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Three Things You Likely Don’t But Should Know About How IRCC Assesses Your Study Permit Application

#1 – Your Application is Decided Using a Microsoft Excel Spreadsheet

It might come as a surprise to you that IRCC utilizes the classic, but with some tech additions, software of Microsoft Excel to decide temporary resident applications.

The Officer essentially provides all the information about a client in a row with several columns (including working notes – more on this later). This allows them to process multiple applications utilizing one screen. There are also multiple clients that make up the constituent rows.

Each column within a row contains information regarding the Applicant’s name, age, purpose of visit, date of receipt of the application, citizenship of the client, and previous travel. It appears that some of this information is pre-assessed by a processing Officer, but much of it comes directly from the IMM forms.

You can see here how the pre-assessment notes show up with respect to the ‘verbose client information.’ Verbose client information appears to be information directly from the forms. This suggests that the pre-assessment plans a significant and important role in an application. While it is seemingly ‘blind’ one can see from the below that if you break it down to age, gender, marital status, and citizenship that many of the personal identifying features that can make a young, single, and mobile woman applicant from Zimbabwe difficult to make to record. The Pre-assessment also shows (based on categories selected) that previous travel and proof of funds continue to be important factors. As such, it is difficult to say if travel history is as ‘neutral’ as the Federal Courts have attempted to establish it is.

Why do they do it this way via excel? Well IRCC claims that officers can increase their processing volume (depending on visa office) anywhere from 5% to 35% using this system.

I would also not be surprised (I am speculating) if the excel-based system allowed also for real-time tracking of statistics. This way a visa office with a refusal target could likely keep track while at the same time processing applications.

 

#2 – Reasons are Templated and Generated After Refusal. They Don’t Have to Refer to Your Original Evidence (their position, not mine)

If one were to think of it logically, or perhaps engage in the exercise themselves, it would make sense to do some sort of a yay/nay list on a chart or table and ultimately decide, based on the facts gathered, whether or not to approve a client. Indeed, while not required, much of immigration (think Ribic factors or the assessment of humanitarian and compassionate grounds) often work on this weighing system.

Such is not necessarily the case with temporary resident refusals. With IRCC’s systems, a decision to refuse or approve is made first, and then a notes generator (read: template generator) is utilized to choose the applicable reasons. The Officer then copies and pastes this into Global Case Management System (GCMS).

While Officers continue to have access to the original documents submitted by applicants, much of the guidance suggests the anchoring point is the excel document – one populated by the aforementioned pre-assessed notes and verbose client information. Officers are very much deciding to approve or refuse simply on an individual’s basic profile. This suggests that whatever is chosen to be extracted from an application, rather than what is actually in the application is most important. Such guidance should serve as a reminder to keep support letters and evidence not only strong, but visible and searchable rather than tucked away on page 12 of a 15 page submission letter.

There are also ‘risk indicators’ and ‘local word flags.’ Risk indicators can capture where there is a trend, for example, of an Office submitting fraudulent information and local word flags, capture words such as ‘wedding.’ I am still researching what the other words are, but we know they depend on what visa office runs them. It would not be a surprise to see more risk indicators and local  I would not be surprised if IRCC is also running OCRs (optical character recognition) or utilizing machine-based decision-makers to flag key words. Yet, looking at the GCMS notes of several recent files, it appears risk indicators and local word flags don’t often appear. What this may suggest, is that the Officers rely more on the pre-assessment, verbose info, and their working notes to render a decision.

Which brings us to the issue of working notes below.

 

#3 Working Notes of Officers (i.e. Where the Factual Analysis Takes Place) are Not Ordinarily Retained

Templated reasons themselves do not (at this stage) need to contain reference to facts in the Application. While IRCC maintains that Officers do have the right to choose not to use them, the reality is any officer facing instructions to process fast and maintain consistency, likely won’t diverge too far from them.

When clients come and find me after a referral, I often hear from them that they believe the Officer ignored evidence or turned a blind eye to something they submitted. Turns out there is likely much more to it.

Officers do have space to maintain working notes in their system, but – and importantly, these notes are not transferred to GCMS for privacy and administrative convenience purposes. IRCC claims that if they were required to manually input Officer’s working notes it would create too much of an admin burden.

Strategically though, this is a brilliant play. If decisions were to include working notes and commentary it would open up the possibility of all sorts of litigation. Thinking back in history, it was the working notes of several Officers that led to such a departmental disaster such as Baker. 

The Supreme Court of Canada’s decision in Vavilov also supports short, pithy reasons that maintain consistency – essentially what IRCC is trying to do with this system.

The Majority writes at paragraph 77:

[77]                          It is well established that, as a matter of procedural fairness, reasons are not required for all administrative decisions. The duty of procedural fairness in administrative law is “eminently variable”, inherently flexible and context-specific: Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paras. 22-23; Moreau-Bérubé, at paras. 74‑75; Dunsmuir, at para. 79. Where a particular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that the duty imposes are determined with reference to all of the circumstances: Baker, at para. 21. In Baker, this Court set out a non-exhaustive list of factors that inform the content of the duty of procedural fairness in a particular case, one aspect of which is whether written reasons are required. Those factors include: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself: Baker, at paras. 23-27; see also Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650, at para. 5. Cases in which written reasons tend to be required include those in which the decision-making process gives the parties participatory rights, an adverse decision would have a significant impact on an individual or there is a right of appeal: Baker, at para. 43; D. J. M. Brown and the Hon. J. M. Evans, with the assistance of D. Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), vol. 3, at p. 12-54.

(emphasis added)

IRCC is in the process (the part I am not yet at the liberty to discuss as I am assisting in the litigation) of getting judicial endorsement for their choice of process. I can say that if they are successful, and given it is well-established that the impact to foreign nationals (such as students is on the low end), this could serve as a rubber stamp. Such a process would make future judicial reviews much more difficult if the Courts find that templated reasons do not need factual reference. Furthermore, refusal letters could simply that the Applicant’s evidence was insufficient and leave it to their counsel, Department of Justice, to build up a justification after the fact.

 

Caution: Expect GCMS Notes to Thin at the Detriment to Your Client’s Knowledge of the Case to Be Met

What does this all practically mean for your run of the mill temporary resident applicant. Well – expect GCMS notes to say less and less and for the bulk of the information to be retained on IRCC’s ‘internal’ system. It is also likely moving forward (and that we’ve already seen in some cases) nothing in the notes for when procedural fairness letters are sent. This will make it very difficult to respond, especially where procedural fairness letters are so broadly worded. This could make the process much less transparent and lead to many more misrepresentation finding (as just one example).

 

Bonus: A Little Gratitude

I want to thank again, my incredible colleague Zeynab Ziaie for her advocacy and supporting our efforts to learn more about the way IRCC operates. I have purposely not included anything in this piece that may be subject of our litigation and is not already publicly accessible. We may be writing more about this shortly.

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Now Offering Canadian Immigration Second Opinion Services (“#CDNIMMSOS”)

In this post, I announce that I am providing Canadian Immigration Second Opinion Services (#CDNIMMSOS). I would like you to tag this hashtag on Twitter, Facebook, or in an email to us, whenever someone in your network needs a second opinion on their immigration matter. I pledge to do provide this opinion affordably and with your (the client’s) best interests at stake, with the support of my competent legal team at Heron Law Offices.

 

First, A Bit About the Why

Over six years now in this industry, and as a Canadian immigration lawyer – and I have to admit things have changed.

When I entered practice, we were in the midst of an enforcement-minded Conservative Federal Government. I remember doing many detention reviews, Immigration Appeal Division matters, and judicial reviews. Post-Graduate Work Permit refusals were frequent and the lapse time between refusal and removals was much shorter.

Back then too, there appeared to be less chefs in the Kitchen – or at least everyone knew who the good chefs were and went to them. Nowadays, and a credit to our industry and incredible Continuing Professional Development (CPD) programs, very good young lawyers and extremely competent immigration consultants have received top notch training. The overall quality of Canadian immigration work has increased. We have also seen the entry of accounting firms, and other service providers that are able to do volume work.

Government too has carved out a much more Do-It Yourself (“DIY”) approach to immigration processing. Their new portals, centred on the user experience, will drastically change the role of immigration representatives from primary applicant shoe-filler to support (and possibly tech support worker).

I remember when Express Entry was in its infancy and applications were being rejected as incomplete, front, left, and centre. Now there are some incredible video tutorials and courses (my mentor/colleague, Mark Holthe’s just to name one).

There is also a major change coming with the new College of Immigration and Citizenship Consultants.  These changes will put more scrutiny on the flow through of recruitment fees. The Code of Conduct will hopefully ensure that representatives for employers are not utilizing the client as a vehicle for generating additional revenue – a process that has been at the heart of labour market exploitation.

 

There is a Risk to All This – A Less Than Competent and Non-Partial First Opinion

We have seen the explosion of online and social media driven immigration advice giving. Whether it is from an individual who navigated it successfully themselves and seeking to help others, to a growing trend now of YouTube ‘Study Permit, Statement of Purpose’ advisors, one can see both the good and the bad.

As I have said on numerous occasions, even I on occasion check in online forums (especially those that have crowd-sourced application timelines) to get a sense of what is occurring on the ground. The Pandemic has brought together incredible online advocacy efforts – for separated spouses caught in backlogs, to migrant workers seeking permanent residence, to students pushing against tuition fees and exploitation.

Everyone has an opinion it seems on immigration. Everyone who has read a few government websites or gone through it themselves – thinks of themselves as being able to help. Every lawyer/consultant who has submitted an application or two – considers themselves specialized.

