Blog

Aug 25, 2017

An Update When You Owe An Update – Summer 2017

VIB Readers:

Without sounding like a broken record, the past few months have been busy with so much happening that unfortunately writing has taken an unfortunate backseat. You will not hear excuses from me – I need to write more and I know it.

On the positive front, it has also been a very reflective time for me. I’ve spent more time reading what others have to stay – following journalists and being a witness to the recent events of Charlottesville and later Vancouver. I’ve spent time reading journal articles and gather resources on issues that I am very passionate about. While they may not be directly relevant to projects now, they help form my framework/lens that I can view this world through.

I believe I am uniquely positioned this year – through my dual roles of being the Chair of the City of Vancouver’s Cultural Communities Advisory Committee and as well as a Committee member of the Canadian Bar Association’s Equality & Diversity Committee to do some meaningful policy work in addition to my immigration work. Both of these organizations will be releasing statements and reports shortly, and in fact the CCAC statement is coming out in the next few days on our call to action for the City’s cultural communities. This advocacy work where I am able to take the individual advocacy I do for my clients and project it on a larger scale has been very meaningful.

My immigration practice is also moving along. As with any young practitioner, I try and balance client representation, with running a business, and with investing in continuous education to ensure my client’s needs are best serviced. The legal landscape is changing in immigration, particularly corporate immigration. I’ve had several meetings with senior mentors and practitioners about the role accounting firms, technology, and project management will have on the way work is performed and the needs clients will have.

At the same time as all these are happening, I am seeing my own work permit/corporation immigration practice pick up. Many of these business contacting me are start-up or small businesses with immigrant workers. Many of these companies are without designated HR departments. Even within these corporate clients I’m starting to see a discrepancy in the accessibility and knowledge of immigration procedures. I suspect that while the cheeseburger delivery of immigration will inevitably start, there will still be enough companies that want custom orders and are willing to engage someone willing to provide more personalized services. Boutiques and sole practitioners who may increasing feel crowded out will have to find ways to adapt to the changing market.

On the immigration litigation/personal and family immigration side, I’ve been able to achieve several recent successful outcomes.

I was able to secure a restoration and new study permit for a student who was caught in a bit of an administrative nightmare with both IRCC and a former counsel . While 90 days passed from when the refusal was apparently issued, we found enough evidence (through ATIPs and other research) to go an argument that he was still eligible for restoration. He now has his status back.

I was also able to restore a second graduate, who initially was refused a PGWP for attending a private school that was not eligible under the program, and secure him a two year (longer than he would have received) C-14 Film/Television work permit. It was incredible to be able to delve into this relatively new permit and put together the required pieces and understand a bit more of what a growing number of Vancouver’s film and television people do.

On the spousal sponsorship side, I was able to secure a rehabilitation and approval putting to end a previous self-rep’s multiple year fight with immigration (which even went up to the ministerial level) . For a second client, I was able to succeed on a ADR showing the relationship was genuine and not for immigration purposes after spending several painstaking hours gather positive evidence, affidavits, and clarifications that were either missed or incorrectly interpreted at the spousal interview. Mistakes happen in immigration – with both practitioners and as well government not being immune to making them.

On a more challenging side, I’m handling a string of refusals of my own applications (study permits) from Sri Lanka. This has been a humbling experience. Prior to these refusals I had a Mayweather record in study permits. However, it has re-enforced my belief that often times as practitioners rather than pushing volume and efficiency (particular for individuals and families who may not have the same economic argument that corporate clients do), we need to push quality. Researching and understanding the uniqueness and the discretion of the individuals that will decide your case – from your own client to the decision-makers – is absolutely crucial. I’ve told all the clients that I will ensure to follow-up and do everything I can to assist them – including choosing no categories of application. Something I myself admire, and I wish there were more of an immigration, is honesty – accepting and acknowledging imperfection beyond just that of the system. Seeing what is happening globally on the immigration front, and even with our own challenges, we know we’re working within a very controversial and discretion-based system. Not everyone is always going to be happy. Going to work everyday won’t always be easy, neither will be sleeping at night for all those involved.

Where does that leave me and VIB for early Fall. I’ve promised a few more articles with, we’re working on a couple presentations, and I am continuing to spend my spare time researching intricacies of the law. I also want to add a few more fun and inclusive elements to my blog – to start writing about race, equality/equity/diversity, and my favourite topic outside immigration – food.

Professionally, I have spoken to several senior mentors who believe I should take my immigration litigation (and perhaps even future litigation outside of strictly immigration) by the horns. I hope to better understand what my colleague refugee lawyers do and engage in some of the technical aspects of our law – particularly where there is room to challenge interpretation. Now that my wife’s own immigration has been settled, I’ve had my few weeks of soul searching, it is time to press ahead.

I’m grateful to those who have taken time out to guide me, to share that meaningful cup of Joe, to debate me, and who have welcomed me into their homes and lives either as a friend or an advocate.

Exciting times ahead!

Jul 30, 2017

Racism, Discrimination, and the Law in Vancouver - An Exploratory Blog

Opinion: We Need to Start Writing a Chinese Canadian Narrative for Ourselves

A survey of recent media reports from Vancouver and increasingly from Toronto show a worry trend of the reviving and recycling of historical “yellow peril” arguments that many of us hoped t21^st century Canada had largely left behind. One of the central reasons for this revived narrative the very real affordability crisis affecting Canadian metropolitan cities. Few can deny that foreign money, and with that money from China, as one of the world’s dominant foreign powers, undeniably factors into to some debatable extent.

However, rather than focus our collective attention on foreign money and acknowledge the global/cross-border nature of the phenomenon, reductive arguments have instead led to the “public shaming” of bad apple wealthy Chinese investors, bad apple Chinese-Canadian businesses, and even, very unfortunately, Chinese-Canadian politicians who have all been treated as a threat to Canadian culture. In many cases and accounts, the Chinese is dropped and all Asian-Canadians are lumped into the same brewing pot of public discontent.

The challenge with many of these accounts of China is that it simplifies what is probably the most complex country and complex sets of histories, politics, and migration patterns on the face of the modern world today.

Chinese-Canadians arrived in Canada through different waves from different geographical locations, coming with ultimately different purposes. In the late 1800’s, we came to assist the building of this country with our bare hands to take jobs that no one else wanted – building the railroad to our eventual subjugation through anti-Chinese sentiment and legislation imposed on us in the early to mid-1900s. Later, once the anti-Asiatic immigration policies were let go, we came for opportunities – often men before wives, to find a new beginning and a new-found respect. We started coming not only from one province in China but different provinces. Later, we came to escape sensitive political environments in the diaspora at a time of domestic uncertainty – referring to China during the period of cultural revolution and later Tiananmen.

Today, albeit often with a little more money and a few more options, the vast majority of Chinese immigrants still carry with them the dream of providing for a safer and more stable environment for their families and children. Yet somehow the timing of their arrival has reignited in us a discontent, anger, and frustration. I would argue that this frustration is not with them as a group but mostly with ourselves and escaping our own cycles of discontent with being unable to achieve a comparable level of financial freedom. The Maslow foundation of a roof over our heads (representing security and health) appears slipping from us but available from them. We know that this is an oversimplification but the pure visceral experience of wealthy and successful Asians creates a corresponding dissatisfaction.

But let’s step a minute here and think about what this all means for the Chinese community in Vancouver as an organic whole when we espouse and promote such narratives.
I believe these narratives that are being imposed on us are having unmeasured and untold effects on our community’s cohesion. Asian-Canadians of all generations and nationalities are struggling to align themselves where the debate pits us against our family, friends, and often times even against ourselves and our fleeting and challenging attempts to balance our cultural hertiage. Some of us are taking this opportunity to band together – to form advocacy networks within our professions and for our causes. These groups provide us the opportunity to bring together like-minded individuals with shared experiences to promote our resilience.

Others, and sadly often newcomers, international students, and those without financial resources, feel shut out of dialogue and ultimately the scapegoat for the public. Many feel discriminated against in the labour market – interviewees interested only in their connections to wealth and clientele and not their potential to do good and do better. Others do not know where to start in integration and end up starting their own businesses, many times far too early and without the mentorship of well-established businesses to guide them through the rules and regulations of doing business. To those observing from afar this creates more examples and narratives which create continuing cycle of public distrust, misunderstanding, and feelings of non-acceptance.

Others will leave Canada altogether and abandon their Canadian residency to return to their home countries in Asia. I am sure, for some observers, this is only desired outcome but it is one that I believe ultimately represents a two-way failure in integrating new Canadians.

Where does that leave our “Chinese-Canadian” community? Ultimately Fractured.

Each time a story comes out about a wrong-doing of a Chinese individual, business, or community we cringe a little. We make excuses – “they must be a newcomer’, “they don’t represent us”, “they are disgracing us”, but ultimately we feel as though our already weak skin is dented. We build our own shields. Step away from politics. We keep silent, we stay subservient and ultimately we internalize our feelings into our own hatred towards our brethren. We adopt the majority mob mentality and later on become instruments of their narratives for as long as they need us, which usually is not a very long time.

There are other negative effects. Indirectly, we are seeing, particularly in the labour market, an unwritten expectation that being Chinese you must be fluent in the language and you must have wealthy connections as your value add. The stories of Canadian businesses, under the leadership of individuals who are not Asian, eager to take advantage of foreign capital has been underreported compared to the shaming of companies with Asian leadership. The experiences of local politicians of Asian-Canadian descent suggest you will be scrutinized – which itself serves to dissuade many of us from stepping into an important arena for change.

From my perspective and truthfully the way I see it, there is no Mainland China, Hong Kong, Taiwan, or other generational difference that needs to have any relevance in the Canadian diaspora. I believe that by entering the borders of Canada we should recognize we are coming to new home one that can heal fractured lines and see commonality where others only see and impose conflict. I believe we have a duty and responsibility to pay tribute to those Chinese who were the first-wave of immigrants, speaking dialects we may not be able to understand, but ultimately served as our pioneers. I believe that by entering Canada you subject yourselves fully to the laws of our great nation, and that harmful practices or understandings should be left behind.

If we can put aside our differences and see the funds of some of the wealthier immigrant compatriots not as a burden on our society, but as a resource that can be re-invested into our own social services, I think the picture would look different. If we can harness the resources and entrepreneurship of the young Chinese (Korean, Japanese, Mexican, you name it) international students and direct their energies into partnering with struggling Canadian businesses, non-profits, and encourage them to take leadership roles – are we really threatened? I would suggest we are enhanced as a country.

If this is indeed what we want – we need to put aside our visceral observations that there are appear to be more individuals with black hair, brown eyes, and tanned skin (which there will inevitably be as we create new inter-cultural relationships and offspring) and instead view all of them as newcomers to our Canadian mosaic with the capacity to help nation-build.

Those harmful narratives looking simply at an individual’s country of origin and numbers simply do little but promulgate hate and fear in a time where less of both would do a whole lot of good for our country.

Jul 26, 2017

Canadian Immigration Law Blog

Letting your relationship guide your immigration, not your immigration guide your relationship – advice for international students

Recently, I have been writing for/with the passionate, Kelly Toughill, a journalist and immigration advocate who I believe is doing amazing and thoughtful work for international students.

