Category Archives: Canadian International Students and the Law

This blog shares legal developments affecting Canadian international students

Why New Zealand’s Interim Visa Might Be Canada’s Next Adopted Policy

Implied Status can be complicated.

During the COVID pandemic, I have heard from both employers and employees that understanding when a worker can or cannot work is confusing, and leads to legal risks. Many employers have taken a more conservative approach that has left workers who have authorization to work and are awaiting a renewal, unable to engage in work.

Implied Status has also created the potential for abuse, specifically many unscrupulous agents and consultants will claim to have assisted on helping, even going so far as to fabricate Acknowledgment of Receipts (“AORs”) or other type of correspondence.

A third ‘challenging’ element I have found many applicants have is either when they are switching between different types of permits (study permit and work permit to visitor) or have multiple applications in process.

I recently was part of a consultation with IRCC, where it was hinted that there was going to be a development in implied status possibly coming before the end of the year.

Armed with this knowledge, I recently had a conversation with my mentor Steven Meurrens about what change he might expect in this area. He said to look into the New Zealand model. This is what I will do this post.

Standard disclaimer: I am not a trained New Zealand immigration lawyer. I also do not have direct knowledge of what IRCC is doing. This post is merely speculative. However, as you know from my past work to speculate (and in the process, shape) Canadian immigration policy is what we are all about. 

Before I begin, we should know Canada has a history of borrowing from New Zealand. An Express Entry-style system was in place in New Zealand in 2004, before being adopted by Australia in 2012 and Canada in 2015 (see here for some historical context).

How Does New Zealand’s Interim Visa Work?

New Zealand issues interim visas for those with expiring visas, for a period of six months while their new visas are being processed. Note that New Zealand calls them ‘visas’ whereas they would be more equivalent to permits in the Canadian context.

My brief reading shows that this works much like implied status does in Canada, but importantly does provide clear proof and documentation. It is granted electronically and automatically. Conditions depend on type of permit previously held. From initial appearance, it does seem easier to change conditions on a permit in New Zealand, something I would strongly suggest for Canadian immigration which does require a new extension application rather than a quicker/simpler request model.

I highly suspect Canada will do a similar thing and issue a confirmation of extension through an interim visa which then could be utilized and provide clarification to employers of a worker’s ability to work. However, it will be interesting to see how the system adjusts for those who submit multiple types of extension applications. For example, spouses seeking an open work permit on implied status, may also choose to submit a visitor to guard against a returned application and loss of status. Another example of where this is commonly implied is where a student is applying for a post-graduate work permit but has eligibility concerns and simultaneously wishes to extend as a visitor or as a student. IRCC will need to do a good job in clarifying in publicly related material or a info guide that accompanies the permits, a clearer information guide. Right now, the IRCC website instructions on implied status lack a few crucial details and case examples. The New Zealand immigration website could certainly be a model in this regard.

A portion of the instructions from NZ Immigration site (https://www.immigration.govt.nz/new-zealand-visas/apply-for-a-visa/about-visa/interim-visa#https://www.immigration.govt.nz/new-zealand-visas/already-have-a-visa/your-visa-conditions/interim-visa-conditions/slider)

Finally, the great thing about the interim visa is that if it is declined or withdrawn there is a 21 day period to leave New Zealand. In the context of a Canadian temporary resident extension, should an individual be rejected, they would lose status immediately and become inadmissible and possibly deportable. A 21 grace period (for both extension and withdrawals would definitely input a much needed buffer between admissibility and inadmissibility. That being said, I don’t see the Canadian system going this way.

What I Hope is Different with a Canadian Interim Permit

With all the praise I have showered the New Zealand interim visa, there are certainly some flags as well that should be mentioned.

According to the website, New Zealand does refuse a visa if a decision on an interim visa has not been made in six months. That would be highly problematic, from my perspective, in cases that do require further review. Several clients have recently contacted me because their extension applications are in the 8th and 9th month of processing due to some further review or complications. Refusing someone due to IRCC administrative delay would be problematic.

