Category Archives: Canadian Immigration Law Blog

Announcement: I’m Starting My Teaching Career – Ashton College

Hi Vancouver Immigration Blog Readers:

I’ve had a busy couple of weeks. Been asked to step in on advocacy a little these last two weeks which is a change. The City of Vancouver committee that I currently chair has been asked to be part of a few City initiatives involving poverty reduction and immigration – both issues with a heavy cultural lens. I’ve also had the opportunity to be a part of a CBC piece on international students and some of the mental health issues they’ve been dealing with that may be triggered by immigration (http://www.cbc.ca/news/canada/british-columbia/crying-your-guts-out-some-international-students-fear-seeking-help-for-burnout-1.4295700) and as well as a Vancouver Sun piece on international students leaving Canada after their graduation and their challenges getting qualifying employment (http://vancouversun.com/feature/how-international-students-are-filling-funding-shortfalls/chapter-4) [see esp: embedded video].

One thing I’ve learned quickly I feel as a young lawyer is the concept of balance. For this I owe a lot of peopler recent credit – Steven Meurrens (my colleague and mentor), Jeena Cho (author and meditation teacher), Andrew Verwey, Jenn Lau, and Dave Namkung just to name a few.  There were so many others (my colleagues and seniors) who have been teaching me and helping me at every corner. I always say it, but the one thing I’m grateful to God for is putting good people in my life – not for giving me any particular skills otherwise.

On that very positive note, I am pleased and humbled to announce my next major venture.

Teaching (just for a little history) runs in the Tao genetics. My great grandfather was a teacher (I’m still trying to learn more about him). His most famous pupil was the badass feminist Qiu Jin. My grandfather was a teacher. He taught second-language (English I believe it was) acquisition and wrote several books on the topic. My father was a teacher as well (student-teaching in China, UVic, and UBC – if I’m not mistaken).

In my first two and a half years of practice I’ve had the opportunity (thanks to LR, IMEDA, etc.) to get in a lot of lectures, talks, and presentations. I love it. I love sharing my passion with others.

I am going to be teaching consultants during a time of some turmoil in the consulting industry. I’ve decided I want to be part of the solution.

It is well-documented in the media that consultants have gone through some smudging and will soon (I understand) go through a bit of a wash as they discuss how to fix up the issues. Regardless of the internal conflicts that I am not privy too,  my understanding is everyone involved wants to have better, competent services provided to immigration clients and less fraud that negatively impacts all immigrants.

I am joining Ashton College because I believe in the vision that Ron and his team have put out to train immigration consultants the right way. I respectfully disagree with some of my esteemed colleagues (many of them wiser and more learned than I will ever be), who want consultants entirely removed from the immigration practice. I believe that there should be a space carved out for the competent, thoughtful, multilingual consultant who want to serve others and their communities for the interests of promoting access to justice.

As a young lawyer I can provide that passion in my classrooms so that young practitioners can see immigration law as not a business of profit, but rather one where people always come first.

I have already decided I will be a tough but fair instructor. Fighting my tendencies to be a nice guy I will make sure students come ready to learn and engage with the class materials. I am also humbled enough by my experiences so far to know I’ve only scratched the surface of immigration law and that the fact we are all learning, adapting to change, and developing our own interpretations and best practices makes our professions dynamic and awesome.  I’m excited and I’m grateful. For those interested the program is here.

Ashton – let’s do this! See you in November 🙂

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The Little Things that Send Back Spousals – Advice Blog

The December 2016 changes to the spousal sponsorship process has (to-date) served as a double-edge sword. While applications for many have sped up, for others, the process has turned into a nightmare. There have been increased cases of applications having be returned back to sender – for failing to meet the strict requirements of a complete application.

Regulation 10 of the Immigration and Refugee Protection Regulations (“IRPR”) governs when an application is complete:

Form and content of application
  • (1) Subject to paragraphs 28(b) to (d) and 139(1)(b), an application under these Regulations shall

    • (a) be made in writing using the form, if any, provided by the Department or, in the case of an application for a declaration of relief under subsection 42.1(1) of the Act, by the Canada Border Services Agency;

    • (b) be signed by the applicant;

    • (c) include all information and documents required by these Regulations, as well as any other evidence required by the Act;

    • (d) be accompanied by evidence of payment of the applicable fee, if any, set out in these Regulations; and

    • (e) if there is an accompanying spouse or common-law partner, identify who is the principal applicant and who is the accompanying spouse or common-law partner.

IRCC has taken a rather narrower and stricter approach in determining when an application should be sent back. It appears that where documents or content is not in-line with their instructions (regardless of whether defined in IRPR or IRPA there is a good chance the application is being returned.

The consequences of a return are heavy – it could mean loss of status (where one is basing their work permit extension on an in-Canada Spousal). At the best it’s a loss of a few months and at the worst it could lead to enforcement action if no steps are taken in time to remedy the mistakes.

