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Feb 4, 2016

Canadian Immigration Law Blog

New LMIA Exemption for Film/TV Production Workers and the Pathway to Permanent Residency

As of February 17, 2016 CIC (now “IRCC”) will open up a new exemption to the Labour Market Impact Assessment (“LMIA”) requirement which should open up Canada’s television and film production industry to select temporary foreign workers (“TFWs”).

It appears from the program delivery instruction provided by IRCC (here) that this exemption is aimed at bigger name productions. These are as the instructions put it “high value TV and film productions” that are “considered to create and maintain significant economic benefits and opportunities for Canadians and permanent residents.”

Importantly, and stepping outside the restrictive barriers that were previously provided by co-production treaty agreements, these films can be both foreign or Canadian and there is no requirement as to the portion which the TV or film is actually filmed in Canada. The workers are expected to be high wage, which in British Columbia is defined as earning more than $22/hr.

There appear to be two major stakeholders that will essentially define the success for the TFW’s work permit application on the basis of this LMIA exemption – the production company and the union/guild that the TFW is part of.

The production companies will need to provide a letter of support, setting out information about the production, shooting location, and a confirmation that the individual and position are vital to the production. They will need to detail the significant economic benefit to Canada of the TV or film production itself – including the number of Canadian jobs created, the budget spent in Canada, and also a statement confirming that the project satisfies the criteria for federal/provincial/territorial tax credits for funding.

The union/guild will similarly need to provide a letter describing the union guild, providing information about the production, the name of the applicant, and a statement confirming that the union is of the view that the work being performed is subject to a collective agreement and that they have no objection to the work by the Temporary Foreign Worker.

IRCC states that the work permit validity will be the earlier of the end of the expected production (give or take additional time granted by immigration officers for re-entry/re-filming) or the expiry of the Applicant’s travel document (i.e. passport).

Planning the Pathway to Permanent Residence

From my initial research and discussion with unions and individuals in the industry, for most TV and film crew members who want to have a longer-term establishment in the Canadian job market, permanent residency will eventually be an important step. Hiring in TV and film in Canada is highly dependent on the backend tax credits and benefits the producer can expect to receive. Those credits and benefits are often dependent on the residency and status of the crew involved in the production.

That being said, it is very possible to transfer from a TFW to permanent residency while preserving one’s working career in TV and film in Canada. This is important as I understand the film and tv industry to be unforgiving to employment gaps that can often be created through immigration processes.

I think the following are useful factors to note.

Contrary to public opinion, unions and guilds do not all have Canadian permanent resident requirements and those that do, often have soft requirements. Particularly where the union is in high demand for members and have a shortage in a specific position, they may be able to bend the requirements. I know that some unions operate on a tax resident or demonstrated permanent intention threshold for membership rather than a strict legal status requirement. Unions appear more focused on the Applicant’s background and expertise in the particular role they are seeking membership in (subject to any collective agreement stating otherwise).

With union membership secured, the question then becomes finding jobs with a tax credit/funded position. Again, it is not true that all workers must necessarily be Canadian permanent residents of citizens to qualify for tax credits. For example, Canadian producers can claim Film Incentive B.C. (“FIBC”) tax credits for what is called B.C. Labour. B.C. Labour is defined strictly in terms of tax, rather than legal residency.

“The individual must be resident in BC and ordinarily resident in Cnaada as of 31 December of the year preceding the end of the fiscal year for which the tax credit is being claimed… “Paying tax in BC in the previous calendar year is a good indicator but is not necessarily the determining factor that the individual is a resident of BC for the purposes of the tax credit”

However, for several of the federal tax credits such as the Canadian Audio-Visual Certification Office (CAVCO)’s Canadian Film or Video Production Tax Credit (CPTC), a strict legal definition of Canadian residency is adopted. CPTC operates on a detailed point system (that I won’t get into in this post), but it requires that certain key positions are filled by Canadian permanent residents or citizens in order for credits to be granted.

With respect to producer-related or key creative personnel for a production, the term “Canadian” is defined as a person who is, at all relevant times, a Canadian citizen as defined in the Citizenship Act, or a permanent resident as defined in the Immigration and Refugee Protection Act. The person must be Canadian during the entire time he or she performs any duties in relation to the production.

I’m a TFW. Where is the starting point?

For a foreign national looking to come to Canada to work in TV and Film Production with a future intention to be a permanent resident, it may be useful to take advantage of the new LMIA exemption. Work experience in Canada will often times begin the immigration process by providing temporary Canadian work experience that will directly assist or springboard into options for permanent residency. For example, LMIA-exempt work permit holders have various options to obtain LMIAs in support for permanent residency, Provincial Nominations, and/or may even be able to qualify for permanent residence solely on the basis of their foreign (and now Canadian) work experience.

Realistically, this LMIA exemption appears to be limited to major productions with significant Canadian benefit in terms of jobs and expected revenue. For those currently working in smaller/non-funded productions, and where the union process and the type of productions are not available, it may be useful to use the wonderful film/media education available in Canada as a bridge.

Ultimately, the complexity of issues such as tax, funding, and unions certainly will create the need for unique immigration and work permit strategies for TV and film workers hoping to seek long-term employer and residency in Canada.

Jan 25, 2016

CIW Post #3 – Not All Trade Agreements Treat Professionals the Same

We’re extending the CIW (Corporate Immigration Week) to the end of the month!

R. 204(a), of the Immigration and Refugee Protection Regulations (“IRPR”) provide certain Professionals exemptions from the onerous Labour Market Impact Assessment (“LMIA”) process.

Whether a Professional qualifies depends on the specific Trade Agreement Canada has entered into and the terms of the Trade Agreement. Each Trade Agreement has it’s own unique textual nuance that can have quite dramatic effects in whether the exemption can practically apply.

In this piece, we will look at the North-American Free Trade Agreement (“NAFTA”), Canada-Columbia Free Trade Agreement (“CCFTA”), Canada-Korea Free Trade Agreement (“CKFTA”), and the soon-to-be signed/may be ratified Trans-Pacific Partnership (“TPP”).

NAFTA

Under NAFTA, a party shall grant temporary entry to a business person seeking to engage in a business activity at a professional level in a profession set out in Appendix 1603.D.1. Appendix 1603.D.1 contains around 63 different professions/subprofessions that qualify. Among the professions, lawyers are included. The Minimum Education Requirements and Alternative Credentials are listed in the chart – most requiring a Baccalaureate or Licenciatura Degree; or a post-secondary diploma/professional license depending on the profession.

It is also important to note that NAFTA does not specifically cover the spouses of Professionals but spouses of NAFTA Professionals, who by nature of their positions are in a Skilled National Occupation Classification (“NOC”) Code under NOC 0,A,B, are eligible for a open-work permits pursuant to R. 205(c)(ii), code C41.

CCFTA

Under the CCFTA, professionals are defined as follows:

professional means a national of a Party who is engaged in a specialty occupation requiring:

(a) theoretical and practical application of a body of specialized knowledge and the appropriate certification/license to practice; and

(b) attainment of a post-secondary degree in the specialty requiring four or more years of study, as a minimum for entry into the occupation;

CCFTA includes a list in Appendix 1203.D of the 19 occupations that are not included as professionals under the agreement. Several social sciences professions, in particular judges, lawyers, and notaries are excluded.

What sets the CCFTA apart is a seemingly minor footnote detail. It states under footnote 2 (attached to the definition of professional).

In the case of Canada, these requirements are defined in the NOC.

Unlike NAFTA, the CCFTA does not contain a table list of minimum educational requirements and alternative credentials. A CCFTA professional must meet and is guided by the NOC requirement.

For example, for Civil Engineers (NOC 2131) and Computer Engineers (NOC 2147), the NOC requires the following:

Licensing by a provincial or territorial association of professional engineers is required to approve engineering drawings and reports and to practise as a Professional Engineer (P.Eng.).

The contrast between CCFTA and NAFTA is strong in the sense that a Bachelors degree appears all that is needed for NAFTA’s qualifications while a provincial license appears necessary under the CCFTA for several required duties.

It is to be noted that the CCFTA does create an specific exemption (T25) for spouses of successful CCFTA work permit applicants, allowing them to obtain open work permits.

CKFTA

The CKFTA provides yet another different classification of professional. The CKFTA provides one general definition but also two-subcategories.

The general definition is:

professional means a national of a Party who is engaged in a specialty occupation as stated in Appendix 12-A-2 who is not engaged in the field of education; and

Specifically, professionals are split into two categories.

contract service supplier means an employee of an enterprise who is engaged in the supply of a contracted service as an employee of an enterprise. That enterprise has a service contract from an enterprise of the other Party, who is the final consumer of the service which is supplied. The contract and duration of stay shall comply with the domestic law of the other Party;

independent professional means a self-employed professional who seeks to engage, as part of a service contract granted by an enterprise or a service consumer of the other Party, in an activity at a professional level, provided that the person possesses the necessary education, or satisfies accreditation or licensing requirements as stipulated for the profession;

IRCC clarifies how the two different professionals are to be assessed:

Professionals (work permit required / LMIA exemption code T23)

The Canada-Korea FTA differentiates between two types of professional—the contract service supplier and the independent professional. Both must be requesting entry to provide a pre-arranged professional service and possess the necessary education, or satisfy accreditation or licensing requirements, as stipulated for the profession.

The following definitions apply:

contract service supplier means an employee of an enterprise who is engaged in the supply of a contracted service as an employee of an enterprise. That enterprise has a service contract from an enterprise of the other Party, who is the final consumer of the service which is supplied.

example: A Canadian high tech company contracts the services of a Korean firm to provide services in the field of engineering. An experienced software engineer employed by the Korean firm in Seoul seeks entry to Canada to provide the engineering services under the terms of the pre-arranged services contract.

independent professional means a self-employed professional who seeks to engage, as part of a service contract granted by an enterprise or a service consumer of the other Party, in an activity at a professional level.

example: A self-employed Korean management consultant seeks entry to Canada to provide services to a technology company under the terms of a pre-arranged contract.