I recently published a piece highlighting some of the concerns international students have been coming to me with in respect to pressure to enter into relationships that can secure one’s status.

It is a very difficult subject. As Canada does not have a “fiance visa” similar to the United States, the idea or entering into a common-law relationship or marriage usually arises quite early in the context of conversations.

My own advice, one that I followed myself (as someone who is married to a recently-landed permanent resident) is that I let my relationship guide my immigration rather than my immigration guide my relationship. Too often I have come across individuals who, as a result of poor and sometime negligent advice, have told me that they were recommended to marry a Canadian or “find a boyfriend/girlfriend” in order to secure immigration. Others have told me of the pressure placed by the Canadian partner to marry or enter into a common-law relationship to get the clock ticking.

In this piece, I talk about the international student in Canada who has a pathway to permanent residence (on their own) and who should think carefully before deciding to jump into a sponsored relationship and abandon their own options. I also talk about the importance of choosing the right pathway to do the sponsorship and ensuring strong enough evidence of the genuineness and purposes of the relationship are established before pursuing a decision to marry and sponsor.

For the article see here: https://studentimmigration.ca/letting-relationship-guide-immigration-not-immigration-guide-relationship-advice-international-students/

Jul 12, 2017

Canadian Immigration Law Blog

List of Post-Graduate Work Permit (PGWP) Eligible Schools in Alberta

A colleague, Anna, recently posted this to the CBA Immigration Law listserve which I felt was worth sharing.

She inquired to Alberta Educational authorities about the list of eligible schools and received this following list:

Public Institutions

Alberta College of Art and Design

Bow Valley College

Grande Prairie Regional College

Keyano College

Lakeland College

Lethbridge College

Grant MacEwan University (MacEwan University)

Medicine Hat College

Mount Royal University

Northern Alberta Institute of Technology (NAIT)

NorQuest College

Northern Lakes College

Olds College

Portage College

Red Deer College

Southern Alberta Institute of Technology (SAIT Polytechnic)

The Banff Centre

University of Alberta

University of Calgary

University of Lethbridge

Publicly-funded Independent Institutions

Ambrose University (formerly Ambrose University College)

Burman University (formerly Canadian University College)

Concordia University of Edmonton (formerly Concordia University College of Alberta)

The King’s University (formerly The King’s University College)

St. Mary’s University (formerly St. Mary’s University College)

The Independent institutions listed above are the ones “that operates under the same rules and regulations as public institutions.” Private Career Colleges, Seminary institutions, bible colleges, flight schools, or language schools DO NOT operate under the same rules as publics

Source: Alberta Education and http://advancededucation.alberta.ca/post-secondary/institutions/public.aspx

Thank you to Anna Kuranicheva, staff immigration lawyer at the Edmonton Community Legal Centre www.eclc.ca for her work digging up this list and confirming this.

I think all provinces should make their lists public and clear and Alberta joining B.C. is a great step.

Jul 9, 2017

Canadian Immigration Law Blog

Trying to Understand the Media’s Obsession with Vilifying Some Canadian Immigrant Communities

Multicultural_festival,_East_Vancouver

Almost two years ago, I penned a widely-read piece on my belief that the media needed to be responsible in penning case of individual immigrants for fear of inaccuracies and long-term consequences for the immigrants involved. Some disagreed with my stance, but n sharing those different perspectives I felt it was a fruitful debate. Overall, the last two years has reaffirmed that, where possible, less public exposure to the sensitive situation of my clients is generally a good thing. In a few cases, where I believe media attention would further their case and shed light on gaps in the system, I have shared their stories, with their permission, and done so anonymously. Doing this, in my mind, has struck an effective balance of privacy and progressiveness.

Unfortunately, in the larger context – media attention, particularly on non-positive immigration stories has ballooned into a regular occurrence. In the past several months, I have noticed a somewhat modified trend of “news reporting meets commentary” that I believe has had an harmful effect on new Canadians and immigrants. This is particularly true in stories originating from Vancouver.

The context of these new “news meets commentary pieces” is entirely understandable. Economic uncertainty particular around jobs and education, gentrification and the crowding out of Canadian metropolitan cities, and a general and well-documented “anti-immigrant” sentiment have become accepted as part of our mainstream social psyche. These articles draw attention and are a catharsis for our own social challenges as local residents (whatever that definition is now). It gives us something to blame other than ourselves for our current predicaments.

Unfortunately, this process also creates “othering.” I am firmly opposed to this bandwagon/groupthink mentality – having recently written about why I believe international students, as a specific subgroup, should be better understood in context of their challenges rather than simply through lenses of the far-reaching social and economic stigma that have been applied through mainstream media.

Through reading these pieces, I have come to the conclusion that some journalism that is currently being produced about immigration is stoking the fire of outrage in a very, deeply irresponsible way.

I believe it does so in several ways and through several committed fallacies.

Flaws through Proof by Example (as well as Ignorance, and Repetition)

First, it is the logical fallacy of proof by example which also combines elements of arguments from ignorance (we have no proof otherwise so it must be true) and arguments from repetition (reusing and recycling of examples to paint a larger argument).

For those not familiar with immigrant communities or in interacting with several different immigrants rather than as one silo – it is easily to miss this point. In my practice, I have dealt with hundreds of cases – no two of which I can say are even remotely the same. As a practitioner, one of the first things I make sure to do when seeing a client is leave all my preconceptions, preconceived notions, and prejudices aside. I also take myself and my own background out of my analysis framework. Sure, I bring my experiences with other individuals who may be in similar shoes but I know that each individual immigrant and each narrative is different.

Without taking such a lens, it is easy to tag the issue of fraud (for example) to the individual’s country of origin, but when I dig deeper I realize it is the sub-issues – the age of the applicants, their family status, their marital status, even sexual orientation that play determinate parts in the unique situation an individual faces. It is through this lens that for many of my clients I fight their cases because I believe the Government made mistakes in their assessment. Often times, our review or challenge of immigration refusals is where we believe the individual circumstances of the case have not been considered by officers in deciding their case.

Stepping back to journalism, I see a similar logic taken by these authors in wanting to paint a picture that places the individual in a larger context. Unfortunately this creates larger, harmful generalizations that can be seen through calling something a “Chinese immigration” problem or automatically pinning one example to a larger cultural phenomenon such as East Indian arranged marriages.

Some media may think they are being cheeky in the manner in which they present this perspective, but it is all too visible for those of us that have experienced the subtlety of discrimination and prejudice. For example, while it is no longer tolerable in mainstream media to go out and say that all individuals with Chinese citizenship are fraudulent or all East Indians arrange their marriages writers and editors now utilize bold “catch all” headlines, feature photos showing a particular ethnic group, or paint verbal pictures and links leading to the same conclusion for the reader. Actual discrimination and implied discrimination are the same thing.

Furthermore, it’s about the quality of these examples. An East Indian newspaper contains an advertisement seeking purported immigration fraud or one international student who owns a multi-million dollar house while not attending classes, cannot simply be deemed to be a representative of the larger whole. For example, if I opened any local newspaper’s classified section and saw the illicit services being advertised or trusted every single email I received from a Nigerian prince and believed the source as credible, I would probably have a serious distrust of most of the population.

As a counterpoint to the fallacy by example, I believe the media has a responsibility to do a better job of quelling this by reporting on more positive immigration stories and not just individuals who are facing deportation. Lost in the narrative are the fact that international students, many who came from poor upbringings, are in fact some of Canada’s leading students, starting up Canada’s next entrepreneurial venture, or are in marriages with Canadians that bring together culture and diversity in such ways impossible in other countries.

Sadly, these stories are becoming fewer and further between. It is becoming more convenient to paint a few bad apple as an infected orchard and for the writers to assume the position of farm owner and immigrants as the indentured workers. This narrative is unfortunately so far removed from the realities of not only what is happening on the ground but from Canada’s own history through indigenous roots.

Flawed Appeals to Authority – rather than to Immigrants Themselves

Second, for some reason there has been appeals to authorities that some journalists have weaved together in ways that stop making sense. One recent piece named as an immigration specialist on the issue of marriage fraud, someone who I have never seen at an immigration conference in my life and who I have spent the last two years digging a case out of the depths of hell, in part, because of that individual’s recommendation of a fraudulent marriage. It is simply not good enough for a journalist to find experts who share the journalist’s narrative on an issue without providing a deeper canvas of alternative opinions – unless they want to hold the piece out as a commentary rather than as a balanced news story.

Consequentially, I would suggest that, on the matter of immigration, we need to get back to reporting fact as fact and opinion as opinion. This molded opinion as fact/news story is simply not working for anyone. With the merger of metropolitan media where two papers essentially are owned by one, there has become less room for the progressive debate and opinion pieces.

Finally, to immigrant communities – it is time for you to speak up. If you read a piece that you believe has misclassified your community or your loved one’s community – starting writing, start challenging, and start sharing your perspectives. The fear of silence, of your words leading to you being judged, are exactly the fears that the writers of these pieces are banking on to cement their own opinions. Don’t let this happen.

The best way to combat the experts and pundits, many of whom are so far removed from the actual lived experiences, is to provide those experiences. Through storytelling, we can also angle to those important decision-makers – who spend their days basing their political opinions on newspaper headlines, that there is far more to the stories than is currently, presently being told.

Writer’s end-note: I initially wanted to share this opinion in a mainstream media piece but I have decided against it as the content itself is critical of the current approach to immigration taken by several mainstream outlets. Should any of you wish to publish this in a mainstream outlet – contact me and I will give you full permission. This piece also is removed from any position I currently hold as an advocate for equality and diversity and represents my personal views only.

Jun 30, 2017

An Immigrant Experience Sublog by Katherine Akladios

Nazism in Berlin: Is It Still Relevant?

While studying at a café in Prenzlauer Berg, I began to hear protestors walking through the streets in demonstration. They wore metallic clothing, played loud music, and held signs that read ‘Berliners against Nazism’. As a foreigner, it initially seemed redundant that Germans would be protesting against Nazi ideologies in 2017. My education had led to me believe that Nazi ideologies were no longer apart of the political dialogue and German culture was in complete disassociation with such beliefs. Unfortunately such assumptions do not accurately portray the political ideologies of some Germans.

While living in Berlin and studying German memory culture, I have had the opportunity to learn more about the complexities surrounding Holocaust memorialization. Conflicting opinions on the Holocaust, as well as the extent to which it should be remembered, accounts for issues surrounding contemporary exhibitions. It is interesting to note that the famous ‘Memorial to the Murdered Jews of Europe’ was only completed in 2005 after years of deliberation on representation and the structure itself. It is clear that memorialization of the Holocaust, specifically the atrocities that occurred, is a relatively recent phenomenon.

It is important that the international community recognize the politics surrounding remembrance. One should not assume that memorialization is inevitable; rather it is a conscious decision for one to remember. I hope to further my education on the politics of German memory culture and create a dialogue around the importance of remembering the atrocities of World War II.

