Slide Welcome to Vancouver’s Immigration Blog Practicing exclusively in the field of Canadian Immigration Law, I started Vancouver Immigration Law Blog to provide community resources and community support to those navigating Canada’s complicated immigration system. I am the Principal/Owner of Heron Law Offices, a boutique immigration and refugee law firm based in Vancouver and Burnaby, British Columbia. LEARN MORE Slide Visit My Firm Website - Heron Law Offices LEARN MORE Slide Follow Our Advocacy, Research, and Education Activities at Arenous Foundation LEARN MORE

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Why VESPA’s Internal Only Instructions are Exhibit “A” to Our Two-Tiered Temporary Resident System

Mamelfi, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons

Much like we knew very little about #Chinook until recently, we are now learning more about a March 2020 Program Delivery Instruction [PDI] (with a June 2021 update) on a decade-old IRCC initiative called #VESPA.

VESPA has existed for a decade, but much of it’s existence has been behind relative closed doors. It was introduced to streamline processing for those from visa-exempt countries, but with the expansion of that list (via the Electronic Travel Authorization) regime and the movement towards e-APPS system large, it morphed into another ‘secret’ internal tool utilized at certain IRCC visa offices.

Now that an ‘internal only’ PDI has come to the forefront, it is an appropriate time to revisit VESPA and why I think it exemplifies the type of two-tiering of temporary residents that will become the trend moving forward. It also serves as an antithesis to Chinook, and not unlike Chinook, raises questions about why it is being kept under wraps and what the implications are if it entered greater public consciousness.

What We Knew Before – VESPA as a Pilot for Online Applications

IRCC first launched VESPA in 2011 to operate in 14-visa exempt countries. It was announced by Operational Bulletin 304 – May 2, 2011.

The eligibility criteria were established as follows:

It appears that at the the time, the big ‘advantage’ of VESPA was that the applications were streamlined online. This is re-iterated in a September 2012 presentation by then CIC.

A 2015-2016 Evaluation of IRCC’s Internatoinal Student Program similarly lauded VESPA as part of a modernization initiative for workload redistribution:

There are a variety of modernization initiatives that
CIC has implemented over the past several years,
and more initiatives are planned. Many of these
initiatives are designed to have a positive impact on
the processing of study permits and study TRVs,
including e-Application, e-Medical, GCMS, workload
distribution (e.g. VESPA), VACs and other facilitation
measures for international students such as the
Student Partner Program (SPP). It is difficult to
isolate the impact of particular modernization
initiatives and report on these distinctly in relation to
processing times

Seemingly and as stated by CIC in Operational Bulletin – 486 in December 2012,  the introduction of e-Apps effectively ended the VESPA pilot.

Or so we thought.

 

What We Know Now – VESPA Transformed into a Powerful Tool to Approve Applications

From internal only March 2020 program delivery instructions I received from an Access to Information request, we learn that VESPA not only still exists but has transformed into an even more powerful tool.

I am sharing the instructions from the final draft versions, as the final version I received contained redactions that were answered by the draft versions. This shows the contours of what VESPA now does – streamline straight-forward applications to in-Canada processing, and ultimately supporting an approval for these applicants.

Recall, other than Barbados in the Caribbean, these countries are noticeably Global North and noticeably White.

An internal email between IRCC policy folks on the removal of the age requirement, reveals both that the program is an expedited SP processing stream for citizens and residents of visa-exempt country to apply for an SP from outside Canada AND that the PDI is not accessible to the general public.

We learn that VESPA has been in the works since late 2019 and that originally it was a mission (read: visa office) specific process for low-risk SP applications. 

In June 2021, the instructions were further updated to remove the age requirement as a primary change while maintaining the requirement to be both a citizen and resident of a visa-exempt country and applying electronically for a study permit while overseas.

