Category Archives: Canadian International Students and the Law

This blog shares legal developments affecting Canadian international students

Recently quoted in CBA National Magazine’s: ‘The pandemic and the long-term impact on immigration’

Panellist Will Tao, a lawyer at Edelmann & Co. Law Offices in Vancouver, worries that international graduates or students have the most trouble advocating for themselves, and are unable to access the benefits on offer because their immigration status plays a role.

“I’ve heard from a lot of research assistants personally who had jobs and grants during the summer, and who had those unceremoniously cancelled because there are some of the stigmas around who are we helping in times of crisis,” says Tao.

Some students rely upon transfers from overseas accounts, says Tao. They may have been cut off, or can no longer get support from their families in the middle of their studies. They are now facing the challenge of extending their permits.

“Many of these issues are going to become more pronounced as we move forward, and these are almost not necessarily travel ban issues,” says Tao. “But they are things we will see the consequences of in the months and years to follow.”

You can read the rest of the piece: here.

I look forward to continuing the conversation at the CBA Conference this Friday at 10am PST (1pm EST)

Study Permit: COVID-19 Program Delivery – What It Says and What It Doesn’t

Oh, the joys of our immigration practice and the frequent changes it brings along.

I am scheduled to speak on study permits this upcoming Friday for the Canadian Bar Association’s National Conference. I finished my materials a week and a half ago – presumptively thinking that I covered almost everything I could regarding study permits (combining both pre-COVID materials I had prepared and post-COVID guidance).

Friday rolled around and there is a whole new program delivery guide was posted. I found out Saturday morning as I was midway through watching the MJ/Bull’s documentary The Last Dance (I’m a bit behind on these type of things). H/T to Toronto-based immigration lawyer/specialist Robin Seligman for the Linkedin update that caught my eye.

I pulled a marathon Saturday, wrote about the Federal Court/prepared my judicial review Sunday, and now I finally have some time to breakdown the delivery instructions with you. I will also touch briefly on the CBSA’s guidance on international student entry subject to the Orders in Council that superstar litigator (someone who I personally foresee as a future Federal Court judge), Aris Daghighian received as part of his litigation against IRCC on the application of the Order in Councils (OICs) which refused the entry of a father to attend his child’s birth.

For reference materials, follow along here (for the Program Delivery Instructions). We will discuss the CBSA guidance/directives through screenshots shortly.

IRCC Not Refusing Applications for Non-Compliance

As stated on the instructions:

Until further notice, IRCC offices will not refuse an application for non-compliance. IRCC officers will continue to request additional supporting documents or necessary actions (such as biometrics and medical exams) as part of the application process and will keep the applications open until documents are received or evidence is provided that action has been taken.

This, along with the 90 day response periods are generous, but at the same time can create challenges with other third parties (employers, schools, etc.). While processing officers are also bringing forward the applications and paperng applications, you should do the same on your end as an applicant/study permit holder.

I would also make sure to save a copy of the instructions so you can share with those who may not be familiar with the changes and may challenge your ability to work.

Submitting Applications Without Certain Documentation

As I wrote in my post for Edelmann’s blog last week, updating files and timing further submissions is going to become an important skill.

As a temporary facilitation measure, students applying to extend their status will be allowed to submit an application without a letter of acceptance or proof of enrolment. In lieu of the letter of acceptance, the applicant should submit a letter of explanation indicating that they are unable to submit the requested document due to their school’s closure.

Once these documents become available, applicants should submit the documents using the IRCC Web form. If no documents are submitted by the time CPC-E is ready to process the application, the documents will be requested by the processing officer as per the instructions above.

It should be noted that this is a temporary policy. It is foreseeable that at a certain point in time these instructions will be rescinded. While it is hoped that applicants will have sufficient time to respond, it is not unheard of to have to have anywhere from one week, to two weeks, to a month to obtain documentation. This still may be an issue down the road so I see very little benefit in not trying to stay on top of things.

Post-Graduate Work Permits

IRCC has provided a helpful exception – allowing individuals to apply for a PGWP while they are awaiting a letter of completion or final transcript. This is crucial as it allows students to start working, assuming they still hold a valid study permit at the time of their PGWP application.

The relevant instructions state:

As a temporary facilitation measure, applicants who apply for a post-graduation work permit will be allowed to submit an application without their letter of completion or final transcript. Applicants should submit a letter of explanation indicating that they are unable to submit the requested documents due to school closure. Once these documents become available, applicants should submit the documents using the IRCC Web form. If no documents are submitted by the time CPC-E is ready to process the application, the documents will be requested by the processing officer as per the above procedures.

Restoration to Student/PGWP

I still think IRCC needs to provide more detailed ‘step-by-step’ instructions on how to apply for restoration to PGWP, via a restoration first to student.

The relevant instructions state:

IRCC has clarified that applicants who need to restore their status will also be eligible to apply without their letter of completion or final transcript.

Documentation – Designated Learning Institutions (“DLIs”) Need to Take a Bigger Role.

As the instructions state, there are going to be several points where international students are being requested to provide updated documents which largely originate from the institution.

Applicants may have to submit additional documents from the DLI confirming which part of the program was completed in Canada.

There is also an important note that states as follows:

Note: For applicants currently outside Canada who are scheduled to begin studying in May or June 2020 but who do not have either a study permit or approval on their study permit application, time spent pursuing their studies online will not count toward their eligibility for a post-graduation work permit.

Right now international students (both abroad and at home) are in a weird limbo around part-time studies and whether or not they need a permit to engage in online studies. While IRCC has given an exemption for students who are unable to study full-time as a result of institutional issues in maintaining their status, they likely be reminded of this only years from now when they are preparing their PGWP applications and recognize this huge gap. DLIs need to take added steps to document and be able to assist students in the preparation of letter of completions that may contain more detail than usual. Many times, and especially with turnover, these important notes to file are lost and students find themselves having to put the blame on the institution if their applications are refused, leading to both liability and litigation risk.

More on International Student Advisors (RISIAs) shortly.

One Policy Recommendation

IRCC states the eligibility to work after submitting PGWPs as follows. Note that the wording of ‘before the expiry of their study permit’ presumptly suggests that implied status applicants who were awaiting a study permit prior to making their post-graduate work permits. must wait until their PGWP is approved before they start working.

Work authorization after submitting a post-graduation work permit application

As per paragraph R186(w), graduates who apply for a work permit, such as a post-graduation work permit, before the expiry of their study permit are eligible to work full time without a work permit while waiting for a decision on their application if all of the following apply:

  • They are or were the holders of a valid study permit at the time of the post-graduation work permit application.
  • They have completed an eligible program of study.
  • They meet the requirements for working off campus without a work permit under paragraph R186(v) (that is, they were a full-time student enrolled at a DLI in a post-secondary academic, vocational or professional training program of at least 8 months in duration that led to a degree, diploma or certificate).
  • They did not exceed the allowable hours of work under paragraph R186(v).

Unfortunately, much of this processing time is out of the students control. Also, with many students having had to navigate COVID and changes to their final semesters, many have had to put in a last extension prior to graduating. The reality is it could be several (read: five, six plus months) before they are able to obtain their PGWP.

I suspect this is just a small gap but one that should be filled immediately.

