Dear IRCC: Requesting Uploaded Non-Refundable Plane Tickets for Refused Extension Applications Is Not The Way To Go
I apologize folks. I’m in the middle of a transition (starting my own Firm in February – more details about this later). I’ve also engaged an entire revamp of this blog, which will be releasing as well. I’m supposed to be on hiatus. However, something shared by one of my colleagues has had me spring into action. IRCC: this move is wrong, not procedurally fair, and has disasterous consequences for access to justice.
What am I talking about? Check out the screen shot below.
While it is clear the Government has been pushing to make the restoration process more difficult (trying to limit it to only statuses previously held), it behooves procedural fairness that rather than informing applicants of their statutory option to pursue restoration within 90 days they are telling applicants to leave and provide proof that they are leaving.
There is also no transparency on how to challenge a decision like this. What if an individually legitimately was refused due to missing documentation or a technical issue and has a strong argument for restoration? Do they apply for restoration? What happens if they ignore this request to upload proof. Does CBSA show up before they are able to confirm their restoration has been approved? [The fact we are removing individuals during a pandemic is another bone – but I’ll pick it some other time].
I would argue that this has the most immediate and harmful impacts on those who are unrepresented. As counsel, at least I can seek clarification and know how to navigate restoration to immediately submit an application and perhaps inform IRCC. A self-represented applicant, with no public facing knowledge of the process having provided by IRCC, will not know what to do. I fear that for the international students who I’ve seen this sent to, this can lead to harmful decisions. I’ve been in too many cases where international students were afraid to tell their parents, going so far as trying to leave to a third country to avoid letting their major educational funder parents know.
Importantly, this action breaches procedural fairness. Indeed, I think the Government needs to be enjoined from prematurely requesting something and shielding the fact an alternative remedy is not on available but statutorily provided. This type of action utilizes policy to try and shield the protections provided by law and is inconsistent with the rule of law and due process.
I call on the Government to stop issuing these letters to applicants who receive temporary resident extension refusals and in fact all refusal letters. Go back to informing these individuals that they have the ability to apply for restoration within 90 days. Suspend removals, especially now that there are programs being rolled out to help restore those who have lost status and given them an extended time to do so. This type of letter contracts the generosity through policy that has been provided (see: here).
In the interim, we need transparency:
- Who is this being sent to?
- Is it just for citizens of certain countries?
- Why is it not being limited to cases where individuals are truly out of status without access to restoration?
- Where are the public instructions on how to respond to something like this?
To most individuals, even those familiar with immigration, the words ‘risk’ and ‘discrimination’ will likely conjure up immediate thoughts of refugee claims under s. 96 and s.97 of the IRPA.
Indeed, if one were to follow IRCC’s own instructions on factors to consider in an humanitarian and compassionate assessment, risk and determination are not obvious on the face , as per the online instructions captured below.
Factors to consider in a humanitarian and compassionate assessment
Applicants may base their requests for H&C consideration on any relevant factors including, but not limited to
establishment in Canada for in-Canada applications;
ties to Canada;
the best interests of any children directly affected by the H&C decision;
factors in their country of origin including adverse country conditions;
health considerations including inability of a country to provide medical treatment;
family violence considerations;
consequences of the separation of relatives;
inability to leave Canada has led to establishment (in the case of applicants in Canada);
ability to establish in Canada for overseas applications;
any unique or exceptional circumstances that might merit relief.
Certainly, adverse country conditions include discrimination and indeed there is clarification that membership of a group being discriminated against is a s.25(1) IRPA consideration as per this excerpt below.
Assessment of discrimination
In assessing whether an applicant will be affected by discrimination, discrimination can be inferred where an applicant shows that they are a member of a group that is discriminated against. Evidence of discrimination experienced by others who share the applicant’s profile is relevant under subsection 25(1), whether or not the applicant has evidence that they have been personally targeted.
On risk, it was always a word I utilized with some caution in an H&C application. Indeed, IRCC’s instructions provide explicitly that s.96 and s.97(1) IRPA factors are not be considered, but must consider these elements related to hardship.
Many new readers and fans of our blog ask why we have an Indigenous logo and make Indigenous issues, decolonization, and indigenizing a huge part of our mandate and our writing.
We believe that immigration, as part of a settler colonialist system, has facilitate the loss of Indigenous lands, the historically correct approach is to try and both return Indigenous sovereignty to immigration decisions and as well build deeper relations between Settlers and Indigenous communities and promote understanding, pay reparations to the harm.
This year, we contributed financially (through the proceeds of an award) to the Urban Native Youth Association. UNYA does incredible work connecting Indigenous mentees with community mentors.
We also wrote on how to better reflect Indigenous ways of thinking into the IAD process.
As many of you may know, over the past half year my colleague Edris Arib and I have been putting together a non-profit organization called the Arenous Foundation to fill the gap of advocacy, research, and education in Canadian immigration.
We’ve been doing quite a bit of work this December and are proud to share with you are two project this week.
The first project is our brief to the Standing Committee on Citizenship of Immigration who asked for feedback on (1) spousal sponsorship and TRV delays (specifically s. 179(b) IRPR); (2) the parent and grandparent sponsorship program, and (3) TRVs/SPs for Francophone African students, along with those who hold expired COPRs;
On Thursday of this week, we also presented to MOSAIC on international students, including policy recommendations and advice to settlement workers.
It’s been a busy but amazing week being able to re-shift energy from law to non-profit immigration policy work. It’s a perfect balance – and one I hope to expand in January 2020.
On that note, we have some big news for #VIB readers (new site and new initiative) coming in the New Year.
I don’t know about you, but I’m just about done with 2020.