The other major flag I would put on such an interim visa would be to try and ensure that this visa does not become an algorithmic way to refuse applicants earlier in the process. Right now, one of the big limitations of decision-making are the application forms themselves, which from my understanding flag but still require further triaging for decision-making purposes (for example on criminal inadmissibility, misrepresentation, and not-actively pursuing studies). If algorithmic decision-making leads to instant/quick refusals on interim visas, this process needs to be done as transparently as possible to ensure not only consistency but procedural fairness.

What do you think about interim visas? Should IRCC adopt them? Is this the anticipated change or do you think it is something else?

Get at me – will@edelmann.ca or write me – perhaps we can guest blog feature you.

Why Rain is Right: There is No Principled Reason for Why A Canadian Temporary Resident Should Be Denied the Right to Change Their Legal Gender

Rain Edmond, a third-year political science undergraduate student, recently wrote an op-ed for her university’s Memorial University Gazette that raises an important question about a policy gap disproportionately affecting the intersection of the transgendered and temporary resident communities.

In her piece, Rain, an international student, highlights the challenges she has had in changing her legal gender in Canada as a result of her immigration status, a plight not shared by Canadian permanent residents and citizens who are able to request Verification of Status (“VoS”) documents in Canada to change their legal gender. She writes:

 “Individuals like me who are labelled international students and foreign workers live in, work for, and contribute to communities all across Canada. There are also people who come to Canada seeking a safe harbour, waiting for a decision on their asylum applications.

 We are labelled temporary, and relegated to second-class status. Our legal documentation reflects an identity which is not ours, and which we cannot correct.”

 IRCC’s policy (with an emphasis that this is policy and not enshrined in legislation or regulation) is that temporary residents – international students, temporary foreign workers, and even refugee claimants are unable to change their legal gender from what is listed in their passport.

This creates obvious illogical complications. Many temporary residents come to Canada from situations, where for political, religious, and familial reasons, they are unable to change their legal gender or claim non-binary gender on crucial original documents such as passports and birth certificates. We saw an example of this with Naomi Chen, the transgender refugee claimant from Hong Kong who was forced to make her refugee claim as a man, when the very basis of her claim was on the basis of persecution because of her identification as a woman

For some reason, the Canadian immigration system attaches the ability to legally change gender on the successful granting of permanent resident status or recognition as protected persons, as if it only when they cross the threshold of welcome mat are they able to shed the very painful weight and barrier that may be keeping them from entering the door in the first place.

There are of course the practical implications. You think of the international students, who must fill in countless forms from registration at universities to providing proof of their identity. You think of temporary foreign workers who are already discriminated against when they are applying for jobs, who now in disclosing their status and work legality to potential employers must provide further explanations around gender discrepancy.

What is the fear if we allow temporary residents to change their legal gender?

Whatever floodgates/system integrity argument upholding needs to be tempered by the recognition that legal gender is at the fundamental core of a too-often stigmatized identity. The Human Rights Tribunal of Ontario in XY v Ontario (Government and Consumer Services), 2012 HRTO 726, [2012] OHRTD No 715 [XY] stated:

“it is beyond debate that transgendered persons […] are a historically disadvantaged group who face extreme social stigma and prejudice in our society”, while noting at paragraph 215 that the former requirement “is based not on transgendered persons’ actual characteristics but on assumptions about them and what they must do in order to “be” their gender”.

Cited by Justice Martineau in Chédor v. Canada (Citizenship and Immigration), 2016 FC 1205 (CanLII), at para 14.

We know that in the context of sexuality in the refugee determination processm (especially bi-sexuality and homosexuality), that the perceived lens of heterosexuality and normativity burdens refugee claimants trying to establish their identity and prove one’s persecution (see: Dr. Megan Gaucher in her seminal book A Family Matter: Citizenship, Conjugal Relationships, and Canadian Immigration Policy [UBC Press, 2018] at Chapter 3 (see especially paragraphs 76-94).