The reality on the ground is it is much more complicated. The representative’s (authorized or not’s) own positionality – goals, aims, interests, financial benefit – meets up with the client’s and is ultimately in the hands of a third party, non-rational actor who constantly changes up policy.

Too often what I hear from clients who seek us out the most, are that the representative who advised them previously told them everything would be okay and that approval rates were high, provided them little transparency into what they were doing, and deflected responsibility when the file was refused.

 

Employer-Driven Processes and Left-Out Employees

Another common feedback item we have been receiving is from foreign workers under the Temporary Foreign Worker Program (“TFWP”) and International Mobility Program (“IMP”) seeking their own immigration lawyers.

In traditional employer-driven immigration processes, especially for more established companies, it is the employer that retain the lawyer, drives the offer of employment/Labour Market Impact Assessment (“LMIA”) process, and then facilitates the work permit process.

Other than signing and authorizing the final forms, the employee often has little to do. This model worked when things were much simpler. Now, employee situations are complex and companies often have to push forward their business in ways that may leave the foreign worker on the sidelines. The pandemic – where mass temporary layoffs took place, was a prime example.

From accepting an initial offer (which may pose immigration hurdles) to getting terminated/let go/placed on leave or having to navigate a Provincial Nomination Program (“PNP”) and Bridging Open Work Permits (“BOWP”), employees must begin taking more autonomy over their immigration matters.

Having worked at Firms that acted primarily for employers, seen the way those retainers were crafted, and the type of conversations that were happening between HR and counsel, I decided for myself that I wanted to act on behalf of employees. This work primarily now is often being handled by legal clinics, but this work cannot hit the scope needed. It cannot be just the serious cases with abuse – it needs to be a widespread first step for an employee to ensure their immigration best interests are always being taken care of.

I am of the opinion that all employees on work permits, should seek independent legal advice outside of that being provided by their Employer’s counsel. The earlier this can be done – the better. Many times it may be something in the past as well – employment experience, misrepresentations, criminality, non-compliance that factors into the future. Do not wait until a refusal or employment issues arise, as you may find yourself abandoned.

Similarly it is my opinion that all employers, especially big employers, should seek to understand the foreign worker’s perspective outside of the advice given by their own counsel. That is – they should continually attend trainings and resource themselves to ensure they are compliant with immigration legislation and understand the employees perspective as well. The hard truths and realities are often what are shielded in the name of business efficiencies but are what ultimately what can severely affect a business, when relationships sour and parties threaten to report each other to relevant authorities – a common theme I have seen at my offices of late.

 

Canadian Immigration Second Opinion Services (#CDNIMMSOS)

We’re launching this project because we want to shift our services away from necessarily taking on entire initial files – such as initial study permit applications or work permit applications and instead be your second opinion person. The one who acts as a check and balance in your corner, devoid of any ulterior motives – other than to support you.

Our services won’t be popular. We never entered this work to be. We want to be the one emailing your Employer on your behalf advocating for you, the one that stops you from falling into an exploitative situation. You are likely not going to get referred by your current consultant or company’s lawyer to us. You need to seek us out, but we’ll be here waiting.

 

The Problem With Independent Legal Advice (“ILA”)

When it comes to independent legal advice, the reality is that the very referral of the file to a trusted colleague for ILA can be impartial. When I refer out files for ILA, I tell clients that they should choose their counsel independent of my recommendation.

If, for example, there was incompetence of counsel, an oversight, a misstep – it takes a certain level of true independence to pursue it on behalf of the client you are providing ILA for.

Again, going back to my earlier premise – the network of chefs in a local immigration network is quite small. Most of us respect each other’s work.

When seeking a truly independent legal opinion or a second opinion, always ask if the receiving party knows the initial party who did the application. Ethical second opinion providers will pass on a matter if they may believe their opinion could be compromised.

For example, one time a colleague and I were referred a file for a second opinion. The original counsel was one we both had on Facebook and knew was going through mental health challenges – based on their private postings. It would have been unethical and sharp practice for us to take on such a file, with this private knowledge.

On the other hand, be aware of lawyers and advisors who appear to promote a pure litigious/negligence approach without highlighting actual substantive advice for your file – especially if immigration remedy rather than punitive/financial damages are your primary need.

 

Aren’t I Paying Twice for Advice?

The short answer is: it depends. Most employers, if the process is done ethically, cover the costs of the LMIA or the Employer Compliance fee – and many will also foot the bill on the work permit application.

However, what I am proposing with providing second opinion is simply to seek a consultation at the start of your matter, to double check that your materials are being submitted correctly, and then also when any major challenges arise. The cost of a consultation early, to catch an issue, could save you thousands on the back-end if you require responding to a complex procedural fairness letter or going to Court.

 

#CDNIMMSOS – Contact Information 

We look forward to helping. Email us at info@heronlaw.ca to set up a consultation with one of our (soon-to-be) three lawyers on your Canadian immigration matter.

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‘Young, Single, Mobile, and Without Dependents’ – Why the Courts Need to Step In

Among a few frustrating trends, Immigration, Refugees and Citizenship Canada (“IRCC”) continues to refuse temporary resident applications (namely visitor visas and study permits) by single applicants, who are younger, and do not have spouses/dependent children. More often than not these individuals come from countries where there may be a presumption of a primarily (permanent) immigration intention or that dual intention arguments run up against evidence of a country’s instability. More often than not those that are refused on this ground are also women. This refusal reason is very common, for example from the visa office in the Middle East and Africa.

In this piece I’ll look at what Applicants can argue in response, what the Department of Justice (or “DOJ”)’s  position is when responding on behalf of their clients, IRCC, and ultimately why this is a very worrisome ground of refusal moving forward.

 

A Flawed Finding That Often Lacks Legs

The argument that one can be refused simply for being ‘young, single, mobile, and without dependents‘ is not on solid ground based on numerous Federal Court decisions. In Iyiola v. Canada (Citizenship and Immigration), 2020 FC 324, Justice Fuhrer summarizes the case law on this point – particularly how finding a lack of dependents a negative factor, without further analysis, would preclude many students from eligibility.

[20]  As noted above, the High Commission’s decision indicates concern that Mr. Iyiola may not leave Canada at the end of his authorized period of stay; Mr. Iyiola bore the onus of satisfying the visa officer in this regard: IRPA s 20(1)(b). Regarding Mr. Iyiola’s family ties in Canada and in Nigeria, he has five other family members in Nigeria, including his parents with whom he lives with, none of which was mentioned in the GCMS notes; given this, it would have been unreasonable without further analysis to presume an older brother in Canada would be a more significant pull factor: Obot v Canada (Citizenship and Immigration)2012 FC 208 [Obot] at para 20. Accordingly, I find it unintelligible that there was no explanation whatsoever by the High Commission, nor by the visa officer in the GCMS notes, about the family ties in Nigeria and how these were assessed in the context of Mr. Iyiola’s family ties in Canada. Moreover, I agree with Justices Russell and Mosley that an applicant’s lack of a dependent spouse or children, without any further analysis [as in this case], should not be considered a negative factor on a study permit application; otherwise, this would preclude many students from being eligible: Onyeka, above at para 48Obot, above at para 20.Finally, it is unintelligible in my view to construe a lack documented travel abroad in itself [and without something else, such as a negative travel history] as an indication that an individual will overstay their authorized time in Canada: Onyeka, above at para 48Ogunfowora, above at para 42.

(emphasis added)

Iyiola

It is also worth revisiting both Onyeka v. Canada (Citizenship and Immigration), 2009 FC 336, and Obot v. Canada (Citizenship and Immigration), 2012 FC 208both notably cases that also involved Nigerian study permit applicants refused on similar language.

In Onyeka, Justice Russell finds that the Officer in this matter does not tie together how a lack of dependents leads an individual to not leaving Canada at the end of their authorized stay. He writes:

[48]           I can see some connection between being single and having no dependents and the issue of whether, under Regulation 216(1)(b), the Applicant will leave Canada at the end of the authorized period. These factors, however, merely place the Applicant in the position of most students applying for study permits. The Applicant has no family connections in Canada; his family is in the U.K. or Nigeria, and he has a highly responsible job in Nigeria. The Officer does give reasons – being single and having no dependents – but these reasons are hardly sufficient to amount to a reasonable exercise of discretion when the other factors are taken into account. There is simply nothing on the facts to suggest that the Applicant is not a bona fide student or that he would stay in Canada illegally at the end of the authorized period. See Ogbonnaya at paragraphs 16-17.

(emphasis added)

Onyeka at para 48.

In Obot v. Canada (Citizenship and Immigration), 2012 FC 208., Justice Mosley as finds not transparent, justifiable, or intelligible how family ties are assessed in the context a 25-year-old single applicant. He writes:

[20]           With regards to the applicant’s ties to Nigeria, the officer’s reasons are not transparent, justified and intelligible. The applicant is 25 years old and a student, it is thus normal for him to have “no spouse, children or property” in Nigeria or anywhere else. Furthermore the officer did not consider that all of the applicant’s family lives in Nigeria and did not consider the strength of his ties to his family: Onyeka v Canada (Minister of Citizenship and Immigration)2009 FC 336 at paras 21-22Li v Canada (Minister of Citizenship and Immigration)2008 FC 1284 at para 30; and Zhang v Canada (Minister of Citizenship and Immigration)2003 FC 1493 at paras 21-22.

(emphasis added)

Obot at para 20.