One interesting question is whether the country list has expanded and arguably it has. I am certainly interested in learning whether VESPA is now for all eTA countries and as we move forward whether this creates a proverbial splitting of approval rates. IRCC policy team’s comment that citizenships were added suggests that this list likely is much longer than 14 countries.

Our statistics from 2020, and taking into account an IRCC policy team member’s comment that VESPA is not the same as SDS, of which all the countries are visa-requiring. If we compare only the 14 countries on the original VESPA list and compare it to the SDS list (noting that not all applications from citizens of each of these countries are VESPA or SDS), this type of divide becomes abundantly clear. It also shows how VESPA files likely do not contribute the same type of volume that SDS contributes.

Citizens from VESPA countries had a 96% study permit approval rate in 2020 (Jan – Nov), with only Iceland’s approval rate deviating from the 90%+ norm. Meanwhile SDS countries produced a below 50% approval rate. I do not have the SDS approval stats, but again I would be grateful if anyone could provide those to me.

Implications of VESPA

What VESPA suggests to me, alongside what we are learning more about from Chinook, is that your vital statistics – what citizenship you hold, where you live, and what you are applying for may ultimately become the determinants for whether or not you are approved in Canada.

VESPA raises many questions: namely, why is preferential treatment being given to folks who may not even hold eTAs and never been to Canada, but those who hold TRVs are often being refused study permits? We know programs such as CAN+ exist but these have not factored into study permit refusals, which refuse often on the change in purpose from visiting to studying.

On that point, other than the eTA being more accessible than a TRV and easier to obtain, in what ways does VESPA actually speak to the merits of a study permit applicant?

Study permit applicants must demonstrate per R.216(1) IRPR that they will leave Canada the end of their authorized stay. They are refused, however, largely on their intention to study, their employment and career prospects, their family ties, the availability of their financial support, their travel history, and their immigration status.

There’s very little in VESPA nor in a logical sense, to suggest that a student from a Global North/largely White country is a more genuine/bona fide student able to facilitate their ability to leave Canada at the end of their stay. In essence, VESPA has removed the study permit considerations out of the study permit for those who are on the current, undisclosed, list.

A final question I would raise is – why is this program being held under wraps and internal only? Much like #Chinook which I still view and see as IRCC’s refusal mechanism for Global South applicants in high volume countries, the antithesis #VESPA seems to be the privilege pass.

Why not disclose that certain countries hold privileged status (I mean, we already have an eTA/TRV required list)?

Is there something about these instructions that fundamentally does not accord with what the public might perceive – i.e. – that VESPA undermines the very foundation of the study permit regime by granting approvals for folks who do not need to even demonstrate their ability to meet the requirement of the Act and Regs?

Lots of food for thought. Perhaps I have opened up a lid of something that was brewing deep in IRCC’s fridge. It’s time to check out what’s actually in the pot.

 

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Predictive/Advanced Analytics + Chinook – Oversight = ?

In September 2021’s issue of Lexbase, my mentor Richard Kurland, provides further insight into what happens behind the scenes of Immigration, Refugees, and Citizenship Canada (“IRCC”) processing, specifically providing a section titled: “Overview of the Analytics-Based Triage of Temporary Resident Visa Applications.

At the outset, a big thank you to the “Insider” Richard Kurland for the hard digging that allows for us to provide this further analysis.

 

What the Data Suggests

I encourage all of you to check out the first two pages from the Lexbase issue, as it contains direct disclosure from IRCC’s Assistant Director, Admissibility opening up the process by way Artificial Intelligence is implemented for Temporary Resident Visas (‘TRVs’), specifically in China and India, the two countries that have implemented it so far. By way of this June 2020 disclosure, we confirm that IRCC has been utilizing these systems for online applications since April 2018 for China, August 2018 for India, and for Visa Application Centre (“VAC”) based applications since January 2020.

