States. One of the areas I will be researching into in the future (possibly through ATI requests) is how American film productions, through filming in Canada, partnering with local production companies, and utilizing Canadian actors in key lead roles have been able to take advantage of the CPTC tax credit.

Hope you enjoyed the post 🙂

New Express Entry Italian Page, Immigration Resources, and the Importance of Optics

On June 12, 2015, Canada’s National Defence Minister Julio Fantino on behalf of Canada’s immigration minister, Chris Alexander announced the creation of a new Italian-language resource to help promote Italian immigration to Canada via Canada’s online processing system for economic immigration, Express Entry. The news release can be found here.

I think that recognition by the Federal Government of the imbalance of immigration from certain parts of the world is a good thing. More Italian immigrants to Canada, where many of our top politicians, athletes, and businesspeople have Italian roots is also a fundamentally good thing.

I also think providing resources in languages outside of Canada’s two national languages is fundamental and crucial to attracting top-class immigrants. Before an applicant goes off to taking language exams in one of the two languages, they often times (and many years prior to actually landing in Canada) have to decide to begin the very process of pursuing permanent residence. Without access to resources in the native language of Applicants, it is ripe for individuals who purport to know what they are doing (ghost consultants and the like) to provide immigration services. Many of these services are substandard and ultimately illegally performed.

My major qualm with the Federal Government’s launch of an Express Entry Italian page is that I believe it is not good optics to have resources available in one language and not other languages. With something like the Express Entry Italian page I understand that it is not as simple as creating a page and paying interpreters to translate the resource into many languages. There are discussions that need to be had with consulates, even with domestic governments who do (particularly in the case of China, the country I am now in) the type of web resources available on sensitive issues such as immigration.

However, to provide a page in Italian that is not correspondingly available in Arabic, in Farsi, in Hindu, or in Mandarin suggests Canada is aiming its resources at immigrants from select countries rather than the most economically and socially desirable immigrants from around the world. Optically, I hope many more third-language resources are made available to explain an Express Entry system that frankly is counterintuitive and confusing for many overseas applicants.

Opinion: If Canadian Investor Immigrant’s Funds are Already Being Put “At-Risk”, We Might as Well Fund Social Projects

Without mincing work, it is clear from the opening, closing, reopening, and extension of Canada’s Investor Immigrant Venture Capital Program (IIVCP) that the program has been, currently is, and most likely will be a flop.

130626-benefits

I have assisted several colleagues in writing pieces on the IIVCP and as optimistic as we have tried to make it sound in each piece, the front end program requirements are simply unattainable for most and undesirable for almost all who want to immigrate by investment.

Perhaps even worse is the back-end design of the IIVCP. I have had conversations with several seasoned investors about this program.  The actual monetary value of the program does not bother them as much as the complete inability to direct any positive outcome from the program.

From what the instructions and legal requirements seem to set out, it is simply $2 million passed from the Investor Immigrant to CIC who passes it on to the Business Development Bank of Canada (BDC) who lets you know in 15 years whether you are entitled to any ROI.

The seasoned investors I have talked to want to be able to know whether their investments are being pooled or separately managed, whether they will be used to invest only in profitable companies or arbitrarily divided among all companies in the funds, hoping for one gold mine to pan out.

If we’re already going at risk, we might as well gain some social rewards

From a personal perspective, I have never been a fan of a purely passive investor immigration program. I completely agree with the Government’s shutdown of the old model,  one that saw a lot of individuals and institutions make a lot of money, none of which was really reinvested into the Canadian economy and arguably has created political and social divisions in cities such as Vancouver.

I also am wary of the flip-side of the debate. Investor immigration is not economic immigration, and is separate from most of the entrepreneurial programs run through various PNPs.  We cannot create a program that is so heavy on requirements for investors to meet, so much so that they feel so burdened and do not want to participate.

Unfortunately, rather than striking the fine balance between passive and active, we have the worst possible balance of active requirements on the front end and a passive process of the back end.

I think the right balance of passive and active is ultimately in the social beneficial outcomes an investor immigration program can produce. At a time when social funding for the arts, music, social housing, legal aid, adequate statistics, is at a low, here you have a group of investor immigrants who are willing to assist these groups and meanwhile gain some sort of tangible benefit.

This is not a novel concept – the United States EB-5 has element of socially-beneficial investment. Austria has the option of Citizenship through a $2million dollar charity donation [extreme], and Antigua offers a donation to one of the sugar-cane industry labour groups.

So What are You Proposing – Social Capital Immigrant Investor Program (SCIIP)

I don’t believe in tying investor immigrants up in the IIVCP. There’s a Start-Up Visa program picking up steam that adequately facilitates individuals who want to go that venture capital route.

I am proposing that we switch the IIVCP to the SCIIP. The Federal Government (working with its Provincial and Municipal counterparts) can set up a fund or projects designated for socially beneficial purposes.

The investment will be completely at risk (you can make it the same $2 million or go down to $1 million),  regardless you are donating money to a good cause to get a PR. You are doing this much like you donate money at the door of a charity event in order to be able to enter and mingle with the guests.

Aside from the feel good nature of having helped an important cause, the amount of the investment can also returned if certain tasks are accomplished within a, let’s say, five year window. For example, if the Applicant starts up a non-profit charity, the amount raised by that charity can be partially deducted from the total amount. Alternatively, it the Applicant starts up a for-profit business, the number of Canadian jobs created can factor in to some sort of a return on initial investment.

This type of passive/active mix would work. You have the option to stay passive – pay your money and help someone while getting PR, or you can be active, pay your money and bring more benefit in the process of trying to earn a return on your PR.