In the recent decision Singh v Canada (Citizenship and Immigration), 2021 FC 691, the Officer refused the Applicant’s work permit application on the basis that her family ties suggest that she will not leave Canada at the end of her authorized stay, despite the Applicant’s evidence that she has no direct family ties in Canada. While is not a study permit case per se, it is very instructive.  Justice Fuhrer (note: same decision maker as in Iyiola) states the following in Singh:

[5] Regarding the first ground of refusal, I find that the absence of any articulated reasons for the Officer’s determination that Mr. Singh would not leave Canada at the end of his stay because of family ties in Canada renders the decision unreasonable for lack of justification: Vavilov, above at para 86. In my view, it is clear on the face of the record, and the Respondent admitted in both written and oral submissions to the Court, that there is no evidence Mr. Singh has any family ties in Canada. To the contrary, Mr. Singh’s evidence is that his spouse, child and parents live in India. I add that it is not evident which country the Officer meant by “your country of residence,” whether the UAE, India, or another country.

[6] Nor is there any discussion at all in the brief Global Case Management System [GCMS] notes, which form part of the Officer’s reasons for refusing Mr. Singh’s work permit application, about his family. To be clear, my concern with the GCMS notes is not their length. Rather, the outcome of Mr. Singh’s application on this basis is at odds with the factual context, and is not supported by any reasons, let alone intelligible and rational reasoning: paraphrasing Vavilov, above at para 86. (Emphasis added)

Singh at paras 5-6.

With these several cases, it seems strong that if family ties are not analyzed beyond just mentioning the presence of a Canadian (or Canadian-based family member) that this will not be accepted by the Court. Yet, we have seen a pushback with the position Department of Justice is taking on several judicial reviews – attempting to justify the finding with their own (largely after the fact) factual analysis.

 

How the Department of Justice (Lawyers for IRCC) Counter

The DOJ, again even if it is not in the actual findings of the Officer, will respond to judicial reviews by arguing two fold (1) that the evidence provided by the applicant was insufficient and therefore the concern was not credibility (requiring further information requests etc.) and that the onus that the applicant would leave Canada was not met; and (2) try to piece together the applicant’s biographical history to muddy the waters of what may appear to be a clear cut case with strong ties to the country of residence to try and accentuate push/pull factors.

A case they often cite is the 2013 decision of Babu v. Canada (Citizenship and Immigration), 2013 FC 690 (CanLII).

[19]           Last, the applicant says that for two reasons the officer unreasonably discounted his family ties to Pakistan in arriving at the conclusion that he had not “demonstrated sufficient level of establishment or ties to Pakistan that would compel him to depart Canada within the period authorized.”  First, as in Zhang v Canada (Minister of Citizenship and Immigration)2003 FC 1493, Mr. Babu presented evidence that he and his family intended that he return to Pakistan upon completion of his studies.  Second, as in Hara v Canada (Minister of Citizenship and Immigration)2009 FC 263, all of Mr. Babu’s immediate family reside in Pakistan and he is expected to assume primary responsibility for his father’s affairs as the only son.

[20]           It is not disputed that there were factors that weighed in favour of the view that he would return to Pakistan and thus ought to be granted the permit.  However, one cannot point to isolated facts or factors which favoured the applicant to argue that the officer’s assessment was unreasonable; rather, the officer’s determination under paragraph 216(1)(b) must be examined in light of the whole record.  In this case, there were factors weighing on both sides of the equation.  On the negative side, Mr. Babu had not shown he was pursuing higher education in his chosen field in Pakistan and did not provide particularly convincing reasons why not; Mr. Babu had been working for more than three years but had low savings and no property; Mr. Babu was not married and did not have children, and was thus probably relatively portable; and the situation in Pakistan was admittedly relatively bleak for Hindus like Mr. Babu.  On the positive side, Mr. Babu’s family expected him to return to Pakistan; Mr. Babu’s immediate family was in Pakistan; and Mr. Babu stated in a letter to his immigration representative and current counsel that he intended to return to Pakistan.

[21]           The task of […]

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Revealing More About Reconsideration: What Our Latest Obtained Unreleased IRCC Training Guides/Manuals Tell Us

One of the most underappreciated and underutilized remedies in Canadian immigration is that of the reconsideration request.

I do not blame advisors or applicants for this one. This is a general veil on what this remedy entails – especially as the existing policy guidance and materials are not presented as general instructions, rather specific to application types (Humanitarian and Compassionate Grounds and Family Class). Finding the right information on IRCC’s website is a bit of a treasure hunt.

 

A. What We Know To-Date

We know that a reconsideration request is a written request to an officer to ask them to reconsider a decision. These are often sent in through case-specific enquiry or to a visa-office supported method of communication.

The main instructions, which *in large part* represent present day instructions, are found below in my breakdown of the H&C and Family Class program delivery instructions (“PDIs”). I have quoted the instructions and will add some commentary as I discuss throughout.

H&C PDIs

These first set of instructions are from the Humanitarian and Compassionate Grounds PDIs.

Guidelines for reconsideration requests after refusal (at stage 1 or 2)

The legal doctrine of functus officio does not automatically bar reconsideration of final H&C decisions (MCI v. Kurukkal, 2010 FCA 230). The decision maker may exercise discretion to reconsider, or refuse to reconsider the applicant’s request for reopening of a previous decision. However, reconsideration should only be done in exceptional cases.

An applicant’s dissatisfaction or disagreement with the decision does not by itself qualify as an exceptional case.

 

Return reconsideration requests to the original decision maker when possible. For reconsideration requests previously determined by a local CIC, the request should be sent to BRO-V for assignment.

(emphasis added)

I want you to pay extra careful attention to the words underlined for emphasis added.

IRCC then goes to set out a two-step process for reviewing a consideration request. As a side note here, I rarely ever see counsel go through the two-part test or highlight the considerations below.

Reviewing a request for reconsideration is a two-step process:

  1. Decide whether to re-open the case and consider the new evidence, even if the case is under litigation at the Federal Court.

  2. If you decide to reconsider, review the new submissions and the original file and decide whether or not to change the original decision.

The factors for reconsideration are set out below:

Factors to consider when deciding whether to reconsider:

You must first determine whether a reconsideration of a previous H&C decision is warranted based on the information submitted. The onus is on the applicant to satisfy the officer that the reconsideration should be done. You should consider all relevant factors and circumstances to determine whether a case merits reconsideration. The following is a non-exhaustive list of factors that may be relevant to consider:

  • Whether the decision-maker failed to comply with the principles of natural justice or procedural fairness when the decision was made.
  • Whether the applicant has requested correction of a clerical or other error (e.g. a decision was made by an officer who did not have the delegated authority).
  • If new evidence is submitted by an applicant, is the evidence based on new facts (i.e. facts that arose after the original decision was made and communicated to the applicant) and is it material and reliable. Decide whether that evidence would be more appropriately considered in the context of a new application.
  • When additional evidence is presented that was available at the time of the original decision, consider why it was not submitted at the time of the original application. Determine whether that evidence is material and reliable.
  • The passage of time between the date of the original decision and the date of the reconsideration.
  • Whether there were any concerns regarding fraud or misrepresentation relating to a material fact, in the original decision or with the new submissions. 
  • If there is a negative decision from the Federal Court after judicial review, you may refuse to re-open if there are no extenuating factors to warrant reconsideration.

(emphasis added – note this one particular last bullet point moving forward)

IRCC also provides guidance to Officers in the public facing instructions about what to do after deciding whether to reconsider or not reconsider.

Once you have decided whether or not to reconsider:

If the decision is to reconsider do the following:

  • re-open the first H&C decision
  • request information from the applicant (e.g. medical, procedural fairness letter)
  • make a new decision and send approval/refusal letter Stage 1.

If the decision is not to reconsider notify the applicant. You may refer to the original refusal to explain the refusal because the applicant was already informed of the reasons that their application was refused.

Record the reasons why the reopening request was granted or refused based on the submissions reviewed. For example, a decision might reflect the following reasons:  passage of time, new information not previously submitted, or procedural fairness error. Whether a detailed analysis is necessary should be determined on a case-by-case basis depending on factors such as whether the decision was re-opened, the kind of submissions etc. 

Family Class PDIs

With respect to the Family Class, IRCC has the following instructions.

Much of which replicates what is listed in the H&C section above:

Reconsideration and enquiries after refusal

Applicants or their representatives often submit information after a refusal and request that an officer reconsider the decision. If an office receives a request to reconsider a decision, an officer must consider the request and decide whether or not to exercise their discretion to reconsider the previous decision. The legal doctrine of functus officio does not automatically bar reconsideration of final decisions (MCI v. Kurukkal, 2010 FCA 230).

The decision-maker may exercise discretion to reconsider, or refuse to reconsider the applicant’s request for reopening a previous decision. However, reconsideration should only be done where warranted, in exceptional cases. An applicant’s dissatisfaction or disagreement with the decision does not by itself qualify as an exceptional case.

The onus is on the applicant to satisfy the officer that reconsideration is warranted. The decision-maker should consider all relevant factors and circumstances to determine whether an application merits reconsideration. The decision whether or not to reconsider the application must be recorded in GCMS and communicated to the applicant. The applicant’s correspondence requesting reconsideration and any supporting documents should be kept on file.

(emphasis added)

Noting again, the underlined sections, one wonders why for Family Class, the information is different than that for H&C grounds. Based on these instructions it appears the Officer MUST consider the reconsideration request, but MAY choose to exercise discretion to re-open or not to re-open. Again, the wording is of EXCEPTIONAL CASE.

The factors are then listed below, which largely replicate the one for H&C.