Harsha Walia, now Executive Director of the British Columbia Civil Liberties Association, in the quote that prefaces the Chapter and the numerous case examples provided by Dr. Gaucher, that “this most impacts queer and trans-refugees.”

The number of published, transgendered-based immigration tribunal and Federal Court judicial review decisions still is relatively limited and provides only pockets for legal analysis. This is understandable as the Immigration and Refugee Board (“IRB”)’s Sexual Orientation and Gender Identity and Expression (“SOGIE”) Chairperson’s Guidelines, are only a few years old, having been introduced in 2017. Members are still in the early stages of interpreting and applying this guideline to their decision-making.

There have been some positive decisions. To draw just one example, in Pirmousaei v Canada (Citizenship and Immigration), 2019 CanLII 130750 (CA IRB), the Immigration Appeal Division (“IAD”) Member allowed the appeal of a transgendered Iranian woman who failed to meet her residency obligation because her family tricked her to return to Iran, stole her travel documents, and did not accept her transgendered identity. The Member took no issue with credibility, commenting simply:

[9]               There is no dispute, there is no evidence before the panel to doubt that the

Appellant arrived in Canada as a Convention refugee. The panel also have no doubt to believe that she is a trans-woman from Iran.

I would offer, on the end of the spectrum, the Refugee Appeal Division (“RAD”)’s decision in X (Re), 2019 CanLII 120788 (CA IRB), where the Member found a misgendering concern raised later after the RPD and the lack of documentary evidence in transgendered persecution, fatal in dismissing the appeal

The RAD Member’s criticism towards the Claimant for not raising the misgendering issue earlier at the Refugee Protection Division (“RPD”) hearing reveals the legal impact of not offering Claimants the clear ability to change their legal gender prior to the process.

The Panel writes in rejecting the Claimant’s argument that misgendering was a ground for appeal:

[54]           The RAD notes that the Appellant testified at the RPD hearing that he was raised as a boy by his parents, and that this is why he continues to dress as a male. The RAD, in its review of the audio recording, finds that the RPD asked the Appellant which gender he would identify himself if requested. The Appellant testified that he would identify himself as a woman. The RAD finds that the RPD could not be expected to anticipate that the Appellant would allege, post rejection of his claim, that he was misgendered or that he suffered from trauma which impacted his ability to present his claim. The RAD finds that the Appellant and his counsel bore the responsibility to raise this issue with the RPD at the hearing. The RAD notes, as previously discussed, that the Appellant tendered an affidavit from his counsel, in which he states that the Appellant did not present with any overt symptoms of trauma. As well, the RAD has noted that the Appellant showed little signs of trauma or impairment of his ability to present his claim.

(Emphasis added)

 In this same case, the RAD Member also criticizes the scarce documentary evidence corroborating the Claimant’s arguments of persecution on the basis of gender. This repeats a common theme as well in sexuality cases. As Dr. Gaucher highlights in A Family Matter, at page 85:

 “This suggests that country documentation can potentially trump claimant testimony should the two disprove each other. Claimant testimony is arguably considered well-founded so long as it corresponds with adjudicators’ preconceptions of sexual orientation and external documentary evidence.”

 In the X (Re) 2019 CanLII 120788 decision, the RAD Member writes a decision that mirrors this line of analysis:

[111]      The RAD finds in its review of the record that the Appellant has not adduced any evidence that he faced any of the problems described in the documentary evidence through his identity as a Hazara male. [112]      In respect of the Appellant’s targeting by a classmate, the RAD notes that the Appellant stated that he successfully avoided any further contact with XXXX following the XXXX XXXX, 2016 episode. As much as the Appellant alleged that he received telephone threats two days following the episode, he addressed the problem by removing the sim card from his cellular phone. The RAD notes the Appellant alleges he remained in Afghanistan for two months prior to fleeing the country without any further interaction or problems from XXXX. The RAD finds the Appellant has advanced insufficient persuasive evidence to indicate that this individual would pose any sort of risk to the Appellant over three years later. [113]      The Appellant has argued that an individual with a transgender identity could simply not exist in Afghanistan and that this is confirmed by the Appellant’s own experiences of being targeted by a classmate for rape and murder. The RAD has addressed this concern and found that the Appellant has not provided sufficient credible evidence to support his allegation that he would face a risk of persecution or harm, should he return to Afghanistan. His argument must fail.