To summarize (again – go read Lexbase and contact Richard Kurland for all the specific details and helpful tables), we learn that there is a three Tier processing system in play. This filters the simplest applications (Tier 1), medium complexity applications (Tier 2), and higher complexity applications (Tier 3). While human officers are involved in all three Tiers, Tier 1 allows a model to recommend approval based on analytics, where as Tier 2 and Tier 3 are flagged for manual processing. IRCC claims that the process is only partially automated.

The interesting factor, and given we have been as a law firm focusing a lot on India, is how the designated of a Tier 2 file drives the approval rates from the high nineties (%) to 63% for online India apps to 37%  for India VAC applications. Moving to Tier 3, it is only 13% for online India and 5% for India VAC. The deeming of a file Tier 3 appears to make refusal a near surety.

What is fascinating is how this information blends usage of “Officer Rules,” the first stage filter which  actually precedes the computerized Three Tier triages and is targeted at cases with higher likelihood of ineligibility or inadmissibility.

The Officer Rules system would be the system utilized at other global visa offices that do not use the computerized AI decision-making of India and China. Looking specifically at the case of India, the Officer Rules system actually approves cases at a much higher rate (53% for online India, and 38% for India VAC).

These rates are in-fact comparable to Tier 2 moderately complex cases – ones that presumably do not contain the serious ineligibility and inadmissibility concerns of Officer Rules or Tier 3 . It suggests that the addition of technology can sway even a moderately complex case into the same outcomes as a hand-pulled out complex case.

Ultimately, this suggests that complete human discretion or time spent assessing factors can be much more favourable than when machines contribute to overall decision-making.

It Comes Down to Oversight and How These Systems Converge

Recently, we’ve been discussing in Youtube videos (here and here), podcasts, and articles about IRCC’s Chinook system for processing applications. Using an excel-based model (although moving now to an Amazon-based model in their latest version), applicants data are extracted into rows, that contain batch information for several applicants, presumably allowing for all the analytics to be assessed.

Given we know IRCC takes historic approval rates and data as a main driving factor, it is reasonable to think Immigration Officers are given these numbers as internal targets. I am sure, as well, that with major events like COVID and the general dissuasion of travel to Canada, that these goalposts can be moved and expanded at direction.

An excel-based system tracking approvals and refusals likely put these stats front and centre to an officer’s discretion (or a machine’s) on an application. Again to utilize a teaching analogy (clearly I miss teaching), I utilized a similar ‘Speedgrader’ type app which forced me, mid-marking, to often to revisit exams that I had already graded because I had awarded the class average marks that were too high. I have no doubt a parallel system exists with IRCC.

What this all means, as my colleague, Zeynab Ziaie has pointed out in our discussions, there are major concerns that Chinook and the AI systems have not been developed and rolled out with adequate lawyer/legal input and oversight, which leads to questions about accountability. Utilizing the Chinook example, what if the working notes that are deleted contain the very information needed to justify or shed light on how an application was processed.

My question, in follow-up, is how are the predictive/advanced analytics systems utilized by India and China for TRVs influencing Chinook? Where is the notation to know whether one’s file was pre-assessed by “Officer’s Rule” or through the Tiers. I quickly reviewed a few GCMS notes prior to this call, and though we know whether a file was pre-accessed, we have no clue which Tier it landed on.

Furthermore, how do we ensure that the visa-office subjective “Officer Rules” or the analytical factors that make up the AI system are not being applied in a discriminatory manner to filter cases into a more complex/complex stream. For example, back in 2016 I pointed how the Visa-Office training guides in China regionally and geographically discriminate against those applying from certain Provinces assigning character traits and misrepresentation risks. We know in India, thanks to the work of my mentor Raj Sharma, that the Indian visa offices have a training guide on genuine relationships and marriage fraud that may not accord with realities.

Assuming that this AI processing system is still being used only for TRVs and not for any other permits, it must be catching (with the assistance of Chinook’s key word indicators no less) words such as marriage, the names of rural communities, marital status, perhaps the addresses of unauthorized agents, and businesses that often have been used as a cover for support letters. Within that list there’s a mix of good local knowledge, but also the very stereotypes that have historically kept families apart and individuals from being able to visit without holding a study permit or work permit.