The March 18th Rule

One of the reasons international students and their issues at the border may have been heard about less than other groups during COVID-19 is as a result of the firm date of March 18th, chosen by IRCC at which time either students must need to hold an existing study permit or have their letter of introduction dated before.

In a way, the strictness of this date, has masked the many challenges applicants in Canada are having with their study permits and as well the challenges institutions are having in predicting their numbers for Fall/Winter programs.

Disclosure from the CBSA Directives

We learned from the directives the following on international students who are seeking to enter Canada.

We know the situation is very dynamic with different provinces and schools taking different positions as it relates to online or in-person classes (with social distancing).

Notwithstanding the March 18th rule, student who hold valid study permits may still face challenges returning and are advised to bring proper paperwork to the Port of Entry.

Institutional and Applicant Mistakes On the Rise

As I discussed above, I think this a period of time where institutional and applicant mistakes may be magnified, with delayed consequences that may be felt even possibly several years down the road.

Unfortunately, in my own practice I have had to step in on many a recent case where the mistake emanated from a international student as the College/University. This may be as simple as endorsing the completion of forms without an adequate knowledge of the applicant’s entire immigration history, to advising a student to indicate an excessive set of available funds without those funds actually being available.

With international students bringing so much revenue to schools and program, the very least a DLI can do (from my perspective) is pay for the training of staff to the take the RISIA course or possibly even the RCIC course.  Advisors themselves should build in as many caveats into their advice as possible. Twenty/thirty minute consultation sessions are helpful but I cannot count how many times I learned disclosure from clients weeks and months later. Many students have had little-to-no role in past applications that were coordinate by parents, family members, or agents.

I also recommend that schools consider engaging immigration lawyers as part of their staff team. The average immigration lawyer makes $75,000 (as I learned from Marina Sedai) from a recent talk for the CBA National Online Immigration Conference.  That $75,000 is not coming easy either for many of my colleagues. It may be a good opportunity to get legal expertise and advice (particularly on the research/documentation/risk management side).

For student applicants, this is also a time to be extra diligent about document collection, storying, version management, form completion, among other areas.

I think it is also a time for student advocacy and for institutions to do a better job at listening to students and incorporating students into their programming and advisory services. I recently did an interview for a newspaper based in Montreal expanding on my some of my policy recommendations in general but I thought I’d tackle the new changes in this piece.

As discussed, I will be chatting more about Study Permits, pre/post-COVID this on Friday at the Online National Conference.

See you then :).

Five Immigration Tips for Coming Out of the Pandemic (Part 1)

I wrote this hopefully relevant piece with five immigration tips on coming out of the pandemic.

While no one has a crystal ball, I would expect that there is a greater emphasis on the back end (people with status issues and difficulties staying in Canada).

What do you think? Are there ways we can collaborate on these areas for the betterment of access to justice?

Five Immigration Tips for Coming Out of the Pandemic (Part 1)

International Students – A Recent Podcast, an Upcoming Presentation, and a Future Priority

Hi VIB Readers:

It’s been a minute.

A Recent Podcast

I wanted to share something I did not too long ago (Pre-COVID).

I recently joined Canadian Immigration Lawyer, Mark Holthe on his podcast, Canadian Immigration Podcast, to discuss some of the challenges international students experience when studying in Canada and some essential tips to avoiding the most common pitfalls.

International Students in Canada

I really want to thank Mark Holthe for his tireless efforts to bring the conversation about immigration law to the mainstream. He is an incredible mentor, a bastion of positivity, and a great lawyer – evidenced by recently winning the Best Lawyers – Best Lawyer in Alberta award. I am grateful that he took time to interview me and I am happy to share this conversation.

 

Upcoming Presentation

I will also will be speaking at the CBA National Immigration Section’s conference titled “20:20 A VISION FOR LAWYER EXPERTISE DURING A PANDEMIC AND BEYOND” on study permits.

You can register for the conference and find more information here: https://www.cbapd.org/details_en.aspx?id=NA_NA20IMM04J 

My session is at 10:00am – 11:15am PST (1:00pm – 2:15pm EST).

Future Priority

My assistant Edris and I have been working on putting together new content and new materials to assist international students, along with migrant families and migrant workers – the focus of our practice moving forward.

As I discussed in my podcast, international students have a special place in my heart – part of both my late father’s journey to Canada (the reason I am here) and my own spouse’s journey to joining.

We’re going to be looking specifically at issues Post-COVID that affect these groups and brainstorm ways from policy and non-profit perspectives that we can help or push changs. I continue to represent individual students, workers, and collective families in achieving their immigration goals.

Thanks for all your continued support of my practice and the work we are doing for our clients and hope to do for community!

 

 

Are we R.228-ing too many R.229s? – New COVID-Based Quarantine Act Inadmissibility and the Case for Procedural Fairness Amid Changing Administrative Efficiencies

Introduction

I did an earlier-COVID post about the criminal inadmissibility consequences of the Quarantine Act. In today’s post I want to update the Government’s approach here but also bring a larger critique – that we should be advocating for the right of foreign nationals to access the Immigration Division (R.229 of the Immigration and Refugee Protection Regulations [IRPR]) where it is clear their case requires a balancing of evidentiary facts and greater (if still minimum by administrative legal standards) procedural fairness.

I see a worrisome trend of addressing (ramming) new inadmissibility through CBSA Minister’s Delegate [R.228] because it is administratively convenient. As technology improves and the ability of more hearings to be run administratively efficiently, is it still fair to deny foreign nationals at the heart of these matters, the ability to have an independent decision-maker preside over their cases and to present their full evidence?

The New Inadmissibility – Violation of Emergencies Act or Quarantine Act

On 20 April 2020, the Federal Government introduced a new inadmissibility for foreign national (visitors, students, and workers) who violate the Quarantine Act.  

The change adds an inadmissibility under s.41(a) of the Immigration and Refugee Protection Act (“IRPA”) and does so by also creating automatic inadmissibility for any Foreign National with a Quarantine Act conviction.

22.1 For the purpose of determining whether a foreign national is inadmissible under paragraph 41(a) of the Act for having failed to comply with the condition set out in paragraph 43(1)(e) or 183(1)(d) of these Regulations, if the foreign national has been convicted for having contravened an order or regulation made under the Emergencies Act or the Quarantine Act, the facts on which the conviction is based shall be considered to be conclusively established.

This operates through the adding of a General condition under s.183(d) which applies to all temporary residents:

General conditions

  •  (1) Subject to section 185, the following conditions are imposed on all temporary residents:

    • (a) to leave Canada by the end of the period authorized for their stay;

    • (b) to not work, unless authorized by this Part or Part 11;

    • (b.1) if authorized to work by this Part or Part 11, to not enter into an employment agreement, or extend the term of an employment agreement, with an employer who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages;

    • (b.2) if authorized to work by this Part or Part 11, to not enter into an employment agreement, or extend the term of an employment agreement, with an employer referred to in any of subparagraphs 200(3)(h)(i) to (iii);

    • (c) to not study, unless authorized by the Act, this Part or Part 12; and

    • (d) to comply with all requirements imposed on them by an order or regulation made under the Emergencies Act or the Quarantine Act.

The law also applies by way of adding a condition under Regulation 43(1)(e) in the context of continued examinations under s.23 IRPA.