With such evidentiary barriers already embedded in the refugee determination process that we know will make Transgender claims more difficult to present and adjudicate,  I would suggest eliminating front-end barriers such as misgendering and the inability to choose one’s legal identity becomes of even greater significance.

Finding an Accessible Solution

For all temporary residents, especially those on the pathway to permanent residents, it is due time to provide a non-medical procedure, such as a sworn affidavit and a private and secure application process, to facilitate this fundamental human right to identify as one’s preferred gender. The fact that Canadian permanent residents and citizens can do so with relative ease, makes in my perspective, this policy limitation directly counter to the Charter language of s.15, and ripe for future litigation.

This is where we are. We can either be proactive about Canada as a Trans rights-protecting nation or continue to let our public and Government institutions, tribunals, and courts impose unnecessary trauma and harm on Trans communities, over what should be an administrative step.

I hope that IRCC changes their policy soon, on behalf of Rain and so many other folks, seeking solution and action.  I hope that Canada can provide Trans migrants, regardless of their ultimate interest in permanent residency or citizenship, what asking for – a greater sense of safety, of belonging, and value of their personal identities.

 

Exclusive VIB Preview: Latest Blog for Edelmann on Non-Discretionary Travel for International Students

This blog will be going up shortly on Edelmann and Co’s Law Blog. I thought I’d give VIB readers a sneak peak!

On 2 September 2020, Immigration, Refugees and Citizenship Canada (IRCC) released new instructions which help to further clarify that Canada Border Services Agency (CBSA) and partner Airline companies, would be responsible for ultimately determining whether international students would be able to travel to Canada to begin/resume studies as a result of COVID-19 travel restrictions.

This is welcome news, given IRCC’s instructions previously did not clarify or advise on CBSA’s own criteria, leading to issues for international students at Canadian Port-of-Entries and general confusion around the ability to return or move to Canada to begin studies for the Fall semester.

The updated Program Delivery Instructions (PDIs) now indicate:

Border services officers will assess the circumstances surrounding the student and their accompanying family members’ travel and may consider, for example, whether any of the following apply:

  • they are established, residing and studying in Canada. If they are established in Canada, their return is non-discretionary
  • they expect to begin studying upon arrival after completing their quarantine
  • their presence in Canada is necessary for their continued participation in the program (such as in laboratories or workshops)
  • pursuing online studies is not a reasonable option for their school or program or is not possible from their home country
  • the semester has been cancelled or the person will begin studying later in the year

I want to focus this piece about what I perceive as the challenge with the requirement to prove establishment in Canada to gain entry as an international student.

That is not to say the other criteria set by CBSA do not themselves create barriers.

For one, educational institutes will largely be pushing for students to return, yet, I worry that without adequate evidence or strong supporting documentation that many DLIs are not offering, questions will remain about the necessity of in-person ‘laboratories or workshops.’ With CBSA’s past application of discretion around issues such as the ‘actively-pursuing studies’ requirement and with Port-of-Entry Post-Graduate Work Permit (PGWP) determinations, one often saw very inconsistent reviews of transcripts, program structure, and technical details. Many times, in the name of enforcement, Border Service Officers took on the duties of academic counsellor, in ways I believe Immigration never intended them to. The COVID discretion for international students raise the same concerns.