If we find out, for example, that filtering for complex cases only happens at visa offices with high refusal rates or in the Global South, does that make the system unduly discriminatory?

We acknowledge of course that the very process of having to apply to enter the borders, the division of TRV and electronic Travel Authorization (eTA) requiring countries is discriminatory by nature, but what happens when outcomes on similar facts are so discrepant?

In other areas of national bureaucracy, Governments have moved to blind processing to try and limit discrimination around ethnic names, or base decisions on certain privileges (ability to travel and engage in previous work), and remove identifying features that might lead to bias. For immigration it is the opposite, you see their picture, their age, and where they are from, and why they want to come (purpose of visit). As we have learned from Chinook, that is the baseline information that is being extracted for Officers to base their decisions on.

When – as a society – do we decide to move away (as we have) on what were once harmful norms to new realities? Who is it that makes the call or calls for reviews for things such as consistency or whether a particular discriminatory input in the AI system is no-longer consistent with Charter values?

Right now, it is all in the Officer’s discretion and by extension, the Visa Offices, but I would recommend some unified committee of legal experts and race/equity scholars need to be advising on the strings of the future, inevitable, AI systems. This would also unify things across visa offices so that there is less discrepancy in the way systems render decisions. While it makes sense that heavier volume visa offices have more tools as their disposal, it should not depend on where you live to receive less access to human decision-makers or to an equal standard of decision-making. We do not want to get to a place where immigration applicants are afraid to present their stories or speak their truths for fear of being filtered by artificial intelligence. From my perspective, we are better of being transparent and setting legitimate expectations.

What are your thoughts on the introduction of AI, the interaction with Chinook, and the need for oversight? Feel free to engage in the comments below or on social media!

Thanks again for reading.

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Three Common Mistakes Canadian Immigration Applicants Make When Documenting Employment/Personal History and My New Strategy

Recently, I have had a major increase in misrepresentation consultations and other related issues with one common starting point: incorrect work/personal history that either Canadian immigration has found or will eventually find out about.

There are several forms that canvass work/personal history. This ranges from initial application forms (IMM 1294, IMM 1295, etc.) to the IMM 5257E Application for a Temporary Resident Visa Forms, to the dreaded IMM 5669 – Schedule A.

Excerpt from IMM 1294 form

Each form (and accompanying instructions) often ask for the materials a different way. Some forms ask for only employment history, whereas others as for a full ten-year history. Complexities also arise when certain visa offices want a full personal history starting from the age of 18, but do not make these instructions apparent at the outset, requiring them later in request letters.

What often happens is a hot mess of unclear work dates, forgotten travels, mistaken residences, and IRCC analyzing all of these for possibly material misrepresentations that may impact officer assessment.

To make things even more complicated, misrepresentations can extend to past applications, even if it is attempted to be corrected. Memories are imperfect, what is required to be disclosed is confusing, and unfortunately perfectly innocent applicants can make devastating mistakes.

While there are some positive trends in judicial interpretation, the law around misrepresentation in Canada is harsh: a five-year bar from Canada (and from applying for permanent residence) regardless of the intent of the error or omission, and a thin-exception for innocent misrepresentation.

In this post, I look at three common mistakes I see applicants (and their representatives make) and how to avoid them. I will close with a new approach I am taking to documenting work history for my clients on temporary resident applications.

 

Mistake 1: Omitting Material Personal History/Blurring Dates Together

There are several sub-mistakes under this category:

[1] Applicants often include only their last position held, rather than to breakdown the various positions within a company

This one may seem innocuous now, but on a PR application or when facing an employer’s reference letter that paints a different picture this could be an issue. Often times these dates are also contradicted by public information you may have about yourself online, such as your LinkedIn profile or a biography you hastily submitted to a third-party who has posted it online.