Similar to the approach used in the NAFTA, the Canada-Korea FTA uses a positive listing of professionals (set out in Appendix 12-A-2), however, it is divided between Contract Service Suppliers and Independent Professionals, as coverage in each category differs.

This provision is quite unique as it suggests that a Korean national cannot be employed (as an employee) by the Canadian entity but rather either has to be an independent contractor OR an employee of the Korean entity that has contracted with a Canadian entity.

In effect, for several Koreans seeking to use this exemption as a temporary bridge to future permanent residency options and who may previously or continue to work for a Canadian employer, they would necessarily need to reformulate their employment contracts.

It is to be noted that CKFTA does create an exemption (T25) for spouses of successful CKFTA work permit applicants, allowing them to obtain open work permits.

TPP

Canada’s commitments under the TPP with respect to Professionals shows a tightening up of the category. The scope of the TPP’s extension of R.204(a) LMIA exempt work permits is enormous. It covers countries including Australia, Brunei, Chile, Japan, Malaysia, Mexico, and Peru . While there are several industry restrictions for each of these countries, I expect the effect of TPP on the foreign worker landscape in Canada will still be pronounced.

For example, an Australian national who obtains a Canadian Bachelors degree graduating at the age of 21 arguably could theoretically (assuming no application of the four-year cap) apply for a post-graduate work permit (up to 3 yrs), the working holiday/young professionals plus international co-op (up to 3 years), and the TPP (1 year initially) for a combined 7-years of employment in Canada without the need for a LMIA or an Application for Permanent Residency.

Understandably, the restrictions on the professionals are tighter than they are for NAFTA, CCFTA, and the CKFTA aookucabts. For starters, the initial work permit is to be issued for one rather than two years. Importantly, the definition of professional is also stricter:

professionals means business persons engaged in a specialty occupation requiring:

(a) theoretical and practical application of a body of specialized knowledge; and

(b) a post-secondary degree of four or more years of study, unless otherwise provided in this schedule, and any additional requirement defined in the National Occupation Classification, and

(c) two years of paid work experience in the sector of activity of the contract, and

(d) remuneration at a level commensurate with other similarly-qualified professionals within the industry in the region where the work is performed. Such remuneration shall be deemed to not include non-monetary elements such as, inter alia, housing costs and travel expenses.

In addition to the CCFTA’s requirement that the NOC requirements also be met. There is also a requirement for two years of paid work experience in the sector and remuneration at a commensurate level (which I expect would be prevailing wage as per Job Bank). This exemption will be very difficult for a transitioning post-graduate work permit holder to meet so expect it mainly to be used for senior employees/contractors unless the provision changes.

Conclusion

NAFTA, CCFTA, CKFTA, and the pending TPP all provide very interesting insight into the nuances but important differences in each Trade Agreement and how they affect immigration options.

I would be happy to assist any individual from any of the Trade Agreement countries in figuring out how an LMIA exemption can be used for them either in a primary or secondary role to support work/future permanent residency ambitions in Canada.

Jan 19, 2016

Canadian Immigration Law Blog

CIW Post #1: “National Occupation Classification Code – Challenges and Opportunities”

The National Occupational Classification code, more commonly referred to as the “NOC code” is under a whole lot of scrutiny these days.

In fact, one of the more aggressive recommendations of the Canadian Chamber of Commerce’s Report “Immigration for a Competitive Canada: Why High Skilled International Talent Is at Risk” is for Canada to consider abandoning NOC code classifications altogether. The report writes:

“Remove the NOC code requirement wherever feasible in order to recognize the changing nature of occupations and to avoid confusion and unnecessary and costly errors by government officials”

Let’s take this post to look at the NOC, the spin-off issue of Employment Reference Letters/Offers of Employment, and see how it all plays in together.

What is the NOC Code?

Citizenship and Immigration Canada (“CIC”) explains it best on their website, so I will quote their explanation below:

The NOC is a system used by the Government of Canada to classify jobs (occupations). Jobs are grouped based on the type of work a person does and the types of job duties.

Many of Canada’s immigration programs use it to decide if a job, or type of work experience, is valid for that program’s criteria. For instance, if a person wants to apply as a skilled worker they should check the NOC to see which jobs are considered “skilled” (NOC Skill Type 0 or Skill Level A or B). Find your job title, code and skill level or type.

The job information is broken down into a number of groups. For immigration purposes, the main groups are:

Skill Type 0 (zero) – management jobs.
- examples: restaurant managers, mine managers, shore captains (fishing)
Skill Level A — professional jobs. People usually need a degree from a university for these jobs.
- examples: doctors, dentists, architects
Skill Level B — technical jobs and skilled trades. People usually need a college diploma or to train as an apprentice to do these jobs.
- examples: chefs, electricians, plumbers
Skill Level C — intermediate jobs. These jobs usually need high school and/or job-specific training.
- examples: long-haul truck drivers, butchers, food and beverage servers
Skill Level D — labour jobs. On-the-job training is usually given.
- examples: cleaning staff, oil field workers, fruit pickers

The end-game importance of the NOC Code is it currently stands as the gatekeeper for applicants that are able to qualify for economic immigration to Canada through Express Entry. Both federally and provincially, there very limited economic immigration options for low-skilled workers. In the temporary foreign worker context, NOC Codes help facilitate whether an applicant is able to get a work permit for their desired position.

What are the practical challenges of NOC?

There are several challenges with the NOC code.

First, it can be often difficult to figure out what one’s position is considered under the NOC and to figure out the right code. The NOC is segmented into distinct industries, many of which have since transformed or have taken on a cross-sector hybrid nature particularly in the last few years. The most up-to-date NOC code is dated 2011.

Furthermore, several jobs are what I consider “tweeners.” For example, NOC creates separate categories for Administrative Assistants (NOC 1241), Legal Assistants (NOC 1242), and Receptionists (NOC 1414). As the correct NOC is not assigned by title, but by the duties performed, it is easy to see substantial overlap particularly in smaller businesses where individuals play several roles. As mentioned earlier, this is important as both Administrative Assistants and Legal Assistant qualify as skilled workers for Express Entry whereas Receptionists do not.

Second, once the correct code is chosen, wage/salary becomes an important issue. This can poke its head in several places. When hiring a temporary foreign worker (“TFW”) through the Labour Market Impact Assessment (“LMIA”) process, the wage offered to the TFW must be above prevailing wage and will be looked very carefully by Service Canada/Employment and Skills Development Canada (“ESDC”) when deciding whether or not to grant the LMIA. Employers are also held to ensuring they remunerate the employee/contractor substantially the same (“STS”) as a Canadian worker duration the duration of the LMIA opinion validity. The NOC code and the wages an individual working under the NOC code in a particular region should earn is also therefore also a system constraint.

Particularly where several applicants for permanent residency under the Express Entry program now need an LMIA to increase their Comprehensive Ranking Score (“CRS”) for selection, wage becomes a very important issue.

Under the International Mobility Program (“IMP”), while several of the LMIA exemptions do not specify the need to offer a certain wage, it is certainly a factor taken into account when assessing the genuineness of the job offer. Prevailing wage does play an important role in specialized knowledge for foreign nationals applying for a work permit as a Specialized Knowledge Intra-Company Transferee.

The Federal Skilled Worker (“FSW”) Program, as set out in the Immigration and Refugee Protection Regulations (“IRPR”) makes wages one of the determinative factors in proving the skilled nature of one’s qualifying work.

The Federal Court in Qin v. Canada (Citizenship and Immigration) 2013 FC 147 have said it is entirely reasonable for an Officer to consider wage as a factor for a Canadian Experience Class (“CEC”) applicant even where it is not a factor listed in IRPR.

As of the date of this piece, and utilizing the above examples, the prevailing wage for a receptionist in the Lower Mainland is $15.87/hr, for an secretary (i.e admin assistant), it is $21.73/hr, and for a legal assistant it is $27.47/hr. You can see where wage discrepancy can create issues.

Third, the ultimate confusion between NOC 2006 and NOC 2011 continues to rear its head in various application processes. For example, the NOC code relied upon by the British Columbia Provincial Nominee Program is the NOC 2011, while for the LMIA process, the NOC 2006 code is still being relied upon. Several of the codes, and reflective of the labour market 10 years ago, have changed along with the corresponding duties. Many argue that having NOC codes so far back-dated make the system out of touch with reality.

Why even have a NOC?

Another anonymous employer, cited in the Canadian Chambers Report, put forth an interesting statement. I quote:

“Why do we even have the NOC codes?” asks an employer, who suggests looking at the way Australia and the U.K. are operating using a minimum salary level approach. “How simple would that be to get rid of.”

I would put forth that without the NOC, the foreign worker system (and by extension permanent residence system) in Canada would be open to abuse. I have not yet studied the U.K./Australian processes but that is my first impression.

Minimum wage, as a sole determinate factor of whether one qualifies for permanent residence, opens up the hiring process to what amounts to a bidding process. This also opens up the possibility of several schemes where a worker could be offered a high wage with a payback option down the road. It could also open up to hiring of friends and family, turning into a quasi-investor or sponsorship stream, of which there are clear legislated alternatives for. In short, in mind we need NOC to ensure that applicants are performing the tasks they are qualified for.