In a sense, after ATIPing to learn one of the impetuses behind the changes I am not surprised. The following are excerpts from some of those ATIPs where directives were provided to IRCC officers at Case Processing Center – Mississauga (the office responsible for intake):

Capture

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Top Issues Noticed (with Some Input from Immigration and Other Practitioners)

Recently on the Immigration Listserve there has been increasing outrage from representatives (expressed on their on files and on behalf of self-reps) on the return of applications. IRCC has acknowledged that some are returned in error. However, there are some issues that are not errors that will lead to return that should be carefully looked at:

 

  1. Providing a document issued by CRA as proof of Sponsor’s employment and if (not available) a letter in lieu – where something is missing or unavailable (for example self-employed) – it is not enough just to write n/a on the checklist and omit.
  2. Record of solemnization – this is not a legal marriage certificate. neither is any other hand-drafted document (such as a license) – wait for the official/legal certificate;
  3. Birth Certificate (particularly for dependent children) – while many countries don’t have proper processes or records – this must be explained. In general, a medical certificate must be provided.
  4. Missing postal codes or North American addresses – be complete, and don’t be sloppy in putting incomplete information
  5. Missing signatures or improper digital signatures – for spousals original signatures are required. Don’t forget to date and as a rep don’t backdate or future date.
  6. Explanations hidden in lengthy submission letter – if it is a very important explanation consider adding it in two locations – both where it arises and maybe flagged in the submission letter.
  7. Incorrect fee payment or missing receipt – double check how much needs to be paid and review instruction guide for this information. Perhaps even flag the fee payment form with a tab in the event it is missed in a thick package;
  8. Have the rep sign the Use of Rep – if you are paying a representative who is asking you to sign your own forms and pay them money and not disclose them – not only is this possible misrep but you may run against the completeness requirement of 10.2(c.4)
Required information

(2) The application shall, unless otherwise provided by these Regulations,

  • (a) contain the name, birth date, address, nationality and immigration status of the applicant and of all family members of the applicant, whether accompanying or not, and a statement whether the applicant or any of the family members is the spouse, common-law partner or conjugal partner of another person;

  • (b) indicate whether they are applying for a visa, permit or authorization;

  • (c) indicate the class prescribed by these Regulations for which the application is made;

  • (c.1) if the applicant is represented in connection with the application, include the name, postal address and telephone number, and fax number and electronic mail address, if any, of any person or entity — or a person acting on its behalf — representing the applicant;

  • (c.2) if the applicant is represented, for consideration in connection with the application, by a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, include the name of the body of which the person is a member and their membership identification number;

  • (c.3) if the applicant has been advised, for consideration in connection with the application, by a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, include the information referred to in paragraphs (c.1) and (c.2) with respect to that person;

  • (c.4) if the applicant has been advised, for consideration in connection with the application, by an entity — or a person acting on its behalf — referred to in subsection 91(4) of the Act, include the information referred to in paragraph (c.1) with respect to that entity or person; and

  • (d) include a declaration that the information provided is complete and accurate.

A final mistake i see many self-reps make is in trying to present their application too cute: multiple envelopes, binders, staples and paper clips. We keep it very simple here. Generally one rubberband and if required separate rubberbands to separate packages. The more obstacles you give the processing officer at IRCC the more likely they will be frustrated and (1) look for problems and reasons to return; or (2) actually lose a document in the process which may lead the application to be improperly returned.

Finally – scan everything for yourself AND make a physical copy so you can have something to fall-back on.

Hope this helps.

In Advance of the October 11th Citizenship Rules Changes – Some Best Practice Pointers

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(Image Credit: Minister Hussein’s Twitter Page)

With four major changes set to go into legal affect next Wednesday (October 11th), a lot of questions I have been fielding are from individuals who are asking me how they should prepare.

First off, there’s no gaming the system. IRCC will not release forms until 11 October 2017 and unless you are eligible under the old rules and ready to submit a complete application prior to 11 October 2017 filling out yesterday’s forms for tomorrow’s application won’t do any good.

Citizenship Changes

What will do some good may be the following:

  1. Start gathering your travel history – create a table and put in relevant dates and passport stamp references. Where no stamps -try and get your old flight itineraries and proof from other countries travel history records (if applicable). Think about other ways to prove residency (lease docs, employment records, etc if needed);
  2. Start preparing supporting documentation – based on old checklist (http://www.cic.gc.ca/english/pdf/kits/citizen/CIT0007E-2.pdf) but taking into account the possibility new things may be needed (i.e. proof of status/residency prior to PR);
  3. Dig up that diploma/degree for proof of language (if applicable) – if you can’t find it order a new one from your school’s registry;
  4. Figure out your police certificates – this requirement has not changed.Police Certificates
  5. Coordinate your courier strategy. Assuming everybody is going to be applying all at once and the mail room might be frantic, you may be smarter not to use snail mail and have a tracked process.