Visa Offices also have many internal tools at their fingertips. For example, for China, they have access to a quite comprehensive ‘legal persons’ registry for businesses. Particularly for entrepreneurs or businesspersons who own multiple businesses, failures to disclose one (even if it is unclear whether it constitutes employment or ownership) could constitute misrepresentation. This was the fact pattern in the Federal Court’s decision in Sun v. Canada (Citizenship and Immigration), 2019 FC 824 (CanLII).

My rule of thumb is to over-disclose rather than under-disclose if there are no inadmissibility risks to the additional details being disclosed and it may set forward a good groundwork to get ahead of a potential issue or pave the way for a future application. If your disclosure of the item could affect your eligibility, consider whether applying on misrepresented information could come back to haunt you in the future.

Yet, many times the information being omitted is not itself going to change the decision of the Officer, but the very omission of the information could impact the Officer’s processing or review of the requirements, which could make it a material misrepresentation.

 

[2] Applicants often don’t include periods of unemployment, self-employment, and educational pursuits

Often times Applicants only provide just the formal work/employment history and forget to include the personal history. Again, the forms make it a bit confusing. In the description of the form, it asks for employment history, but in the fine print it may say to include periods of unemployment or leave no gaps. Another challenging aspect is that certain applications (co-op work permits and post-graduate work permits) do not actually require full disclosure of work history, whereas other applications (temporary resident visas inside Canada) do. We play it safe by including a running 10-year history for all applicants, regardless of it is a requirement.

This often rears its head as an issue when a visa is refused for lack of continuous study or lack of relevant employment history demonstrating there are opportunities in the country of residence. When it is only indicated that one is ‘unemployed’, the literal interpretation  the Officer will take is that you are at home doing nothing. Trying to start up your own business or taking pre-requisite courses for a formal program of study, is not sitting home doing nothing and may be very material. Failure to include this initially could create discrepancies later (see mistake 3 below).

 

[3] Applicants do not disclose sufficient details in the personal histories

In my work often reviewing materials for refused clients, often who applied the first time themselves or less competent counsel, there are common themes.

Rather than put detailed descriptions of position or title – words such as “employee” or “management” or “police officer” are used. Alternatively, when discussing employment rather than put the company or school name, answers such as “restaurant business” or “self-employed” or put down. Immigration Officers may want to conduct an inadmissibility inquiry into your former work place, or verify that you indeed worked for said employer or that such a company/organization exists.

If there is an admissibility concern or clarification to be made, make sure to make it on a letter of explanation or clarify (see attached). Too often I see clarifying explanation missing until after a Procedural Fairness Letter (PFL) is received. This is often times far too late in the game.

 

 

Mistake 2: Not Correcting the Mistake When IRCC Gives You a Chance (Requests vs. PFLs)

When IRCC notices an inconsistency (and depending on what visa office and what type of application), there may be the opportunity provided to fix an inconsistency. Commonly, especially if a misrepresentation is not apparent on the surface, a request letter will be issued offering an opportunity to clarify or seeking further information. `

The tendency with request letters, I find, is to blindly try and answer them as soon as possible. Applicants immediately take a defensive position, without thinking at that stage that the request letter could be the set up for an A16(1) IRPA (failure to truthfully provided requested documents) or worse yet, an A40 IRPA (misrepresentation) refusal. Given the withdrawal of an application is unlikely to be granted after a PFL is issued and the leg work is all but done at that stage, it is as the request letter stage that clarifications need to be sought and legal arguments made.

Repeated errors in providing accurate information or misunderstanding request letters could later lead to further challenges arguing innocent misrepresentation or seeking discretion later on in the process.

 

Mistake 3: Not Keeping Adequate Records and Inconsistencies Between Applications

Visa Offices such as those in India (especially Delhi and Chandigarh) and China (Beijing) now utilize artificial intelligence tools that will be able to spot an inconsistency instantaneously.