The Employment Reference Letter/Offer of Employment

Asides from the advertising process for an LMIA, which requires that the Employer set out a criteria consistent with the NOC when posting job ads, the employment reference letter/offer of employment is the second place where NOC is very prominent. These letters are used for almost all economic immigration processes. Importantly, under Express Entry, an individuals electronic Application for Permanent Residence (“eAPR”) which until that stage is all based on self-submitted evidence, requires letters confirming the duties, salary, hours, and benefits the foreign worker obtained. Those are eventually compared to the NOC to determine whether the foreign worker meets the eligibility requirements for the permanent residency program they are applying under.

Writing confirmation of employment letters after the fact come with distinct risks. Federal Court of Canada case law, recently in Seraj v. Canada (MCI) 2016 FC 38 where the court overturned an Officer’s misrepresentation finding, but made several statements suggesting an Officer can reasonably determine that an Employer’s letter in support of a worker is insufficient. Insufficiency can take several forms, as alluded to earlier. The wage can be incommensurate with the NOC, the duties could be incommensurate with the NOC, or generally there could be credibility issues with whether the individual actually performed the listed duties. In Ansari v. Canada (MCI) 2013 FC 849, Justice Kane found that it was reasonable for an officer to refuse a FSW application on the basis of an employer’s paraphrasing of the NOC description, the applicant’s CV, and application itself.

With this in mind, I encourage all my clients (both on the employer and employee side) to have a frank conversation about NOC, duties, and wages at the beginning. The employer needs to understand the employees trajectory to permanent residence and determine whether it can be supported.

Finally, I encourage both employees and employers to seek counsel should there be the lack of agreement on job duties or challenges posed by issues such as blended NOCs.

In an ideal situation, if the employer and employee are on the same page this can be done by the employer’s lawyer on a joint retainer with the employee.

However, both sides need to be aware of the possibility that there can be a dispute. Employers, in particular, need to determine whether the risk of personalizing a reference letter/offer of employment outweighs the possibility of outside scrutiny and internal audit. I know for a fact several major Canadian corporations do not permit individualized employment reference letters for this very reason.

Conclusion

Like it or noc (not), I think the NOC is here to stay. It certainly needs adapting, updating, perhaps even a new version every year. Applicants and employers will continue have challenges with putting forth evidence of NOC codes having been met by certain jobs. Better communication between employer, employee, and counsel is in my opinion the way around NOC challenges.

Jan 18, 2016

Canadian Immigration Law Blog

Corporate Immigration Week on VIB!

Friends/Followers:

This week, we will explore the world of Corporate Immigration both from the prospective of an Canadian employer looking to bring on international talent as well as a potential foreign national employee looking to see if the proposed Canadian employer is a good fit.

I don’t put myself out as an expert on these issues (although I hope for corporate immigration to become an increased part of my practice). Also, rather than provide practical tips or big-picture analysis, you will probably see more discussion on discrete/unique issues that I have come across recently. I will try, where possible, to point out where I would make changes to Canada’s current Temporary Foreign Worker Program (“TFWP”), International Mobility Program (“IMP”), and Economic Immigration Programs.

Focus on corporate/economic immigration right now comes at a good time. The Canadian Chamber of Commerce has released a damning report on the state of economic immigrants and foreign workers in Canada. Corporate Immigration has also taken a route to a human right context, with Mr. Muhammad Taimor Haseeb’s human rights complaint against Imperial Oil. Mr. Haseeb is represented by strong immigration counsel, in Chantal Tie, so expect that outside of discrimination this case will challenge the very institution of the foreign working hiring/Labour Market Impact Assessment process.

I look forward to writing some interesting pieces and look forward to feedback, particularly from some of the more expert practitioners in the field.

Jan 15, 2016

Canadian Immigration Law Blog

The Value of an Immigration Consultation – Important Considerations for Potential Clients

Recently, I have found in my practice an increase in the number of the paid consultations I am doing for potential clients, many of whom have chosen to stay on as long-term clients.

With that being said, I find that paid consultations in general are often misunderstood both from prospective clients searching for a representative and also from many representatives seeking to avoid the tiring process.

Particularly with the new technology age, and perhaps due to the availability of online resources, individuals are choosing either to seek help from other applicants/friends or blindly filling out online surveys and assessments in hope of getting virtual advice. Others are trying to shop around for bits and pieces of free advice from different practitioners. Simultaneously, I also find more and more firms, particularly new practitioners, are trying to utilize “free consultations” or “digital solutions” to try and hook in new clients as a way to differentiate their services.

So wherein lies the value of a paid consultation?

Value 1 of a Consultation: Knowing Who You Are Dealing With

The first value of an immigration consultation is you get to know who, in fact, you are dealing with and determine whether they are reliable enough to serve as your representative.

Several things should trigger concern when you are reaching out to a potential lawyer. Is the request handled by the front/desk office professionally? Do you have means to directly communicate with the lawyer/consultant prior to the meeting? Does the firm itself have a good reputation?

I have heard several cases of individuals being duped into expensive immigration (and even illegal/fraudulent) processes simply because they did not run a quick Google search or try and contact a human voice first before signing a service contract. Online advertising, technological gadgets can do wonders in giving the false impression that a company or an individual is a reputable, honest representative. However, without seeing a client-specific email, hearing a voice, or seeing a face, you can never be to sure. Also, practitioners who are leaders in the industry tend to have some sort of pull factor- either through articles they have written, blogs, or from very positive word of mouth referrals.

One of the things I encourage all potential applicants to do is send their prospective representative/firm an email inquiry about their immigration situation. You can do this in a way that still protects your privacy (note: I have seen too often prospective client send their personal info to individuals they have never heard from let alone received an email from).

See how the representative responds to your inquiry. Does the representative/an assistant to the representative contact you? How professional is their email? If I were a client I would be very hesitant if a prospective representative were to email me back with a generic copy and paste letter without any efforts to try and appreciate or understand my unique situation.

A big plus (and something I personally strive for) is to get information from the prospective client before I meet them. I think that a representative/lawyer who offers to take a few minutes of their own time to review your information before they see you saves valuable consultation time better spent on addressing the real issues.

Also, if you find yourself abroad without the ability to phone ask if you can consult by Skype/WeChat. A series of emails back in forth can be time-consuming for both the potential client and the potential representative and may lead to more confusion then solutions for your immigration case.

Value 2 of the Consultation: Seeing if your Immigration Representative Know their Stuff and is Honest When They Need to Take Further Steps to Find Out.

You’ve seen the advertisements. “98% success rate,” “full-service followed by list of a million things,” “Best in Vancouver/Canada.” The self-congratulatory accolades are great but does the individual have baseline abilities in the area where you need legal advice?

A consultation can help you ask questions of the representative to gauge this answer.

For example, you can ask if they have handled this type of case before? You can ask them about requirements of certain programs and how they apply to your specific case?

Not all representatives will have this information memorized, but at the very least they should be able to speak intellectually about their experience in this area and know where they can find the answer.

If it is a question they don’t know, because it is a difficult legal question that requires research and some thought they should be clear in letting you know they do not know but they are willing to do research on it. It is also a positive thing if they need to, for example, take a few minutes to go find the answer in the legal text or consult a colleague with knowledge in that area. However, keep in mind you are not paying for an information dump you are paying to get specific strategies to move forward in your situation. An Encyclopedia Brown of immigration can only go so far without practical application in real-life situations.

Value 3 of the Consultation: Providing Advice and Direction that a Survey/Email Can’t Tell You

Be it IRCC’s Express Entry online point calculator or other quick surveys I have seen, none of these can thoroughly or accurately carve out immigration paths for you. They can only tell you where you stand on certain issues based on the information you are self-providing, which may or may not be accurate.

There are several issues with this. First, many times you are seeking advice from these sources with a specific question in mind. “Do I qualify under this program/provision?” Those specific inquiries tend to have very specific answers but may ignore the larger scope of the situation.

Case in point, I have had several consultations recently where the intended principal applicant contacted me about the possibility of a specific program or option. By running a fuller, more complete consultation I was able to advise them that their accompanying partner/spouse is more suitable for immigration. In another case, I developed several backup strategies for an applicant (now client) when initially they had their mind focused on one option. This way, should the first discretionary path not work, there are other possible options.

Emails are very good at establishing initial communication, but often times (as mentioned earlier), it is limiting in that the topics are usually of a narrow, focused discussion. Email chains can lead to real uncertainty and confusion. A full consultation, run logically from identifying initial legal issues/barriers to overall solutions can suss out a big picture as well as the specific details of a client’s particular legal issue. Often times the intersection of these two matters, the barrier and the bigger picture, is where appropriate solutions and recommendations are drawn.

Value 4 of the Consultation: Giving You Options Whether to Stay or Move On

Throughout a consultation, there can be several keys and triggers as to whether this is someone you want to work with long-term or someone you better avoid.

These could be simple tells. Are they taking notes of your conversation? Are they speaking in a kind/friendly tone? Responsible practitioners should be making some notes and looking up materials while you are talking to them while still maintaining positive communication and body language. Do they articulate clearly? Is this someone who has good command of the language of the application you are pursuing, are they providing logical advice that can be practically followed?

How is their management of the time of consultation? Are they constantly looking at their watch eager for you to leave? Are they keeping track of time if the consultation started late or runs short? Are they amenable to following up with you if you have a few brief questions after?

Finally, it is my opinion that a consultation can, at the end of the day, can truly save a client money/heartache.

Paying a fee now to learn you have no options is much better than blindly investing time and money on expensive, unworkable, options.

In fact, a decent chunk of the hoopla around the previous Federal Investor Immigration Programs and Provincial Entrepreneur Programs was not really built around those programs being the best option but rather the ease and simplicity in which it could be recommended and started with little-to-no consultation. Consequentially, many of these applicants, who probably had clearer. more stable, and importantly much cheaper, options to immigration left with refusals or terminated applications.