Finally and most importantly! Don’t Rush

We’ve seen it time and time again with changes (think last December re: spousal sponsorships). When there is an uptake in applications, this is also where front-end processing becomes more crucial. I would not be surprised if CPC-Sydney has sent out word to it’s staff to be critical and return incomplete applications. Be sure you double check the final instructions and forms when they come out to know where original signatures are needed, what fees are correct, and what documents needed to be copies, notarized copies, and certified translations.

Best of luck to all of you and I look forward to welcoming you all as New Canadian Citizens!

What to See About CETA Re: Entry of Temporary Business Persons

On 21 September 2017, the much anticipated Comprehensive Economic and Trade Agreement (“CETA”) came into effect. Along with the new trade agreement, Chapter 10 sets out the rules around temporary entry of business persons.  As complex as the CETA negotiations were themselves, the agreement’s reciprocity agreement around business persons is similarly detailed and complicated.

For the purposes of this piece (given we’re discussing Canadian immigration), we will look at the Canadian side. Those looking to enter the European countries should refer to Annex 10-A carefully depending on the country entry is being sought in, the category, and the occupation.

The Basics

I would highlight encourage you all to read my colleague Steven Meurrens blog post on the topic where he looks at the five things you should know about CETA – going through the (1) Intra-corporate transfers (including graduate trainees), (2) investors, (3)  contract service providers, (4) independent professionals, and business (5) business visitors categories.

As a broader summary, CETA will allow several European business persons the ability to enter Canada without the need to obtain Labour Market Impact Assessments (“LMIAs”) for the purposes of carrying out their business purposes. Labour Market Impact Assessments have historically served as a deterrence for Canadian business – due to their cost (both in terms of application and compliance) and as well for the onerous nature of advertising requirements and proving that a Canadian could not be hired for the same position and in many cases preparing either voluminous transition plans (in the case of high wage employees) or advertising to historically disadvantaged groups (in the case of low wage).

This is specifically true where the worker has no intention of applying for permanent residence and the employment/projects are more limited in nature or short-term in duration.

CETA provides that alternate for many of these business persons to obtain a work permit in Canada for a short-term purposes.

  • Eligible Contract service professionals and independent [professionals will be able to work for 12-months out of every 24 month period  on a work permit.
  • Eligible Intra-Corporate Transferees could be given terms of up to the lesser of 3 years or their length of their contract with extensions up to 18 months. Graduate trainees can receive one year work permits but are not eligible for an extension.
  • Investors can be issued 1 year work permits with possible renewals (consistent with the provisions of NAFTA).
  • Business visitors will be able to come to Canada to perform a range of activities extending beyond the scope of the legislative ability to work without a work permit (R.186 and R.187 IRPR)

Three Things You Don’t Want to Miss When Considering CETA

1. IRCC has provided an excellent resource guide on “how to extend CETA permits” – and the requirements are more substantial than they were under NAFTA.

Per IRCC:

Examples of acceptable documentation to support an extension

  • A service contract extension justification from the offering enterprise
  • Updated business plans
  • An offer for a new contract
  • Feasibility studies and marketing plans

Additional questions to help officers determine eligibility

  • Consider the intentions of the applicant:

    • What is the applicant doing in Canada?
    • How long has the applicant been here?
    • How long is the request for?
  • Consider the reason given by the applicant for applying for the extension:

    • Are the plans well thought out or merely frivolous?
    • Has the applicant previously received an extension?
  • Consider the applicant’s situation in their home country:

    • What family, employment or other responsibilities and obligations has the person left behind?
    • How have these responsibilities been discharged?
    • Is a prolonged stay in Canada reasonable and feasible?
  • Consider the initial intent of the application:

    • What was the original purpose of the business visit to Canada?

    • Has it been fulfilled?

    • If it has not been fulfilled, was sufficient time originally granted to fulfil the purpose?

With NAFTA there were mechanisms in place that made refusing an application quite a bureaucratic headache. I am predicting with CETA that extensions (particularly for ICTs  – Senior Personnel, Specialists, and Start-Up Investors), will be more discretionary than they were under NAFTA and other agreements. These questions really delve at some issues around dual intention (A22(2) IRPA – see IRCC’s instructions on this)

2. IRCC’s NOC Equivalency Page for the Contract Service Providers/Independent Professionals is a Fantastic Resource

With an agreement that has many “unbound” (think not-included) professions and different eligibility for contract service providers and independent professionals, things can get messy. Especially when Appendix 10-E covers every single European country, with many of them split down the line into whether an occupation is included, not included, or specific educational/experience requirements.

IRCC did a Coles Notes table – took out all of the Canadian requirements, and put it in a very handy table that I think should be a starting point.