Conditions

  •  (1) An officer must impose the following conditions on every person authorized to enter Canada under section 23 of the Act:

    • (a) to report in person at the time and place specified for the completion of the examination or the admissibility hearing;

    • (b) to not engage in any work in Canada;

    • (c) to not attend any educational institution in Canada;

    • (d) to report in person to an officer at a port of entry if the person withdraws their application to enter Canada; and

    • (e) to comply with all requirements imposed on them by an order or regulation made under the Emergencies Act or the Quarantine Act.

It is important hear that the IRPA imposes an obligation beyond the criminal context, to require compliance with ‘all requirements.’ There are several Quarantine Act requirements that do not directly attach a conviction for. Furthermore, this brings into the realm of immigration inadmissibility several convictions found in s.67-72 of the Quarantine Act that would not have rendered a foreign national inadmissible by way of a sole summary offence conviction.

There are major questions of its overbreadth and as well whether the inadmissibility will be disproportionately pursued against low-skilled workers working in fields such as agricultural, largely at the whim of the direction of the employer or their agents. While there are also employer compliance issues (which this piece will not explore) it is foreseeable that a wrong of the employer could be attached to the employee by way of inadmissibility.

The Regulatory Impact Analysis Statement acknowledges as much in what I still feel is a severely short assessment:

Gender-based analysis plus (GBA+)

The power imbalance inherent in most employment relationships is intensified for foreign workers as a result of their temporary status in Canada, and in the case of employer-specific work permit holders, the conditional nature of their authorization to only work for one employer. This imbalance can be further exacerbated by factors such a lack of proficiency in English or French, lack of knowledge of their rights, and misinformation. Gender and intersectional factors (e.g. age, race, low-wage level) may further increase vulnerability to workplace abuse.

One of the policy objectives of these regulatory amendments is to protect temporary foreign workers to help ensure that they are not put in situations where they are at risk of being infected by COVID-19 and/or at risk of infecting others. The proposal is expected to safeguard against an employer encouraging a worker to violate any requirements under the Quarantine Act or the Emergencies Act.

Colour me sceptical but I do not see how putting punitive immigration consequences on foreign workers protects temporary foreign workers. I do see individuals who are racialized and in low-paying jobs (with assumed lower levels of language ability and presumed less shelter-at-home circumstances) being subject to greater surveillance and immigration consequences.

 

No Referral to the Immigration Division

Where I think this provisions steps into the line of being a major problem in my perspective is is listed as a R.228 IRPR inadmissibility rather than as a s.229 IRPR admissibility.

11 (1) Subparagraph 228(1)(c)(v) of the Regulations is replaced by the following:

  • (v) failing to comply with subsection 29(2) of the Act as a result of non-compliance with any condition set out in paragraph 183(1)(d), section 184 or subsection 220.1(1), an exclusion order,

(2) Paragraph 228(1)(c) of the Regulations is amended by adding “or” at the end of subparagraph (vi) and by adding the following after that subparagraph:

  • (vii) failing to comply with the condition set out in paragraph 43(1)(e), an exclusion order;

The difference between R.228 and R.229 IRPR is that R.228 IRPR allows a Minister’s Delegate of the Canada Border Services Agency (including at the Port of Entry) to issue an exclusion order.

Subsection 44(2) of the Act — foreign nationals

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

R.229 inadmissibilities require the Minister Delegate to refer the matter to the Immigration Division (ID):

Paragraph 45(d) of the Act — applicable removal order

  •  (1) For the purposes of paragraph 45(d) of the Act, the applicable removal order to be made by the Immigration Division against a person is

At an Immigration Division hearing, the burden of proof is on the Minister to prove that the person concerned is inadmissible to Canada. The ID Member who makes a decision is a third-party, impartial decision-maker. They are obligated to assess the submissions and the evidence submitted by the person concerned.

In a Minister’s Delegate-issued removal order, evidence is assessed but the MD’s are acting on the arresting officer, other law enforcement/public authorities, and other interviewing inland enforcement officers to render their decision. They are carrying out the decision effectively “in-house” thus eliminating a real need for additional procedural fairness (opportunities to respond) or in many cases adequate opportunities to provide further evidence. Most clients have no counsel for MD-issued removal orders and counsel are often given limited ability to advocate in this setting.

 

Continuing a Recent Trend of No Justification

One of the problems as well is that the RIAS does not provide further justification on why the inadmissibility was chosen for s.228 and not s.229.

The RIAS merely repeats four times a state similar to this:

The Regulations provide the authority for the Minister of Public Safety or the Minister’s delegate to issue a removal order for non-compliance with the new conditions that require compliance with an order or regulation under the Quarantine Act or the Emergencies Act, once a person has been found to be inadmissible. 

The last inadmissibility added – in February 2014 (effective June 2014) for non-compliance and not actively pursuing studies (IRPA s.29(2) x. s.41(a) x IRPR s.220.1) also contained similar language in it’s RIAS.

The Regulations allow for issuance of a removal order by delegated officers in circumstances where students are not complying with new study permit conditions, rather than being referred to the Immigration Division of the Immigration and Refugee Board for a hearing.

In the international student context, this led to border officers removing international students for one-day trips to the United States during studies, poor grades, and until recently, as secondary admissibilities to inland admissibility investigations/matters (allegations of criminality, misrep, etc.).

I think a question needs to be legitimately asked about why two admissibilities both of which go against the usual R.228 black and white assessment (e.g. are expired permits – overstay, not holding required immigration document, failing to appear for examination, criminal conviction inside Canada as examples) are being put in the same box.

Given the limited application (at least documented) of the Quarantine Act as we explored last blog, should not an independent decision-maker who develops specific expertise to assess evidence be required? What happens if the allegation is not based solely on a conviction but actually on an issue such as the truthfulness of a disclosure or response (s. 15 -s.16 of the Quarantine Act). How would these proceed without witnesses and the type of evidentiary disclosure needed?

Remember when we frame this issue, we also look at the primary elements of procedural fairness as set out of by IRCC.

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/service-delivery/procedural-fairness.html 

The right to be heard or the right to reasons is not too hard in the context of an individual who violates a clear law on the face, but this law is far from clear and arguably with construction that is far from perfect.

It is my hope that it is used infrequently and that we move through this COVID period with discretion and seeking understanding before applying punitive measures, but we have seen in the ways that fines have been levied for COVID offences generally that this has not been the case.

In the interim, we need to hold the Government to account to explain and justify why the Immigration Division could not have been given jurisdiction to issue the removal order.

Immigration Division

One of the main arguments for an R.228 removal in administrative efficiency. The idea being these issues are so important and emergent that they need to be dealt with quickly, and possibly even at the Border.

With COVID one of the things we are seeing is an improvement in the ability to hear cases virtually or leverage technology to make things more efficient. Subject to the very important aim of giving individuals the right to an oral hearing (and ideally in person) particularly in the context of long-term detainees and refugees, I don’t see why the administrative efficiency argument still stands.

Post-COVID I expect that we will see many more hearings (including admissibility hearings) operate via online video conferences. These conferences can include the ability to share and provide evidence quickly, disclose immediately, and likely timelines can be shortened for scheduling. With all these things, what is the continued justification for not referring cases that do require an assessment of evidence to render a reasonable and fair decision?