A (non-exhaustive) list of factors that may be relevant to consider:

  • whether the decision-maker failed to comply with the principles of procedural fairness when the decision was made
  • whether the applicant has requested correction of a clerical or other error (e.g. a decision was made by an officer who did not have the delegated authority)
  • if new evidence is submitted by an applicant, is the evidence based on new facts (i.e. facts that arose after the original decision was made and communicated to the applicant) and is it material and reliable. Decide whether that evidence would be more appropriately considered in the context of a new application
  • when additional evidence is presented that was available at the time of the original decision, why it was not submitted at the time of the original application – determine whether that evidence is material and reliable
  • the passage of time between the date of the original decision and the date of the reconsideration
  • whether there were any concerns regarding fraud or misrepresentation relating to a material fact, in the original decision or with the new submissions

It is preferable that the initial decision-maker review any request for reconsideration. However, where that is not possible, a request for reconsideration can be reviewed by a different decision maker as long as that person has authority to make decisions of the type under review.

The one noticeable omission is this factor from above:

  • If there is a negative decision from the Federal Court after judicial review, you may refuse to re-open if there are no extenuating factors to warrant reconsideration.

Finally the instructions provide the Officer to enter information into GCMS.

Officers making a decision on whether or not to reconsider should ensure that the following information is entered in GCMS Notes:

  • the reconsideration decision
  • the reasons for the reconsideration decision

Note: The decision whether or not to reconsider is subject to the possibility of judicial review. Taking the above measures will ensure that, in the event a refused applicant submits a leave to appeal to the Federal Court, there is an official record and supporting information on file to reflect that IRCC received, assessed and rendered a decision on a reconsideration request.

Reconsideration for Paper-Based Applications

IRCC also has some instructions posted in program delivery instructions titled: Emailing clients who have paper-based applications which cross-references the Family Class instructions, suggesting again that these are the main instructions.

 

Missing Emails Cases

There is also specific information regarding missing email cases, which I will not go into detail, you can find more information here on the same PDIs for Paper-Based applications discussed above.

These instructions replace the expired Operation Bulletin 195 and have remained consistent throughout.

 

B. What Do Current Instructions Not Tell Us?

However, what about regular temporary residence applications (student permits, work permits, visitor visas, and eTAs?

Do the same instructions apply?

Are there are also other instructions that are missing? For example for economic applications. Why is the information on reconsideration only for two programs.

I decided to do an ATIP request on reconsiderations to find out. Note – I still do not believe I received all the information I was seeking, specifically how different overseas visa offices create policies and practices around reconsideration. However, I did get some training materials and updated information that will highlight discrepancies. It also highlights the challenges of navigating updated policy from a bureaucratic perspective.

Most of IRCC’s policies (unless they are designated as internal – as this one was) are ultimately converted into the Program Delivery Instructions (PDIs) for […]

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Shifting from Lived Experiences to Heard Experiences

In both advocacy and community, I have been hearing a lot about ‘lived experiences.’ While generally a positive term about showing up with authenticity and reflecting only on what you know and have been through, the term can be over-used, and done so in a harmful way for more powerful voices to speak their lived experiences (or a collective experience) over anothers. Whether you want to call this ‘Oppression Olympics’ or the role the oppressed (in one category – let’s say race) can be very much an oppressor in another (let’s say economic status), conversations often escalate into two separate narratives holding very little space for one another.

I am going to advocate for a new term – ‘heard experiences.’ In my work as a storyteller of immigration stories, I hear a lot of stories. Indeed, part of the role of a lawyer unfortunately is having to translate these stories into the colonial language of immigration laws. Indeed, we often times have to guide our clients into re-framing their stories so they meet very specific tests (be it the Ribic test, or the test for Rehabilitation). Indeed, heard experiences in many legal settings can be classified as ‘hearsay’ and immediately discounted for evidentary and probativ value.

What I am trying to do more of, and encourage others to do as well, is to also de-center our own stories or perhaps rather than use another’s stories as a bridge to one’s one, utilize the act of hearing and holding space to reflect on how to better centre the story that is being told and that you have the privilege of listening to.

Remember, even hearing stories of one’s trauma, hardship, struggles is a privilege. You are given access to someone’s inner secrets, perhaps some that those closest to them do not know. The first step of that should be to reflect and speak your own experiences to try and form an artificial bond. That very mindset of trying to think of how to tie in your own lived experience into someone else’s who may not have given neither the consent to, nor told enough to allow you to do so, can negate or reduce what they seek. We have all been in circles where everyone is asked to share an example of a story, and rather than listening to another’s.

That is why I think the practices of witnessing, which many Indigenous communities practice, is and can be so powerful.  If you attend an event with this format, you recognize that the response from the witness is to demonstrate that they have heard the speaker and what they have learned, rather than to immediately input themselves as the focal point.

Implementing Heard Experiences into My Legal Practice

How do I plan to integrate heard experiences into my legal practice? First – by not rushing into consultations and meetings telling clients what they should do before hearing them out. Giving them time to share their story at the outset and expand on any written materials they provided in advance needs to be a starting point. I can acknowledge that especially where we see cases of the same nature repeated, we tend to start cookie cutting and templating processes. This is effective only to a certain extent but does not create the strong client bonds you need to sway a case.

Second, is to ask for clear consent when sharing stories, even where they stories may be themselves anonymous or seem reduceable and redactable. Not only is this a confidentiality obligation, but it is also good to reflect to the storyteller of the bigger impact their story may hold and ask if they wish to share it with a bigger audience.

Third, is to spend much more time journaling privately these experiences. Rather than to make point form notes and connect it to my own past practice or some legal test, start carving lines between what a client has said, what they have presented, who they are, to form a web. Utilize these stories to compare against dominant narratives, but more importantly to contrast. Document where dominant narratives fall short and question the sources. Again (with consent) seek to inspire storytelling through different mediums to try and counterbalance generalized lived experiences, and to encourage acceptance of these. Acknowledge and hold the conflict (and perhaps even disagreement) these may have to your own perspectives but not to automatically and immediately discount them.

I look forward to hearing from more new clients, giving them spaces to share their lived experiences without the judgment or reduction that I, as a listener, too often apply.

IG.

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Three Challenges I Can Already Foresee: Canada’s Temporary Public Policy for International Graduates

On 14 April 2021, the Minister released a Temporary Public Policy (“TPP”) for international graduates, including the creation of a 40,000 cap for those with a recent Canadian post-secondary credential issued since January 2017 (See: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/public-policies/trpr-international-graduates.html).

While this move is rightfully being lauded as part of a larger set of Temporary Public Policies that open the door that Express Entry has lately kept shut and the target shortfalls of COVID-19 have exacerbated, I have my concerns.

In this piece, I will go over three challenges I can already foresee with Canada’s Temporary Public Policy for International Graduates and what I would do to address it if I were the Government. In some cases, it will be too late likely but I’ll provide my hindsight perspective:

 

1.The Speed Based System Will Inevitably Lead to Crashes

Whether it be the system crashing or an Applicant’s application crashing due to the system forcing too much speed, I suspect something will crash on May 6th. While I have heard many numbers thrown around, from 500k vying for 40k spots, we know for a fact that very few former study permit holders ultimately obtain permanent residency in Canada. While this number was at one time in the mid 90’s and early 2000’s at a higher percentage, for the last few years it has been single digits. Even Express Entry, ostensibly made to support international graduates, do not meet the needs of most international graduates. Taking into account the number of international graduates who are working in retail, as servers, and customer services representatives – this is a large group who will be interested in applying on May 6th. While some will have access to the other TPP, not all well (many times due to the lack of one-year of work experience) and perhaps significant self employment experience.

Unlike traditional programs that require perhaps first a registration of intent and then a submission process, this appears to be set to do the entire process of eligibility and application all at once. like a full-day exam, this has the potential to be a few hours of absolute stress and anxiety. The reality is many will be on the outside looking in. Certainly, preparing and predicting for what can go wrong will go along way.

Still, I don’t see a way that demand for this program does not at the least slow down or crash the server, and at the very worst lead to many unable to access the forms, validate, submit, sign, and do all the logistics that permanent residence applications require. It seems almost counter intuitive that a process professionals charge and properly take weeks and in some cases months for is being jammed into several hours. Mistakes will be made. The call centre lines will be jammed up with those stuck, and at the end of it 40,000 names will be in the queue but not necessary become permanent residents.

As someone who co-spearheaded the parent and grandparent litigation in 2019, this has all the markings of that process repeated – perhaps without the Charter breach if a suitable process is created for persons with disabilities. Yet, so many were caught on issues outside of their control on the technology side. All it takes is one bad form for the system to derail or one server issue. I am hoping it does not happen but I am not holding my breath.

I am also not going to be registering anyone, directly or indirectly. Not only has IRCC indicated that this is the way the portal will be made (shutting out authorized reps), but the reality is one cannot do competent accurate work on a speed basis, let alone without access to the actual forms being held by both applicant and representative. Furthermore, representatives will be at a conflict of interest trying to register multiple clients.

When we do permanent resident applications for clients, we specifically (and often advise) for patience. That doing a good job requires time, review, double checking, and perhaps legal submissions to clarify inconsistencies. None of these appear to be either promoted or supported in a ‘typing race’ type process.

 

Possible Solution (although it is likely too late): While everyone hates the random draw, perhaps in a circumstance like this with demand sure to exceed space it is a fairer way to give everyone ample time to be eligible and put in an interest of the program. The other option is to push the start date a bit (to a date that clearly gives applicants (and third parties) at least a little more time to get their materials ready. Another option is to stager the intake so rather than one shot at 40,000, it could be 10,000 spots over four months allowing those who perhaps are not fully complete with their documents a bit of time to participate. My third suggestion is a vaccine approach. Are there certain graduates you want (STEMs? those who hold graduate degrees first before degree-holders and then diplomas?) – it would be entirely justifiable to start with a group first and then expand the pie until the spots are filled and thereby also controlling the flow. Yet, as I write above, it is likely too late to rethink it.