A consultation can also give you options to gain opinions from several practitioners first before choosing the best balance of affordable prices and excellent service. Choosing an immigration lawyer is much like choosing a restaurant you want to frequent regularly. You have been served a good meal at others, but is this a place you want to come to whenever you have an issue and can expect it will be taken care of.

Ultimately, you can also cook a meal yourself at home. A consultation may even reveal that you have a relatively straight forward application and can take care of it yourself – as you have all the ingredients. For many prospective clients, I even actively advise them that with their their advanced degrees, high level of English skills, and straightforwardness of their legal matter – a future consultation, rather than my full participation may be more cost-effective.

Conclusion: Paid Consultations are Worth It

With paid consultation, and I am sure my colleagues agree, we are not running them to make a bulk of our profits. We are doing them to ensure that the working relationship will be a good one and that before we proceed on path A, you are aware of the full challenges that we face and our role in collaboratively solving your immigration issues.

On that note, I look forward to seeing you, your family, and friends should you require an immigration consultation. You can email me at will.tao@larlee.com or call me at 604-681-9887.

Jan 11, 2016

Canadian Immigration Law Blog

Tracking What it Updates – One Simple Step IRCC Can Take to Enhance Procedural Fairness

When new changes occur to IRCC’s Guidelines and programs it can take several forms and be communicated to applicants in several ways.

Of those communication methods, we see most often Program Delivery Updates, Notices, and new Operational Bulletins. Legislative changes are often announced through Ministerial Instruction and the GOC’s Canada Gazette.

Most of these changes are relatively well-documented and updated quite quickly after the change is announced. On a side note, I would suggest the Program Delivery Updates could be a little more clearer, as even for myself, who read them religiously. Some of the changes IRCC introduced are hard to track in the text.

The one major gap that IRCC has is in updating it’s new instruction guides, new visa-office specific guides, and new forms. Recently, we’ve seen several of these changes occur without corresponding changes to the website indicating that the document has been updated. In the case of some of the forms, they have even been backdated to reflect when the document was originally created rather than when it was made public. All of this creates confusion, and for IRCC likely more litigation.

Below are just a few examples.

1) The Document Checklist (IMM 5488) for Work Permit Outside Canada is dated February 2015 as per CIC’s website.

The Actual Document is dated November 2015.

In reality, the document was uploaded sometime late December 2015/early January 2016.

2) Below is the most recent Study Permit Visa Specific Instruction Guide for Applicants from India

The CIC Website displays the most recent document as being September 2015.

Implications

For Applicants, the risk with submitting outdated forms is that the Applicants may be refused and or returned for incompleteness. This is particularly true when the document checklist or forms contain new fields that are not in the old versions. CIC may offer some sort of “grace period” but this is solely discretionary and as far as I am aware there is no CIC policy on the reasonable transition period for which they will accept old versions in lieu of the updated versions.

Possible IRCC Solution – Updates Database

I understand that IRCC is working on several strategies in support of digitizing their program integrity and integrating their various networks.

With all these changes sure to occur there needs to be some adequate (publicly available) tracking of all these changes. In fact, anytime a webpage or form changes, it should trigger an update.

This page can also serve as an amalgamation of all the changes occurring across all of IRCC’s platforms.

This is important for several reasons. In the post-Dunsmuir reasonableness era, applicants are more hardpressed to try and show an Officer’s decision was made unreasonably on the merits, particularly when they are owed deference and their judgment falls within the reasonable realm of possibilities. Courts are still eager to point out situations where they may have made different decisions had they assessed the case, but maintain their role is not to readjudicate the decision but rather review the Officer’s decision-making process.

Procedural fairness issues, which (in most contexts) do not require that the Court provide any deference to the decision-maker are stronger in the context of litigation. I believe you will see increasingly applicants attempting to show that the IRCC guidelines created legitimate expectations (i.e. that IRCC;s website showed the latest updated version that the applicant had legitimate reason to rely on). For a good case about the doctrine of legitimate expectations read Lebel J’s unanimous judgment in Agraia v. Canada (Minister of Public Safety and Emergency Preparedness) 2013 FC.

Also, several of recent CIC/IRCC Guidlines, the IP 8 – Spouse or Common Law in Canada Class at 17.4 (pg 62) and OB-265A – January 8, 2016 Email Communication with Clients, seem to contemplate an increase of Reconsideration Requests from Applicants with refused applications. This may be a broader trend that IRCC is taking towards reducing the high-cost of Federal Court litigation.

Furthermore, there is case law on the procedural duty of fairness owed to applicants to consider new documents where the change in requirements does not arise directly from legislation or regulations and instead a product of IRCC policy.

In Noor v. Canada (Minister of Citizenship and Immigration) 2011 FC 308, an Indian Permanent Resident applicant was refused for failing to include an item in the Visa-Office specific instructions for permanent residence applications from India. The instruction guide had changed in the middle of application processing and asides from the new document having changed dates, there was no indication provided by IRCC to the Applicant of the change.

In assessing whether a breach of procedural fairness had arisen in the Officer failing to consider additional documentation the Applicant submitted in his Reconsideration Request to try and rectify the error. Scott J writes (emphasis added):

B. Was there a breach of procedural fairness?

30     The Applicant notes that his own failure to submit the correct documents on his original application resulted from the very recent changes to the Visa Office-Specific Instructions posted online. He notes that this was a dramatic and important change, not widely publicized but rather buried in an otherwise unmodified instruction kit. He further points out that the Visa Officer was clearly aware that he was using the old kit, as he attached a copy of its checklist with his application, but that rather than give him the opportunity to correct his application, his application was rejected. The Applicant acknowledges that the Visa Officer may not always be under an obligation to inform an applicant of the deficiencies of his application, but argues that in the unique circumstances of this case, procedural fairness required that he be given some kind of opportunity to provide the missing documents, in view of the recent modification, which was only ascertainable by reading the extra bullet point. The Applicant notes the Officer’s explanation that the refusal to rectify his file came about because of the “reasonable expectation” that he check the new instructions, but argues that this was in fact unreasonable in the circumstances of this case.

31     The Applicant notes that there is no duty of fairness case that is directly on point. However, he cites from Athar v. Canada (MCI), 2007 FC 177, which canvassed jurisprudence on cases involving permanent residence applicants facing credibility concerns at hearings, and whether they should be informed of the deficiencies of their applications. At para. 17 of Athar:

[There] may still be a duty on the part of a Visa Officer, in certain situations, to provide an applicant with the opportunity to respond to his or her concerns, in accordance with the rules of procedural fairness.

32     Athar also cites Hassani v. Canada (MCI), 2006 FC 1283, where Justice Mosley wrote:

[It] is clear that where a concern arises directly from the requirements of the legislation or related regulations, a Visa Office will not be under a duty to provide an opportunity for the applicant to address his or her concerns. Where however the issue is not one that arises in this context, such a duty may arise.

33     The Applicant argues that the requirements in this case did not arise from the Act or the regulations, which do not lay out any documentation requirements, but rather from a change in a specific policy. It would have been easy to give the Applicant the opportunity to rectify his application, especially as the Visa Officer was aware that he used the incorrect kit, and this would have satisfied the duty of fairness in the unique circumstances of this case.

34     The Respondent counters that in the Visa Officer decisions, the content of the duty of fairness when determining visa applications has been held to be towards the lower end of the range, as per Patel v. Canada (MCI), 2002 FCA 55, para 10, and Malik, para 29. Given that the Applicant must establish certain criteria to succeed in his application, the Respondent argues that the Applicant should assume that the Visa Officer’s concerns will arise directly from the Act and the regulations, and the onus remains on him to provide the correct documentation. Here, the Applicant was asked to submit a full application, including the documents listed in the Visa Office-Specific Instructions. The Respondent argues that the Applicant was specifically directed to use the 04-2009 Kit, and that this was available five (5) months prior to the submission of his full application.

35     The Applicant is correct in pointing out that the documentation requirements are not set out in the Act or the regulations, but only in the online instruction kit. While this Court did not find that Malik and Nouranidoust could support the Applicant’s first issue, the comments made by the judges in those cases (advising that new documentation ought to be allowed in certain cases) is persuasive in the context of the duty of fairness owed to someone in the Applicant’s distinct situation. It was clear to the Visa Officer that the Applicant was using the older kit, which had recently been changed, yet he was afforded no opportunity to rectify this simple error. Furthermore, the Respondent is incorrect in stating that the Applicant was specifically advised to use the 04-2009 Kit. The letter sent to the Applicant on July 28 (found as Exhibit B to the Applicant’s affidavit, Applicant’s Record p 31) simply directs him to the CIC website for “Visa office-specific forms and a list of supporting documents require by the Visa office”. There is no specific indication at all that these requirements would have changed.

36     The Applicant clearly stated in his request for reconsideration that […]

Jan 7, 2016

Canadian Immigration Law Blog

Financial Sufficiency – Applications for Canadian Study Permits

Several clients and individuals have been contacting me relating to the issue of financial sufficiency. Studying in Canada is expensive (sometimes prohibitively so), and for several students demonstrating sufficient funds to support studies in Canada will be an issue.

Citizenship and Immigration Canada (“CIC”) Visa Processing Offices Overseas and in Canada all have different requirements as to what constitutes adequate proof of finances. That topic is beyond the scope of this piece (and will be the focus of my next piece actually!)

What I want to tackle in this piece is the amount that is included in the IMM5843/IMM5710 (and ideally explained later) in a Study Permit Application.

How is adequate financial sufficiency calculated?