Judicial Review as a Possible Outcome

Unfortunately, if there is unfortunately a second wave or if the Quarantine Act becomes engaged increasingly for inadmissibility, I suspect that we will have quick removals and unfortunately little basis for stay of removals. For workers, it is likely that inadmissibility would also sever the employer/employee relationship removing the argument they likely had for significant harm. Students and Visitors will probably have similar difficulties establishing significant harm in most cases if their entry was for studies or family-based visits (which are already being scrutinized).

Ultimately, I believe we will probably get poorly justified removals that will require judicial reviews to sort out. However, unlike the actively pursuing studies provision of R.220.1 IRPR which the Federal Court has generally upheld in reported decisions, I think the Quarantine Act will be much more difficult to navigate. There are also holes around issues such as overbreadth and vagueness, and certainly procedural fairness issues, that will emerge in such litigation.

I am interested to see how this will all pan out. If you  have a case on the basis of this new inadmissibility, I am eager to hear from you: will@edelmann.ca

Take care and stay safe!

 

Quoted in Ritesh Matlani’s Medium piece: “The pandemic and immigrants — when your fresh start needs a reboot”

Recently, I haven’t been as active as I wanted to be. Partially because others have been doing a fantastic job and I am a huge believer in not overcrowding the information airways when others are doing such good work (shoutouts especially to Ravi Jain and the CBA Immigration Section Executives, Steven Meurrens, Julianna Daley and Migrant Workers Centre, Jim Wu, FACLBC, among many, many others). I am also grateful for the mentorship of my colleagues at Edelmann, and individuals such as Sam Plett (a brilliant lawyer out in Ottawa, formerly Toronto) who have given me a lot to think about with their words and imparted wisdom.

The other reason is that in my own way I have also been struggling with the pandemic. I have been struggling with staying healthy, motivated, and positive (crushing those ANTs!) among all the other things. I’m also in the middle of an internal/structural rebuild with many moving parts. Some of those parts include (like many courts have been doing) thinking about how to leverage technology,

Someone I assisted in the past, a creative mind, and film director Ritesh Matlani wrote this wonderful piece in the Medium where he  graciously quoted some of my thoughts on the recent COVID pandemic. Ritesh has a growing network in the Film and Television industry where he often assists others and advocates for those within the broader Asian diaspora, such as writing for the Cold Tea Collective.

I wanted to just share a few of the quotes in Ritesh’s piece below. I also would recommend everyone to go watch his film Nana. I’m still in line to see it but from what I read and what I know of Ritesh’s journey it likely is a magical short [edit: he just sent me the link to watch it and it is incredible].

The Medium piece is HERE:

My quoted section is as follows:

Will Tao is a solicitor with Edelmann & Co. Law Offices in Vancouver and had assisted me in my immigration process, first as a temporary worker and then for permanent residency. My case was complex and his expertise really got me through what can be a dark and daunting time for many immigrants.

“Our pathways to permanent residency, especially in the economic stream, are based on employer endorsement or job offer. Due to the pandemic, HR offices at limited capacities to write support letters for permanent resident candidates, many of whom are losing eligibility as they are no longer employed,” said Tao about the current scenario.

For citizenship, unfortunately, the delays of applications will become quite pronounced.

“I would not be surprised if citizenship applications take at least a year to possibly a year and a half longer than usual. Ironically, one of the only positive effects I have seen has been the lowering of Express Entry scores,” says Tao, who engages with both workers and students at a community level. Worry and confusion afflict those who have a precarious status or expired SIN numbers as little information is provided on how they can access relief funds. There are students who are panicked for funds to support their studies. Many are isolated in rented rooms with no ties in Canada. Others are choosing to defer their start dates and stay abroad. Online learning is going to become the new norm.

I wanted to also give you a quick update on my new norm. I realized that Twitter has been killing my brain so I have temporarily deactivated it. I hope to jump back before the 30 days takes away my account but I’m likely going to move to a more Peter Edelmann (Justice Edelmann, now) approach of tweeting only important immigration updates. I am trying to find a new platform for my race/equity writing and as well hold some of my own political views more to myself and express them through various organizations/efforts I am involved in.  In short – tweeting has overwhelmed me to the point of needing to step back and recognize the temporal nature of  a Tweet versus the longer need of deeper systemic efforts. It’s time for the horse blinders!

See you all shortly.

 

On the Philippines and the Canadian Filipinx Migrant Community – Lou Dangzalan, Canadian Immigration Lawyer

Q&A with Canadian Immigration Lawyer, Lou Dangzalan 

In today’s special blog, I am chatting with my friend and fellow immigration lawyer in Toronto, Lou Dangzalan. Lou and I went to the University of Ottawa Law School together and I was glad to find out a few years later that he also joined the practice of Immigration and Refugee Law. We reconnected in Winnipeg last year during the CBA Immigration Conference over Jollibees and shared stories of our respective diasporic communities.

I want to tell you a bit about my own love for the Philippines. It doesn’t come with the depth and foundations that I hope it will one day (when I immerse myself more in the culture and history) but it is built out of my own time there as a tourist. In 2010, I went to Manila, Angeles City, and Palawan (Puerto Princesa and El Nido). Spending time there and reflecting back on the diasporic community here in Canada, I realized that many of us really do not understand nor appreciate the complexities and the beauty.

We may recognize the tastes of adobo, but we do not understand the layers of colonial history, the effects migration has had on communities and families, and the often invisible stories of both struggle and resiliency. 

Lou, a native of the Philippines who was also a former journalist, has spent an increasing amount of time in the Philippines. He spent time answering questions (not easy at all) that I posed to him as we unpack some  of the issues of the Filipinx identity, local, and broader community.

 

Q1: I know many Canadians really do not understand the Philippines, the Filipinx diaspora. I know it is impossible for one person to represent an entire community but what kind of things can you share about the community to better educate the Canadian public? What misconceptions are out there?

The Filipinx diaspora is no stranger to a plethora of scholarly and investigative work. In Canada, I would tip my hat off to Phil Kelly at York University who has studied the Filipinx-Canadian community in detail.

Let’s start with the numbers: what I can tell you is that at any given moment, 10 percent of the Philippines’ population is outside the country’s boundaries. That amounts to about 10 million, and about 840,000 of them are in Canada as of 2016. 

I will confess a feeling of discomfort in responding to this question as the Filipinx diaspora is chimeric and varies by geographic spread. For example, in East and Southeast Asia, the face of the Filipinx diaspora is deeply gendered as women are overrepresented as a lot of those who work in Hong Kong and Singapore for example migrate as domestic workers. 

However, a grand majority of seafarers working in the maritime industry around the world are Filipino men. Contrast that to Filipinx migration to the United States after the Second World War: Filipina nurses comprised the majority and some of these nurses even ended up in Winnipeg, Manitoba on a visa run! As the story goes, they liked Canada and Canadians so much that they decided to stay. 

That is unfortunately where the story of Filipinx-Americans and Filipinx-Canadians part ways: Filipinx-Americans are deeply entrenched and secure in the healthcare system in the US as reflected by the average median income of $84,620 USD, versus in Canada wherein the average Filipinx-Canadian median income is at $32,508 CAD. Filipinx-Canadians love to compare themselves to Filipinx-Americans, but at least in terms of median household income, the difference is staggering. 