 

 

2. The Requirement for Employment Only at the Time Application Received is Both Bizarre and Ripe for Misuse

One of the requirements of the international graduates TPP is that an eligible applicant must hold employment at the time of the receipt of their application for permanent residency under the policy.

While I have a bone to pick with the self-employment bar as well (frankly an area the Government would be best to better resource with PR program and/or encourage the Provinces to step in), it seems rather arbitrary that an employee has to be working as an employee on the particular day their application is submitted, not any day before, not any day after. Indeed, this type of requirement does open the possibility of abuse: employment for a short-term period just to gain eligibility. As an aside, I had a consultation client ask today if I could hire them as an employee for my Law Firm so they could be eligible for this – to which I answered, no.

Especially during COVID when individuals, many of whom sacrificed and were employed in the past year, but perhaps less than a year or not in categories eligible under the essential occupation TPP, are possibly now on leave – it does not quite make sense that employment occurs in such a small vacuum. How does IRCC later assess it when someone who obtained employment for a two week period in order to submit the application, then quits to resume their self-employment (for example).  It seems very arbitrary to require employment in this nature. One could (and presumably should) sign up for a temporary agency just to meet these requirements, and while good for the economy during these difficult times certainly inexplicable from a rational perspective why one would need to do this to meet an immigration program requirement. These are the same types of decisions that many fraud/arranged employment/inadmissibility cases are built under.

Possible Solution (although it is likely too late): Rather than require employment on that one particular day, require employment (or ongoing efforts to regain employment) until an eligibility decision is made. Perhaps consider extending exceptions to those who are on short-term leave but were otherwise employed. IRCC should clarify (well in advance) what type of employment letter would be needed to meet this requirement.

 

3. Refusals Will Happen in Droves + Possibly Misrepresentation Risk Increases

Applicants will be refused in droves over issues with documentation. Even in the current iteration, it is unclear what words such as ‘attestation‘ mean in terms of proof of completion of studies or whether someone’s proof of completion of studies or unofficial transcript will be good enough appear up in the air. On strict reading, it is very likely that a simple confirmation of employment and pending final transcript will be good enough to get in the door of eligibility.

One might ask why refusal and not return of incomplete application?

Because this program falls under a temporary public policy, Regulation 10 IRPR does not apply and therefore there are two options. The first, is a tightened eligibility screen, where Applicants must enter documentation to show they are indeed eligible. By controlling the content of this screen, it may limit the number of individuals who are able to access the permanent residence portion (for example if they do not have a final language test result). However, given the process is again speed based, Applicants presumably need to have all their materials ready to go/or else

Putting out information early (or even delaying the start date a little bit) doesn’t hurt to make sure everyone has the same ground rules would be advisable. Furthermore, those who may need to make applications due to disability (which presumably will be by paper), should understand what type of medical evidence they will need and to ensure that they have enough time to obtain it.

Also –  what will happen if an individual manages to answer in a way to get them past the proverbial first screen, but then when submitting the actual application, things auto-populate (perhaps even incorrectly) and or things will need to be corrected? The benefits of the Express Entry ITA system is it does allow for both amendments before an invitation, as well as ways to update corrections. Many times, as counsel, these were the types of issues we were engage on.

I do suspect that what Applicant’s rush to submit may itself create problems. Failures to disclose memberships, previous refusals, arrests, or even clarify overlaps and gaps. These were the usual things we would advise clients to hold up and wait for, but now are things that an Applicant may be better off submitting first and explaining later. How does this then play into inadmissibility, misrepresentation, and other complications that can arise?

There are also possibly unique opportunities. I do have a gut sense that automated decision-makers are somewhere involved in the process, but if there are no R.10’s (IRPR) are applicants going to rush to bolster their files after (presumably also when they realized they submitted incomplete information). This information, if […]

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Five Things I Wish International Students Knew Before Applying for Canadian Study Permits

Setting the Scene: Where We Are At and Where We Are Going

I have been struggling with this post – to capture the experiences of the many prospective clients/international student applicants who have entered our door of late asking about their study permits, more specifically why they have been refused, delayed, or found inadmissible for misrepresentation.

Remedies are both a huge time commitment and often times a big corresponding financial commitment. In thinking about how I could input myself into the process (in a helpful way) I thought about writing a post where I take those experiences of all the international students who come see me to try and remedy their refusals and summarize it into five (likely oversimplified, but deeply important) points. These points are important both for international students to protect themselves (be it emotionally, financially (from those all-too-eager to exploit), or even just to help plan their futures during tumultuous times.

We all know the starting point: Canada has become an increasingly attractive study destination especially compared to other countries. While international tuition is still what I personally believe to be dangerously high, it is comparatively cheaper to study in Canada than many other Five Eyes countries. Our immigration options for international students also provide much more flexibility around work while studies, post-graduate work permits, and work permits for accompanying dependents.

We also know that COVID, as my colleague Lou Janssen Dangzalan uncovered through a recent ATIP request, has had a major detrimental effect on study permit applicants.

This has impacted overall refusal rates:

If we look at the two largest international student generating countries – India and China, we see the impact in terms of the change in approval rates:

The stark numbers of how many less study permits were issued in 2020 (granted the data is not entirely complete) cannot be ignored:

For the time being, new restrictive and frankly, confusing, policies such as IRCC’s rule on accompanying dependents of international students (for example discrepancy between: https://www.canada.ca/en/immigration-refugees-citizenship/services/coronavirus-covid19/students.html#family or https://www.canada.ca/en/immigration-refugees-citizenship/services/coronavirus-covid19/students.html#family) along with the new quarantine rules are a signal the Government wants to get through the vaccine phase before admitting too many more international travellers (including international students).

This is my theory about where post-COVID recovery will ultimately go:

With this in mind, we have a timeframe of a few months for most international students to consider carefully their next move. Perhaps, for some, it may even be re-evaluating. I would not throw caution into the wind. Whether you are the paying parent of an international student who insists they ‘got this’ or if you are the international student, wondering what your agent (who is very likely being paid more by your school than by you) doing.

Without further ado, here are the five things I wish international student knew before applying for a study permit in Canada.

 

Thing 1: Be Very Intentional and Careful About the School/Programs/Immigration Advisors You Choose 

Not all schools are treated by Canadian immigration (“IRCC”) the same. There are schools with excellent reputations, many of them being public/higher-level institutions. There are others that have not-so-good reputations – perhaps being smaller private colleges that often take students with lower academic accomplishments. These lists are also not static. Many schools on both sides of the aisle have taken steps and/or hits. Do some research on the reputation of the school.

Be also intentional about where you study. A Visa Officer may have questions already about where you are coming from (see Thing 3 below) and wonder why you are going to a particular Province and that particular school.

As an Applicant you need to be able to make a business case for this: that likely should go beyond the access to permanent residence pathways. As I discussed in this post, dual intention has been utilized as a buzzword but it packs a complex case for meeting the R.216 IRPR requirements to demonstrate you can leave Canada at the end of your authorized stay.

If you are a student from a refusal-producing country (i.e. the statistics, which are accessible if you look hard enough, demonstrate most applicants are being refused), I would suggest it becomes more important  to demonstrate that your studies are bona fide. If you receive scholarships or are entering a level of education that is considered a major upgrade to your education, these are factors that can assist towards maximizing your chances of success. I use the word chance very specifically.

There are no guarantees anymore in the area of international student immigration law/policy.

Be also very aware an intentional about the systems operating around you.

These systems include your family members (what your parents want for you, siblings, other family in Canada).

They include the Designated Learning Institutions (“DLIs”) which have a mandate to protect their own interests. If they refer you to someone (as institutions do to me) it is very fair to ask them why this individual. Be due diligent. This definitely includes agents who say they can do your immigration work for 100 or 200 dollars without disclosing that they are neither authorized immigration representatives (and therefore ask you to sign your own forms) or that they are making a 1/3rd of your tuition back as their finders/placement fee.

This extends to banks/creditors who might be financing your studies for their various reasons but perhaps willing to bend rules and documentation to assist you. Don’t underestimate immigration’s own access to finding out whether a document provided is genuine or not. Same goes with language tests, that are increasingly under scrutiny for fraud prevention.

If you are applying, as most are, from outside Canada know too that immigration fraud unfortunately does exist and if there are red flags (agents who claim they have connections or apparently bizarre correspondence between them and the visa office) take action. Many applicants can save their own situation by seeking a withdrawal (either with or without new counsel) and/or an opportunity to correct the record before it is discovered. Check and ask to see every document that leaves your hands, including making sure that they are submitted in the form you want them to be submitted.

Be very intentional, careful, alert, and aware to the profit industry that is international education and your own role in the system. The more control and guidance you have over your own situation, the better you will be able to rationalize the outcome and prepare for your experiences in Canada.

 

Thing 2: Get to Know Your School Registrar and International Student Advisors Really Well

Get to know the school registrar.

Why?

You may need to defer studies depending on processing times and your own ability to obtain documentation. You may need to ask for refunds or for further letters. Make sure you have direct contact with the registrar and do not over rely on an agent or third-party who may not have your best interests in mind.

Get to know the RISIAs and RCICs who often work for the schools.