Sources:

https://www.berlin.de/en/attractions-and-sights/3560249-3104052-memorial-to-the-murdered-jews-of-europe.en.html

Jun 13, 2017

Canadian Immigration Law Blog

Takeaways from CBA National Immigration Conference – Pt. 1 – IRCC’s Increased Focus on the “Client Experience”

One of the highlights of the CBA Immigration Law Conference is that the Minister of Immigration speaks and talks about his government’s focus and priority moving forward.

Minister @AhmedDHussen now addressing #cbaimm2017 @CBAImmigration pic.twitter.com/XygAKZ7mmq

— Chantal Desloges (@Twimmigration) June 10, 2017

In general, the Minister’s humility very much stood out to me. I think that being a former member of the immigration bar himself, a UOttawa grad (I threw that one in!), and most importantly a refugee who had to face the delays and uncertainly, added a certain humility to his tone.

There were some who were disappointed that the Minister did not take questions from the floor, as was done in previous years. I still remember Minister Alexander in Ottawa, two years back being asked about the sponsorship program given his own wife was a sponsored spouse.

People voicing surprise and disappointment that unlike previous CPC and LPC ministers @AhmedDHussen didn’t take questions from the floor.

— Steven Meurrens (@smeurrens) June 10, 2017

I did believe that on a few questions, particularly relating to the major IRB delays that are really hampering the appeal process. On the flipside, I was very impressed by his apology for the issues with the portal not working very effectively over the past few weeks and his promise to do better.

The nice guy/gal approach was echoed by Dawn Edlund (Associate Assistant Deputy Minsiter, Operations, Department of Citizenship and Immigration) who spoke at the opening plenary. As summarized by my colleague Joshua Sohn:

Opening Plenary | Dawn Edlund speaking of IRCC priorities regarding the client experience: Innovation, Risk, Service, Confidence #CBAimm2017

— Joshua B. Sohn (@jbsohn) June 9, 2017

Dawn mentioned that she had received feedback that some invitation letters (for example the Citizenship Oath) had felt too much like a summons to court for a parking ticket. She acknowledged the challenges with the call centre and opening discussed the need to figure out strategies to streamline calls.

Ironically just the same day I received a bulletin from IRCC (that I had never received before) that was very well received on my end. The case involved a tricky procedural fairness letter to a concern initially raised by the overseas visa office. This email put both myself, and my client, at ease and we received the COPR just days later. I know the client was very eager to follow the helpful recommendations relating to settlement contained in the email.

On note of @CitImmCanada more client friendly approach Dawn Edlund spoke about at #CBAimm2017, I really like this new(?) Bulletin for FC-sp. pic.twitter.com/YcjwqkEI3j

— Will Tao???????? (@TheWillTruth) June 9, 2017

Just today IRCC has acted on some of the frustration raised by those who have had spousal sponsorship applications sent back due to incompleteness by revising their spousal sponsorship checklists to make them clearer, cleaner and more intuitive.

Overall, I am a big fan of this approach taken by IRCC to be better communicators with their clients. I don’t think we will ever run a visa system, particularly in this electronic day and age, that will allow individuals to physically speak to a processing officer in Canada, but one hopes that these steps are the next best thing.

I do think, however, that more transparency – particularly to more detailed reasons for refusal, great public access to Global Case Managing System notes for applicants, and faster streams for which to provide case updates – would go a long way. Right now, Access to Information Requests are a huge financial burden on government resources and a lot of litigation can be avoided by simply having clients know their application deficiencies at an earlier stage.

May 24, 2017

Tao's Way

Tracing My Mainland Chinese Roots to Chinatown: A Personal Narrative

Framing My Perspective

Over the past several months, I have had the unique opportunity of being part of a City of Vancouver Committee looking at Historical Discrimination Against Chinese in Vancouver from the City’s incorporation in 1886 to provincial franchisement in1947 and later to the granting of full municipal voting rights in 1949.

I am very consciously aware that (other than two amazing and brilliant civic historians who happen to be Caucasian), I am the only member of the committee without a common history from Southern China. Indeed, I am almost the youngest member of the committee by at least 15 to 20 years.

As I listen to the stories told in a room, like the one told during today’s second consultation session, I am conscious that I am outsider. I recognize the privilege I have now as someone who was able to call Canada my birth country in the years post-Charter of Rights and Freedoms. The stories of wives separated from their husbands for generations or two-years worth of income head taxed upon arrival, was not one I had to live through.

From a day to day level, I have never had to sit in the back of a movie theatre, because the front seats were reserved for whites only (Although, as one of my colleagues reminded us we, at an alarmingly higher than usual rate, often end up getting seats in the back corner or near the washrooms at many restaurants). I was able to be article and be called to the Bar of B.C. as a lawyer something Gordon Cumyow, son of Alexander Cumyow, was unable to do because he was not on the voter list in 1918. I am grateful for those that made this so. Brave Chinese-Canadian veterans who fought for Canada in World War II, returned, and argued for equality paved this pathway. Chinese-Canadian workers, demanding equal respect from labour unions, created their own employment organizations and forged worker movements that carved this pathway to try and bring and end to both the institutionalized and legally endorsed racism of the time.

It is also to be noted that I also do not speak Cantonese. My knowledge of Cantonese does not extend beyond the basketball court slang tossed around during my high school days. However, through what I can decipher, it is a language of energy and passion. I am reminded of my own dialects of Shanghainese (and increasingly Chongqinghua, adopted from my wife) that I have become accustomed to from spending time in both Shanghai and Chongqing. Much of the Chinese advocacy movement today is led by Cantonese-speaking youth, children of immigrants who came to Canada in the decades and, in some cases, generations before my own late father did. I commend them their activism and truly believe their language connection to their ancestors who themselves, were early advocates, is immensely important.

What Chinatown Means to Me

Many of these stories that I have heard in the past months are centered around one, much debated, neighbourhood in Vancouver – our Chinatown.

I want to state at the outset that I appreciate that I am writing at a very sensitive time, with the 105 Keefer consultations currently occurring in the City of Vancouver. I am still working through the City staff report and do not feel informed enough to comment, nor do I feel commenting in this piece adds value to the story I want to tell.

I do hope, that those who read the piece below, and never been to Chinatown – hell, may be even be too scared or disgusted to go Chinatown and experience the markets, classic restaurants, and bakeries – give it a much deserved chance (or second shot).

Growing up in Vancouver in the early 90’s, there really was no choice for Chinese groceries, meat, seafood, and baked goods – other than Chinatown. T&T at this stage was non-existent. There was no Foody World, No Osaka Supermarket, no Empire Supermarket, and the other groceries that now line Bridgeport and No. 3 Rd in Richmond. Even Victoria Drive, which is now bustling with grocers, was “too far East” to us in those days.

Going to Chinatown was the weekly family trip. We’d pack into our family’s small Toyota Tercel and drive to Chinatown. Some days we ended up parking a few blocks away in Strathcona, to avoid paying the parking meter. Money was tight in those days.

We would easily spend three hours there on any given trip. We would do the usual shop tour, primarily focused around a supermarket, my late father used to joking refer to as “Laji Dian” or “Garbage Store” in Mandarin (specifically on East Georgia and Gore Street). What was trash to some was our treasure. The vegetables were cheap and there were always crowds fighting over the sale of the week. As an aside, this same store (albeit a little quieter), has now replaced T&T as my wife and I’s go-to for Chinese vegetables. Last week we bought a bag of peashoots for 99 cents (when they usually go for 3.99 or 4.99 a pound at most Asian grocers). You are missing out if you don’t go.

For me, however, Chinatown was all about the buns. Ironically, I don’t even think we even had the best ones back then. I don’t remember going to New Town or Maxims all that often, other than we needed to also buy birthday cake. We always went to the small counter on the corner of Main and Keefer (I think). These buns were cheaper and buying bulk saved money.

I loved the barbecue pork puns (and still do today). I don’t remember if it was because I was younger but I remember the filling used to be much meatier. They were so good. I would eat them while walking along the streets while my mother and father shopped.

I also now credit Chinatown for also turning me into a huge foodie. We would often order small blue crabs (my mom’s favourite), pig intestine, and duck feet. These were the protein of my childhood, and certainly a once a week delicacy. Occasionally, we would also buy salmon (tucked away in black plastic bags) from sellers (now I realize were likely First Nations) down the back alleys.

You also have to understand to, that for me, Chinatown was my China. I had only been to China when I was four for several weeks and had zero recollection of the place. I had few Chinese classmates in my early elementary years in the Westside of Vancouver. Chinatown was the only place where, now that I come to think of it, I felt… normal and at home.

I regret, looking back, not better understanding my surroundings in Chinatown. At that time, Chinatown was still so vibrant that I don’t think it dawned one me to recognize that the work was not easy, that the faces behind the counter were old. I could not have predicted, that just a few years later, we would all leave Chinatown for the “cleaner”, “air-conditioned”, indoor grocery complexes provided by T&T. Had I known concepts such as farm-to-table, organic, or even been to China and understood the role of the outdoor Cai Shi Chang (“Vegetable Markets”) I probably would have stayed.

Like many, during my later elementary school years (this would have been the late 90’s for those keeping score), I rarely went to Chinatown. I avoided it. I think my family did too. This was probably around the time too, that the Downtown Eastside became more of a social issue and for a Chinese family growing up there was a proximity issues. Drugs were taboo. They were done by bad people and that being close to them we would somehow be exposed. Had I known what I later would know from volunteering in the Downtown Eastside, I again, would have changed my perception and fought against the underlying assumptions around Chinatown.

I remember a few key moments – in between where I went back. In high school, we did a photo project, where I recommended that our team do a project in Chinatown. I took a photo (poor quality), but I remember at the time thinking that the individual cleaning beans reminded me of a man panning for gold. We titled it “Picture Worth a Thousand Words.” Entirely, an oversell but something I still remember today.

In undergraduate (around 2009 I believe), I had the opportunity to go Singapore with Dr. Henry’s Yu’s class to study their Chinatown. Prior to that trip, we began by studying our Chinatown. Our group created a concept for an empty lot (again not trying to draw 105 Keefer references). At the time, we probably thought we were being global – trying to draw Singaporean Hawker influences and Seattle architecture. What we really should have done is looked inward. Chinatown is now a national historic site (long overdue) and we are hoping with this Apology and pronouncement on action times that there will be more history to come.

Just last week, we were buying ginseng in Chinatown and had a great conversation in Mandarin (the shopkeepers were fluent in both Cantonese and Mandarin). They expressed to us the challenges, day to day, of ensuring that they would not be subject to theft. One can only imagine, that given the reduced traffic, a handful of high quality ginseng or dried sea cucumber could put a dent in business.

I am glad I have been able to introduce my wife to Chinatown. At first, she too thought the cash only nature of the stores, the walking distance, and the cleanliness were an issue. Now, we realize, that we easily save $50 dollars a week shopping in Chinatown and that it is entirely worth the commute. We have also re-discovered New Town bakery which has become the River Rock Casino of my tummy (interpret it how you will).

Conclusion

Chinatown, to me – a Canadian […]

May 23, 2017

Canadian Immigration Law Blog

How to address the dreaded “Probability of Success”? – From a Client and Advisor Perspective

I have been on a bit of a campaign (that I am now sharing publicly by way of this blog post) to eliminate the using, asking, and advertising of “probability of success” and “guarantees.”