See: http://www.cic.gc.ca/english/resources/tools/temp/work/international/canada-eu/a10-e.asp

3. Knowing how CETA interacts with the rest of the IMP/TFW Program Will Be Crucial

One of the interesting aspects of the provisions of the CETA is that in some cases they are less advantageous than the general provisions of IRPA and IRPR . For example, a business visitor (non-CETA) can stay in Canada for six months (upon entry) whereas the maximum length of stay of short term business visitors under CETA is 90 days in any six-month period (3 months).

Where possible – check to see if the activity you wish to perform already falls under the exemption for work without a work permit under R. 186 and R.187 IRPR  before requesting entry as a CETA business visitor. While the agreement and IRCC’s instructions state they will look at both, this may not be readily apparent to the POE Officer assessing your application.

Second, it may be useful not to forget the existence of LMIA-Exemptions available through Working Holiday programs and other venues in additional to CETA. For example, one of the things I’m curious to see is how a CETA interacts with those who wish to claim permanent residency when their permits may limit their employment (i.e. after a 12 month period runs out on a contract service provider’s Canadian work permit).

Working Holiday programs themselves may provider younger Europeans a more consistent  and flexibile way to get Canadian work experience than something like the graduate trainee ICT which is not extendable. Of course, as they are draw based, it may lead to the pursuit of more multi-path planning of immigration options.

CETA will be fun. It’s a Cadillac of an agreement (and I’m just talking about the mobility provisions) so it will be interesting to see how things go from here.

An Update When You Owe An Update – Summer 2017

VIB Readers:

Without sounding like a broken record, the past few months have been busy with so much happening that unfortunately writing has taken an unfortunate backseat. You will not hear excuses from me – I need to write more and I know it.

On the positive front, it has also been a very reflective time for me. I’ve spent more time reading what others have to stay – following journalists and being a witness to the recent events of Charlottesville and later Vancouver. I’ve spent time reading journal articles and gather resources on issues that I am very passionate about. While they may not be directly relevant to projects now, they help form my framework/lens that I can view this world through.

I believe I am uniquely positioned this year – through my dual roles of being the Chair of the City of Vancouver’s Cultural Communities Advisory Committee and as well as a Committee member of the Canadian Bar Association’s Equality & Diversity Committee to do some meaningful policy work in addition to my immigration work. Both of these organizations will be releasing statements and reports shortly, and in fact the CCAC statement is coming out in the next few days on our call to action for the City’s cultural communities.  This advocacy work where I am able to take the individual advocacy I do for my clients and project it on a larger scale has been very meaningful.

My immigration practice is also moving along. As with any young practitioner, I try and balance client representation, with running a business, and with investing in continuous education to ensure my client’s needs are best serviced.  The legal landscape is changing in immigration, particularly corporate immigration. I’ve had several meetings with senior mentors and practitioners about the role accounting firms, technology, and project management will have on the way work is performed and the needs clients will have.

At the same time as all these are happening, I am seeing my own work permit/corporation immigration practice pick up.  Many of these business contacting me are start-up or small businesses with immigrant workers. Many of these companies are without designated HR departments. Even within these corporate clients I’m starting to see a discrepancy in the accessibility and knowledge of immigration procedures. I suspect that while the cheeseburger delivery of immigration will inevitably start, there will still be enough companies that want custom orders and are willing to engage someone willing to provide more personalized services. Boutiques and sole practitioners who may increasing feel crowded out will have to find ways to adapt to the changing market.

On the immigration litigation/personal and family immigration side, I’ve been able to achieve several recent successful outcomes.

I was able to secure a restoration and new study permit for a student who was caught in a bit of an administrative nightmare with both IRCC and a former counsel .  While 90 days passed from when the refusal was apparently issued, we found enough evidence (through ATIPs and other research) to go an argument that he was still eligible for restoration. He now has his status back.

I was also able to restore a second graduate, who initially was refused a PGWP for attending a private school that was not eligible under the program, and secure him a two year (longer than he would have received) C-14 Film/Television work permit. It was incredible to be able to delve into this relatively new permit and put together the required pieces and understand a bit more of what a growing number of Vancouver’s film and television people do.

On the spousal sponsorship side, I was able to secure a rehabilitation and approval putting to end a previous self-rep’s multiple year fight with immigration (which even went up to the ministerial level) . For a second client, I was able to succeed on a ADR showing the relationship was genuine and not for immigration purposes after spending several painstaking hours gather positive evidence, affidavits, and clarifications that were either missed or incorrectly interpreted at the spousal interview. Mistakes happen in immigration – with both practitioners and as well government not being immune to making them.

On a more challenging side, I’m handling a string of refusals of my own applications (study permits) from Sri Lanka. This has been a humbling experience. Prior to these refusals I had a Mayweather record in study permits. However, it has re-enforced my belief that often times as practitioners rather than pushing volume and efficiency (particular for individuals and families who may not have the same economic argument that corporate clients do), we need to push quality. Researching and understanding the uniqueness and the discretion of the individuals that will decide your case – from your own client to the decision-makers – is absolutely crucial. I’ve told all the clients that I will ensure to follow-up and do everything I can to assist them – including choosing no categories of application. Something I myself admire, and I wish there were more of an immigration, is honesty – accepting and acknowledging imperfection beyond just that of the system. Seeing what is happening globally on the immigration front, and even with our own challenges, we know we’re working within a very controversial and discretion-based system. Not everyone is always going to be happy. Going to work everyday won’t always be easy, neither will be sleeping at night for all those involved.

