Tag Archives: immigration and COVID

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

OPINION – The E-Race-d Migrant Workers of COVID-19: Why Canada’s Colourblind Approach to COVID and Immigration Needs a Major Rethink

枫彩 / CC BY 2.5 CN (https://creativecommons.org/licenses/by/2.5/cn/deed.en)

COVID and Migrant Workers as a Starting Point

While we rush to seal our loosely-defined borders and legal exceptions, let us not lose sight of the reality of who it is ‘doing the work‘ as low-paid essential service workers in Canada – temporary foreign workers (TFWs). Accordingly to a Government of Canada official, over 60,000 temporary foreign workers have come to Canada to work in our agriculture and agri-food sector.

I begin this piece by rejecting the term, ‘low-skilled.’ Anyone who at times like these is contributing putting food on to our table and taking care of immunocompromised seniors at senior’s home and care facilities,  I hold to the highest esteem.

From 2019 Open Data, we know Canada and British Columbia’s are coming from five countries – Mexico, India, Jamaica, Philippines, and Guatemala. Asides from the correlation that they are all from the Global South, they also all represent countries where racialized folk – brown and black – are primarily entering Canada to do the work Canadians are not doing. While I understand some are floating around the idea of a national work program to get Canadians into these positions over TFWs, we must admit the reality that the exposure of risk to COVID-19 of this work (not to mention the low pay) would drive most away.  This reality also creates a contradiction that Chris Selley questions in the subheading for his recent National Post article titled, ‘Ottawa’s plan for quarantining temporary foreign workers is more bizarre than comforting,’ where he writes:

If we can identify a group of people without whose labour we literally wouldn’t be able to feed ourselves, why are we denying them a path to citizenship?

I share the same question. Through this pandemic we have already had one TFW outbreak at a Kelowna greenhouse/nursery and countless stories of senior home outbreaks which make up half of Canada’s confirmed deaths from COVID-19. We have not said so much of a thank you, other than discussion of how to quarantine them effectively upon entry and pay back employers for lost wages.

However, worse yet, we’ve been left an invisible image of who these workers are, what their races are, and their migration histories that have led them to heed the call into action. While we are all in this as Canadians, I am eager to know who these individuals are and eventually reward them with pathways to permanent residence or at the very least create new pathways that honour that work.

Indeed, if we are putting racialized migrant workers on the front lines of COVID-19, I argue we should putting these same migrant workers in the front line of new immigration programs to facilitate their transition as permanent residents.


The Invisibility of Canadian Racism and the Misapplication of Intersectionality

However, there appears to be preferred invisibility – something that runs deep when it comes to issues of immigration and race in this country.

The Canadian Government approach to immigration continues to be one that on the outside adopts a Gender Based Analysis (“GBA”)+ framework that states an intention to take into account intersectionality, but a reality that race is the unspoken, untouched, undelved into dark space – a Pandora’s Box.

IRCC does not collect data on religion or race.

Zoomed in, in case the footnote is hard to see:

We know only what countries applicants are coming from, not who they are by way of their race, ethnicity, and colour, and how discrimination  factors into visa refusals and availability of pathways to permanent residence. We know anecdotally from client experience and those cases that end up published as case law that visa officers discriminate against individuals from minority racial/ethnic groups, particularly when the visa office responsible for processing the applications is not located in the same country.

How are we purportedly taking into GBA+ if we have not looked further at what the + entails. How can we claim to even be applying an intersectional lens?

The GBA+ touts itself as applying an intersectional lens in various Government training materials, but one questions how Kimberlé Crenshaw would view this given her conception of intersectionality was focused on the intersections of gender (yes), but very and just as importantly class, and race.

When you go back to the foundations of Crenshaw’s underlying work, the research was centred heavily on race and migration status. She examined how immigrant women’s vulnerability to spousal violence and the fear of undocumented women were exacerbated by legislation aimed at subordinating the sponsor, creating ‘double subordination.’ (See: Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color)

Much of intersectionality has unfortunately become what has become what sociologist Sirma Bilge calls “ornamental intersectionality,” a neoliberal approach that “allows institutions and individuals to accumulate value through good public relations and ‘rebranding’ without the need to actually address the underlying structures that produce and sustain injustice.”