Unfortunately, I tag this to the commoditization of visas (worldwide) into a product to be obtained, rather than a legal service or system to be professionally navigated. Flip open any newspaper and you will likely see an immigration company advertising their 98% success rate or “guaranteeing the maintaining of permanent residence for someone who has never spent a day in Canada”, as one translator lamented to me today outside of CBSA.

I am very glad that IRCC is publicly attacking the idea of a guarantee and the practice of ghost consulting or the “disappearing advisor.”

Dont be the victim of a disappearing act. Choose your immigration representative carefully. https://t.co/7PDUw0BxS5 pic.twitter.com/Ru9LRWXBX2

— IRCC (@CitImmCanada) May 23, 2017

I think part of fighting this is educating potential clients into the type of questions to ask and to give insights into the type of responses one should expect. I wrote a post, that I received some positive feedback for in January of last year where I talked about the value of a consultation. I hope to work along similar lines here.

In this piece, I want to give both clients and their representatives some strategies to avoid asking and respond in asking that dreaded question – “what is my probability of success?…. can you guarantee success.”

From the Client Perspective

My first “cautionary” note is that anybody who guarantees success without seeing a single document or on the basis of a short email introduction is probably indicative of the fact you are going to be duped.

Regardless of my historical success on any type of application, as an immigration representative, I know that cases turn on facts. Facts, take time to establish and hours to put together. In order for any advisor to even indicate a confidence in your case, they need to know the inside outs of that area of the law and be able to provide tangible experiences suggesting they have helped a client in a similar situation or have the know-with-all to do the same.

Too often I see the question “please advise me on your fees and success rate” as a first question that client’s pose. I would suggest a few more effective questions can be (1) are you an authorized immigration representative and can I see your ICCRC/Law Society number? [if you have doubts, but do your research], (2) have you handled cases of this nature and provide some initial thoughts on my case, and (3) would we be able to set up a consultation to discuss your assistance on my matter. Having someone provide either a deceiving low rate or incredibly high fee quote with a made-up percentage really does a client little to no good.

On a second point, when it comes to success rate, I would be very cautious of any “company” that offers a “money-back guarantee” on immigrations applications. Many of these consultancies (who primarily do this) justify this by taking a heavy up-front retainer sum and then apply, knowing that when the decision is eventually made (several years later), they have had enough time to flip your money into additional funds to pad their pockets. Be very cautious – and ask questions such as (1) where do the funds go? – does the individual operate a trust account; (2) Can you bill me implements? – so they do not take all the money and bill it up front; or (3) Can you handle my file on an hourly basis? While it may appear that your engaging of a representative on an hourly basis does not give you any guarantees. it does provide a lot of accountability in terms of work performed. In the end of the day, when you engage a professional it should be for the efforts they input into the case, which in turn you hope will maximize your results. Consider time dedicate to your case as the value of your fees rather than the overall end result.

Finally, be careful of false advertising. Immigration is an area of law that is far too-easy to oversell. Clients are often at their most vulnerable and desperate when they come see you. They often have little knowledge of the rules and regulations other than what they have read on forums or heard from their neighbours.

There is nearly no regulation (especially in languages other than English and French). If you start reading advertisements that purport to sell you a job, or LMIA, or guarantee to take care of everything due to connections to immigration officials, it is probably time for the fraud radar to go off.

From the Advisor’s Perspective

So, how do I handle the question: can you guarantee success?

I usually start by giving the spiel I described above. Anybody who guarantees success without reviewing a client’s file thoroughly (review of ATIP, review of previous work/background, and the law) is probably doing a disservice.

I also note that my value add as a lawyer is to utilize my knowledge of the law and my understanding on concepts such as Officer discretion, administrative law, and my work reviving back-end refusals to give a client the advice they need on the front end. I am also a fan of immigration pathway planning where in the event success cannot be achieved on Plan A, we always have a Plan B. In the words of my best friend, Dav, “always enter, with an exit strategy.”

I am also very honest about how many years I have been doing immigration and my experiences in certain areas. I tell client’s where I know the law but may have limited practical experiences and that they can trust me to do it or I can refer them to a colleague who has expertise in their area. I highlight stories of success, as parables, but caution that every case depends on it’s merits and is subject to discretion and interpretation of law.

I also am very realistic about timeframes. Right now, with IRCC putting up bulk numbers (12 months) for all visa offices for family sponsorships and real uncertainty around paper-based processing (especially implied status applications), any randomly-generated number would be a stretch. I can only utilize examples where I can a sample that I can choose from. I always caution any estimates I give based on previous experiences as not necessarily being representative of any particular case.

Being Honest is Not Underselling

Particularly in today’s competitive environment, where there are literally thousands of practitioners who are able to do what you do to some degree of proficiency, it is important not to get into the business of overselling oneself. Ego-driven practices do not help a client, who often needs a practitioner who can bring the law and the experience to their level of understanding, and it certainly does not help the health of a practitioner, focused entirely on results as a validation of success. You talk to some of the best immigration lawyers (I won’t name names because I will inevitably forget many good ones), and you will notice they lose their fair share of very challenging cases. These losses, like scars, eventually strengthen the outer shell and deepen their knowledge of the law.

Just recently, I lost a Federal Court case that did not get Leave on. I put hours into drafting my memorandum of argument, hours more into the reply. I produced arguments for an area of law that has never been tested at a judicial level. The Federal Court decided not to hear it and to deny leave – likely following a strict interpretation of the law and the limitations of the reasonableness standard. While disappointing and not a “success”, I feel empowered by the time spent engaging and interpreting a provision of law and I am confident that the next case I can reframe in a more effective way. The client, though disappointed, appreciates my honesty and appreciates the fact that I will stick with them because we foresaw the possibility and will need to re-calibrate our options.

I think if we all re-think “success”, we will better serve our clients and be better “trusted” representatives to our clients.

May 2, 2017

Canadian Immigration Law Blog

New Commentary on the End of Conditional PR for New Canadian Media!

Hi VIB Friends:

I have been super busy recently with several interesting engagements – including talking at a global conference in Vancouver earlier this month. I am going to San Francisco tomorrow for two days to speak to international students at HULT International Business School and am very ecstatic about that! San Francisco is a beautiful city and I am sure I will be reliving some nostalgia from my first trip with my father, mother, and then baby sister many, many years ago.

In the meantime, I wanted to share with you my latest piece on Conditional Permanent Residence and why I am happy it has been culled from Canadian immigration law as April 28th.

See here: http://newcanadianmedia.ca/item/41217-shifting-our-conversations-from-marriage-fraud-to-marriage-breakdownhttp://newcanadianmedia.ca/item/41217-shifting-our-conversations-from-marriage-fraud-to-marriage-breakdown

I hope every has a great two days! Crossing my fingers for a clean border crossing via Nexus! 😀

Will

Apr 17, 2017

Canadian Immigration Law Blog

Why Canada’s Punishment for Inadmissibility for Misrepresentation Needs to Be Both Tougher and Softer

Within the realm of Canadian criminal law there is a fundamental principle that the punishment should be proportional to the crime an individual convicted of. Under Section 718.1 of the Canadian Criminal Code it is written as follows:

Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

There are are also various sentencing principles meant to guide the discretion of decision-makers to ensure that the sentences are properly set down. These include factors such as potential rehabilitation and whether the punitive and societal aims of the proposed sentence are met.

During the previous government’s tough on crime focus, this led to the introduction of the Faster Removal of Foreign Criminals Act (FRFCA) which clearly was introduced with deterrence in mind when it came to punishing foreign nationals and permanent residents for misrepresentation. In my assessment, I believe that not enough attention was paid to the overall requirement of proportionality.

The Regulatory Impact Assessment Statement issued in support of regulatory changes states (my emphasis added):

1. Misrepresentation

An examination of the effectiveness of the IRPA’s current misrepresentation provision — that is, the two-year period of inadmissibility that bans a foreign national from entering or remaining in Canada because of directly or indirectly misrepresenting or withholding material facts that cause an error in the administration of the IRPA — determined that it is not sufficient to deter fraudulent applications, particularly for permanent resident applicants, as processing times in this stream can be in excess of two years. In those cases, permanent resident applicants who have been found to have provided false information can simply reapply almost immediately and wait in the processing queue for the two-year inadmissibility period to be completed. In practice, there is little or no consequence for these applicants.

Increase consequences for misrepresentation

Amendments to existing regulatory provisions related to misrepresentation would support legislative changes that provide a stronger disincentive for applicants to provide fraudulent information on their immigration applications. The changes would also help ensure that the processing of legitimate applications is not delayed by fraudulent permanent resident applicants who reapply and wait out their period of inadmissibility in the processing queue.

In addition, the increased consequences for misrepresentation would make Canada less vulnerable to immigration fraud by bringing consequences in line with Canada’s like-minded international partners. A stronger deterrent for misrepresentation would benefit Canadians by ensuring travellers and immigrants admitted to Canada meet the criteria established to support Canadian immigration objectives, and would increase public confidence in and support for Canada’s immigration program.

The two-year penalty is shorter than those imposed by Canada’s like-minded international partners, which makes the Canadian immigration system more vulnerable to abuse. Other countries appear to have more severe penalties, for example:

Australia: three-year ban on visas where false or misleading information is provided;
United Kingdom: 1-, 5-, or 10-year ban on re-entry (length of ban depends on severity of false representation); and
United States: lifetime inadmissibility (i.e. ban on entry) for visa fraud or misrepresentation.

See: http://www.gazette.gc.ca/rp-pr/p1/2014/2014-06-07/html/reg1-eng.php

I think one of the challenges is equating all of those caught under s.40 IRPA misrepresentation with fraudulent permanent resident applicants. There may be (and I have seen many) individuals who made genuine mistakes in misrepresenting themselves (or hiring the wrong person who misrepresented for them), when in fact they often had recourse to other routes such as their bona fide permanent resident applications.

Essentially, what you have amounts to a very broad provision under the immigration inadmissibility for misrepresentation (s.40 of IRPA) [separate from the immigration offense of misrepresentation under s.127 IRPA] which can cover several non men reus incidents such as unknowingly withholding material evidence or having a third party indirectly misrepresent on behalf of an unknowing applicant who has paid for the services.

In an overseas foreign national applicant’s situation, they can be issued a five-year ban in writing. This takes places, a majority of the time, after a procedural fairness letter is issued giving them the opportunity to make representations and supplements the refusal letter

In an inland situation, a foreign national applicant is written up for misrepresentation and referred to the Immigration Division who are usually bound to enforce the order. The first stage of this reporting process takes place at the Port of Entry or with the help of Inland Enforcement as coordinated by Canada Border Services Agency (“CBSA”).

Generally speaking CBSA is bound to pursue the misrepresentation allegation, but I have been successful in a few occasions to have them “commuted” (so to speak) to lesser non-compliance findings that can carry a one-year exclusion order. I strongly agree with this practice, but again I think without anything written down on paper to support it, it becomes a remedy that is difficult to ultimately rely on or seek – Good in effect, but not effective in law.

The Consequences of Misrepresentation are Heavy

As per A40(2) and (3) of IRPA, the inadmissibility period is five years. The FRFCA announcement added a five-year bar to applying for permanent residency.