RISIAs stand for Regulated International Student Immigration Advisors and RCICs are Regulated Canadian Immigration Consultants. These individuals are often employed by Universities and Colleges to assist with international students. A flag for you may be how few resources the school may have for international students. Schools that have more international student support, more resources, tend to be better positioned both in terms of achieving student approvals but also to help once you are here. This is of underestimated importance. When you become an international student, you must navigate leaves, full-time student status, and post-graduate work permit eligibility, events and occurrences that are very crucial to your success and eventual pathway to permanent residence.

Each DLI (and often each departments) has their own policies surrounding how much they can help out, particularly for applicants who are overseas. I tend to find that students who receive scholarships or are attending specialized programs do get specialized treatment. Some DLIs even assign certain staff to focus just on these programs. This may be crucial, especially in light of a first stage refusal that requires reconsideration or a re-application, with school support. Good DLI RISIAs and RCICs have single-handedly been able to make an impact for students, by providing additional letters of support, explanation, or even a referral to a Member of Parliament that can change one’s prospects.

The better the relationship you can build with them and start fostering early on, the better it is. Again, do not rely on your agent or educational consultant, who has a very different end goal and outcome from being that liaison (getting paid off your end enrollment, with payouts depending on the school you attend and their agreement with them).

 

Thing 3: There Are Constraints on Approving Your Application That Are Outside Your Control and Highly Irrational

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How the Federal Court of Appeal, Federal Court, and We as Young Racialized Advocates See Vavilov’s Application in Immigration Cases, One Year Later, March 2021

Last month I had the privilege of presenting to the CBA National Administrative Law Section’s, Vavilov, One Year Later panel (see: https://www.cbapd.org/details_en.aspx?id=na_NA21LAW04A)

I was definitely in the presence of some big hitters, from the moderator Pam Hrick (https://www.linkedin.com/in/pamhrick/?originalSubdomain=ca) to advocate extraordinaire Audrey Boctor (https://imk.ca/en/team/audrey-boctor/) to one of the legends of Canadian administrative law David Jones, QC (http://sagecounsel.com/team-members/david-phillip-jones/).

It was a fascinating discussion, for me highlighting in even more of a clearer light, the ways immigration law almost operates in it’s own bubble when it comes to administrative law, tribunal decisions, and the application of Vavilov.

Still Figuring It Out: How the Federal Court of Appeal, Federal Court, and We as Young Racialized Advocates See Vavilov’s Application in Immigration Cases, One Year Later, March 2021

Please feel free to read here or click the downloads below for direct download of our paper.

Still-Figuring-It-Out-Vavilovs-Application-in-Immigration-Cases-One-Year-Later-March-2021-WT-

https://www.arenous.ca/wp-content/uploads/2021/03/Still-Figuring-It-Out-Vavilovs-Application-in-Immigration-Cases-One-Year-Later-March-2021-WT-.pdf]

 

Some Thank You’s

This research/review would not have been possible without the support of the following individuals. I wanted to give them shoutouts because they are building incredible legal careers and I am so grateful for the time they took to help draft key sections of the paper.

Afifa Hashimi

Articled student at Moore, Edgar, Lyster and future superstar human rights lawyer. She has this amazing feminist, human, touch to her work and she gets all the credit for the section we wrote on applying an intersectional lens and seeing what has been left out of the Canadian administrative law conversation.

I met Afifa when she was in her early years at UVic Law and I have been so impressed. She’s been active in FACL BC, vocal about racism in our profession, and just someone I would want in my corner.

Learn more about here: https://www.mooreedgarlyster.com/afifa-hashimi

Yussif Silva

I met him first when he was in the LLM program, but really got to know him at Edelmann and Co. Law Offices (my former employer). Yussif, when he finishes articling, will literally be a fifth-year level call as a first-year Canadian lawyer. He worked for several years in Brazil as a lawyer and has a very good handle on administrative law. He wrote this incredible statutory interpretation argument for me in another matter we did together. Probably one of the best legal researchers I have met.

Check him out on Twitter:

https://www.linkedin.com/in/yussif-silva/?originalSubdomain=ca

Thanks to Professor Jamie Chai Yun Liew for her paper that inspired ours (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3522597). I did not get a chance on a tight timeline to share my paper with her but I certainly want to follow-up on our areas of research interest and overlap.

Finally, thanks to Heron Law Offices (my firm!) case manager, Edris Arib for his support in putting this together in final form.

 

Get Busy Writing (and Possibly Speaking More)

After a month of trying to set up my new practice (including hiring a new lawyer – more on that later!) I finally am in the place to start writing more.

In the last month we did several talks:

  • FACL Ottawa;
  • CBIE (part 1) on Accompanying Family Members;
  • Vavilov – One Year Later

This next few months will bring much more of the same:

  • CBIE (part 2);
  • Mark Holthe’s Canadian Immigration Institution’s video podcast;
  • Presentation to IRCC Policy folks on Transitions (reconsiderations + restorations + the unseen impacts)
  • CBA National Immigration Law Conference (perhaps this is too early an announcement – apologies if it is!)

I may also be starting my own podcast soon with a friend and colleague that I am ecstatic to update everyone on. I won’t speak on this one too soon, but I an excited! ILOAC of course 😉

However, I have not forgotten that this space and Vancouver Immigration Blog needs more TLC. It is my first project, the one that gave wings to everything else. I am pledging to do at least one written blog a week at least until May (when big family changes come in place!).

Thanks again for all of your patience. Big things to come in the next few months!

 

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Express Entry: Three Things to Ask Your Representative About Your eAPR Before They Submit + One Bonus Tip

As many of you are aware, Express Entry took a new direction last week when 27,332 Invitations to Apply were issued to Canadian Experience Class applicants at a record-low 75 CRS points

I will not repeat what I have on Twitter and other channels. I would have preferred an ordered and organized invitation to apply that gave applicants more time to anticipate this move, secure relevant documents, and create profiles. This also could have better tempered expectations in the future and avoided the unfortunate cash-grab I suspect we will see from those now taking unreasonable amounts of money to create profiles, a step ripe for ghost consulting/agencies/and unauthorized practice.

Nevertheless, what what was done is done (and cannot be undone) and now Applicants are being contacted by their representatives letting them know they have an invitation and a limited time to gather their materials (90 days) for which many will struggle to obtain key documents such as required overseas police clearances.

The Limitation of the IRCC Representative Portal

The first contextual thing to understand is that the current IRCC Representative’s Portal has major limitations. The biggest limitation is that we are unable to share our work with clients to access their own file, without taking print to PDF screenshots or joining a virtual meeting to share our screens. For this reason, many counsel may suggest you create your own profile and that they help you review and edit what you type in. They may take it on an hourly review basis or as authorized representative (with a Use of Rep). While some consider this ‘ghosting’, I’m not mad at this approach.

It is a risk though, I repeat a huge risk, to allow for the submission of any application without reviewing what that representative has done in full and giving the green light before it is submitted. This is particularly true with this round of invitations. Given the volume of ITAs and the Government’s recent 0% target of meeting Express Entry processing times, I would suggest that the Government very likely has some sort of artificial intelligence-based pre-assessment system lined up to tackle this workload. Applicant/Representative mistakes and errors of even the most minute type, may be readily caught. There appears to be an increased scrutiny around misrepresentations, particularly around failures to disclose arrest histories and omissions of relevant employment/work history details.

We are hearing, anecdotally, that some advisors (both authorized and unauthorized) have in some cases in the ballpark of 200 ITAs. That means 200 Electronic Applications for Permanent residence (eAPR) applications that need to be submitted within 90 days. You may find that these are often time larger scale enterprises, volume driven, who may have already registered many clients on a hope and a whim, not realizing they would pan out. Now, they will need to put resources together (which include passing you off to case managers or other processing agents – with limited Canadian immigration law expertise) to meet their deadlines.

As someone who considers working on a dozen paid applications a month as enough volume (to control process and see them through step by step), I worry for the applicants. I write this piece for their well-being and best interests.

Three Things to Ask Your Express Entry eAPR Rep

#1 – Ask for a Print to PDF of Your Entire Application With Employment History Broken Down

If you are counsel and a CBA Member consider Nate Po’s app Immprintr to print your entire application as one pdf (https://www.cba.org/Sections/Immigration-Law/Resources/Resources/2018/IMMPrintr)

Ask for the full breakdown of the Employment history to make sure that what you have passed on with respect to your positions, hours of work, start and end months is consistent. Double check that the NOC codes selected match with your duties at the time and be careful to avoid mixing together or overlapping two clearly different positions.

Triple check that the statutory questions have been answered correctly, particularly around any arrest history, work for Governments, medical inadmissibility issues, and military history.

Document discrepancies, ask for changes to be made, and to see proof of those changes by way of revised screenshots.

#2 – Ask for a Itemized/Number List of All Attachments To Be Submitted to be Shared Via Cloud for Your Review

One of the value-adds an authorized representative should be able to provide is organization. They should know what IRCC wants to see and what makes life easier for the processing Officer. If they are organizing things in a way that doesn’t make it clear and in fact, is probably messier than you would have done it yourself – this should be a flag.

Ask your authorized representative for a full itemized/numbered list of all attachments (often called an Enclosures List or Personalized Document Checklist). Ask for a Cloud-shared folder of everything that is being submitted. Are the documents you provided there? If they have been excluded, ask why (or why not). Some flags include pdf attachments that are much too large (suggesting the authorized representative has limited experience with upload size), as well as things that are not combined properly or not at all. This is also your way to double check what you have submitted against IRCC’s completeness check list of attachments for Express Entry (see here: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/express-entry/applications-received-on-after-january-1-2016-completeness-check.html)

An incomplete application can often have huge and negative impacts on one’s ability to stay in Canada during processing of an Express Entry eAPR application.