CIC’s own Study Permits: Assessing the Application Guidelines state as follows (emphasis added):

Financial Sufficiency

“Students are required to demonstrate financial sufficiency for only the first year of studies, regardless of the duration of the course or program of studies in which they are enrolled. In other words, a single student entering a four-year degree program with an annual tuition fee of $15,000 must demonstrate funds of $15,000 to satisfy the requirements, and not the full $60,000 which would be required for four years. Officers should be satisfied however that the probability of funding for future years does exist (i.e., parents are employed); scholarship is for more than one year. Applications for extensions made to CPC-V must also meet this requirement.”

What is very interesting is when you compare this to CIC’s Office Training Module (which has not been made public), which states (emphasis added):

Financial Sufficiency Training Guide

Officers must make sure that applicants have sufficient financial resources to pay their tuition fees, transportation costs to and from Canada, as well as living expenses for themselves and any family member who may be accompanying them, without the need to engage in employment.

The above section is somewhat fair. The wording is repeated in some of the country specific checklists, for example China’s:

However, this wording is missing from the general IMM 5483E (11-2015) checklist that is utilized for every visa office:

Importantly, the wording is in the legislative regulations of the Immigration and Refugee Protections regulations at R.220. It states:

Financial resources

220 An officer shall not issue a study permit to a foreign national, other than one described in paragraph 215(1)(d) or (e), unless they have sufficient and available financial resources, without working in Canada, to

(a) pay the tuition fees for the course or program of studies that they intend to pursue;

(b) maintain themself and any family members who are accompanying them during their proposed period of study; and

(c) pay the costs of transporting themself and the family members referred to in paragraph (b) to and from Canada.

The big kicker, is the part that states without the need to engage in employment.

I know that I have seen several study permit applications where counsel/applicants would emphasize that the applicant will be working part-time or possibly that their spouse would find a job and earn X amount of dollars. This line appears to take those factors outside of the Officer’s scope of analysis.

Implications

CIC’s guidelines don’t always seem so crystal clear – particularly when they go beyond their legislative scope into things such as employment as a source of proof. I think Applicants with refusals due to lack of financial resources may want to review the Officer’s analysis and, if they are reapplying, find ways to satisfy the Officer’s Training Module criteria while ensuring to cite the proper legislative framework.

I think also that CIC needs to bring about a little more parity in the way it assesses and provides public information about issues such as financial sufficiency in light of the clear legislative language. Utilizing the same language across all sources – document checklists, visa specific posts, and training manuals would certainly ensure greater consistency.

Please note that the screenshot above titled “Assessment of Funds and Tuition” is derived from an Officer Training Module obtained via Access to Information and Privacy from Citizenship and Immigration Canada. I am not in any way affiliated with Citizenship and Immigration Canada (CIC) nor am providing this information on their behalf or a representative of their organization. I also cannot confirm whether these are and will be the current Training Manual instructions moving forward.

Jan 3, 2016

The Resignation Letter: An Online Novel (Chapter 4: Maria’s First Day, Mo’s Never-Ending Nightmare)

Mohamed woke up extra early on Boxing Day morning. It was not because he was in a rush to get to the mall to purchase the wool jacket for his wife that he could no longer afford. Boxing Day, a Saturday this year, kicked off the five-day rush prior to the New Year. The Firm’s clients from all over the world were in a rush to replace their 2015 marketing strategies and advertising materials to try and be the proverbial ‘early bird that gets the worm’ in 2016.

Mohamed had called his wife the evening of Christmas. As usual, his wife was busy attending mosque with her younger brother. They had recently moved into a small apartment together, and even had a new household helper. Mohamed had not been back to Sierra Leone in over a year and his wife, who didn’t have a visa to travel to Canada, was awaiting processing on their sponsorship application, currently stuck in the African backlog of a three-year delay. Based on processing, they would expect to hear from Immigration any day now.

The city still pitch black when he woke up, Mohamed took the number 15 bus, as he had every morning for the past ten years. Said his good morning and thank you to the bus driver, who didn’t acknowledge him. Mohamed always sat at the back of the bus, where there were usually less people at this time of the day.

When Mohamed arrived at the office, he noticed he was the first one in. They are probably all hungover again, Mohamed thought to himself. Mohamed had spent his Christmas dinner eating leftovers from his lunch with Shafiq and watching television. It was a boring existence, albeit a quiet one, which Mohamed had become comfortably accustomed to.

As Mohamed was about to turn the corner, a light suddenly turned on in the hallway. It was the cleaning lady “Maria”, an affectionate 45-year old lady that Mohamed absolutely adored for her vivacious laugh and honest approach to cleaning. Maria was more serious this morning however.

“Maria, how was your Christmas? You don’t seem your usual self my dear” Mohammed asked gently.

“Mo, things are not good back home. My husband lost his job and is sick with cancer. It was just diagnosed. My eldest son got arrested for dealing drugs and is in prison. They won’t release him. I can’t afford a plane ticket back to the Philippines right now. I missed Christmas again.” Maria responded, trying to hold herself together.

Mohamed patted Maria on the back reassuringly. He opened his wallet and slipped Maria a twenty dollar bill. “Take this Maria. I know, it has been tough for all of us. We’re both trapped in a city way too beautiful for all of us, but so lonely without our loved ones. It will get better I promise. Go home and get some rest”

“Thanks Mo.” Maria replied, pocketing the twenty dollars. “I would like to go home but your stupid boss left a note for me reminding me that the three new interns are starting today and that I need to set up their work station.. volunteer station.. whatever you guys are calling it this year.”

Mohamed chuckled. He had completely forgot that it was time for the Annual Student Internship Program again. Billed as a program that would give work experience to underemployed/underprivileged recent graduates,

Mohamed knew that the real reason for hiring individuals like this were that they would work for essentially no pay. Mo knew from previous years experience that each year the interns would be brought on for the busy period of New Years, Valentine’s Day, and Easter and then sent home in early May with a generic letter of congratulations and a $500 stipend. During these five months, had they been salaried junior level employees they would have each taken home at least $500 a week and had to have their medical insurance and Canadian Pension Plan covered.

Maria bid adieu and continued with her cleaning duties. Man, this is a whole city of immigration problems, Mohamed thought to himself shaking his head. As Mohamed was about to sit down at his desk, Maria came running down the halls.

“Mo, I forgot to tell you something. You forgot to shut down your computer and you left a document open all weekend.” Maria grabbed the mouse and shook the computer awake. It was the first two lines of your resignation letter. I hope nobody saw it. When I came in yesterday it was brightly displayed. I couldn’t help but notice it.”
“Thanks for mentioning it Maria.” Mo said earnestly. “I hope so too.”

I am an idiot, Mohamed thought to himself. The thought of resigning immediately had since Christmas become a more distant one in his mind. I can resign next summer. I need the money and peak season means overtime hours. Next summer, when my wife joins me in Canada, then I can quit and we can find new jobs together. Mohamed closed the document and prayed that nobody has seen it.

Opening his real-estate marketing final report, Mohamed smiled to himself. This is my life calling. The report was intricately prepared. He knew the things that mattered to clients from Arabic-speaking countries: proximity to the mosque, availability of halal food choices, security, and, most-importantly, privacy. His idea was to market the new complex as a “Little Dubai in the Heart of Downtown Vancouver.” He made some last minute edits to the presentation he would have to give on Monday at the real-estate firm’s offices. Mohamed’s line of thinking was interrupted by an email from his manager.

WELCOME TO OUR 2015-2016 STUDENT INTERNS read the email in unnecessary CAPS usually reserved for emergency situations. Mohamed opened the email to see three student profiles.

The first was a girl named Veronica Chiu. She had quite the impressive profile. She had attended the city’s top private school, the Colburn Academy. She had a business degree from out in Eastern Canada. She seemed like the type who would be working at a Bay Street firm rather than in Vancouver. Mohamed peered at the fine print.

Ah, it all made sense. The profile mentioned that her father, Moses Chiu, was a client of the Firm and that all of them needed to be extra careful in making sure Veronica was happy. Veronica would also be working indirectly through the boss’s guidance.

The second was Dawayne Jamison or “DJ” for short. He went to an inner city high school in California before moving to Vancouver to play college basketball. According to the email, apparently after redshirting he switched colleges three times due to poor grades disqualified him from the basketball team. Eventually, he attended a Christian college, found his calling in God and graduated Valedictorian.

Wow – exactly the kind of guy our firm will use to secure new clients, Mohamed thought to himself.
Mohamed got to the third profile. She is very pretty, very Hollywood gorgeous, Mohamed thought before playing around with his ring finger and realizing he was having thoughts that a married man should not be having. She looked young, maybe half his age. Maria, eh just like our cleaning lady. Mohamed made a mental note she would call Maria Mendes, Ms. Mendes. In Mohamed’s mind there was only one Maria, the nice cleaning lady. Mohamed read Ms. Mendes’ profile. It was very short and stated:

Maria comes to us from Surrey, British Columbia where she recently completed her post-secondary studies. Maria has a particular interest in fashion and international marketing and will be working closely with our International team.

Mohamed had been Deputy Chair of the International team for several years. The current Chair, Elliot Huang, was the Firm’s big rainmaker. In 2015, Elliot had successfully closed 40 new clients for the firm and engaged them in the development of marketing strategies. Many were new immigrants to Vancouver, who established quasi-operational businesses that served as vehicles designed to transfer assets to their young sons and daughters who were studying in the city. However, they made the Firm millions and were given rock star treatment.

Mohamed was secretly quite excited that the team had recruited a new member, and additionally excited that she was quite easy on the eyes.

A follow-up email soon arrived from the boss. STUDENT INTERNSHIP PROGRAM MENTORSHIP PAIRS read the email.