One thing that is a uniting thread in the disparate diasporic communities is that they are a reflection of the diversity and the complexity of the Philippines as a society. When people think about the Philippines, it’s easy to dismiss it as an inconsequential economy and that everyone in the country is poor. I’m sure that in your trip in 2010, you noticed the immoral levels of inequality in the chaos that is Manila, and in America’s Angeles City; and then you probably asked yourself why the working class have not revolted against the elites yet. Then you understand how it all works when you find equilibrium through the locals in El Nido – they surprise you by showing you a new level of humanity with a simple smile. 

The Philippines is a country of multiple layers of contradictions largely owing to its (colonial) history, political economy, and demography. For example, it is hardly thought of as a multicultural country even if English and “Filipino” are official languages, while Spanish and Arabic are “auxiliary languages.” It isn’t so long ago when people from different parts of the Philippines wouldn’t understand each other owing to their different ethnolinguistic background and would only be able to communicate in English. My great-grandparents’ household spoke English as their common language.

Adding to that is how the Philippines’ demography has changed immensely in the last 20 years: there is now a sizable Korean community in the Philippines taking advantage of cheaper education in English, and hundreds of thousands of mainland Chinese nationals are now working in various sectors there. Of course, Manila has become North America’s preferred call centre and operates in lockstep with eastern standard time. This results into a bizarre chaotic melange of east and west. 

This circles back to my point about my discomfort in describing the Filipinx diaspora as there are many vantage points from which you can interrogate it. I say that with pain as well given the heinous human rights situation under Rodrigo Duterte who has led the Philippines into a rabbit hole of catastrophe. Whenever I am asked about it, of course, there is a feeling of shame and anger, but above all, a feeling of resistance to be defined by a maniac who happened to win with an army of internet trolls. I left the Philippines in 2008 and while I do visit more often these days when work takes me there, I hardly recognize it from what I remember growing up, which is terrifying and fascinating at the same time.

 

Q2: I know that the exclusion of family members (undisclosed spouses and children) have been a historical issue that have provided major immigration challenges. Can you give a little background on why these challenges seemed to be so entrenched in the Filipinx context?

I suspect that there are a variety of reasons and absent a methodical social scientific study, I will rely on anecdotal evidence and conjecture. What I have encountered in cases of sponsorship bars relating to failure to disclose family members is that they range from receiving faulty advice from ghost consultants, inadequately trained consultants, and foreign trained lawyers who operate in a community silo, amplifying a feeling of professional alienation from the immigration bar, for example, along with socio-cultural predispositions.

I’m sure you’ve heard of harrowing stories wherein representatives would advise their client to drop a member of a family in an application. The colloquial term is “laglag,” which literally translates to drop. I dealt with a case where a client who came in for a consultation revealed that her immigration consultant had advised her to drop her son because he supposedly had a criminal record. According to the representative, the “criminal” inadmissibility would result in the refusal of the PR application. The offence, it turns out, was a municipal ordinance (by-law) offence – smoking in a public theatre. I spoke to a lawyer in the Philippines and we were able to confirm that the offence was not criminal in nature and should not appear in the police certificate since it was such a minor offence. The fact that criminal legal equivalence was not even contemplated by the immigration consultant blew me away.

There is also an element of conservative social upbringing and shame. It is not a secret that a lot of Filipinxs are devout Catholics or evangelicals. Some Filipinxs are very hesitant to reveal that they have children out of wedlock. In another matter, a client sought my help to sponsor her son. She was an accompanying dependent to her parents, who were in turn sponsored by their daughter. My client’s conservative social background attached a lot of shame to her out of wedlock son. I should note that the prejudice and shame is entrenched in the Philippines’ legal system, deeming these children as “illegitimate.” Most of our colleagues in the bar are aware that there is no divorce in the Philippines. She was afraid of the consequences of her elder sister, the sponsor, finding out about her son as the latter had constantly supported her financially by paying for her education. My client was drenched in shame and guilt and as a result, she did not disclose her son to immigration authorities for fear of her sister disowning her. As it turns out, she was right: my client’s sister had resisted all my attempts to obtain documents pertaining to the original PR application in order to know the context and establish a roadmap for sponsoring my client’s son even after almost a decade.

 

Q3: Another issue we hear a lot about here in Canada is that there are challenges for migrant workers to seek adequate legal representation in the Philippines and that often times ‘agents’ or ‘middle-men’ take advantage of migrant workers. Can you give an example of why this is the case and your understanding of some of these challenges?

Filipinxs are almost always obliged to use an agent in the Philippines to secure a job and a work permit in Canada. This is a case of applicants being targeted aggressively by labour recruiters and because of institutional requirements. Since the 1970s, Filipinxs leaving the country for work were regulated by the government through the Philippine Overseas Employment Agency. In addition, since early 2019, workers leaving the country are required to have insurance for health, death and repatriation through a labour recruiter, adding another bureaucratic layer. There exists a culture of using agents and middle-men. It is so entrenched that the first question that Filipinxs ask immigration professionals – both consultants and lawyers – is whether they are an agent. 

The latest iteration that appears to be problematic is when Canadian registered education agents who are in the Philippines recruit international students and provide legal advice in their immigration process. 

In Canada, lots of Filipinxs self-represent in immigration matters due to lack of financial resources, and sometimes through the egging of online communities where negative stereotypes of lawyers are abundant. This is where access to justice becomes very real for Filipinx-Canadians. I am acutely aware of this and have assumed a lot of risks by dramatically lowering my rates when I started practising law. I have made the conscious choice of not joining a law firm, even though it would be in my financial interest, so I can control my rates and provide more flexibility through payment deferral schemes, and by providing very long payment terms. 

Language barriers can also feed into the problem. While most members of the Filipinx community speak English, applicants tend to engage representatives, or worse: agents/middle-men within the community as they prefer to speak comfortably in Tagalog, Visayan or Ilocano. Even here in Canada, there is an alarming number of unlicensed representatives who present themselves as immigration consultants. This then becomes a challenge for the ICCRC and the various law societies as the language barrier is two-way: the problem becomes very opaque for regulators. In my experience in law school up to practice, I have never once met an agent of an immigration professional regulatory body who speaks Tagalog. Should a Canadian regulator one day wake up understanding Tagalog, they will realize how it’s like the wild west out there. 

Upon searching various law societies, lawyers who self-declare that they speak Tagalog are close to non-existent. I did a quick search on various law society lawyer directories limiting the parameters to immigration and city. For the City of Toronto. There are only two lawyers listed who self-declare as Tagalog speakers practising immigration law, including yours truly. Montreal shows zero; so does Calgary. The Law Society of British Columbia’s Lawyer Directory does not even allow you to find a lawyer who speaks your language on their website.

The intersection of access to justice, language rights, and trust issues create a negative feedback loop where Filipinx clients would take the word of a “middle-man” or who may not know what they are doing as absolute truth. In my humble view, this is a huge blindspot for the various law societies and the ICCRC. It however presents an opportunity to represent the public interest through introspection and by being more proactive in engaging with immigrant communities and not just through platitudes.

 

Q4: With COVID-19, we have been hearing about many TFWs and other Personal Support Workers (“PSWs) and Caregivers who are risking their lives to save Canadian lives and put food on the table? From what you have seen who are these individuals and what challenges are they facing?

Who: these are PSWs, Registered Practical Nurses (“RPNs”) and support staff at long-term care facilities, among others. Their main challenge: precarity of immigration status and employment. 