Second, it is unclear how the argument that online studies are not possible from the country in which international students reside will factor in. We know and expect that these arguments will largely come folks from technology-challenged Global South countries or other countries that may limit free access to online materials. I expect international students who may have been successful in obtaining a study permit, still largely uncertain and unequipped to address Border Services Officers on these points.

Looping back and framing the discussion of establishment, another concern is that IRCC apparently has apparently stated that they do not want to, or need, to see the argument for discretionary nature of travel in study permit applications.

They have written on their instructions:

Travel will be deemed discretionary or non-discretionary depending on individual circumstances. IRCC case processing officers will not assess whether the applicant is exempt from the travel restrictions when processing a study permit application.

Yet, the Program Delivery Updates (PDUs) announcing the updated PDIs seem to paint a different picture.

September 2, 2020

The instructions have been updated to provide additional guidance on the issuance of study permits while travel restrictions are in place.

Clarification has been made to the non-optional and non-discretionary guidance to include factors taken into consideration by the Canada Border Services Agency when assessing whether students are permitted to enter Canada based on the current travel restrictions.

The updated instructions will assist officers in applying the 2-stage assessment process for study permit applications, including refusals, following the stage 1 preliminary eligibility assessment. (emphasis added)

From the above, it looks as if IRCC will consider how the Applicant’s situation (while not considering the travel exemption itself) may factor into the 2-stage assessment process to approve a study permit.

Establishment, then becomes a tricky point.

A bona-fide temporary resident to Canada has to demonstrate that they can leave Canada at the end of their authorized stay (Immigration and Refugee Protection Regulations at R. 183(1)(a), R. 216(1)(b);). While there are provisions for dual intention under the Immigration and Refugee Protection Act at S.22(2), it can be a difficult argument to establish without both pointing to significant ties in the country of residence/citizenship AND being able to credibly present a plan for permanent residence – increasingly difficult for students on future PR pathways. Generally, potential students or renewing students who show too strong a tie to Canada (i.e establishment) in their overseas applications can be refused on study permit applications.

Yet, this very establishment is what CBSA would like to see to authorize entry pursuant to their interpretation of the COVID-19 travel restrictions. This proof of establishment could presumably come from demonstrating that they have a home, job, bank accounts, lease, partners, family members, future plans to stay, etc.

Should a study permit applicant put this proof in a study permit application to seek approval and explain why they are applying now – and at the same time risking refusal by the overseas visa officer?

Should that same student, who did not include this proof, suddenly approach their entry to Canada or the time between approval and their entry to Canada – with these documents which may contrast and contradict with what was in the study permit application. Will this lead to the possibility of misrepresentation or the reassessment of study permit eligibility down the road?

I do not know and if I do not know as someone who has practiced in this area for over five years, I do not expect international students to know.

The root of the problem is, and has been highlighted time and time again in the field of immigration law, is that the left of IRCC and the right hand of CBSA are not coordinated. We have seen this play out earlier in COVID-19 with the cases of family members seeking reunification.

The best case scenario is that CBSA lowers the threshold for establishment or does not hold it against applicants who now have proof of establishment when that proof may not have been disclosed on an application.. Furthermore, it would be beneficial for IRCC to clarify what it means by taking into account the updated instructions regarding travel restrictions when deciding the study permit application, but not considering the application of the travel restriction itself. This seems contradictory and at the very least confusing to the reader.

Finally, we have to consider the overall picture and potential of the time. Eyebrows would raise (and litigation would likely follow) if the two-stage study permit application process turns into one where students were consistently approved to study overseas during the COVID-restrictions and then refused on second-stage assessment preventing them from ultimately seeking entry to study. There is nothing in the instructions to suggest a re-assessment of basic eligibility could not change, which would be the unalleviated fear.

While such a plan/strategy would short-term serve institutional cash injection through COVID’s potential second wave in Canada, it wouldn’t serve the opportunity Canada currently has, facilitated by questionable approaches taken by other Five Eyes countries, to recruit the world’s brightest international students and support them through enhanced permanent residence pathways. I hope we take the right steps moving forward on the issue of facilitative, and safe, border entry for international students.