Where does that leave me and VIB for early Fall. I’ve promised a few more articles with, we’re working on a couple presentations, and I am continuing to spend my spare time researching intricacies of the law.  I also want to add a few more fun and inclusive elements to my blog – to start writing about race, equality/equity/diversity, and my favourite topic outside immigration – food.

Professionally, I have spoken to several senior mentors who believe I should take my immigration litigation (and perhaps even future litigation outside of strictly immigration) by the horns. I hope to better understand what my colleague refugee lawyers do and engage in some of the technical aspects of our law – particularly where there is room to challenge interpretation. Now that my wife’s own immigration has been settled, I’ve had my few weeks of soul searching, it is time to press ahead.

I’m grateful to those who have taken time out to guide me, to share that meaningful cup of Joe, to debate me, and who have welcomed me into their homes and lives either as a friend or an advocate.

Exciting times ahead!

 

Letting your relationship guide your immigration, not your immigration guide your relationship – advice for international students

Recently, I have been writing for/with the passionate, Kelly Toughill, a journalist and immigration advocate who I believe is doing amazing and thoughtful work for international students.

I recently published a piece highlighting some of the concerns international students have been coming to me with in respect to pressure to enter into relationships that can secure one’s status.

It is a very difficult subject. As Canada does not have a “fiance visa” similar to the United States, the idea or entering into a common-law relationship or marriage usually arises quite early in the context of conversations.

My own advice, one that I followed myself (as someone who is married to a recently-landed permanent resident) is that I let my relationship guide my immigration rather than my immigration guide my relationship. Too often I have come across individuals who, as a result of poor and sometime negligent advice, have told me that they were recommended to marry a Canadian or “find a boyfriend/girlfriend” in order to secure immigration. Others have told me of the pressure placed by the Canadian partner to marry or enter into a common-law relationship to get the clock ticking.

In this piece, I talk about the international student in Canada who has a pathway to permanent residence (on their own) and who should think carefully before deciding to jump into a sponsored relationship and abandon their own options. I also talk about the importance of choosing the right  pathway to do the sponsorship and ensuring strong enough evidence of the genuineness and purposes of the relationship are established before pursuing a decision to marry and sponsor.

For the article see here: https://studentimmigration.ca/letting-relationship-guide-immigration-not-immigration-guide-relationship-advice-international-students/

List of Post-Graduate Work Permit (PGWP) Eligible Schools in Alberta

A colleague, Anna, recently posted this to the CBA Immigration Law listserve which I felt was worth sharing.

She inquired to Alberta Educational authorities about the list of eligible schools and received this following list:

Public Institutions

Alberta College of Art and Design

Bow Valley College

Grande Prairie Regional College

Keyano College

Lakeland College

Lethbridge College

Grant MacEwan University (MacEwan University)

Medicine Hat College

Mount Royal University

Northern Alberta Institute of Technology (NAIT)

NorQuest College

Northern Lakes College

Olds College

Portage College

Red Deer College

Southern Alberta Institute of Technology (SAIT Polytechnic)

The Banff Centre

University of Alberta

University of Calgary

University of Lethbridge

 

Publicly-funded Independent Institutions

 

Ambrose University (formerly Ambrose University College)

Burman University (formerly Canadian University College)

Concordia University of Edmonton (formerly Concordia University College of Alberta)

The King’s University (formerly The King’s University College)

St. Mary’s University (formerly St. Mary’s University College)

 

The Independent institutions listed above are the ones “that operates under the same rules and regulations as public institutions.”  Private Career Colleges, Seminary institutions, bible colleges, flight schools, or language schools DO NOT operate under the same rules as publics

Source: Alberta Education and http://advancededucation.alberta.ca/post-secondary/institutions/public.aspx

Thank you to Anna Kuranicheva, staff immigration lawyer at the Edmonton Community Legal Centre www.eclc.ca for her work digging up this list and confirming this.

I think all provinces should make their lists public and clear and Alberta joining B.C. is a great step.

Trying to Understand the Media’s Obsession with Vilifying Some Canadian Immigrant Communities

Multicultural_festival,_East_Vancouver

Almost two years ago, I penned a widely-read piece on my belief that the media needed to be responsible in penning case of individual immigrants for fear of inaccuracies and long-term consequences for the immigrants involved. Some disagreed with my stance, but n sharing those different perspectives I felt it was a fruitful debate. Overall, the last two years has reaffirmed that, where possible, less public exposure to the sensitive situation of my clients is generally a good thing. In a few cases, where I believe media attention would further their case and shed light on gaps in the system, I have shared their stories, with their permission, and done so anonymously. Doing this, in my mind, has struck an effective balance of privacy and progressiveness.