At the beginning of the COVID-19 outbreak, there was an almost universally accepted knowledge that the elderly will be some of the most vulnerable members of our society. Now, faced with the reality that most deaths so far have been in long-term care facilities, the sudden realization that an invisibilized workforce exists, much like seasonal agricultural workers, is deflating. From an immigration law perspective, I find the absence of a conversation on the disconnect between status and how grateful we are to these frontline workers morally disturbing.

In Ontario, one of the findings has been that the transmission of COVID-19 can be mitigated by banning long-term care facility workers from working at multiple locations. What everyone fails to ask is why these workers hold multiple positions in the first place. In dealing with my client’s employment histories, what I have noticed is that they hold on to multiple positions at multiple locations in order to cobble together a decent salary because they are mostly hired on a permanent-part-time basis. They rarely have job and income security.

Let’s be honest: even without COVID-19, working as a PSW is not easy. Between changing adult diapers and treating bedsores, these workers are exposed to some of the most harrowing mental health stressors. With the current pandemic, it’s even worse. I have a client who decided to stop working as a PSW because of her son – she fears that she may herself become a vector of transmission and infect him. As a result, her pathway to PR, as limited as it is to begin with, is in limbo. 

 

Q5: At the same time, I think many individuals do not appreciate how the Philippines is creating very educated individuals who are seeking to genuinely visit and study in Canada? Unfortunately, there are still high incidents of refusals arising from the Manila Visa Office. We see this again for individuals seeking to connect with partners (boyfriends and girlfriends) abroad. Can you shed some light into this?

What most Canadians do not realize is that the Philippines, prior to COVID-19, is one of the fastest growing economies in the world, even surpassing China’s growth rates in some quarters in the last 10 years. This has resulted in better incomes and an uplifting of the quality of life for most Filipinxs.

As a result, the appetite for travel as a social status symbol, for better or for worse, has grown. It stands to reason that Canada could gain from this through tourism and education spending dollars. Unfortunately, the recent rise in socio-economic standing trickles down ever so slowly through the machineries of bureaucracy, including visa offices whose institutional biases are still very much entrenched. 

I did an ATIP request last year to see what the statistics were like for the 2018 cycle. The refusal rate for the Philippines was 36% for study permits, largely the same compared to the global average refusal rate of 34%. This however masks the point that you made — that there are a lot of people who are genuinely seeking to visit and study in Canada.

I am due to request another ATIP report for 2019 to do a year-on-year analysis. 2019 is important because Canada announced then that it wants to diversify its source of international students from India and China to other countries such as Vietnam, the Philippines, and France. I will be monitoring this and I hope to have another conversation with you about the statistics and main reasons for refusals.

With regards to the partners who are seeking to reconnect, I will note that the threshold where convincing a visa officer that the applicant would return back to the Philippines due to strong pull ties is almost always a losing proposition. What I have noticed instead is that because meeting this onus is almost always a fool’s errand, most people would rather omit an important reason as to why the applicant is seeking a visa in the first place. 

 

Q6: What types of policy solutions do you think would benefit the first-generation Filipinx migrant communities? 

An overhaul of licensing and degree equivalencies. 

It puzzles me that a Filipinx nurse would have an easier time obtaining a licence in California or New York than in Ontario. To add insult to injury, the starting salaries for nurses in New York and in California would be much higher than in Ontario. I should note that there are historical reasons for this: the US did after all build the education system in the Philippines during the American colonial period under Governor-General William Howard Taft (yes, the late US President was a colonial governor in the Philippines). 

Much can be said about regulatory checks and ensuring standards, but when Filipino nurses have easier access to the profession in the US or in the UK’s National Health Service, one begins to question why bother with Canada.

I have some clients who are even asking me for help in obtaining a treaty visa under the then NAFTA as nurses in the US. Another one related that after having gone through hell and back to obtain an Ontario nurse’s licence, she felt that the process diminished her allegiance and belief in “Canada’s propaganda” (her words) of inclusion. The College of Nurses of Ontario’s process has left her jaded and very salty. 

 

Q7: We have been talking a lot, in our conversation, about racism, class, and gender-based prejudices as an issue with all clients, but specifically affecting the intersections of communities such as ours. To the extent you are comfortable sharing, how do you see these factors affect the Filipinx community today?

The Filipinx community is what I like to call an invisible visible minority group. In a way, this translates to a strategic avoidance of public ire when things are bad. However, invisibility is in its own way a form of institutional and social violence. 

I’d like to think of myself as a half-glass full kind of person. There is certainly a lot of room for improvement, but I am starting to see more effort from some long standing institutions in acknowledging the contributions of both our communities to the mosaic that is Canada. 

In dealing with the issue of invisibility, the only logical countermove is to promote visibility through advocacy and inter-cultural dialogue.

 

Q8: I have also heard in various community organizing efforts that the Filipinx community continues to go often unheard or underrepresented at the top echelons of business, politics, and the judiciary? I know recently a Filipinx judge was elevated to the Court of Appeal in Ontario. How do you think the community can push for this change and how do institutions themselves need to open up to the diaspora?

I believe you’re referring to now Justice of Appeal of the Court of Appeal for Ontario, Steve Coroza. I first met him in 2013 during a Federation of Asian Canadian Lawyers conference in Toronto. I was fortunate to have received valuable advice and mentorship from him over the years when I was unsure about my career trajectory while I was still in law school, and as a first generation immigrant.

I think that in this case, visibility, continued engagement, and mentorship are key strategies. At least for the Filipinx-Canadian community, the problem is invisibility and as a result, the community is largely ignored. I defer to the wisdom imparted by Justice Sandra Nishikawa who said at one FACL event that senior lawyers in racialized communities need to step up and serve as role models. I think that this applies across all professions and trades. It will be hard for institutions to ignore us if we speak up more and more. 

Finally, one of my former professors in law school gave me a valuable piece of advice that I would like to impart to my fellow young lawyers and advocates: we should not shy away from providing mentorship ourselves as even young lawyers, we do have something to offer. For example, a fresh perspective. This is critical as it allows us to consolidate our gains in transforming our institutions to be more attuned to the realities of our society by welcoming the various perspectives from Canada’s diasporic communities.

 

Thank you Lou!

I want to thank Lou for taking so much time out of his day to share with us a bit about his practice and his community. Lou has already been turning heads in Toronto, running his own Firm as a Sole Practitioner, and is bilingual in both English and French. Lou will be a social justice advocate and lawyer to watch for and I look forward to litigating with him down the road.

To find out more about Lou, follow him on Twitter @ljansdan

Immigration Consequences of a Quarantine Act Conviction for Foreign Nationals

Canada Invoking Emergency Order under the Quarantine Act

Today’s posts looks at an interesting legal question.

Health Minister Patty Hajdu announced this morning an Emergency Order under the Quarantine Act that requires any person entering Canada by air, sea or land to self-isolate for 14 days whether or not they have symptoms of COVID-19.

Here are a few links for background to the announcement

 

Criminal Admissibility 101 under the Immigration and Refugee Protection Act (“IRPA”)

What would happen in a foreign national subject to the lower inadmissibility standard for criminality under s.36(2) of the IRPA which states:

Criminality

(2) A foreign national is inadmissible on grounds of criminality for

  • (a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;

  • (b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;

  • (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or

  • (d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.