CBA Immigration Section Founder’s Award Paper and Some Sharing of Gratitude

Hi Readers:

I have been relatively quiet of late, grappling, as many are with the  deaths of George Floyd, Breonna Taylor, Ahmaud Arbery, Regis Korchinski-Paquet, Chantel Moore and thinking about how my own work and positionality as a lawyer requires me to do more and say more with respect to Anti-Black and Anti-Indigenous racism. I have been working on drafting a response for an organization but even those words seem like they fall short, as I have.

It is with these complex feelings that I wish to share an award I received today, but I hope to divert attention from the award itself more to the paper I wrote, before drawing on a few Thank You’s.

 

Paper – Re-Centering the Resilience and Resistance of Migrant Women of Colour: Exploring the Potential of Intersectionality and Indigenous Approaches to Immigration Appeals

I have shared the paper below. It is shared with the permission of the Canadian Bar Association and I am grateful for their support.

WT – Founders Award Paper – FINAL

The reason I wanted to share this paper is that it represents for me a first major (academic/creative) deep dive into the issues of intersectionality, racism, and Indigenous approaches to Canadian immigration law. I have been thinking about these topics for some time, tweeting and blogging, but in this piece I tried to mold it into something more prescriptive. I also wanted to take a critical lens, something we often fail to do when we simply celebrate diversity and multiculturalism without seeing how it is working below the surface and in white spaces.

With organizations considering how they can respond to recent events, particularly in taking anti-Racist approaches, I do hope we can begin through looking at long-standing institutions/laws and how they may not be creating space for resilience, resistance, nor recognizing the experiences of migrants of colour.

I ask you to spend some time with my paper, particularly if you are a decision-maker or a Government official (particularly from the Immigration Appeal Division, for the purposes of this piece) with the ability to implement change. I do feel that this is an area where Canadians can demonstrate anti-racism is more than just a current rhetoric and to work towards past reparations by resourcing (read: paying/investing) for Indigenous advisors to help rethink our Immigration system. This is just a start, but I hope it sparks something or some ideas for needed reform.

I also wanted to specifically highlight that I was influenced by writer Gloria Anzaldúa’s Borderlands/La Frontera, The New Mestiza’ for the way she mixes literature and prose.

 

Thank You’s

I want to start by thanking the CBA (the Award’s Committee, Exec/Table Officers/Staff) for this award and the below generous write up. I do not do this work for the accolades, but to know others are watching is great.

I am continuously cautious of the effects of when organization’s difference you up and how that could impact your work and what you say. I am being very careful to not compromise for me the core value of living/practicing with authenticity and transparency at all times.

I would like to my mentors/colleagues at Edelmann and Co., including now-Justice Edelmann and my former mentor/colleagues at Larlee Rosenberg and Heenan Blaikie prior to that – as well as the University of Ottawa Faculty of Law for being such a beautiful place to learn the law and for supporting my work.

I would also like to thank my mentees who assisted on helping me review my paper and give me feedback. Specifically, Karen Jantzen, Tamara Yang, and Astitwa Thapa were instrumental for this particular piece. Chats with the exceptional Partner at my firm Erica Olmstead and the ideas of the brilliant researcher/thinker Leanne Dixon Perera helped shaped this piece as well.

I also wanted to thank those at the UBC’s Allard School of Law where I serve as a Supervising Lawyer for the LSLAP Clinic for inspiring me to look beyond the sometimes too-safe practice I do as part of my regular work.

Finally my best friend Davinder,  my Assistant Edris, my spouse, Olivia who supporting me through thick and thin, and my mother and sister. I did not dedicate the paper to my late father (he hated public attention), but I want to recognize his influence in raising me the right way.

I am taking most of today off to write (although some of it is for my case work). I hope to publish the piece on anti-Black racism and experiences in my circles shortly as I think that is the conversation we need to have today.

I hope you do not mind this short interlude.

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.