The email read:
• Veronica Chiu has been assigned to the International Marketing Group, she will be mentored by Elliot Huang.
• DJ has been assigned to the Sports and Entertainment Marketing group and will be mentored by Don Michaels.
• Maria Mendes has been assigned to the International Marketing Group and will be mentored by…

Mohamed stopped in his tracks.
…. Mohamed Kamara

Mohamed was shocked. It was the first time he had ever been asked to mentor or let alone participate in the program.
Before Mohamed could ponder any further, a third email came into his inbox. It was from the government’s immigration department in Ghana. Mohamed’s heart sunk has he opened it.

Dear Ms. Kamara:

Your Application for Permanent Residence in Canada has been refused. The primary purpose of your marriage has been adjudged to be for immigration purposes. We are also not satisfied that this is a genuine relationship. Thank you for your interest in Canada.

Officer MF.

“Motherfucker!” Mohamed screamed smashing his keyboard on the table. It snapped in half. Mohamed looked around. Thankfully no one was around as an audience to his morning meltdown.

Before Mohamed had a chance to think any further, the recognizable heavy footsteps of his boss and the accompanying rhythm of a set of high heels came towards him. Mo turned around to see his boss’s recognizable bespoke suit and thick-rimmed glasses. Next to him was Maria. She had a serious, “focused” game face on.
“Is this […]

Jan 2, 2016

Canadian Immigration Law Blog

CIC’s Processing Times Receives a New Year Makeover

Citizenship and Immigration Canada/Immigration, Refugee, and Citizenship Canada (“CIC”) has just recently changed the way it displays processing times.

Previously, processing times were displayed in a table allowing an applicant to compare and contrast processing times based on visa offices. While it is still possible to find visa specific processing times for temporary resident applications (such as study and work permits), the ability to compare processing times across visa offices has been removed. Also, for spousal sponsorship applications which previously provided processing times by stage (sponsor assessment and applicant assessment), the number now shown is a bulk figure that presumably takes into account the entire process.

There has been some speculation that this may be a move towards a global one-queue processing time, I think that it is very premature to assume that this is the reason for the change.

A global one-queue processing system doesn’t appear to align with the goals of Canada’s Immigration and Refugee Protections Act (IRPA) to attract a diversity of spouses. Policy-wise, it makes sense that countries that historically supply Canada with more eligible applicants will have to wait a little longer vis-a-vis a country that produces less immigrants. That being said, not having a global one-queue system does not justify why applicants in certain countries in the Middle East and Africa are taking many years to process vis-a-vis countries in the Western world. Greater parity in actual processing times is desperately needed.

That being said, the new processing time display system certainly comes with a few positives. Like with Express Entry, it is certainly more applicant friendly then having to read a larger chart. It provides better updated processing across a category of applications – including economic immigration via Express Entry.

The cons of the new processing times display is that it is currently not as transparent as it can be. There are several examples of where this may kick in and have negative consequences:

Applicants who have legal resident status in a third country can apply through that visa office for permanent residency in Canada and ask to be processed through a visa-office in that country. Without knowledge of visa-specific processing times, this becomes a bit of a crapshoot;
If CIC’s policy continues to be the call centre not updating applicants on where applications when they are in “regular processing times”, this chart creates complications. Does an Applicant who has not received first-stage approval have the right to access information from the call centre regarding their application?
Applicants may be dissuaded from from applying for permanent residency in Canada thinking it will take 18 months to sponsor outside of Canada and 26 months to sponsor inside Canada (a difference of only 8 months).
Also, because of the open work permit pilot that allows a spouse to obtain a work permit within 4-6 months of processing for in-status applicants, showing averages instead of actual processing times may create a incentive towards applying in Canada without properly advising as to the possible drawbacks. Particularly in several European visa offices where processing times are currently under a year, you may see applicants mistakenly apply in Canada thinking it is more beneficial process. I note that CIC’s own materials don’t clearly lay out the negatives of applying in Canada (longer processing times, loss of appeal rights, possibility of being denied re-entry and having to start from scratch with an outside Canada application).

Overall, there is clearly a need to let applicants known how long it theoretically will take for processing. Many potential immigrants plan their entire lives around processing times, whether to accept academic offers, whether to continue with their current employment, even whether to have kids before or after immigrating.

In my mind, while simplicity and clarity are important factors (which the new CIC processing times display delivers), so to is transparency (which I believe the new CIC processing times display compromises).

Overall, I do not see any utility in providing the applicant who in reality has to wait three years that it will only take 26 months. I also don’t see any utility in telling the applicant that will only take 12 months that it will take 18 months to process their application.

It is my hope that either some sort of online global queue system for permanent residence is adopted as legislated policy OR CIC puts up the exact processing times and remains transparent through their process.

Dec 31, 2015

Canadian Immigration Law Blog

A Thank You… and Six 2016 New Year’s Resolutions for My Practice

A Thank You

As we mark the end of 2015 I wanted to send a quick note to everybody who has supported my endeavours in the law. Seven months in I know a little more about Canadian immigration law but I would say a lot more about the work I need to do moving forward. The practice of immigration law is the practice of confident humility. We have to represent our clients. Stand up for our clients. We have to do so in a way that is respectful of the complexity of their lives and of the outside factors that we often cannot control. As a young lawyer, that is also how I have to live my life. Humbly, respectfully, and gratefully. For all the hurdles and heartache that 2015 threw my (our way), it taught me lessons that will last throughout in future years. Thank you to my family, my firm, and my friends (all of them mentors) for teaching me about all of the above. Three F’s I hope every lawyer has in their lives. I am also blessed with a fourth (a beautiful, supportive Fiancee).

I also want to thank all my clients this year for putting their trust and often hard-earned finances in my legal services. So far, outcomes have been great and I can only thank you for working with me as a team in

Thank you also to the Clawbies/Stem Legal Awards committee for granting me my first ever law-related award, a #Clawbies2015 Award for Best New Canadian Law Blog. I initially only wrote a nominating blog to support my two deserving mentors, Steven Meurrens and Raj Sharma, and was utterly shocked this morning to find that I had been given a nod. Congrats to all the award winners: http://www.clawbies.ca/2015-clawbies-canadian-law-blog-awards/

I also want to particularly congratulate Steve Meurrens, who probably is secretly annoyed that I every time I ask him “I have an _______ question” for serving such a great mentor. Many don’t know, but in the summer of 2013 when I was figuring out things at Heenan Blaikie as a summer student, I found his blog and read a few pieces. Later on, when Heenan Blaikie collapsed I remembered there was an immigration law firm in Vancouver based on Steve’s blogs. He has really taken me under his wings, both when I was articling and now as a young associate. I admire and respect everything about him and his practice, and definitely my law blog is an emulation of just some of the success I hope to attain following in his foot steps. I’m super grateful to the trio of Steve, Ryan, and Peter for their guidance.

My Six Practice-Based Resolutions for 2016*
*I have a whole set of personal resolutions that I will keep a little more private

Write More;
Double My Practice While Enhancing Meaningful Client Interaction;
Bring More Clients into Larlee Rosenberg;
Find Ways to Integrate Technology and Better Organization/Practice Management into My Practice;
Balance My Lofty Career Ambitions with a Healthy Balance of Spiritual and Mental Health
Do a killer job organizing the Vancouver Cultural Spaces Crises *more to come

Adios 2015, it has been a slice. 2016, we’re ready for you.

Dec 23, 2015

Canadian Immigration Law Blog

Express Entry: Expressly Wrong on Older, English ‘Competent’ Economic Immigrants

There is much that is good about Express Entry, the online application management system introduced by Citizenship and Immigration Canada in January 2015. Few can complain about the (so-far) expedited processing times and arguably even the program’s ability to scoop up the top, most qualified candidates. For all its glitches, Express Entry has helped modernize Canada’s previously broken first-come, first-serve paper-based system.

However, in my opinion there is something very bad – and in my mind, very misguided from a policy perspective, about Express Entry’s point system. I am speaking about the system’s unqualified prejudice against older migrants from non-English speaking countries. I believe this has negative consequences on our Canadian cultural mosaic and may even carry unintended economic consequences.

The Problem

Express Entry’s point system awards to potential economic immigrants, allowing them to receive an Invitation to Apply (“ITA”) for Permanent Residence. In order to create a profile and enter the Express Entry applicant pool, applicants must first qualify for one of the three economic programs, the most popular of which are the Canadian Experience Class (“CEC”) and the Federal Skilled Worker (“FSW”) programs. Both programs have minimum language requirements in either English or French. For the CEC, the minimum language requirement depends on the classification of the skilled job for which the Applicant is claiming experience. For the FSW, performance on the required language tests above and beyond the minimum can increase one’s points towards their overall qualification for the program. For the most skilled positions under the CEC and for all FSW applicants, at least a “competent” level of English is required.

Only the FSW program considers age as a factor, although it is not a baseline requirement. Applicants under the age of 18 or over the age of 47 are awarded 0 points out of 12. As the overall point system is out of 100, for which 67 points is a minimum requirement, age is not a determinative factor for eligibility.

After meeting the basic requirements of one of eligible economic immigration programs, applicants are then scored according to the Express Entry’s Cumulative Ranking Score System (“CRS”). As 600 points of the maximum 1,200 points are allocated to having a valid job offer supported by a third-party employer either through a Labour Market Impact Assessment (“LMIA”) or a provincial nomination, a majority of potential applicants essentially compete within a 600-point system. As of the date of this article, a majority of the draws have been in the upper 400’s with several draws in the 500-700 point range. The lowest draw so far has been 450 points.

For Language and Express Entry, the English “competent” candidate earns an average of 64 points, assuming equivalency among their reading, writing, speaking, and listening sills. A candidate that is a “good” or “very good” user (keeping in mind that the later is a standard just below expert user/native speaker) is awarded an average of 116 points. In addition, these later candidates automatically increase their skill transferability (another important CRS factor) points adding anywhere from 16 to 50 points to their score depending on their education and work experience. It is therefore fair to say that applicants who are merely competent in English obtain 75 fewer CRS points then someone with greater (near native-speaking) competency.