#3 – Ask for Transparency on Timelines and Info on What the Follow-Up Looks Like

The reality if you are working with someone who has a volume practice, is that this invite may have created an unsustainable workload for them. This requires that you ensure they are on top of your file, and for you to cover any gaps in their work and to hold them extra accountable.

Ask them up front – how many files are you working on and when do you see my file being completed. If they have some form of project management process, they should be routinely updating you with their submission plan, breaking down roles and responsibilities, and providing iterative feedback on your draft documents (especially Confirmation of Employment letters) at an agreeable time.

If you haven’t met your consultant or lawyer in person – that too is likely something you want to secure to at least put a face to name. Their availability (or lack thereof) may also be a good sign of the level of oversight on your file.

Ask too about Bridging Open Work Permits (“BOWP”). Ask about what happens to your accompanying family members who might have status expiring.

If updated documents will likely need to be submitted in order to ensure a complete application – ask them for their update plan. Where will they update the documents? What documents are necessary for a complete application and which ones are discretionary? These questions will likely give you a sense of where you stand and help you make sure you meet your timelines.

I will throw in one bonus tip for good measure.

Bonus Tip #4 – Don’t Be Afraid to Ask for a Second Opinion (Seek Independent Legal Advice). It’ll Save You Money

A refused application that needs to resubmitted will easily draw anywhere between 1.5-2 times the price of an initial application. Reconsideration requests, with an uncertain and ultimately discretionary outcome, could itself be in the range of at least cost equivalent to the original application, particularly if significant legal submissions on the test for reconsideration are required. The process of judicial review, amid lower grant rates, will put you back likely 2 times + the cost of your initial applications.

What is the worst case to engage a second opinion for a review on an hourly basis: you can choose the scope, but you are looking at in most cases about an additional 3-5 hours (at most). Even a spot check consultation for an hour can possibly turn up some red flags. I can tell you from personal experience, I have had to save many a client from having their application submitted with major concerns (often times possible misrepresentation) on file.

Bottom line: it is entirely worth it to get a second opinion on your Express Entry application, particularly

 

Express Entry: Grounded Expectations

Most importantly, and to conclude, Express Entry going to 75 points one one draw should not yet be a leeway to put your foot off the gas pedal. Blindly abandoning a paper-based PNP application, figuring you can get away with not doing a language test, can often backfire. If anything, I believe even more diligence will be needed now. Allowing more individuals into the race does not presume everyone will finish. Indeed, I can see these efforts (including the number of refused/abandoned/incomplete applications) used as justifications for the ‘trying’ to meet Canada’s immigration targets.

Greater due diligence and better organization will be needed especially if Artificial Intelligence becomes part of the assessment process.

I hope all those authorized reps (even those with 200 ITAs) the best as they deal with this major development in Canadian immigration law. I hope, most importantly, that our clients are well served by good, competent, and ethical work.

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Reflecting On Racialization: One Chinese Canadian Lawyer’s Perspective

My Rocky Relationship with Being Racialized

In advance of a talk (as I like to do) I spend time reflecting on the questions the panel far more esteemed than I am tackling the underlying question of what it means to be a racialized lawyer. Truth be told, until very recently, I spent my entire life avoiding trying to be defined as racialized, never realizing that the racialization wasn’t something I was responsible for rather what was being imposed on me.

Sometimes I still catch myself believing– that I am a reformed victim of childhood racism. That I have come to terms with my past and that today is different. That I can be a role model now for racial change and a post-racial world. That I’ve stopped caring what they think – or I say. All, while I still sign every letter carefully with my colonial name, trying to erase all signs that I may be seen as the perpetual foreigner in their eyes thereby forever letting what they think continue to be the clip-ons to my much tormented glasses. I was always the Asian kid with glasses. Still am today.

I am ashamed that I ask those I meet if they are from here (around town?), as my entirely happenstance birth on these stolen lands, make me any less settler than them. This hides the reality I am a product of taking advantage of my positive racialization as a second-generation immigrant, off the backs of those – often Brown and Black – not are not afforded that same luxury and have been racialized differently, and many times much more negatively. This approach flies in the face of both the adultered history of these stolen lands but also my parents generation (and the earlier Chinese settlers before them) who took the blows, the taunts, the sleepless nights, the unfair application of law and policy in their general belief that our eventual assimilation and acceptance (through tolerance) would make us happy and content. “Be like them.” “Mom, Dad…. why can’t I, be like them.”

What has allowed me to claim today this wokeness, to claim some sort of 2.0 social justice Asian Warrior. Nothing. The short answer is nothing – these I have constructed as shields and defence mechanisms for our own (read: my own) complicity and benefit. It has made me popular in progressive White circles, as the pendulum has it, just another group we have to please: the rock to our professional hard place.

Recognizing that you too can be an oppressor and that, even further, you too have oppressed is a humbling reality. Just last week I took a close racialized friend and colleagues concerns with sexual harassment at the workplace, the wrong way – asking instead how he could do it when he was married, rather than asking how she was doing, by way of the trauma he imposed through her. It took me several days to realize I sided with the White man again. Just like I did when I was a Frat boy. Just like I did when I was interviewing for that job on Bay Street. Just like I did when I was making the most money in my life doing this work and upholding this system.

 

Who I Am Hates Who I’ve Been: The Harms of Racialization

Let me tell you of this time when I had Christian pop phase. Many of us did. You remember when ‘A Walk to Remember’ was in theatres, Switchfoot and Lifehouse produced anthems like “Only Hope” and “Hanging By a Moment,” and a band called Reliant K played a concert in Vancouver. I went alone. Asian kids with glasses had trouble making friends in my highschool.

Stop right there, that’s exactly where I lost it
See that line, well I never should have crossed it
Stop right there, well I never should have said
That it’s the very moment that I wish that I could take back

I wish I could take back the countless times I participated in whiteness and the maintenance of white supremacy. Laughing with senior practitioners on their jokes about China money. Listening and standing proud when being told, you are a tall, confident Chinese-Canadian man – you will do fine in this work. “Look at all these women here who will soon have babies and their careers will be over.” I nodded, perhaps even gave him a resounding ‘you are right! Thanks for this”

Why did I so accept this as just normal? Why did I try to sympathize rather than emphasize, centre myself in trying to draw a parallel rather than using my voice earlier. Maybe because those who use their voices are seen as trouble-makers, activists, not impartial, not judicial material. Forever on the periphery. Even judges have written decisions and giving guidance telling us be neutral, stay our ground, do nothing to compromise our future.

Each tweet I tweet, each blog I write, someone/somewhere dragging the name into the ‘do not hire’, ‘could be a problem’, ‘not good for Firm culture’, a ‘liability’ folder. Where we racialized folks tend to share space – one drag away from the recycle bin, two steps away from being deleted.

Why do I always live with regret….

I talk to absolutely no one
Couldn’t keep to myself enough
And the things bottled inside have finally begun
To create so much pressure that I’ll soon blow up and…

I cannot stand social media but I simultaneously thrive off of it. The pressure. This guy looks like me, how does he already drive a Tesla, buying his second house, starting own podcast, and was named Top 40 under 40. Their kids look beautiful. The in-laws are holding happy kids on the beaches of Hawaii. I was told growing up that he would be the next one. And I would amount to nothingness, or a shadow of him. Those words sting but what stings more is that constant urge to compare, outdo, and show up to other racialized folks. We forget who actually has it all and it’s not this brother.

Just then, I am sitting in a small restaurant, a racialized colleague telling me her parents are unemployed, her brother is medically ill, her partner is considering leaving and…… wishes she had my life. She asks me how my non-profit is going. I forgot I also founded one. She asks me how I like my new home. I’ve almost forgotten I bought one.

I’m considered now the go-to Asian in my area of the law. They call me for interviews when they need a soundbite or some rationalization. Apparently I’ve become a safe quote and welcoming face. It’s a façade that’s difficult to upkeep.

In two weeks, I’m a diversity invite on a panel of an area of law where everyone is white, the topic is white, the case law is white, and they want my insight, my input, me to validate them. I’ll probably end up doing it just as I have always done. They wrote the textbooks, they fought the cases in the SCC, they were part of the consultative committees on changing the law. Me, I’ve tried to explain to my client in my second-language how the law works on a discounted consult and they say it makes no sense. They have no legal experience and background. And, to be honest, I actually agree with them.

So sorry for the person I became
So sorry that it took so long for me to change
I’m ready to be sure to become that way again
‘Cause who I am hates who I’ve been
Who I am hates who I’ve been

 

Finding Liberation in Law: Embracing My Race But Rejecting Their Racialization

Perhaps it took me taking a hall pass away from Whiteness. Starting my own Firm alongside a racialized colleague (who happens to be a lawyer himself, struggling to build a family in a Society that has racialized him to his financial limitation).  I am developing a hiring strategy of Racialized and Indigenous folks only. It only took writing out my struggle and pain, plus 30 odd years of lived experience, before realizing that I am together because I have finally embraced my Chineseness, that I love my culture. I love those things I used to want to destroy in me and that they still want to stamp out of me in the guise it will make me a ‘better lawyer.’

I’ll hold onto these principles and core values – perhaps more privately than I would like to start, but slowly we will talk in our circles, and these circles will become crowds, these crowds will become movements, and soon we will not allow ourselves to be labelled simply as minorities, visible or invisible of no importance. We are not small and we will not play that part for you. We are not simply wallpapers for your next client pitch, sushi advisors for when you go to your local restaurants, the 5pm Friday work dump guy, because you assume we have no family, no life, and no ambition and that we are here for you in ways you’ve never showed up for us.