Currently, there is a lack of clarity on whether IRCC has the discretion to ARC back a misrepresentation client as a permanent resident or only as a temporary resident. I have heard from various individuals in private practice that this is done but ultimately with some inconsistency.

I am currently in the process (by ATIP and coordination with various Immigration, Refugees and Citizenship Canada (“IRCC”) Offices/Officers to seek some clarity). I believe there is some incongruity to allowing the ARC back of a temporary resident (a visitor or worker with a bona fide purpose), but not a permanent resident who may have been part of a genuine relationship unrelated to the misrepresentation.

I will not get to it in this piece, but there are also quasi-criminal, regulatory, and criminal punishments for misrepresentation that could render an individual inadmissible to Canada for criminality in addition to misrepresentation.

Why I like the U.K.- style Approach Better to Misrepresentation

I think applying a five-year inadmissibility and five-year bar on PR for misrepresentation is both too light and too heavy, all at the same time.

I am in favour of strict punishment of mens reus perpetrators of misrepresentation. Those that purposely committed or instructed the commission of fraud in order to seek entry or status in Canada. Individuals who are part of larger efforts to defraud fellow immigrants (in addition to being punished regulatory wise) should face the highest form of punishment.

However, there are simply too many cases where it really is the unfortunate promise of a purported “trusted immigration representative” or even cases of ignorance, albeit willful blindness, of Canadian law. I believe CBSA should have some legal recourse, written in legislation, to provide these individuals with a two-year bars or even a five-year inadmissibility period, but a waiver of the five-year PR bar.

I think the way to handle the issue of “discretion” is to make is clear that the Immigration Division/Visa Officer/Immigration Appeal Division’s decision is not subject to appeal in the case of a foreign national and that they have a broad ability to determine the reasonableness of the ban.

How would I re-write A.40(2) and (3)

Disclaimer: this is not the law and merely my legislative rewriting for the purposes of this piece. Changes in italics.

Application

(2) The following provisions govern subsection (1):
- (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of between two and ten years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced. The sole discretion in determining the length of misrepresentation will fall to the Immigration Division or an overseas visa officer, in the case of a foreign national, or the Immigration Appeal Division, in the case of a permanent resident, and is not subject to the right of appeal.
- (b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility.
Marginal note:Inadmissible

(3) A foreign national who is inadmissible under this section may not apply for permanent resident status during the period referred to in paragraph (2)(a), subject to the discretion of the Immigration Division, in the case of a foreign national, or the Immigration Appeal Division, in the case of a permanent resident, to waive the requirement due to the Applicant’s mitigating factors.
(a) Mitigating factors can include, but are limited to:
- (i) demonstrable evidence of the Applicant’s remorse;
- (ii) demonstralve evidence of the Applicant’s efforts to come forward proactively with their misrepresentation;
- (iv) demonstrable evidence that the Applicant has rehabilited themselves of the factors that have caused the misrepresentation and will not commit future misrepresentations; and
- (v) demonstrable evidence that the Applicant’s misrepresentation is not related to the grounds by which they end to

(b) The decision of whether to add section (3) as a term of the period of inadmissibility under section 3(a) will fall to the Immigration Division or an overseas visa officer,in the case of a foreign national, or the Immigration Appeal Division, in the case of a permanent resident, and is not subject to the right of appeal.

I think such a system would create a much more rehabilitative process for those who have made mistakes and are willing to correct them, yet at the same time can be used to punish those who have committed egregious misrepresentations.

What are your thoughts on this? Do you agree or do you like the one-size fits all, easy come easy go approach, that is currently written in law?

Apr 7, 2017

Canadian Immigration Law Blog

Being Careful About PR Card Extension Applications – Five Common Frauds/Misconceptions

Increasingly, in my practice, I have begun to see clients who are having permanent resident (PR) card renewal problems.

Generally, these individuals can be classified into a few categories:

Individuals who were not diligent in preparing their PR card extension applications and made errors/omissions;
Individuals who put their PR card extension applications in the hands of someone they shouldn’t have.

Today’s post will focus on those under group 2. As I have re-iterated in several previous posts, s.40 IRPA – misrepresentation can rear it’s ugly head in many forms. Initially, at the stage of a PR who’s application is being investigated. Immigration, Refugees, and Citizenship Canada (“IRCC”) may launch an investigation and eventually this can lead to the issuance of an s.44 inadmissibility report and, eventually, a referral to Immigration Division for misrepresentation.

While the citizenship revocation process is still being dealt with at the Senate and (later) House of Commons level, citizenship can also currently be revoked on the grounds of misrepresentation for individuals that declared false dates on PR card applications and later used those dates as the basis for claiming their meeting of the citizenship residency obligation.

In this post, I will look at some of the recent permanent resident card fraud cases and hopefully my readers can arm themselves and ensure the individuals/representatives they are working with on their PR card applications will not put them at risk for misrepresentation.

Fraud/Misconception #1 – Passport Stamps are Not the Only Proof of Travel History

One of the common strategies I have seen some of the unethical practitioners take is recommend that their clients apply for a new passport with clean stamps and then claim no travel history. Individuals end up with new passports every few years to use to try and enter Canada on the basis of.

This is problematic in many ways. Passports are often, in reality, the least effective evidence for proof of travel history. From publicly available I-94 records (https://i94.cbp.dhs.gov/I94/) to Canada Border Services Agency (“CBSA”)’s own ICES Travel History to now increasing information-sharing powers with U.S. immigration authorities and Canadian tax authorities, there are so many avenues by which conflicting address history can be easily accessed.

Furthermore, should you be entering at a port-of-entry and subject to a flag or even raise concerns by your presence, the search and seizure of mobile devices and a review of your texts and emails would almost instantaneously give away your location. It is also not uncommon for CBSA to seize an individual’s passport and subject them to investigation at which time further cross-references will be made.

The only person you can really “trick” may be the Case Processing Centre-Sydney processing officer in issuing you a new card (if they don’t perform a diligent review on that present application), but your address history declarations will follow you on future applications.

On this note, be very careful as well with the provision of your passport to representatives. Ensure only to provide what is necessary (many times passport bio-data page and copies of stamped pages). Ask to see a copy of all material before it is submitted. It is a common fraud for stamps on passports to be altered or inserted. We have even seen this done, if you can imagine, on copies of passports. This, again, adds grave consequences to one’s application and ultimately will be uncovered sooner rather than later.

Fraud/Misconception #2 – Filing Canadian Taxes, Owning Canadian Property, or Taking “Employment” from a Canadian employer will resolve your residency issues

One of the common things I am told in consultations is that advice was received to “always file Canadian taxes” and that this would serve as some sort of shield against the residency obligation. Again, this is not correct. The filing of Canadian taxes is at the end of the day a voluntary driven process. Individuals can be deemed to be tax residents or clearly be tax residents, but it is ultimately up to the tax payer to file taxes in the right amount (or face CRA penalties). There are also very plausible situations where an individual meets the residency obligation by living in Canada for their first two years of their five year obligation, and then moves abroad and becomes a non-resident. Again, tax residency does not equal permanent residency.

The filing of “bogus” taxes many times can hurt rather than help an application. This is particularly true in the case of the “assignment abroad provision.”

Under Canadian immigration law, there is an exception that allows for a Canadian permanent resident to claim days outside Canada employed overseas while on a temporary assignment from a Canadian company as days in Canada. The legislative provision is written somewhat broadly, but in practice (and by Federal Court interpretation) the provision has been interpreted very narrowly. Needless to say, situations where an employee is maintaining their own employment or working in multiple positions overseas, while claiming that they are doing this on solely and on a full-time basis on behalf of a Canadian company that they have only ‘contracted’ with is unlikely to work for the purposes of renewing a permanent resident card. Indeed, even major companies that transfer their employees abroad (with no set term to the transfer) are cognizant in not over-promising that the transfer will work.

From a humanitarian and compassionate considerations perspective, trying to cover one’s trail with employment that is not legitimate will not serve well in either a residency obligation/removal order appeal and arguably can even be used as the basis for misrepresentation findings down the road.

Eventually, if you do go to appeal, Canada Border Services Agency hearing officers will usually do a pretty thorough job of sussing out your individual history. Claiming low income in Canada, while maintaining a millionaire lifestyle abroad will affect the Immigration Appeal Division’s assessment of factors such as establishment and efforts to return to Canada at the earliest time. Negative credibility assessments may be drawn against the Applicant affecting their overall chances of success.

That is not to say that there is not an exception. I have helped several clients navigate the exception, but it must be done with a collaborative effort (with the Employer) prior to the assignment and ideally when the permanent resident is currently working in Canada. The contract must be drafted very carefully and all parties must know the temporary nature of the transfer, and in most cases set a clear pathway for the permanent resident’s return to a local position.

Fraud/Misconception #3- My Friend’s Address Can Be My Residential Address

A residential address is supposed to be the address that an individual resides at. It is not supposed to be a mailing address. It is not supposed to be the address of friends who can serve as your “Canadian address.” Claiming a residential address in Canada while one is physically abroad creates major contradictions. The way the PR card form requires both travel history, address history, and work history creates three ways of cross-referencing addresses.

Creating too many false addresses (particularly where one is not aware of the addresses) is tantamount to putting unknown items of unknown providence into one’s luggage and attempting to fly to another country. Simply: don’t do it.

Fraud/Misconception #4 – Discretion/Humanitarian and Compassionate Grounds Don’t Exist

It is common for agents abroad not to advise on humanitarian and compassionate grounds. One of the reasons is these types of applications require a lot of preparatory work – explanation letters, supporting evidence, also occasionally case law. However, in many cases (particularly where there are Canadian children involved, major health issues in the family, or even genuine and honest mistakes, there may be some leeway. This leeway should always be pursued at the earliest instance (be it to the CBSA border officer writing up the s.44 report at the Port-of-Entry or to the IRCC upon a residency obligation review). There is a decent amount of discretion at the inland/IRCC level, if sufficient evidence exists. Waiting potentially years later (when much of the hardship dissipates or is backward looking) may hurt an overall application,

Fraud/Misconception #5 – My Children Can Always Save Me

Best interests of the child are required to be considered and to be given substantial weight. The Supreme Court in Kanthasamy and case law dating back to Baker, make this clear. However, a child is not a panacea for humanitarian and compassionate grounds. For children that are very young, IAD members have made decisions suggesting the hardship on the child’s return to their home country may be limited. For children that are older (and close to exceeding dependent age), IAD members may suggest they are independent enough to pursue their own immigration routes. If illness or circumstances requires separation from Canadian children, ensure that all efforts continue to be made to care for and follow the progress of the child in Canada. With the growing trend of younger international student applicants who study in Canada while their parents work abroad, it is easy for a Canadian permanent resident to be classified along the same lines.

Hope the above was useful!

Again, if at all there are concerns about the competency or the ethical practices of your immigration representative, seeking a second-opinion is always an option.

Apr 1, 2017

Law Student Advice and Mentorship

Inspiration from the Kid’s Room on an Executive Retreat

Greetings from Big White Ski Resort. Specifically, greetings from the bottom bunk of the kids room on the bottom floor. Before you jump to conclusions, I did not get forced into selecting this room. There were more than enough rooms to go around and I could have chosen the Queen B. However, something about me (at the tender age of 28) being the youngest member of the FACL BC executive made it seem right that I take dibs on the kids’ room.