Under the IRPA, per s.36(3)(a) IRPA, an offence that may be prosecuted either summarily or by way of indictment (‘hybrid’) are deemed indictable:

Application

(3) The following provisions govern subsections (1) and (2):

  • (a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;

In short, for a foreign national (visitor, study permit holder, or work permit holder) a hybrid offence conviction would render one inadmissible to Canada.

So what does the Quarantine Act say?

 

Quarantine Act Offence Provisions

There are two Quarantine Act provisions that carry hybrid offences, s. 67 and s. 72.

Section 67 states:

Offence committed intentionally

  •  (1) Every person is guilty of an offence if they cause a risk of imminent death or serious bodily harm to another person while wilfully or recklessly contravening this Act or the regulations.

  • Punishment

    (2) Every person who commits an offence under subsection (1) is liable

    • (a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than three years, or to both; and

    • (b) on summary conviction, to a fine of not more than $300,000 or to imprisonment for a term of not more than six months, or to both.

    Section 72 states:

  • Contravention

     Every person who contravenes subsection 15(2) or section 66 is guilty of an offence and liable

    • (a) on conviction on indictment, to a fine of not more than $500,000 or to imprisonment for a term of not more than three years, or to both; or

    • (b) on summary conviction, to a fine of not more than $200,000 or to imprisonment for a term of not more than six months, or to both.

Referring back to the Quarantine Act we find,  the two provisions: the duty to disclose communicable disease

Duty to provide information

  •  (1) Every traveller shall answer any relevant questions asked by a screening officer or quarantine officer and provide to the officer any information or record in their possession that the officer may reasonably require in the performance of a duty under this Act.

  • Marginal note:Duty to disclose communicable disease

    (2) Any traveller who has reasonable grounds to suspect that they have or might have a communicable disease listed in the schedule or are infested with vectors, or that they have recently been in close proximity to a person who has, or is reasonably likely to have, a communicable disease listed in the schedule or is infested with vectors, shall disclose that fact to a screening officer or quarantine officer.

Obstruction of officer

 No person shall hinder or wilfully obstruct a quarantine officer, a screening officer or an environmental health officer who is carrying out their duties or functions under this Act, or make a false or misleading statement, either orally or in writing, to the officer.

It is important to note that as this morning’s announcement was done by Emergency Order, we are still as the publication of this piece waiting for the publishing of the Order in the Gazette which effects criminal enforcement.

Contravention of unpublished order

(4) No person shall be convicted of an offence consisting of a contravention of the order if, at the time of the alleged contravention, the order had not been published in the Canada Gazette, unless it is proved that, at the time of the alleged contravention, the person had been notified of the order or reasonable steps had been taken to bring the purport of the order to the notice of persons likely to be affected by it.

Case Law

Given we know what the consequences are – the next question to be asked is whether the Quarantine Act has ever been enforced against foreign nationals in a manner that creates criminal inadmissibility.

There are no cases that directly reference prosecutions under the Quarantine Act for any individual, let alone foreign nationals. Most of the references are passing references, and those in the context of refugee cases cite s.100(5) of IRPA, which delays the referral process to the RPD from the officer who receives the refugee claim.

 

How Strictly Will It Be Enforced?

Again, I don’t think the provision was made so much with an emphasis on what the back end of  enforcement will look like,  but rather strong message that ‘self-isolation’ and ‘quarantine’ be treated seriously (and as a legal requirement) by the large numbers of Canadian citizens, permanent residents, and permit holders who are returning to Canada.

This is an unprecedented time and it is important for all individuals to recognize that these measures are life-saving. I would highly suggest Foreign Nationals take extra precaution given the possibility of criminal inadmissibility consequences. Given CBSA Officers will be at the front line of enforcing this, foreign nationals may find themselves not too many steps removed from other immigration-related challenges which can also arise on a parallel basis, something we have seen in the past with customs and other administrative enforcement.

Implied Status Student/Worker in B.C? – B.C. Government Extends Temporary MSP (you need to contact Health Insurance BC)

In a welcome announcement today, temporary MSP has been extended to those with expired student and work permits (i.e. on implied status). This temporary MSP will be effective until July 31, 2020.

See Below:

Q2. What if my temporary permits have expired and I no longer have MSP coverage?

In response to COVID-19, individuals who are currently in B.C., who were previously enrolled in MSP as a deemed resident, and their MSP has expired, may be provided temporary MSP coverage.

Individuals should contact Health Insurance BC to request this temporary coverage.

Health Insurance BC

Toll-free: 1 800 663-7100
Lower Mainland: 604 683-7151

Mailing Address:
Health Insurance BC
PO Box 9035 Stn Prov Gov
Victoria, BC V8W 9E3

This may include individuals who have applied for a new work or study permit but it has yet to arrive.

In these circumstances temporary coverage will be granted until July 31, 2020.

The link for all the changes is here: https://www2.gov.bc.ca/gov/content/health/health-drug-coverage/msp/bc-residents/covid-19-msp-qa

What is very important is that you have to call or mail in (it appears) to engage this coverage. 

So do it quickly and tell your affected friends.

I want to take this time to especially shoutout (there are many important people doing important things during the COVID-19 pandemic so this group often gets missed), the low-wage (and poorly defined by our system as low-skilled) temporary foreign workers who are putting themselves at risk, working jobs we do not work, in order to help a country that often has not reciprocated their help. I hope this whole situation and recognition of who is doing the labour, leads us to consider ways we can provide pathways to permanent residence and citizenship for our ‘essential’ workers.

Assessing Family Ties in the Context of Study Permit Applications – A Few Useful Cases

Hello, VIB blog readers:

It has been too long. I recently came back from meandering streets and towns of Cuba. I had an incredible time and needed the break. I’m back (a little sick from a sunset ocean swim) but motivated. Unfortunately, I have been spending most of my time writing conference papers which has mean less time blogging.

Photo I took in Varadero

Today’s blog will be short, sweet, but important. Increasingly, as the Federal Court has pivoted towards the position that procedural fairness (i.e. a PFL) is needed where there are concerns over the bona fides  of a study permit application, refusals are more likely going to come on concerns the Applicant will not leave Canada at the end of their authorized stay. Even on those grounds, with a lack of travel history being continually re-enforced as, at most a neutral factor (see e.g. Justice Ahmed’s comments in Adom v Canada (Citizenship and Immigration), 2019 FC 26 http://canlii.ca/t/hwx6m at para 15), there are becoming fewer and fewer ways for IRCC to actually substantiate that an individual will not leave Canada at the end of their authorized stay.

One of the common ways Officers wish to do this is by highlighting family ties as a reason for refusal. Argument is that because an individual has family in Canada (either other family members or relatives on permits, as permanent residents, or citizens) that they will not leave Canada. This can also be demonstrated by showing the Applicant is not leaving or leaving limited family members behind in their country of origin/residence.

One way this is often addressed in the context of someone visiting their Canadian spouse (for example) is to put in a dual intention argument.

I have written previously on the need to exercise caution when claiming dual intention, especially when there is not a clear or immediate pathway to permanent residence for international students.

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

I am still debating whether I am of this opinion, as there has been some recent positive case law (see: Bteich v Canada (Citizenship and Immigration), 2019 FC 1230  http://canlii.ca/t/j2kzr). My opinion has shifted in that I do think a case-by-case assessment should take place. I will address this case below.