Unfortunately, in the larger context – media attention, particularly on non-positive immigration stories has ballooned into a regular occurrence. In the past several months, I have noticed a somewhat modified trend of “news reporting meets commentary” that I believe has had an harmful effect on new Canadians and immigrants. This is particularly true in stories originating from Vancouver.

The context of these new “news meets commentary pieces” is entirely understandable. Economic uncertainty particular around jobs and education, gentrification and the crowding out of Canadian metropolitan cities, and a general and well-documented “anti-immigrant” sentiment have become accepted as part of our mainstream social psyche. These articles draw attention and are a catharsis for our own social challenges as local residents (whatever that definition is now). It gives us something to blame other than ourselves for our current predicaments.

Unfortunately, this process also creates “othering.” I am firmly opposed to this bandwagon/groupthink mentality – having recently written about why I believe international students, as a specific subgroup, should be better understood in context of their challenges rather than simply through lenses of the far-reaching social and economic stigma that have been applied through mainstream media.

Through reading these pieces, I have come to the conclusion that some journalism that is currently being produced about immigration is stoking the fire of outrage in a very, deeply irresponsible way.

I believe it does so in several ways and through several committed fallacies.

Flaws through Proof by Example (as well as Ignorance, and Repetition)

First, it is the logical fallacy of proof by example which also combines elements of arguments from ignorance (we have no proof otherwise so it must be true) and arguments from repetition (reusing and recycling of examples to paint a larger argument).

For those not familiar with immigrant communities or in interacting with several different immigrants rather than as one silo – it is easily to miss this point. In my practice, I have dealt with hundreds of cases – no two of which I can say are even remotely the same. As a practitioner, one of the first things I make sure to do when seeing a client is leave all my preconceptions, preconceived notions, and prejudices aside. I also take myself and my own background out of my analysis framework. Sure, I bring my experiences with other individuals who may be in similar shoes but I know that each individual immigrant and each narrative is different.

Without taking such a lens, it is easy to tag the issue of fraud (for example) to the individual’s country of origin, but when I dig deeper I realize it is the sub-issues – the age of the applicants, their family status, their marital status, even sexual orientation that play determinate parts in the unique situation an individual faces. It is through this lens that for many of my clients I fight their cases because I believe the Government made mistakes in their assessment. Often times, our review or challenge of immigration refusals is where we believe the individual circumstances of the case have not been considered by officers in deciding their case.

Stepping back to journalism, I see a similar logic taken by these authors in wanting to paint a picture that places the individual in a larger context. Unfortunately this creates larger, harmful generalizations that can be seen through calling something a “Chinese immigration” problem or automatically pinning one example to a larger cultural phenomenon such as East Indian arranged marriages.

Some media may think they are being cheeky in the manner in which they present this perspective, but it is all too visible for those of us that have experienced the subtlety of discrimination and prejudice.  For example, while it is no longer tolerable in mainstream media to go out and say that all individuals with Chinese citizenship are fraudulent or all East Indians arrange their marriages writers and editors now utilize bold “catch all” headlines, feature photos showing a particular ethnic group, or paint verbal pictures and links leading to the same conclusion for the reader. Actual discrimination and implied discrimination are the same thing.

Furthermore, it’s about the quality of these examples. An East Indian newspaper contains an advertisement seeking purported immigration fraud or one international student who owns a multi-million dollar house while not attending classes, cannot simply be deemed to be a representative of the larger whole. For example, if I opened any local newspaper’s classified section and saw the illicit services being advertised or trusted every single email I received from a Nigerian prince and believed the source as credible, I would probably have a serious distrust of most of the population.

As a counterpoint to the fallacy by example, I believe the media has a responsibility to do a better job of quelling this by reporting on more positive immigration stories and not just individuals who are facing deportation. Lost in the narrative are the fact that international students, many who came from poor upbringings, are in fact some of Canada’s leading students, starting up Canada’s next entrepreneurial venture, or are in marriages with Canadians that bring together culture and diversity in such ways impossible in other countries.

Sadly, these stories are becoming fewer and further between. It is becoming more convenient to paint a few bad apple as an infected orchard and for the writers to assume the position of farm owner and immigrants as the indentured workers. This narrative is unfortunately so far removed from the realities of not only what is happening on the ground but from Canada’s own history through indigenous roots.

Flawed Appeals to Authority – rather than to Immigrants Themselves

Second, for some reason there has been appeals to authorities that some journalists have weaved together in ways that stop making sense. One recent piece named as an immigration specialist on the issue of marriage fraud, someone who I have never seen at an immigration conference in my life and who I have spent the last two years digging a case out of the depths of hell, in part, because of that individual’s recommendation of a fraudulent marriage. It is simply not good enough for a journalist to find experts who share the journalist’s narrative on an issue without providing a deeper canvas of alternative opinions – unless they want to hold the piece out as a commentary rather than as a balanced news story.