It has been a very reflective trip. For the first time in awhile, I’ve had time to listen and observe to other’s share their stories without needing to contemplate my own role as a lawyer (to my clients), or husband (to my wife), or son/brother. Although, l will have to admit to many here I do indeed feel like a younger sibling.

I have also been able to have intimate conversations with own mentors and colleagues who have experienced the hardships and challenges of being a young lawyer with mature responsibilities. One of the lawyers at this retreat has started two non-profits and is widely considered one of the most promising Asian lawyers in the country, a future L’Expert Rising Star, no doubt. Another, is in the midst of swimming against the current of traditional progression to pursue her own, independent God-directed journey. A third, is the face of success at what he does and still can share with me the seeds of discontent and the yearning for a more purpose-driven career.

To the young lawyers and students, the bottom of the bunk bed sleepers (such as myself), this is an important lesson. Even those who on the outside may emanate and define “success”, may inside be very much soul searching like you are. The reality is that life in law is not like the Super Mario games of your childhood where levels must be beaten to progress to newer worlds. Indeed, some levels, if played too many times without success can lead to the slowly diminishing of mushrooms, necessary for longevity.

How do we keep the proverbial flame alive particularly in a time when the economic pressures and forces are putting profits over people, product over process.

How do we commit to taking places meaningful to our visions for our legal careers (and further more, entire careers)? How do we make our mark in ways that we are proud of looking back and can positively influence others to build their own trails? How do we live a life that truly focuses on what is important to each of us individually rather than what others want us to believe is important?

Some questions I’m considering from my bottom bunk.

Mar 17, 2017

Canadian Immigration Law Blog

Responding to IRCC Procedural Fairness Letters – A Few Practical Tips

Introduction

For many individuals making Canadian immigration applications, the receipt of a letter from Immigration, Refugees and Citizenship Canada (“IRCC”) highlighting the insufficiency of the evidence provided or the potential allegation or misrepresentation is a very stressful moment.

For those that have received these letters, particularly applicants that are self-represented or sought the advice from a representative that “kept them in the dark” on their applications, this is often where hiring an immigration lawyer starts becoming a major consideration.

Especially in cases of misrepresentation, where the consequences of a five-year bar are so serious and the definition of misrepresentation so broad, this is where the response has to be timed very carefully, and I dare say it, near perfectly.

Before reading my piece, I would highly recommend pre-reading a few pieces from my senior colleague Steven Meurrens (here – on responding to procedural fairness) and (here – on extrinsic evidence). Steven does a very good job of highlighting the key principles taken from Federal Court jurisprudence.He is indeed a master of administrative law.

Some of Steven’s highlighted principles include:

the requirement that the Applicant knows the “case to be met” and that the Applicant has the opportunity to respond to extrinsic (i.e. third party) evidence;
that there are exceptions to the classification of extrinsic evidence, especially where the Applicant ought to have know that material would be consulted (i.e. company website); and
the idea that a procedural fairness letter cannot “bait and switch” – allege a set of allegations and concerns and then refuse on allegations that were not put forth to you; and
that if you would like to provide further information (that is pending) you will need to indicate this in your procedural fairness response.

I wanted to add to (supplement) Steven’s work a practical step-by-step analysis of how I breakdown a procedural fairness letter. DISCLAIMER: As with any example, it is not to be treated as overall legal advice. It is not also to suggest that I recommend going at it alone based on my experiences. What I want to do is to encourage a deeper level of thought before the immediate impulse to send back a response the next day stating “it wasn’t my fault for the mistake, it was the consultants” or writing a letter to immigration pleading them to give you leniency. I see these responses too often and often cringe when it is far too late for us to do anything about it (word of truth: there is often a point of no return).

In this piece, I will focus on a situation where an applicant is refused in the context of an economic immigration application (i.e. CEC) but I would suggest these principles are broadly applicable. I also note that much of the case law and jurisprudence, predated Express Entry which has very sped up the process of adjudicating applications. I will not get into the whole discussion of incomplete applications (subject of another post) in favour of discussing solely concerns over the merits and credibility of an Applicant’s application.

My Usual Process

1.Setting out Perimeters Prior to Submission of Application

My recommendations do not start with just the letter itself. Before submitting any application, it is wise to be aware that a procedural fairness letter or a request for further information is very common and more common in complex cases where the facts are messy.

For self-reps, this involves keeping a very good record of all documentation submitted. Scanning copies of all files prior to submission and keeping a running tally of issues you are concerned of can help prepare for the response.

If you are represented by a legal advisor, I stress this time and time again in my posts that you not should have but must demand access to all the materials submitted. I would set guidelines with my advisor to make sure anything submitted in final form is reviewed before it is submitted. You can also tell this advisor that you are aware of the procedural fairness letter process, that you are aware of the process of utilizing Access to Information to obtain a full copy of your file, and that you would appreciate timely passing on of all correspondence in original form. If you do not speak English, find a translator or interpreter to work on your side. You can even use this opportunity to gauge the understanding of your representative of this process and their experiences. A lack of knowledge of these should be an immediate red flag. Make sure to retain your own copy of your immigration file and keep it in an accessible place. I recommend physical scanned copies too as forms often will revalidate or adjust and eventually serve as proof of anything other than an editable form.

I have heard too many horror stories of unlicensed consultants withholding misrepresentation refusal letters or putting in additional documents not at the request of the Applicant. These practices could have a devastating impact on your future application.

2. Studying and Breaking Down the Procedural Fairness Letter

The format of these letters usually follows a set pattern

The first paragraph or two paragraphs will be rather template language, alleging that you do not meet certain requirements of the Act on the basis of what you have submitted;

The next few lines will (ideally) set out the specific nature of the allegation. Note that IRCC is not under the obligation to disclose entire transcripts of telephone verification calls or active investigations. The amount of negative evidence disclosed and the source of that evidence should be documented at this stage. IRCC has the duty of procedural fairness with respect to procedural fairness letters and content. Rather than try and explain it, I want to highlight a good summary found in Federal Court jurisprudence. In introducing the law of procedural fairness, Justice de Montigny writes in Chawla v. Canada (Minister of Citizenship and Immigration) 2014 FC 434:

14 It is well established that procedural fairness requires that applicants for permanent residence be provided a meaningful opportunity to respond to perceived material inconsistencies or credibility concerns with respect to their files: Qin v. Canada (Minister of Citizenship and Immigration), 2013 FC 147 at para 38, Abdi v. Canada (Attorney General), 2012 FC 642 at para 21; Zaib v. Canada (Minister of Citizenship and Immigration), 2010 FC 769 at para 17; Baybazarov v. Canada (Minister of Citizenship and Immigration), 2010 FC 665 at para 17; Hussaini v. Canada (Minsiter of Citizenship and Immigration), 2013 FC 289 at para 5 [Hussaini]). This entails that an officer’s reliance on extrinsic evidence without allowing an applicant the opportunity to know and reply to that evidence amounts to procedural unfairness: Amin v. Canada (Minister of Citizenship and Immigration) 2013 FC 206.

Indeed, the Respondent’s own guidelines provide as follows concerning extrinsic evidence:

The applicant must be made aware of the “case to be met”, i.e., the information known by the officer must be made available to the applicant prior to the decision being made. For example, if an officer relies on extrinsic evidence (i.e., evidence received from sources other than the applicant), they must give the applicant an opportunity to respond to such evidence

Overseas Processing Manual, Chapter OP-1: Procedures, s.8 “Procedural Fairness”

If misrepresentation is a possibility this likely will be drawn into the language of the procedural fairness letter.

The importance for IRCC of introducing this potential allegation, is that it can cover off potential credibility concerns. If no misrepresentation is alleged at this stage (in content), then it is likely an issue with sufficiency of evidence. However, my experience is that they will do both in most cases.

3. Performing a Background Review

One of the first things to do is order an Access to Information request for the full physical and electronic notes on file. My colleague out in Alberta, Immigration Lawyer Mark Holthe, has put together a good guide on this.

Generally, clients will retain us to go through their previous submission and as well the Electronics notes of the Officer to better understand the discrepancies. The Access to Information process can take 30 days or longer so at this stage you also want to determine when and how you can ask for an extension of time to file a response.

Generally, IRCC is pretty good about giving decent extensions (as this is an important part of procedural fairness). Do not be afraid to ask and certainly do not think that you responding on day 1 vs. day 30 will impact the success rate. While, it may speed up the processing to respond quickly, it could also very well speed up the refusal process.

At this stage, the material and notes you saved from your earlier work will be also very useful.

4. Determining the scope of allegations – insufficiency of evidence, credibility, or both

Start by determining what the alleged concerns are with respect to. In some cases, it may be that the application is insufficient due to documentary evidence. In this case, your goal is to supplement the material. In some cases, there will be credibility concerns over whether you indeed performed the tasks you have stated in an employer reference letter. In those cases, you will need to provide proof by way of additional positive support. In many cases, it is actually your mistake (administrative error, forgetfulness) that has triggered a procedural fairness letter. I like to start by laying out all of the Officer’s concerns and coding them accordingly. Many times they will be lumped into a longer paragraph in a refusal letter so it is important to read over the middle sections of these letters a few times.

5. Corroborating positive evidence and explaining deficiencies

The final step is determining who will be providing support and in what means. In the case of a negative employer verification call, you may need to go to the source for clarification and to seek a rescinded letter of support. You may contact work colleagues or other individuals (customers, partners) with […]

Feb 26, 2017

Canadian Immigration Law Blog

New Can/Xun (Sunny) Wang and the Citizenship Revocation Process

The latest numbers show that Canada Border Services Agency (“CBSA”) is moving on the Xun “Sunny” Wang files. To date, there have been 1632 Suspected New Can Clients and 503 Pending Investigations. The number of new cases has decreased and it is not expected that the total number will top 2500.

What is interesting now is the 219 citizenship revocation cases that CBSA has referred to Immigration, Refugees and Citizenship Canada (“IRCC”). IRCC is responsible for taking action on those files that they wish to pursue by initiating the citizenship revocation process. This is not in any ways unique, Similar citizenship frauds led to similar citizenship revocation proceedings in Eastern Canada in the past several years.

How the Revocation Process Works For These Types of Cases

Under the Citizenship Act, an individual can have their citizenship revoked for fraud, false representation, and knowingly concealing material circumstances:

Revocation by Minister — fraud, false representation, etc.

10 (1) Subject to subsection 10.1(1), the Minister may revoke a person’s citizenship or renunciation of citizenship if the Minister is satisfied on a balance of probabilities that the person has obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances.

Worse yet, in the case for many of the 219 New Can/Xun “Sunny” Wang clients who fall under the fake employment to achieve PR category, if the false representation, fraud, or knowingly concealing material circumstances occurred in the context of obtaining permanent residence, the individual could fall under section 10.2 of the Citizenship Act. Under this section, the revocation proceedings could revert their status to foreign national.

Presumption

10.2 For the purposes of subsections 10(1) and 10.1(1), a person has obtained or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances if the person became a permanent resident, within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, by false representation or fraud or by knowingly concealing material circumstances and, because of having acquired that status, the person subsequently obtained or resumed citizenship.