I think it’s very much time we investigate these alternative options. When I studied the Labour-Sponsored Venture Capital Corporation Tax Credit in law school last year, one of our key findings was that mixing private-equity and government-supported equity may in fact crowd out, rather than promote further private investment.

Just my two cents on this matter.

Breaking down the Bridge – Open Bridging Work Permit

Two weeks ago, CIC introduced clarified instructions on when an Open Bridging Work Permit would be issued with respect to economic class applicants (see: http://www.cic.gc.ca/english/resources/tools/temp/work/prov/bridging.asp).

The parameters are as follows:

1) They are currently in Canada;

2) They have valid status on a work permit that is due to expire in four months or less;

3) They are the principal applicant on application for permanent residence under the Federal Skilled Worker Class, the Canadian Experience Class, the Federal Skilled Worker Class, and the Provincial Nominee Class;

4) They have received a positive eligibility assessment on their permanent residence application under one of the Economic Class programs above;

5) They have applied for an open work permit; and

6) They have paid the required fees for the work permit and Open Work Permit holder fee;

It is equally important to look at some of the individuals who are not qualified to apply for a brdiging open work permit

1) Foreign Nationals (FNs) who are Work Permit-exempt Business Visitors;

2) FNs whose status has expired and must apply for a Restoration of their Temporary Resident Status;

3)  FNs whose work Permits that expire in more than four months or if there  is a new LMIA that can be used as the basis of the work permit application;

4)  FNs who are applying for a bridging work permit at the Port of Entry;

5) Spouses and Dependants of PR Applicant -although they may be eligible for an open work permit but this on a separate basis, R205(c)ii) of IRPA, C41 (see: http://www.cic.gc.ca/english/resources/tools/temp/work/opinion/policy.asp)

6. Provincial Nominees who have not submitted a copy of their nomination letter in an briding work permit application or their nomination letter indicates employment restrictions.

Acknowledgement of Receipt from CIO

The eligibility trigger for FSWC, PNP, and CEC applications is the change of Eligibility status in GCMS or, and Applicants will likely find out this way, through the receipt of an Acknowledgment of Receipt from CIC – CIO.

Express Entry

Express Entry is more peculiar in that there are two Acknowledgement of Receipt letters. The first, when you submit your electronic Application for Permanent Residence does not qualify for the purposes of applying for the Bridging Work Permit. You must wait until your application is considered complete pursuant to s.10 and s.12.01 of IRPR. Atrt this time you will receive an official Acknowledgment of Receipt indicating that the letter may used to support a BOWP.

Employment Restrictions

For Provincial Nominees, it is crucial to review the Nomination Letter prior to submitting this application. There may be an Employer indicated, a NOC indicated,  but the key box to consider is whether there are employment restrictions, a separate box located on current nomination letters.

Term of Issuance

Based on the instructions,  it appears that these are being issued for 12 months, with further extensions to stay on an open work permit considered on a case-by-case basis.

Express Entry Technical Amendment: You Can Get Scores for Non-Continuous Canadian Work Experience

Human Resources concept

Citizenship and Immigration Canada (CIC) has made several technical amendments which came in force May 30, 2015. These amendments are a welcome clarification and should assist those applicants with several years of Canadian work experience. Ultimately, it may give several applicants a big Comprehensive Ranking System (CRS) Score point boost!

Per CIC (http://www.cic.gc.ca/english/department/mi/express-entry.asp) [emphasis added]:

DEPARTMENT OF CITIZENSHIP AND IMMIGRATION

Notice: A technical amendment has been made to sections 15, 19 and 25 of the Ministerial Instructions for the Express Entry Application Management System.

Paragraphs 15(3)(b) and 19(4)(b) were modified to remove the requirement that Canadian work experience be continuous for determining points under the Comprehensive Ranking System for the candidate, spouse or common-law partner.

For consistency and clarity, the Ministerial Instructions were also modified as follows:

  • The term “with one or more employers” was added to paragraphs 15(3)(b), 19(4)(b) and 25(1)(b);
  • The term “full-time employment” in subsections 15(5), 19(6) and 25(3) was replaced by “full-time work;”
  • Subsection 19(3) was repealed; and,
  • The word “emploi” in subsections 15(6), 19(7) and 25(4) and paragraphs 15(7)(a) and 19(8)(a) of the French version of the Ministerial Instructions was replaced by “travail.”

These Instructions come into force on May 30, 2015.

Note: As of May 30, 2015, all valid Canadian work experience will be recognized under the Comprehensive Ranking System (CRS) of Express Entry as CIC is removing the requirement that Canadian work experience be continuous. As a result, foreign nationals with Canadian work experience could see an increase in their CRS points.

You can see a specific effort by CIC to address the challenges particularly faced by the increasing number of contractors (explaining the change in definition from employment to work) as several were negatively impacted by the continuous work experience.

If I am not mistaken, the challenge with continuous work got to the point where program officers at the latest CBA National Immigration Law Conference in Ottawa were recommending that Counsel fill in the gaps of employment (much in the way we do 10 year work history attachments) with explanations. Again, whether this is acceptable practice is not readily clear from the way the electronic form is formatted.

Do note:

Continuous, skilled (NOC O, A, B) work experience of:

  • at least 1 year (Canadian work experience) in the last 3 years for the Canadian Experience Class;
  • and 1 year (can be Canadian or Foreign work experience) in the last 10 years for the Federal Skilled Worker Program;

are still front end requirements to qualify for Express Entry and are not affected by these technical amendments.