Consequentially, I would suggest that, on the matter of immigration, we need to get back to reporting fact as fact and opinion as opinion. This molded opinion as fact/news story is simply not working for anyone. With the merger of metropolitan media where two papers essentially are owned by one, there has become less room for the progressive debate and opinion pieces.

Finally, to immigrant communities – it is time for you to speak up. If you read a piece that you believe has misclassified your community or your loved one’s community – starting writing, start challenging, and start sharing your perspectives.  The fear of silence, of your words leading to you being judged, are exactly the fears that the writers of these pieces are banking on to cement their own opinions. Don’t let this happen.

The best way to combat the experts and pundits, many of whom are so far removed from the actual lived experiences, is to provide those experiences. Through storytelling, we can also angle to those important decision-makers – who spend their days basing their political opinions on newspaper headlines, that there is far more to the stories than is currently, presently being told.

Writer’s end-note: I initially wanted to share this opinion in a mainstream media piece but I have decided against it as the content itself is critical of the current approach to immigration taken by several mainstream outlets. Should any of you wish to publish this in a mainstream outlet – contact me and I will give you full permission. This piece also is removed from any position I currently hold as an advocate for equality and diversity and represents my personal views only.

Takeaways from CBA National Immigration Conference – Pt. 1 – IRCC’s Increased Focus on the “Client Experience”

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One of the highlights of the CBA Immigration Law Conference is that the Minister of Immigration speaks and talks about his government’s focus and priority moving forward.

In general, the Minister’s humility very much stood out to me. I think that being a former member of the immigration bar himself, a UOttawa grad (I threw that one in!), and most importantly a refugee who had to face the delays and uncertainly, added a certain humility to his tone.

There were some who were disappointed that the Minister did not take questions from the floor, as was done in previous years. I still remember Minister Alexander in Ottawa, two years back being asked about the sponsorship program given his own wife was a sponsored spouse.

I did believe that on a few questions, particularly relating to the major IRB delays that are really hampering the appeal process. On the flipside, I was very impressed by his apology for the issues with the portal not working very effectively over the past few weeks and his promise to do better.

The nice guy/gal approach was echoed by Dawn Edlund (Associate Assistant Deputy Minsiter, Operations, Department of Citizenship and Immigration) who spoke at the opening plenary. As summarized by my colleague Joshua Sohn:

Dawn mentioned that she had received feedback that some invitation letters (for example the Citizenship Oath) had felt too much like a summons to court for a parking ticket.  She acknowledged the challenges with the call centre and opening discussed the need to figure out strategies to streamline calls.

Ironically just the same day I received a bulletin from IRCC (that I had never received before) that was very well received on my end. The case involved a tricky procedural fairness letter to a concern initially raised by the overseas visa office. This email put both myself, and my client, at ease and we received the COPR just days later. I know the client was very eager to follow the helpful recommendations relating to settlement contained in the email.

Just today IRCC has acted on some of the frustration raised by those who have had spousal sponsorship applications sent back due to incompleteness by revising their spousal sponsorship checklists to make them clearer, cleaner and more intuitive.

Client experience

Overall, I am a big fan of this approach taken by IRCC to be better communicators with their clients. I don’t think we will ever run a visa system, particularly in this electronic day and age, that will allow individuals to physically speak to a processing officer in Canada, but one hopes that these steps are the next best thing.

I do think, however, that more transparency – particularly to more detailed reasons for refusal, great public access to Global Case Managing System notes for applicants, and faster streams for which to provide case updates – would go a long way. Right now, Access to Information Requests are a huge financial burden on government resources and a lot of litigation can be avoided by simply having clients know their application deficiencies at an earlier stage.

How to address the dreaded “Probability of Success”? – From a Client and Advisor Perspective

I have been on a bit of a campaign (that I am now sharing publicly by way of this blog post) to eliminate the using, asking, and advertising of “probability of success” and “guarantees.”

Unfortunately, I tag this to the commoditization of visas (worldwide) into a product to be obtained, rather than a legal service or system to be professionally navigated. Flip open any newspaper and you will likely see an immigration company advertising their 98% success rate or “guaranteeing the maintaining of permanent residence for someone who has never spent a day in Canada”, as one translator lamented to me today outside of CBSA.

I am very glad that IRCC is publicly attacking the idea of a guarantee and the practice of ghost consulting or the “disappearing advisor.”

I think part of fighting this is educating potential clients into the type of questions to ask and to give insights into the type of responses one should expect. I wrote a post, that I received some positive feedback for in January of last year where I talked about the value of a consultation. I hope to work along similar lines here.

In this piece, I want to give both clients and their representatives some strategies to avoid asking and respond in asking that dreaded question – “what is my probability of success?…. can you guarantee success.”