2014, c. 22, s. 8.

Marginal note:Effect of revocation

10.3 A person whose citizenship is revoked under subsection 10(2) or paragraph 10.1(3)(b) becomes a foreign national within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.

2014, c. 22, s. 8.

At that stage, s.40 (of the Immigration and Refugee Protections Act [IRPA]) misrepresentation could be initiated, for which a foreign national would have no right of appeal to the Immigration Appeal Division pursuant to s.64 and s.65 IRPA. Misrepresentation, if confirmed by the Immigration Division, would then lead to an exclusion and a five-year bar on entry and re-applying for permanent residence. Dependent family members (sponsored by the misrepresenting party) would also be caught by that provision rendering them inadmissible as well.

Expect Some Delay in these Cases

Putting my predictive lens on, I think that there will be some delay in IRCC pursuing those 219 cases. Currently, there is class-action litigation being launched by Lorne Waldman, BCCLA, et. al to challenge the constitutionality of the citizenship revocation process under the Strengthening Canadian Citizenship Act that was introduced under the Conservative government. Cases that are added to that class action litigation are being stayed by the Federal Court pending resolution of the legal questions. These questions, focused on claims that the revocation process violates s.7 of the Charter, will likely go up to the Supreme Court, it could be several years before those cases are finally decided.

Specifically, the revocation process is being challenged as summarized in Monla v. Canada (Citizenship and Immigration), 2016 FC 44 (CanLII) by Justice Zinn:

[79] In each of the Initial Revocation Judicial Review Applications, it is alleged that the revocation procedure provided for in the Amended Act violates the rights to liberty and security of the person in section 7 of the Charter, and the right to a fair hearing under paragraph 2(e) of the Bill of Rights. These claims are premised on the fact that the citizenship revocation process under the Amended Act does not require that the Minister to disclose to the affected person all relevant information in his possession, does not provide the affected person with a hearing before an independent and impartial decision-maker, and does not guarantee an oral hearing in all circumstances where it is required.

It is important to note that the Government did not amend the revocation process in Bill C-6, and I do not think that new government legislation changing the Citizenship revocation process is likely.

As it currently stands, those individuals if issued revocation intention notices by the Government would likely join in on the class-action litigation.

Pursuant to the Monla stay order, any case added to the class action will result in the Minister being enjoined from taking steps to act on notices to revoke Citizenship. This is set out in British Columbia Civil Liberties Association v. Canada (Citizenship and Immigration), 2016 FC 1223 (CanLII).

[5] By Order dated January 19, 2016 [the Monla Stay Order], the Court enjoined the Minister from taking any steps or proceedings under the notice to revoke citizenship in eight specific applications for leave and judicial review until they are finally determined.

[6] Following a case-management conference held February 5, 2016, with respect to the Group 2 Revocation Judicial Review Applications, the Court issued an Order dated February 23, 2016, that effectively enjoined the Minister from taking any steps to act on any future notices to revoke citizenship provided the affected person brought an application for judicial review of that decision [the Case-management Order]. Paragraph 3 of the Case-management Order provided as follows:

The Minister shall take no steps or proceedings under a notice to revoke Canadian citizenship issued under the Citizenship Act as amended by the Strengthening Canadian Citizenship Act relating to an application for judicial review that is now or in the future included in the Group 2 Revocation Judicial Review Applications, until notice is provided to the applicant and the Common Legal Issues have been litigated on the basis of the Lead Cases have been finally determined.

However, failure to join the class action case can be detrimental to an Applicant who seeks to make similar arguments (abuse of process, s.7 Charter) at this stage.

In Chabanov v. Canada (Citizenship and Immigration), 2017 FC 73 (CanLII), Justice Strickland upheld the Minister’s decision to revoke the citizenship of an individual who was found to have obtained permanent residence status, and subsequently Canadian citizenship, by false representation, fraud, or by knowingly concealing material circumstances. In Chabanov, the Applicant did not declare a previous criminal record when applying for permanent residence of his dependent spouse, the principal applicant.

Justice Strickland set out early in his observation the following:

Preliminary Observation

[28] In other, unrelated proceedings, the Revised Citizenship Act revocation process has been challenged on a number of grounds, including that it violates the Canadian Charter of Rights and Freedoms (“Charter”). Eight of those challenges were heard together in Abdulla Ahmad Hassouna v Minister of Citizenship and Immigration (T-1584-15) on November 15, 2016, however, a decision has not yet been rendered in that matter. In view of the challenges, this Court has also been proactively case managing applications for judicial review commenced by applicants who have received notices of intent to revoke citizenship under the Revised Citizenship Act, including the issuance of stays in certain circumstances. In this case, citizenship was revoked pursuant to the procedure contained in the Revised Citizenship Act and prior to the filing of the application to review the revocation decision. As the Applicant in this matter did not seek a stay, the matter proceeded (Monla v Canada (Citizenship and Immigration), 2016 FC 44 (CanLII); British Columbia Civil Liberties Association v Canada (Citizenship and Immigration), 2016 FC 1223 (CanLII)).

It is important to note however that in the same British Columbia Civil Liberties Association v Canada (Citizenship and Immigration), 2016 FC 1223 (CanLII)) that I cited from earlier above, Justice Zinn refused to issue an interlocutory Order staying the operation of subsection 10(1) of the Citizenship Act. The BCCLA had sought this order for the purposes of assisting those who had received a notice of intent to revoke citizenship and who did not commence an application for judicial review “either because they lack the knowledge, resources or skills needed to retain counsel.”

The order was barred in large part it appears from the fact the stay in Monla granted a way to avoid harm. Irreparable Harm is part of the tripartite test for a Stay.

Justice Zinn wrote:

[25] Because the harm that may follow receipt of a Notice of Intent to Revoke Citizenship is now an avoidable harm, injunctive relief is not available and these motions must be dismissed.

Justice Martineau upheld a similar line of reasoning in a recent November 2016 decision in Al Madani v. Canada (Immigration, Refugees, and Citizenship), 2016 FC 1263 (CanLII) where he dismissed a stay.

Ultimately, in the New Can group of cases should be prepared to receive IRCC’s notice of intention to revoke and add themselves to the list of those cases where stays are being sought.

It does seem nonsensical, from a practitioners standpoint, that an individual who misrepresented and obtained permanent residence but not citizenship (who has the […]

Feb 18, 2017

An Immigrant Experience Sublog by Katherine Akladios

Are We As Tolerant As We seem?

Adrienne Clarkson wrote a compelling article addressing an important issue in Canadian culture: we are not immune to racism. In an address made at a citizenship ceremony at Rideau Hall, Clarkson addresses the racist initiatives historically put forth by the Canadian government. Clarkson also discusses the growing issue that stems from our proximity to the United States and the problematic rhetoric surrounding it.

The recent attack on the Quebec mosque has appalled Canadians nationwide, yet has also forced Canadians to questions a fundamental value of our culture: are we as tolerant as we believe?

As a UBC student, my immediate community of academics and students promote tolerance of all cultures. In my experience, intolerance of different ethnicities or sexual orientations is considered socially taboo and thus hateful rhetoric is not commonplace. However my socio-cultural understanding is simply a reflection of my social surroundings and is in no way reflection of the ‘Canadian’ social climate.

Canadians residing in tolerant communities must recognize the multiplicity of views within our country. It would be problematic to suggest that racist ideologies are not held by Canadians and furthermore ignoring our countries historically racist legislation.

I hope that Canadians began to think critically about the necessary steps in combatting systematic racism. By recognizing the variety of views held in our country and creating dialogue around this topic, we are choosing to acknowledge our past and beginning to create a future where all cultures are tolerated.

Feb 18, 2017

Inside the Migrant's Mind - Poetry and Love

What Her Weathered Eyes Tell Me – A Poem

Her weathered eyes tell me she’s seen some things;
Her neatly knitted red hat each stitch each seam;
She speaks not it seems in complex phrases;
She could have been here three decades but to you she’s the same as;
That Chang that Chong, too many Wong’s its wrong;
Like her only place at the table should be slurping Wontons at Hons;
You worry about your own backyard, call her the product of an invasion;
You paint her with the same brush, like all calligraphy must be Asian;
She wants nothing more than to say hello and have you smile back:
She tired of you saying go home, like she’s a pre-1960’s black;
Her wrinkled hands washing white rice, but to you it’s crack;
But she ain’t going nowhere, homie I’mma assure you of that.

Cause her nose has smelled the burning of bodies on the street;
She’s been through so many medical treatments, she’s immune to all disease;
She knows the games you playing when you raise up all your fees;
She’s dealt with enough shit, from fleas to trynna flee;
She doesn’t need you debating whether she still a refugee;
All she needs is you to tell her that her presence fills a need;
That her picking up your cans, truly helping clean our streets;

You might never know her name, but her story can’t be washed away;
She’ll wake up every morning, cause every morning it’s the same;
Maybe for a minute stop and say how goes your day;
Cause tomorrow when she doesn’t show up for work, you’ll be regretting what you didn’t say.

“You are my family. Thank you.”

Feb 18, 2017

Inside the Migrant's Mind - Poetry and Love

Inside the Migrant’s Mind – Official Label Launch

I am proud to officially launch my new label – IMM (Inside the Migrant’s Mind). For many of us Canadian immigration starts with an IMM form. We are proverbial monarch butterflies. Our migrations around the world form the greatest natural phenomenon on earth.

Stay tuned as we explore the poetic power of our immigrant pasts, stories of love for our past and hope for our future.

With Meraki.

Will

Feb 16, 2017

Canadian Immigration Law Blog

Verifying Departure from Canada and Preventing a Deemed Deportation – There Must Be a Better Way to Do It

Canada is in the midst of finalizing preclearance agreements and exit control that will, in my opinion, be a game-changer for immigration.

Such a system, if implemented correctly, would make Canada Border Services Agency’s (“CBSA”) ICES Travel History reports more comprehensive and accurate. Individuals who do not meet the residency requirement would be held accountable for their dates abroad rather than hide behind the veil of uncertainty and passport stamps. Litigation over the exact number of days spent abroad will become a thing of the past. Ideally, as it is in many countries, a check in with CBSA would occur exist on the way out, allowing individuals who require it, to verify their departure in the context of a removal order.

The Procedure

In the interim, however, there is a huge gap that I think needs to be fixed with respect to departure orders, which are considered the low scale of departures from Canada.

As it stands, when an individual is issued a departure order from inside Canada (for example after an Immigration Appeal Division decision that the individual has not meet their residency obligation or met the threshold for discretionary relief), that individual has to meet with a removals officer at Canada Border Services Agency and provide documentation that allows for a Certificate of Departure (“IMM0056B” or “56” at CBSA commonly refers to it) to be issued. This “enforces” the removal order.

Without getting a 56, an individual, even if they voluntarily leave, has not complied with the requirement for voluntary compliance if they do not arrange a meeting with CBSA and get issued a 56. Their removal order is unenforced (R.240 IRPR). This has even occurred in cases where an individual checks in at the POE with CBSA, although ENF-11 Verifying Departures expressly states that an Officer should enforce a departure order.