Addressing Family Ties

In the section that follows I  want to highlight a few strong cases from the Applicant’s side before looking at one case that the Department of Justice may lean on.

In the aforementioned, Bteich v Canada (Citizenship and Immigration), 2019 FC 1230  http://canlii.ca/t/j2kzr, Mr. B, a resident of Lebanon was applying for a study permit. His immediate family (parents) were in Canada on valid work permits and her three sisters were pursuing education in Quebec. He was admitted into the University of Montreal.

One of the major reasons he was denied was that he had strong family ties in Canada and the Officer had concerns that the Applicant would be coming to Canada for reasons other than those stated in his application (at para 10).

In assessing family ties,  Justice Shore highlighted the Applicant’s arguments (which were well made, I might add):

[12] The Applicant submits that it was unreasonable for the Officer to consider the parents’ lawful status in Canada as a negative factor. In support of this submission, the Applicant refers to the Minister’s Operational Instructions and Guidelines (OP-11 Guidelines, at page 13) which suggest a favourable consideration of family members with lawful status and stable employment in Canada.

[13] The Applicant further argues that the Officer made an arbitrary decision based on unintelligible reasons when he failed to justify how the legal presence of the Applicant’s parents in Canada warranted a negative consideration.

[14] The Applicant also submits that the Officer failed to consider that the presence of the parents with valid work permits would likely ensure that the Applicant has sufficient financial support (Girn v Canada (Citizenship and Immigration), 2015 FC 1222 at para 32; Tavakoli Dinani v Canada (Citizenship and Immigration), 2012 FC 1063 at para 27; Demyati, above, at para 11).

[15] In drawing a negative inference from the parents’ status in Canada, the Officer also failed to consider that the Applicant may have a legitimate dual intent, as permitted by the IRPA at subsection 22(2).

Justice Shore highlighted in analysis that the simple tying in of strong family ties to an individual remaining illegally was an unreasonable inference:

(2) The Officer acted without regard to the evidence of the Applicant’s current studies

[33] The IRPA explicitly provides for the possibility of having a dual intent:

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

[34] In this case at hand, the Applicant has strong ties in Canada with well-established and legally established members of his family. This Court agrees with the Applicant’s submissions as summarized above at paragraphs 12 to 15: the Officer should not have drawn negative inferences from the Applicant’s family ties in Canada. If anything, the Officer should have considered the financial support the Applicant’s family provides as a positive factor. At the very least, the Officer should have justified his/her reasoning: it is unreasonable to infer that Applicant will remain in the country illegally simply because he has strong family ties in Canada.

As set out in the beginning of the decision, in overview:

[2]  In this case at hand, the Applicant has strong ties in Canada with well-established and legally established members of his family. This Court agrees with the Applicant’s submissions as summarized below at paragraphs 12 to 15: the Officer should not have drawn negative inferences from the Applicant’s family ties in Canada. If anything, the Officer should have considered the financial support the Applicant’s family provides as a positive factor. At the very least, the Officer should have justified his/her reasoning: it is unreasonable to infer that Applicant will remain in the country illegally simply because he has strong family ties in Canada.

Bteich reminds us to actually present and assess the family members in Canada, where they have status and where they are of financial support to the Applicant’s proposed studies. If there is concerns that the Officer will speculate on this tie, it may be worthwhile to highlight Justice Shore’s reasoning.

In Gauthier v. Canada (Citizenship and Immigration), 2019 FC 1211 (CanLII), <http://canlii.ca/t/j2sgg>, Justice Shore again raises a strong argument that family ties are at the heart of individual lives, but that it is not enough to simply consider it a risk of an individual not leaving Canada.  In finding the refusal of a Haitian national applicant with a sister in Canada unreasonable, Justice Shore writes:

[18]  To arrive at his findings, the immigration officer was entitled to consider all of the factors—including family-related factors—that could prompt the applicant to stay or not to stay in Canada at the end of her study permit. Since family lies at the heart of our lives, it is an important element in the determination of place of residence. It was therefore reasonable for the immigration officer to consider the applicant’s family ties as a “pull factor”.

[19]  However, in conducting this analysis, the immigration officer placed an unreasonable emphasis on this personal factor. Admittedly, the evidence on the record shows that her sister is in Canada and is prepared to host her; however, it cannot be concluded that the applicant is necessarily at risk of not leaving Canada at the end of her study permit.

Finally, in Peiro v. Canada (Citizenship and Immigration), 2019 FC 1146 (CanLII), <http://canlii.ca/t/j2fsr>, Justice Manson examined a refusal where the Officer highlighted the Applicant’s brother, an international student in Canada, and determined it created strong family ties in Canada, even though the remainder of the family was Iran.

Justice Manson first sets out the arguments of the Applicant and Respondent (Minister) before assessing his position:

1.  Family Ties

[18]  Based on the record, the Applicant’s only family in Canada is his younger brother, who is currently an international student in Vancouver. The Applicant’s parents remain in Iran.

[19]  The Minister argues that the Applicant is a single adult male with no spouse or dependants in Iran, and the record states that the Applicant was responsible for caring for his brother in Canada. The record is silent on the Applicant’s brother’s permit status, but as he is an international student, his stay in Canada is temporary.

[20]  The Officer’s reasons with respect to family ties provide no reasonable basis for his position. While the officer mentioned family ties, he did not explain how the temporary presence of the Applicant’s brother in Vancouver would outweigh the Applicant’s family ties to Iran, which include his parents and family business which he intends on returning to after his studies.

Again this case suggests that parsing out as well who has status in what country in addition to simply indicating their names is important. I suggest letters of explanation and support where pertinent as well copies of identification (passport bio-data pages, and permits). One thing I have been doing more of is having the family members inside and outside Canada writing with assurances of compliance.

A recent case you will likely see the Minister rely on is the case of Hajiyeva v. Canada (Citizenship and Immigration), 2020 FC 71 (CanLII), <http://canlii.ca/t/j4vm2>

In the case of Ms. Hajiyeva, as is the case with many potential international students, she sought to come to Canada alongside her spouse and children.

Justice Diner writes:

[5]  Ms. Hajiyeva argues that the Officer ignored evidence, and failed to provide adequate reasons relying on Omijie v Canada (Citizenship and Immigration), 2018 FC 878, at para 26 [Omijie]. I find, however, that this case differs from Omijie. First, while the Applicant’s parents and brother would remain in Azerbaijan, her immediate family (husband and children) would join her in Canada; she indicated her husband would obtain a work permit and gain international work experience, and her children would attend school and be exposed to Canadian values. The Officer’s finding regarding her incentives to remain in Canada were reasonable. Here, the finding that her evidence and supporting documentation fell short of demonstrating that she would leave Canada at the end of her study period was open to the Officer.

In cases such as these, there may simply be no way to overcome the pure mathematics of the family members (and their closeness) vis-a-vis the plan and the country of origin. That being said, one might need to be a bit cautious in seemingly explaining the family’s plans to ‘settle’ in Canada (as workers and students) and how that may detract from both the study plan but also create the reasonableness of an intention to immigrate or stay permanently (especially if no dual intention is otherwise claimed).

Post-Script Note

I will be in Montreal from April 2nd to 4th including a panel on April 3rd on study permits.

See: http://cba.org/Immigration-Law-Conference/Agenda/5B

I look forward to seeing you there and dorking out on study permits.