Before submitting an application, if possible, compare your forms with previous forms submitted. Better yet, request or obtain (by access to information) a copy of all final forms before a representative submits any application for you.

Another discrepancy I see is with address history, travel history, and work history on forms. Where these do not align, and particularly when it comes to permanent residence applications that look into where work was performed and where the Applicant was located, and whether or not the claimed work matches with past records – this becomes ever so important. Virtual work or work through multiple client sites is becoming more popular, and failure to properly document this in respective applications may complicate things when permanent residence rolls around.

 

My New Approach: Focusing on Forms First, and then Attachments

In the past, a move I did (and one I know many counsel mirror) is to put “please see attached” on the work history sections or personal history sections of some validated temporary resident forms and then add a work document. This option will not be available with the new online temporary resident portal, which like Express Entry do not allow you to move on to the next page until there are no gaps. In the interim, what I am suggesting with the validated forms is still to list as much as possible on the form and then add ‘see attached’ on the final line before continuing.

The reason for this is that IRCC has been focusing on auto-populating systems like Chinook that appear to extract information directly from forms into their internal processing system. I am worried that my attached table found at the back of my rep’s submission letter is missed by a processing agent or in review. We know increasingly that the Officers are only accessing the information extracted for their review and are under a major time crunch. This little tip might help practitioners and self-reps.

 

Some Positive News: Court Critical on IRCC’s Need for a Materiality Analysis of Misrepresentation

While misrepresentation is often a death trap for an immigration application, the Federal Court has recently been pushing back on the tendency of IRCC to equate a mistake as misrepresentation, without an analysis of materiality.

In Alves v. Canada (Citizenship and Immigration), 2021 FC 716 (CanLII), Justice Manson allowed a judicial review after finding that an Officer’s finding of misrepresentation was unreasonable. The Applicant disclosed one of his previous refusals to the United States, but had omitted an earlier one.

Justice Manson writes:

[19] However, an officer must consider the totality of the evidence before the decision maker (Koo v Canada (Minister of Citizenship and Immigration)2008 FC 931 at para 23). The Officer, in this case, failed to recognize the potential significance of the mitigating evidence, as it relates to the finding of misrepresentation without meaningfully coming to grips with the facts before the Officer. Instead, the Officer broadly found that the Applicant had […]

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My Value Proposition

My Canadian immigration/refugee legal practice is based on trust, honesty, hard-work, and communication. I don’t work for you. I work with you.

You know your story best, I help frame it and deal with the deeper workings of the system that you may not understand. I hope to educate you as we work together and empower you.

I aim for that moment in every matter, big or small, when a client tells me that I have become like family to them. This is why I do what I do.

I am a social justice advocate and a BIPOC. I stand with brothers and sisters in the LGBTQ2+ and Indigenous communities. I don’t discriminate based on the income-level of my clients – and open my doors to all. I understand the positions of relative privilege I come from and wish to never impose them on you. At the same time, I also come from vulnerability and can relate to your vulnerable experiences.

I am a fierce proponent of diversity and equality. I want to challenge the racist/prejudiced institutions that still underlie our Canadian democracy and still simmer in deep-ceded mistrusts between cultural communities. I want to shatter those barriers for the next generation – our kids.

I come from humble roots, the product of immigrant parents with an immigrant spouse. I know that my birth in this country does not entitle me to anything here. I am a settler on First Nations land. Reconciliation is not something we can stick on our chests but something we need to open our hearts to. It involves acknowledging wrongdoing for the past but an optimistic hope for the future.

I love my job! I get to help people for a living through some of their most difficult and life-altering times. I am grateful for my work and for my every client.

Awards & Recognition

Canadian Bar Association Founders' Award 2020

Best Canadian Law Blog and Commentary 2019

Best New Canadian Law Blog 2015

Best Lawyers Listed 2019-2021