From the Client Perspective

My first “cautionary” note is that anybody who guarantees success without seeing a single document or on the basis of a short email introduction is probably indicative of the fact you are going to be duped.

Regardless of my historical success on any type of application, as an immigration representative, I know that cases turn on facts. Facts, take time to establish and hours to put together. In order for any advisor to even indicate a confidence in your case, they need to know the inside outs of that area of the law and be able to provide tangible experiences suggesting they have helped a client in a similar situation or have the know-with-all to do the same.

Too often I see the question “please advise me on your fees and success rate” as a first question that client’s pose. I would suggest a few more effective questions can be (1) are you an authorized immigration representative and can I see your ICCRC/Law Society number? [if you have doubts, but do your research], (2) have you handled cases of this nature and provide some initial thoughts on my case, and (3) would we be able to set up a consultation to discuss your assistance on my matter. Having someone provide either a deceiving low rate or incredibly high fee quote with a made-up percentage really does a client little to no good.

On a second point, when it comes to success rate, I would be very cautious of any “company” that offers a “money-back guarantee” on immigrations applications. Many of these consultancies (who primarily do this) justify this by taking a heavy up-front retainer sum and then apply, knowing that when the decision is eventually made (several years later), they have had enough time to flip your money into additional funds to pad their pockets. Be very cautious – and ask questions such as (1) where do the funds go? – does the individual operate a trust account; (2) Can you bill me implements? – so they do not take all the money and bill it up front; or (3) Can you handle my file on an hourly basis? While it may appear that your engaging of a representative on an hourly basis does not give you any guarantees. it does provide a lot of accountability in terms of work performed. In the end of the day, when you engage a professional it should be for the efforts they input into the case, which in turn you hope will maximize your results. Consider time dedicate to your case as the value of your fees rather than the overall end result.

Finally, be careful of false advertising. Immigration is an area of law that is far too-easy to oversell. Clients are often at their most vulnerable and desperate when they come see you. They often have little knowledge of the rules and regulations other than what they have read on forums or heard from their neighbours.

There is nearly no regulation (especially in languages other than English and French). If you start reading advertisements that purport to sell you a job, or LMIA, or guarantee to take care of everything due to connections to immigration officials, it is probably time for the fraud radar to go off.

From the Advisor’s Perspective

So, how do I handle the question: can you guarantee success?

I usually start by giving the spiel I described above. Anybody who guarantees success without reviewing a client’s file thoroughly (review of ATIP, review of previous work/background, and the law) is probably doing a disservice.

I also note that my value add as a lawyer is to utilize my knowledge of the law and my understanding on concepts such as Officer discretion, administrative law, and my work reviving back-end refusals to give a client the advice they need on the front end. I am also a fan of immigration pathway planning where in the event success cannot be achieved on Plan A, we always have a Plan B. In the words of my best friend, Dav, “always enter, with an exit strategy.”

I am also very honest about how many years I have been doing immigration and my experiences in certain areas. I tell client’s where I know the law but may have limited practical experiences and that they can trust me to do it or I can refer them to a colleague who has expertise in their area. I highlight stories of success, as parables, but caution that every case depends on it’s merits and is subject to discretion and interpretation of law.

I also am very realistic about timeframes. Right now, with IRCC putting up bulk numbers (12 months) for all visa offices for family sponsorships and real uncertainty around paper-based processing  (especially implied status applications), any randomly-generated number would be a stretch. I can only utilize examples where I can a sample that I can choose from. I always caution any estimates I give based on previous experiences as not necessarily being representative of any particular case.

Being Honest is  Not Underselling

Particularly in today’s competitive environment, where there are literally thousands of practitioners who are able to do what you do to some degree of proficiency, it is important not to get into the business of overselling oneself. Ego-driven practices do not help a client, who often needs a practitioner who can bring the law and the experience to their level of understanding, and it certainly does not help the health of a practitioner, focused entirely on results as a validation of success. You talk to some of the best immigration lawyers (I won’t name names because I will inevitably forget many good ones), and you will notice they lose their fair share of very challenging cases. These losses, like scars, eventually strengthen the outer shell and deepen their knowledge of the law.

Just recently, I lost a Federal Court case that did not get Leave on. I put hours into drafting my memorandum of argument, hours more into the reply. I produced arguments for an area of law that has never been tested at a judicial level. The Federal Court decided not to hear it and to deny leave – likely following a strict interpretation of the law and the limitations of the reasonableness standard. While disappointing and not a “success”, I feel empowered by the time spent engaging and interpreting a provision of law and I am confident that the next case I can reframe in a more effective way. The client, though disappointed, appreciates my honesty and appreciates the fact that I will stick with them because we foresaw the possibility and will need to re-calibrate our options.

I think if we all re-think “success”, we will better serve our clients and be better “trusted” representatives to our clients.