Currently, proposed regulatory and legislative amendments do go through a GBA+ lens through Part 1 of the Gazette Regulatory Impact Analysis Statement (“RIAS”) stakeholder feedback process but this process is primarily based only on Gender, which itself is a primarily a supplement to other economic and resource considerations. No one asks in these pieces how racialized communities of women or non-binary folk will be affected, nor are most organizations who will provide feedback putting racialized or non-binary gendered migrant communities at the centre of their analytical lens. The centred lens on immigration continues to be white and able-bodied, from it’s legal practitioners to the immigrants held in the highest demand and sought after.

Furthermore, the very idea of intersectionality has been to view the different social categorizations as separate and distinct boxes for us to parse ourselves into, rather layers and true intersections – a mistake we continue to repeat in our misclassification and misapplication of the term.


Colourblindness as a Racist Policy

Ultimately, without identifying race as an important social stratification, that centres other discrimination – which could include language, migration status, and gender – we remain stuck in colourblindness.

You may have heard about colourblindness recently with respect to COVID-19. In the context of COVID-19, Ontario’s chief medical officer of health, Dr. David Williams, recently stated:

“Right now we consider our main risk groups (to be) the elderly, those with other co-morbidities, regardless of what race they are,” he said. “Regardless of race, ethnic or other backgrounds, they’re all equally important to us.”

But what got us to this colourblind (regardless of race) approach? What got us to normalize the one human race (we’re all the same) theory?

Writer Ibram X. Kendi explores the foundation of racism as a mode for power holding, and writes poignantly in his book, How to Be in An Anti-Racist at page 10:

“The common idea of claiming “colorblindness” is akin to the notion of being “not racist” – as with the “not racist” the colorblind individual, by ostensibly failing to see race, fails to see racism and falls into racial passivity. The language of colorblindness – like the language of “not racist” is a mask to hide our racism”

Constance Backhouse, whose seminal work, Colour-Coded: A Legal History of Racism in Canada, 1900-1950,  on the history of racism and the law in Canada, similarly examines how immigration help served to help aggrandize white power. She writes:

“Immigration laws shaped the  very contours of Canadian society in ways that aggrandized the centrality of white power.” (Backhouse, at page 15)

She provides example in her book many instances where the lines between races were either purposely blurred, combined, or in some cases written out, to achieve this power. In my perspective, colorblind is not only a neoliberal feel-good strategy, but a tool that has been used historically to justify racist policies.

For example, Canadian Immigration laws led to the closure of borders for Asian and Black immigrants in the first half of the 20th century, while anti-immigrant sentiment and racist legislation severely policed and controlled communities from being able to operate businesses (for example laws preventing the hiring of white women) and adding restricted covenants preventing them from owning property (just to name a few examples):

Laws such as B.C.’s above An Act for the Protection of Women and Girls in certain Cases (which was in place until 1968) were indeed purposely amended as a result of criticism that it was too critically aimed at the Chinese community, and replaced with more universal language with the same intentions and substantive effect.

The law was colourblind, and by today’s Charter standards, a claimant would therefore need to ‘do more’ to prove it was indeed racist, but we know from the history it most definitely was. I would argue that the assumption that we have stepped out of racism due to legal reform is a dangerous myth and one we must continue to breka down.

True s.15 of the Charter, formally added equality rights that were supposed to apply regardless of “race, national or ethnic origin, colour,” language mirrored by other employment and human rights legislation. There were historical apologies and reparations, but I would argue there has never been a race equity lens applied to immigration law – to study, if you so well, of whether and how laws continue to discriminate against racialized marginalized communities.


Built Off the Back of Coloured Bodies

Applicants who have tried to bring racism up in Courts (environments that bluntly speaking do not at all reflect Canada’s racial diversity), have faced significant evidentiary hurdles. One thinks of the Federal Court of Appeal’s decision in Begum v. Canada (Citizenship and Immigration), 2018 FCA 181 (CanLII), [2019] 2 FCR 488, which upholds the higher burden on claimants where the a law applies neutrally on its face, and simultaneously criticizes a lack of specific evidence on race, where as we have seen none is being collected from official sources, leaving case studies and academic formulations the only current pathway forward (both of which the Court criticized).