As a consequence, if the individual has left Canada prior to the final decision or the decision is rendered on the same day the individual happens to be traveling, is they are effectively declared to have not voluntarily complied and can do nothing to keep their departure order from deeming into a departure order per R. 224(2) of the Immigration and Refugees Protections Regulations.

Pursuant to R.224(2) of the Immigration and Refugee Protections Regulations a departure order verified at a visa office outside Canada, regardless of whether within or beyond the 30-day applicable period, must be enforced as a deportation order.

The 56 can be only issued after an application for an Authorization to Return to Canada (“ARC”) which now must accompany any future application to return to Canada.

There are occasional exceptions that are granted for individuals (usually in the context of accompanying family members to principal applicants) to report their departure. However, these appear to be granted on a case-by-case basis.

My Thoughts

I entirely understand and respect CBSA’s need to facilitate the removal order process. However, I think it creates an incongruity where the punishment does not fit the crime.

Individuals that challenge their departure order for residency non-compliance, in a majority of cases where there is a valid legal basis for doing so, are challenging on some sort of humanitarian and compassionate ground. Often times, this is an ill family member or presence of some compelling reason to be outside Canada. Sometimes these events meet the threshold for discretionary relief, other times they don’t. Still, I would submit that on the scope of immigration non-compliance, failure for a permanent resident, to meet their residency obligation is relatively low. Indeed, in many decisions, IAD panel members comment that there is no hardship in the individual returning as a visitor on a multiple-entry TRV.

To issue these individuals a deportation order is, in my mind, too harsh. This is particularly the case where it is entirely uncertain how long a decision will take to render. This is not in the control of the individual seeking to voluntarily comply. Indeed, some individuals who have a feeling that their appeal will be dismissed will need to take steps to facilitate return to their home countries. I don’t think this needs to be discouraged, per se.

I think, with a little coordination from CBSA and IRCC, there could be a secure, collaborative process for an individual to prove that they left Canada voluntarily pursuant to a departure order. A one week window (for example) could also be established to allow the individual to return to Canada on their permanent resident card and formally sign away their permanent residency upon entry. More Officers overseas could be provided delegated authority to sign off on paper work.

It is my hope, again, that exit controls and pre-clearance or perhaps written direction provided to all applicants about the consequences or requirements around leaving before a hearing is over, can be provided. I don’t think the end (deportation order) are justified by the means in these situations. We can do better.

Feb 2, 2017

Canadian Immigration Law Blog

International Students – My Latest NCM Piece and the Pre-Edited (Elongated) Version

For those that have been following my work over the past two years, international students (and graduates) have become a huge part of my practice. Through my work I have gotten to speak to hundreds of international students about their experiences and their struggles. With my own wife now an international student, I see the challenges on a day-to-day basis.

I wrote this piece for New Canadian Media because I felt the stories of international students were not being told. The last thing any of them would do is contact media and many, before we pursue federal court to fight their refusals, always worry about their record and their future in Canada. They have told me about their episodes of depression, lack of support, few friends, and frankly it’s a devastating story. This has been compounded by media constantly citing international students for a multitude of societal ills. Most of these ills, I humbly submit are the fault of our entire society of which international students are just a subset.

Check out my piece here —http://www.newcanadianmedia.ca/item/40286-listening-to-our-international-students-listening-to-our-international-students

Limited by space, and edited, I left out a lot of things in the final piece for NCM which was well-edited by their Team. I wanted to put the original version below (raw, uncut, with no headings) so you can see some of my thoughts in more fuller form.

Why Canada Needs to Do More to Protect International Students

Over the past year, Canada’s 400,000+ international students, particularly those in major metropolitan cities such as Toronto and Vancouver, have been subject to intense criticism. They have been blamed (directly and indirectly) for being a major contributor to such social ailments as overheated rental markets, unaffordable home ownership, abuse of public services, cheating, and unsafe roads (just to name a few).

A bulk of these criticisms are focused, as understandably Canada is only recovering from her post-census statistical dark period, on what we can label as anecdotal accounts. These accounts come from professors who study and interview as part of their work and anonymous, retired institutional instructors who can now share stories with no need to self-censor. These accounts come from positions of privilege.

There is no reason to doubt the credibility of these individuals and experts or deny that international students, just like all young Canadian students regardless of citizenship, probably in some way contribute to the social challenges we are dealing with. Indeed, by issuing them visas, they become guests at our proverbial dinner party.

However, what bothers me, as the product of an immigrant who came as a Canada international student in the late 80’s and as someone who is now married to an international student, is that this ‘blame narrative’ is just one side of the story. In drawing many of our conclusions, we have not been good listeners of international students. In fact, we generally have silenced their perspectives and ignored their challenges.

To begin, it is easy to forget, with every news story attaching immigration status to the identity of the wrong, that the majority of Canadian international students are bona fide, meaning they are compliant with rules and regulations. In 2014, when it was estimated by the Canadian Bureau of International Education there were around 336,000 students, Citizenship and Immigration Canada (as it then was called) estimated that there were 20,000 students at high-risk of non-compliance. This accounts for only about 6% of all students admitted into Canada. One would never guess this by reading mainstream media accounts.

Next, it is important to sit down and listen to the challenges of international students and share their stories as well. I believe this task is incumbent on my journalist friends to take on, which I hope this piece will stir. In my legal work advising international students on their immigration matters, I have had the opportunity to become trusted advisor and hear these stories. From first hand experience, I can tell you it takes work for them to share with me their stories in their own native language, let alone share with their own family members and counsellors and teachers in their non-native language.

From my work, I have noted the major barriers faced by international students as follows:

First, Canada’s own immigration policies have made it difficult for international students. On the front end, the financial requirements on international students are prohibitive, in many cases. Students generally need to show one year of international tuition (usually four times domestic tuition), funds for room and board, and at least CDN 10,000 additional dollars per applicant (and accompanying family member) just to be approved for study permits. Many of the world’s best, those with the stories of growing up in abject poverty and studying by candlelight, realistically can only study in Canada if they are given a full-ride scholarship to do so. By focusing the attention on what amount to ‘wealthy students,’ the fact that some of these students come with no motivation to study cannot be of no surprise. If we genuinely want better quality students with long-term intentions of becoming Canadian permanent residents and Citizens, Canadian immigration should provide more pathways for these prospective world-class students.

Once a student is here, Canada currently has a restrictive requirement that students ‘actively-pursue studies.’ While I believe the initial intentions of the regulatory changes were good, in practice it has hamstrung international students and in an alarming number of cases has even led to the removal of students from Canada. Educational institutions now have two-tiered policies, where international students are subject to what I believe is excessive (and costly) monitoring and reporting requirements with Immigration, Refugees and Citizenship Canada. Depending on the institution, international students have to take certain number of courses and maintain a certain attendance rate, while domestic students do not.

I entirely disagree with this two-tier system. I believe in substantive equality for all students and I think that equal treatment is in line with Canadian values. I often use the example of my own undergraduate studies, where I took an economic history course. Due to my intense course schedule that year I went to three classes all semester – one to get the syllabus, one to hand in the term paper, and one to write the final exam. With my 5% attendance record in the course, if I were an international student, I would likely have been kicked out and possibly expelled or removed from Canada. Students with family emergencies, mental health episodes, or who simply want to explore a different area are left helpless by restrictive and, ultimately, unclear policies.

Finally, once nearing graduation, eligibility to continue in Canada and obtain a post-graduate work permit for which permanent residency in almost all cases depends on, is tied to the individual’s past ‘full-time and continuous’ study. The way these Regulations work make it imperative for the international student to have remain enrolled at all times. Students with financial difficulties, who do poorly and fail classes, or who simply have been to different institutions and in different programs trying to figure out their pathway often face challenges at this stage.

Second, there are major societal barriers against international students. I have worked with many international student advisors who have told me anecdotal stories of students breaking down in their advising sessions as a result of mental health issues. Without family and often adequate knowledge to seek professional help, these students are particularly vulnerable. A common theme from students that have seen me is that they are receiving poor academic support services and have even been subject to discrimination due to their country of origin and their inability to speak English fluently. I think all Canadian institutions need to do more to make their faculty more diverse, and their student services more culturally sensitive and accessible to those dealing with the challenges of being temporary immigrants to Canada.

Finally, and it has to be acknowledged, there there is an underbelly of poor, and in some cases fraudulent, third-party services to international students. Many of these purported advisors are untrained and unqualified educational consultants and agents, many of whom operate abroad without any regulation or in Canada with little care or attention paid by regulating bodies to their practices. They charge exorbitant fees, often keep international students entirely in the dark, and structure their arrangements so students assume and absorb all the risk. International students, especially when in desperate situations and without family or friends to assist them, find themselves trapped in cash schemes. These advisors are paid by the institutions and potential employers to set the students up, without full disclosure to their client, the student. Inevitably, if not now than later on, these students find themselves in situations akin to fraud or misrepresentation, for which there are severe criminal and immigration consequences.

Regardless of the economic questions and the political questions raised by student immigration, we must not forget that these students need to be represented in the decision-making process. We have seen as an example down south, what happens when immigration law is mandated by public opinion, fear, and top-down orders.

If we continue down this path of blaming and not accommodating, I foresee only increased fracturing within our already fragile mosaic.

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Letting your relationship guide your immigration, not your immigration guide your relationship – advice for international students

List of Post-Graduate Work Permit (PGWP) Eligible Schools in Alberta

Trying to Understand the Media’s Obsession with Vilifying Some Canadian Immigrant Communities

Nazism in Berlin: Is It Still Relevant?

Takeaways from CBA National Immigration Conference – Pt. 1 – IRCC’s Increased Focus on the “Client Experience”

Tracing My Mainland Chinese Roots to Chinatown: A Personal Narrative

How to address the dreaded “Probability of Success”? – From a Client and Advisor Perspective

New Commentary on the End of Conditional PR for New Canadian Media!

Why Canada’s Punishment for Inadmissibility for Misrepresentation Needs to Be Both Tougher and Softer

1. Misrepresentation

Increase consequences for misrepresentation

Application

Marginal note:Inadmissible

Being Careful About PR Card Extension Applications – Five Common Frauds/Misconceptions

Inspiration from the Kid’s Room on an Executive Retreat

Responding to IRCC Procedural Fairness Letters – A Few Practical Tips

New Can/Xun (Sunny) Wang and the Citizenship Revocation Process

Revocation by Minister — fraud, false representation, etc.

Presumption

Marginal note:Effect of revocation

Preliminary Observation

Are We As Tolerant As We seem?

What Her Weathered Eyes Tell Me – A Poem

Inside the Migrant’s Mind – Official Label Launch

Verifying Departure from Canada and Preventing a Deemed Deportation – There Must Be a Better Way to Do It

International Students – My Latest NCM Piece and the Pre-Edited (Elongated) Version

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Recent Blog Posts

1. Misrepresentation

Increase consequences for misrepresentation

Application

Marginal note:Inadmissible

Revocation by Minister — fraud, false representation, etc.

Presumption

Marginal note:Effect of revocation

Preliminary Observation

About Us

Recent Posts

Categories

Tags

Let’s Get in Touch

About Me

Contact