From an age perspective, the effect on CRS points is even more pronounced. Under the CRS, a 45-year old applicant loses 110 points compared to a 20-29 year old applicant. Even a 40-year old applicant, with a spouse who could be much younger loses 60 points.

Consequentially, a competent English speaker (let us assume from a non-English speaking country) who is 40 years old, married with young children and who has a potential 25-year old working career in Canada loses 135 points right away.

To put it in perspective, even if the applicant obtains maximum scores in every other category they could only obtain a maximum 465 points out of 600, just 15 points above the lowest drawn score in 2015.

Not in Line Policy Research or Canadian Immigration’s Legislative Objectives

While the literature in this area is complex and varying in its results, it does suggest that Express Entry’s current policy on age and language is highly misguided.

A recent August 2015 Statistics Canada/CIC report suggests that language is not effective as a long-term economic-earning indicator.

This finding is not altogether surprising. In a 2012 article titled, “Language and Immigrant Labour Market Performance: What Does the Economics Literature Tell Us?” Canadian Economics Professor Mikal Skuterad asks whether it is reasonable to believe Canada can maintain current immigration levels and increase language criteria without sacrificing other desirable qualities of immigrants. In his piece, Professor Skuterad suggests that Canada’s emphasis on high language requirements may be too focused on short-term outcomes, and too neglectful of the importance of post-migration language training required via settlement services. In short, pre-migration language is an overemphasized indicator of economic success.

I would argue that age, while a long-term indicator of economic success according to the August 2015 CIC report, is overemphasized as a factor in Express Entry. Importantly, it is out of touch with economic realities. Our most recent studies of the issue in 2011 showed that even in Canada, where welfare and social services are readily available, the age of mothers at first birth was increasing towards record pace.

If we assume Canada is most desirable as a place of permanent residence for young families with the financial capacity to move and elementary/high-school aged children serving as a major impetus for the move, we should expect a high number of late thirties/early fourties applicants. Yet, this is the very group that Express Entry punishes through the prejudicial point system.

Overall, putting such a high emphasis on language or age of potential economic immigrants does not further the objectives of Canada’s legislated aims as stated in section 3 of Canada’s Immigration and Refugee Protection Act (the “Act”). The Act states:

Objectives — immigration

(1) The objectives of this Act with respect to immigration are
(a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration;
(b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada;

Combined, I would argue that creating a point system those only benefits younger immigrants from English-speaking countries does not serve to maximize the social and cultural benefits of immigration. If anything, a program that discriminates against older, non-speaking applicants narrows our country’s definition of the ‘desirable immigrant’ and creates an unnecessary, disincentive for economic immigration. Furthermore, while I do not believe past studies have been done on this issue, I would argue that the economic and immigration mobility of the types of fluent, young immigrants Canada currently desires will lead many to eventually pursue opportunities as overseas ex-pats rather than as Canadian-resident taxpayers.

Where do we go from here?

There is some hope. The governing Liberals have promised it will be re-examine the point system and may allocate additional points to individuals with Canadian relatives. However, I don’t think that is enough. I think it is enough that a potential immigrant meets minimum language requirements. I also think the age of a potential immigrant’s spouse and children should be qualifying factors. The 45-year old father of three Canadian kids who will have a lifetime to pay it forward to the Canadian economy should not be perceived as too old for Canada.

However, clearly some points are missing. Should students who studied in Canada receive more points under Express Entry? Should potential immigrants with current jobs held on other form of work permits receive more points? Arguably so. Should the economic immigrant who has started his or her own business or invested in the business of his or her son or daughter receive some points? Should an economic applicant who has a spousal sponsorship application in process receive additional points to facilitate their own immigration process? I would think that all the above would make sense.

Express Entry has much room to improve. Change, on the issue of language and age, is

Dec 20, 2015

The Resignation Letter: An Online Novel (Chapter 3: Maria, Maria)

“Maria, wake up.” Maria Morales felt a tap on her shoulder. It was her 12-year old younger sister Samantha.

Maria slipped on her bunny slippers and felt her head feel all of a sudden, light-headed. It had been five weeks since Maria had last woken up without a hangover, but it also marked five weeks since Maria woke up everyday with a painful headache. Maria pulled the curtains and looked outside. The scene was a beautiful winter wonderland. Maria resided in Surrey B.C’s beautiful, golf-course ridden, Panorama Ridge neighbourhood. It was “a gem in a rough,” as she often described to the guys she would meet and cringe when they heard the phrase, “ I am from Surrey, and you.”

Maria Morales walked down the stairs of her family’s five-bedroom house. Christmas felt different this year. As she stepped downstairs, she could see her mother slouched across the couch. The O was playing in the background. “Mom, wake up – it’s Christmas Day” Samantha tapped her mother on the shoulder in the same fashion as she had tapped Maria’s shoulder.

“Get off me, you little slut” Maria’s mother shouted slapping Sam across the face. Samantha, stood back stunned. To Maria’s surprise, Samantha didn’t cry but rather looked at her mother angrily.

“Get your shit together Mom, please” Maria yelled rushing over to pull Samantha away. “It is Christmas Day. You are not ruining today like you have ruined the last three months.”

“Fuck you alchy, go make me some breakfast,” Maria’s mother slurred. Suddenly, there was silence and only loud snores.

“Sam, I am sorry” Maria whispered to Sam. “Let’s go out and grab some Jimmys. I think it’s another one of mom’s bad days.”

Their mother had been acting this way for three months. It was the day that Sam had accidentally revealed that “Dad has a new girlfriend,” while fighting with their mother, unraveling a series of quick and unforutnate events leading to the family of five, now becoming a family of four. Maria’s older brother, Todd, had long left the family in pursuit of his own career ambitions doing God-knows what.

Long-story short, Maria and Sam’s dad, a divorce lawyer (ironically), had started seeing his secretary and within a month time had moved out of their Surrey home and into her Yaletown condo. Maria felt depressed, thinking about her mother, a former fashion consultant was now a 24-hour W Channel afficianado.

Maria helped Sam get her coat on as they left their apartment driveway. While it was municipal b-ylaw that the driveway was to be shoveled, there was simply no one for the task. No man of the house. Maria felt tears run down her cheek.

Maria herself had been through a tough patch. She had an abusive five-year long-distance relationship end earlier in the year. She had spent the last nine months dating various guys online, only to realize none of them wanted more than a short-term hit and run. Maria, as self-conscious as she was, knew she was pretty by all cultural standards. She had this vivacious, rich, yet innocent look to her – ‘real stature’ as her Dad once complemented her. She looked younger than her 20 years.

Maria looked at her younger sister, trying to maintain herself emotionally. Maria’s year had been filled with way too much alcohol, way too much marijuana, and even one incident where she had accidentally taken fentanyl after being coerced by a few of her former old high school friends one late night out. Maria secretly hoped her sister could have her memories from 2016 erased.

Through all the madness, there was some good news. Maria had recently accepted a coveted internship at a marketing firm. While Maria was not sure if she had been selected to do marketing or be the one marketed, it was an end to her unemployment. Maria had obtained a certificate in marketing two years back but had never been able to find a firm to take her. They all said her grades were too poor, her certificate worth less than the paper it was printed on. One interviewer even accused her of being a fraudster and asked her for a criminal background check for a job (as a fashion model!).

Maria would start her new job, downtown, on boxing day, apparently as the Firm was short staffed for last-minute New Year promotional materials that were being requested by their retail clients. Maria felt nervously brave about this new job and her only worry was running into her father downtown. She had not spoken to him since he had tried to explain to her that he needed to ‘pursue his own happiness’ and move out with Anastasia (his secretary).

After a fifteen-minute walk, Maria and Samantha had arrived at Jimmys. They saw that the line-up was a mile long. In the front, she could see a Arab man with her wife, wearing a hijab. The man was yelling at the front-desk attendant, who appeared to be an Asian girl.

“This coffee is cold. Why is it cold?” the man yelled at the girl, who looked as though she was near years.

These damn refugees think this is Saudi Arabia or something. Maria thought to herself. I hope they deport these guys. Such a burden on our society.

Dec 20, 2015

The Resignation Letter – An Online Novel (Chapter 2: Party Like a Permanent Resident)

“Ladies and Gentleman – this year’s Power 50 Marketer of the Year is… Mohamed Kamara! Mohamed, please come and claim your award.”

Mohamed could hear applause fill the air and the sound of a rap song in the background. He heard his dad’s voice booming from behind him.

“You did it, my son, you did it! I am so proud of you”

As Mohamed walked up to the podium, he noticed that the seats were empty. Looking back, Mohamed notice his father’s seat was unoccupied. In fact, there was no audience at all. As Mohamed started walking up the red-carpet lined stairs he felt the ground start to crumble. Looking up, he managed to make eye contact with the good-looking Caucasian male who was the award presenter. As Mohamed’s vision came into focus, he noticed it was his manager holding his final paycheck. “You are fired buddy, do you actually think we would actually award you?” Mohamed felt himself falling through the floors into a dark abyss.

“Mo… where are you?” a faint voice came from outside the room.

Mohamed woke up in a cold sweat. He looked at his alarm clock – 8am. He should have been at work by now. Mo sat up on his bed in one swift, urgent motion. Waking up at random times at night in this fashion was a bad habit of his, one his future chiropractor would certainly speak to, and probably his future psychiatrist as well if she did not diagnose it first. After staring dumbfounded at his ceiling for a minute, Mohamed suddenly remembered that it was Christmas Day and the office was closed. He lay back down gingerly on his pillow.

“Mo… open the damn door”

Two knocks on the door of Mo’s basement suite confirmed that he had a guest this morning.