At the same time we have seen our case law build up various areas off the backs of racialized individuals. Using humanitarian and compassionate grounds as just one example, the leadings cases in this area involve Black Jamaican woman, Ms. Mavis Baker, where the visa officer wrote blatant racist marks into the applicant’s file [Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817], a Black Jamaican woman, Ms. Daphney Hawthorne [Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475 (CanLII) that helped define the scope of the Best interest of the Child (“BIOTC”), [2003] 2 FC 555,],  and a former Sri Lankan child, Mr. Jeyakannan Kanthasamy, [Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 (CanLII), [2015] 3 SCR 909 which has become the leading case of BIOTC.

Unfortunately with the framework for humanitarian and compassionate grounds as it stands, little can be done other than to criticize the structures within countries of citizenship and former habitual residence. We will continue to see Brown and Black applicants held down by Canadian system with no recourse other than to blame foreign systems in order to seek discretionary relief. These same blames are then perpetuated on other visa applicants and refugee claimants from those countries in what becomes a very problematic cycle. Canadian racism or the intersectional challenges of migrants, particularly those with precarious status, again gets whitewashed through forced positive explanations of ‘establishment’ and ‘ties to Canada’

I know racialized migrants are the ones struggling most because I viscerally see them. I constantly receive migrant workers in my office, whom facing their first work permit extension, visitor record extension (in order to facilitate their on-going status in Canada). They are the ones who ultimately end up in admissibility hearings and that we must run detention reviews for.

Returning back to the COVID reality, it is a real shame that the temporary foreign workers coming from around the world or who are here and finding themselves suddenly unemployed are receiving little in the way of Government-funded legal support. The minute the employer lifeline is removed for many workers, the void is filled only by good willed non-profit organizations, many with limited capacity to take on individual cases let alone try and advocate on a more systemic basis. Access to services itself is often marred by racist interactions, preconception, and barriers. Many organizations do not even have materials translated into key languages such as Spanish, Hindi/Punjabi, and Tagalog. With limited funding and now a limited staff as a result of their own COVID consequences, they have had no choice but to turn many people away.

The reality is most of these foreign workers affected are Brown, Black, and from countries in the Global South, with major linguistic barriers. Many talk about difficulties there, difficulties here, but generally have ended up in the whirlwind of challenges of identity, hopes of assimilation, and experiences of harm-causing racism.


Centering Race Post-COVID

Taking race into account when we look at these cases will allow us to examine processes in a more systems-driven way rather than simply focusing on individuals. For example, we can look at Personal Service Worker (PSWs) and caregivers right now as a collective community rather than individuals who have suffered negative consequences or come from complicated pasts.

Until Canada can prove it is taking anti-racist (not just non-racist) steps to tackle immigration and COVID, we’re stuck in invisibility. The same invisibility women of colour feel when they are under recognized and first to be blamed at their workplaces (Dr. Tam, comes to mind). COVID and the migrant workers who were part of helping us get through these times will fade to collective memory as a large part of the fault, a small part of solution, a consequence of their failures, and the results of our success. Our only ‘thank you’s’ will be in the form of temporary extensions and expiring permits, a few Canadian dollars to bring back to homes already ravaged as a result of western colonialism and imperialism. The mental health and trauma being experienced by workers being shepherded into the fields to work at increased  productive capacity or migrant personal service workers having to watch individuals take their last breaths and expose them to illness, a distant memory.

I really hope this is a good opportunity to rethink our way of moving forward post-COVID. As another Indian writer Arundhati Roy so eloquently put it, we can break with the past and imagine the world anew, taking anti-racist (not just not racist and colourblind) steps to eliminate the historical and present day prejudices of anti-blackness, racist immigration policies, and barriers for darker-skinned migrants from the Global South. We can re-examine why we refuse so many Black African visitors and students, and why our rush to Artificial Intelligence has not adequately taken into account factors such as inherent racial bias. We can start building ties with migrant communities and Canada’s Indigenous communities creating solidarity, rather than let the State divide and conquer us into separate groups  fighting over scarce resources that neither of us control.

I have submitted for approval a conference paper where I discuss how intersectionality can be rethought of in the Immigration Appeal Division (“IAD”) context. Much of this expands on what I talked about in this piece.  I hope that when this paper is published I can begin expanding this conversation to other areas so that once we are prepared to re-engage with each other and our systems, we can make sure to keep racism at the front, not back, or our collective societal consciousness.