I’ve hated the way I’ve played into your system, facilitated your oppression, contributed myself often times for my own gain. I’ve hated the way I’ve ignored my own history, this land’s history, ignored misery, avoided conflict, simply to keep you happy and your pockets filled. My happiness is no longer in receiving your good graces but finding my own and dreaming for that greater liberation for others – being part of their journey. On their own terms. In their own birth name. With their own embraced culture and identity.

 

See You Tomorrow – Putting Writing Into Words

That’s it folks. I’ve written this. It’s on paper. I might speak on it tomorrow. I might not, and one day, some student thinking about our shared career path will accidentally Google it and tell me she thinks the same way. I might be 50 years old one day nervous (as I’ve been my entire life) at a judicial or political interview and asked about this. Remind me […]

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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.

Dear IRCC:

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:

  1. Who is this being sent to?
  2. Is it just for citizens of certain countries?
  3. Why is it not being limited to cases where individuals are truly out of status without access to restoration?
  4. Where are the public instructions on how to respond to something like this?

Sincerely.

Will

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We Straight?: Why Risk and Discrimination May Be The Most Important and Understated H&C Factors

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.

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Indigenous-based Immigration Initiatives in 2020 – What We Hope To Do More of In 2021

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.

WT – Founders Award Paper – FINAL

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Arenous Updates: Brief to CIMM on Covid-19 and Presentation to Mosaic on International Students

Folks:

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;

Brief to House of Commons – Dated 11 December 2020 on behalf of Arenous Foundation

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.

Love,
Will

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Time to Remedy the Problem of Temporary Resident Permits

co-written w/Yussif Silva, Student Intern, Edelmann and Co. Law Offices

Mel is a stateless Palestinian. She grew up stateless in a country that does not offer her Citizenship and no longer offers her status. She has been on successive TRPs but is looking to apply for economic permanent residence and obtain successive work permits. Mel recognizes she probably needs a TRP but is uncertain of why she needs to make paper-based extension applications and how she eventually should apply for PR.

Prab is an Indian national. She accidentally flew back into the United States from India to re-enter Canada as a student, not realizing she needed a TRV first. She has been on successive TRPs. She has since been on successive TRPs, but is seeking to complete her studies and apply for a post-graduate work permit (“PGWP”). Prab wants to trade-in her TRP and go on her way to the pathway to PR.

Jack is an Armenian national and study permit holder in Canada. He does not have a passport and returning to his country at this time would mean mandatory military conscription. However, the passport issue could be resolved through some negotiation by his family members. He is seeking his first TRP.

Raj is a Pakistani national. He has held TRPs in the past unauthorized studies, but abruptly after years of work permits it was refused. He believes it was refused because another TRP would have enabled him to apply for permanent residence, but he is not sure.

Marcela is a Mexican citizen. She had a semester of non full-time studies while going through a difficult time with mental health challenges, but her university did not offer leave. Her university recommends that she asks for a ‘TRP in the alternative,’ alongside her PGWP but is uncertain what this entails.

 Bahar is an Iranian citizen. She extended her own work permit, but forgot to extend the visitor status of her two children who were studying in Canada. They were able to study, but she was advised to obtain TRPs to address their inadmissibility. She is in the PR process and wondering if her children will face any difficulty in obtaining their permanent residence.

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Establishment of a Contradiction: Why Accompanying Dependents Stuck With Covid Study Permit Instructions

Immigration, Refugees and Citizenship Canada (“IRCC”) has acted quickly and swiftly to adapt to the changing scene for international students as a result of COVID-19. Through changes to program instructions representing the various phases from exclusion (travel bans) to now the accommodation of the Designated Learning Institution (“DLI”) Readiness plans, it is clear that international students have been a major priority of this Government through the pandemic.

Yet, a counternarrative is also emerging through COVID of both delayed processing and higher refusal rates. Indeed, with just early stats available representing the first quarter of 2020, it appears that refusal rates for study permits have jumped up since the pandemic (40% to 50%). Many students, especially outside Canada, are facing visa office delays waiting for a decision on their study permit applications.

A subset most affected has been those applicants who seek to bring their accompanying dependents, especially spouses and children with them.

Instructions provided by IRCC on this point, in my perspective, might create problems. IRCC writes in their instruction.

 

If immediate family members want to be with you in Canada

Your immediate family members may be able to come with you to Canada.

If they travel with you

They don’t need a written authorization from IRCC to travel with you. However, they must show that their reasons for travel are non-discretionary (non-optional). For example, they’ll help you get established and support you in Canada.

(emphasis added)

How Does One Demonstrate Establishment Without Creating Ties (the Definitional Contradiction)?

One of the major challenges with study permit applications generally, in fact – likely the biggest challenge right now, is the very issue of Applicants who want to access the pathway to permanent residence through study permit applications.

Because dual intention is more difficult to establish for international students (particularly those who are overage students or are seeking to start fresh in new areas of work), there is a need to demonstrate a clear intention to be able to leave Canada at the end of one’s authorized stay. This challenge is exacerbated when one is bringing spouses and dependents, particularly from countries where Canada would serve as an economic and situational improvement for the entire family.

Meanwhile, because the Courts have scrutinized  Visa Officers trying to make negative bona fide findings without raising credibility as an issue (i.e. sending a procedural fairness letter or holding an interview), the easiest way to refuse an application is on assessing the ‘push’ and ‘pull’ factors with respect to an Applicant’s intentions to leave Canada at the end of their authorized stay.

An Overseas Visa Office does this by demonstrating that there are enough ties to Canada created by the study permit application (‘push factors’) and not addressed by the corresponding ties in their home country (‘pull factors’) to have them return. For an example of this analysis see: Gauthier v. Canada, 2019 FC 1211  – see especially paras 18-23.

This refusal is often captured under s.183(1)(a) of the Immigration and Refugee Protections Regulations which states:

 (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;

If a dependent spouse argues they will help the principal applicant’s studies in Canada by working in Canada, that goes to the heart of the intention and the bona fides. As discussed, even though Courts have suggested these require some sort of procedural fairness process, Visa Offices still routinely refuse here on merit (intention of study). It can also possibly go to finances and ties, if the Visa Officer begins to have concerns emanating from intended work.

Let’s say the dependent spouse says they can support because they have family ties in Canada – siblings, uncles, aunts, and relatives that can assist. Now this creates the presumption of family ties, which again although assisting in establishment, would clearly pull away from Canada and establish the very family ties in Canada that one usually tries to downplay or explain in an application.

Usually where there are significant family ties in Canada, the best strategy is to demonstrate how the compliance or good standing of that family member (usually through a letter) makes them a check and balance. Yet, where this comes from the family member of an accompanying spouse, this argument becomes much more difficult to establish.

In fact, thinking it through, I can only think of one way to argue that your spouse’s assistance to your establishment could be positive – the presence of a large savings account from and maintained in the country of previous residence to serve as financial support. Still here, it could be argued that the movement of assets and liquidation of funds shows the breaking of ties and the lack of dual intention. (see Pisarevic v. Canada (Citizenship and Immigration), 2019 FC 188 (CanLII) for an example of where this applied).

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Yes, I Review Spousals – But Here’s What You Should Know (6 Points to Consider)

LearningLark / CC BY (https://creativecommons.org/licenses/by/2.0)

More and more I have been approached by spousal (spouses and common-law partner) sponsorship Applicants and Sponsors asking me to provide a review of their materials in lieu of full representation. While I still recommend those that can afford it to pursue full representation if possible, I understand the benefit of hourly review during these times.

Yet, many lawyers and law firms I know are unwilling to do hourly review because of the risk and uncertainties this work poses. Many are afraid that having an incomplete picture that can lead to incomplete advice, and create liability problems down the road.

I believe spousal reviews is not only a necessary part of my practice but good for access to justice. However, because of the misalignment between the clients seeking the services and the lawyers willing to offer it, many times confusion is created.

In this piece, I put forward six points that will make it easier for self-represented applicants to approach lawyers and work through the review process.

Point 1: Understand Our Mutual Limitations and Constraints

The main constraint of the self-represented applicants seeking my assistance in hourly review is cost. They are unable to pay a full set fee, have exhausted public information (from forums, blogs, etc.) and now need help on specific pieces of their application. Most often times these specific issues include inadmissibility, letters of explanation, police certificates, etc.

From the lawyer’s perspective, the constraint is usually more based on risk. With only incomplete or piecemeal information, how can a proper job of assessing a file be done?  Is the time spent on this particular issue (usually clients will want reviews to be done in 2-3 hours or less) worth the possibility of not being able to see the application, the whole way through.

First, in order for this process to worth smoothly, an immigration lawyer must prepare a clear retainer that indicates the scope of work (limited scope retainer) and in subsequent emails continue to set and establish the expectations of both sides. Applicants and Sponsors should be aware that a full cover to cover review does take several hours (ideally 4-5 hours +) and limiting the budget of a review to only 2 or 3 hours may not allow for all the details to be adequately looked at.

In some cases, this will be fine as your issues are limited to particular areas. In a limited review, it is my practice to clarify with you both at the outset of my review and as well after providing my comments and recommended changes, that I did not see the full application and cannot be responsible for issues such as incompleteness.

This is a risk the Applicant must bear in a limited review, but ultimately where the cost savings also occur.

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About Us
Will Tao is an Award-Winning Canadian Immigration and Refugee Lawyer, Writer, and Policy Advisor based in Vancouver. Vancouver Immigration Blog is a public legal resource and social commentary.

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