Mohamed quickly pulled on his pajama shirt and stumbled to the front door. He peered carefully outside. The East Vancouver neighbourhood he lived in was notorious for break-ins, and even (as of recent) a string of violent home invasions. Mohamed saw a man with a puffy jacket wearing a green toque. As Mo stepped closer, he noticed it was his best friend, Shafiq. Mohamed felt his nervous tension dissipate.

Mohamed hurriedly unlocked his door.

“Ya scared me brother. Why didn’t you call me yesterday to tell me you were coming? Eh Shafiq, where is your wife? Shouldn’t you be spending the day with your wife and kid.”

Shafiq mumbled something inaudible before he spoke, “Bro I’m sorry, it is an emergency.”

Mohamed was worried. This was very out of the ordinary for Shafiq, the usually happy-go-lucky/outlandish comedian. While they didn’t see each other often, with Mo trapped at work and Shafiq trapped with newborn parenting duties, they made sure to attend mosque together once a week, followed by afternoon tea or coffee. Shafiq’s stories of perennial underemployment and diaper education often had Mohamed in stitches. Shafiq was an Engineer, turned Gas Station Attendant, and now probably classified himself as a budding entrepreneur. Shafiq always had amazing ideas for solving Western problems, unfortunately problems that Mohamed all-to-often pointed out, were not actually problems for most Westerners. For example, Shafiq came up with a remarkable idea of a swimsuit that could turn into a cocktail dress at the pull of a strap, in the odd event the female’s father or mother showed up at the beach and saw her underdressed. Mohamed kindly reminded Shafiq that cocktail parties usually did not occur at the beach and that in any event, two piece swimsuits were specifically selected for being two pieces rather than one.

Shafiq eventually resigned two weeks later to the fact that his idea was a flop. In fact, he lamented in the fact that his “market research” into two-piece swimsuits led to a cold night spent on the couch. His wife had come home from work one day and found Shafiq holding the newborn and looking at a few too many goriye girls.

“Mo, it’s not good. I think she’s doing something behind my back,” Shafiq’s eyes locked with Mohamed for a brief second. Mohamed could tell that Shafiq had not slept all night. He looked liked he had been hit by a bus.

“Brother, what happened?” Mohamed responded, quickly putting on a kettle of hot water for tea.

“I was out with the baby girl yesterday just around 5pm. I stopped at the Jimmys next to her work place. I grabbed two hot chocolates thinking I could give her a surprise when she left. Minutes later, I get this text message – saying she has a work meeting and can’t make it for dinner. This isn’t the first time, so I am not that upset, right. I get the stroller and I get ready to try and catch the next bus back home. I see out of the corner of my eye across the street. I know it was my wife. Just as I am about to call her name, I see this Lexus pull up and she gets into the front seat. I try and I.D the driver and I see her colleague next to her. Guy is the Team Lead of their project. I don’t remember his name. I know he’s rolling in dough. Dad’s a big-time lawyer or something. I remember him from the Christmas party. Whole night he was starring at my wife. My wife would smile back. I just know they are up to something.”

“Calm down brother. You are married with a kid. She would never be that reckless.” Mohamed grasped Shafiq firmly on the shoulders. “If you need me to go speak with her, I can do it for you. She’s in the PR business. We work with them all the time in marketing. It’s business around the clock. I’m sure it was just an innocent business meeting.”

“It is because I am a useless good for nothing foreign-trained engineer. Brother, I don’t know how you did it back in the day. I can’t even get another job anymore. I am an overqualified, stay-at-home father. That should just go on my resume. You know one interviewer last week even said that if he were me he would just let the wife make the money and stay home.”

Shafiq had only been in Canada for a year and a half. Initially, the plan was for his wife to move to Pakistan with him and for him to eventually find a company that would transfer him to Canada. However, Shafiq’s wife Muneeza (or Melissa, as she called herself at work) was offered a new job in Vancouver and Shafiq came to Canada right away. Importantly, Muneeza became pregnant shortly after sponsoring Shafiq. Now, he was what Canadian immigration called a “conditional permanent resident” and had to cohabit for his wife for two years before the conditions were removed.

Mohamed himself was all too familiar with Canada’s immigration system. He had arrived in Canada as a political refugee from war-torn Sierra Leone. His citizenship application had been held up for a year and a half because he had purportedly provided “inconsistent dates” – a two-week memory gap in his ten years as a Canadian permanent resident.

“Where is the wife and kid now?” Mohamed asked Shafiq inquisitively.

“They went to visit Melissa’s grandparents for lunch. I have to get back after lunch so she doesn’t think I left. Apparently the grandparents don’t want me to show up at their house this year. They think I’m some money-sucking bad omen.” Shafiq sighed heavily.

“Anyways brother, Merry Christmas.” Shafiq took out a small neatly-wrapped gift box from inside his jacket pocket. “I know it is not much, but I value our friendship.”

Mohamed guilty accepted the gift. He had been so busy with work that he had forgotten to prepare anything for Shafiq. “I left my gift for you at the office. I’ll hit you up with it next week.” Mohamed responded, hoping the cheerfulness in his voice would hide the whiteness of the lie.

“Go ahead, open it” urged Shafiq.

Mohamed opened the package to find a beautiful, brand new Quran written in both the Arabic and English language. “It’s beautiful. Thank you my brother. Let’s make lunch, how does some of my homemade fish stew and yam sound to you.”

“You know that I love everything you make guy,” Shafiq answered happily. “Tomorrow’s problems we can deal with tomorrow. Now where is the remote control, I want to watch the football game, the Hawks are playing”

“American football,” Mohamed kindly corrected Shafiq, throwing over the remote.

Dec 16, 2015

Canadian Immigration Law Blog

#Clawbies2015 – My Three Nominations

This year, thanks to the emergence of Canadian Immigration Law (hashtag: #cdnimm) as a major policy and election issue, I made my accidental entry into the blogging world. I know the path was paved by amazing bloggers before me, that deserve their credit for being fantastic resources – for their clients and for the interest of the public.

The three blogs I have nominated I read at least several times a week and keep me engaged and passionate about the practice of law.

My Nominations

1. Paul Daly’s Administrative Law Matters – I was only introduced to this blog less than a month ago but I have been religiously reading Professor Daly‘s analysis in this area. I think any practitioner that does tribunal work or Federal court work should read Paul before drafting their arguments. In my mind, blog of the year.

2. Stewart Sharma Harsanyi Calgary Immigration Law Firm Blog – This blog could fit a couple of categories. The firm itself is doing great work out in Alberta. I think what makes Firm Partner and Lead Writer Raj Sharma‘s writing stand apart is that he interlaces his excellent legal analysis with literature and popular culture interpretations. If not best Practice Group blog, I would put this as one of the best blogs for non-lawyers to read as well for its ability to connect to those of all levels of immigration knowledge.

3. Meurrens on Immigration – I consider Meurrens on Immigration (written by my mentor and colleague, Steven Meurrens) to be the bible on immigration. He’s been quietly (but prominently) doing his thing since 2010. A still very young call (just over 5 if I remember correctly), he is already Chair of the CBABC’s Immigration Section and has been counsel of several important Federal Court decisions. Steve’s blog adds value by providing the results of several access to information requests he coordinates with lawyers and consultants across the country. His work is truly ground breaking.

Those our my nominations. Best of luck to all the #Clawbies2015 participants!

Dec 15, 2015

The Resignation Letter - an Online Novel

The Resignation Letter – An Online Novel (Chapter 1: Writer’s Block)

Chapter 1

Writer’s Block

“Dear Boss….”

Mohamed stared blankly at his laptop screen hoping that the letter would somehow write itself.

No that doesn’t sound right… too informal, Mohamed thought to himself. He quickly corrected the line. It now read: “Dear Mr. Smith”

One would think that after a decade as a marketing professional that Mohamed would be able to perform a little better under the circumstances of a last-minute pitch. Mohamed wished at that moment he had followed the advice of his best friend, Shafiq, who always kept a template resignation letter ready to deliver just before his pending resignation/firing. Needless to say it had been used quite frequently through Vancouver’s recent economic downturn.

Mohamed heard footsteps behind his cubicle, realizing it was only the cleaning lady, Maria. No one else was working at this hour. In fact, the rest of his colleagues were already half-way through getting sloshed off expensive scotch at a senior manager’s Coal Harbour apartment. It was the Company’s Annual Ugly Christmas Sweater Wine & Cheese, not that Mohamed had ever attended any of the eight previous ones. He only found out after receiving a half-hearted, after-thought invitation from the manager. The offer came simultaneously asking him if he could stay late to do a document review favour for a client of interest. All clients were always of interest – much more interest than he (or his work) had ever been paid.

Mohamed sighed heavy. He closed his eyes and for a second was transported to his favourite tea spot. Five of his university brothers were surrounding him – discussing the topic of the day, football and how many points their hometown team, the Sephadu Stunners, would win by. Mohamed remembered fondly walking home to the sights and sounds of the local market. He remembered the states of sweet aromatic breadfruit and the smell of freshly slaughtered cumin-dusted lamb being grilled on the charcoal grills. His hometown markets stood as such a sharp contrast to the same apples, oranges, and bananas that filed the fruit shelves in their endlessly and unnecessarily repetitive varieties.

However, the bane of Mohamed’s existence had to be the mayo and mustard baloney sandwiches that had become somewhat of a daily ritual. Mohamed never used to eat pork, considered haram in his religion, but a year of welfare cheques when he first arrived made his a connoisseur of cheap cuts of all edibles.

Mohamed’s thoughts were suddenly transported back to the streets of his hometown. After the walk through the market, it would be one left turn and two right turns before he would arrive at his home – the Jenagh Compound. He would see his elderly mom busy grinding up a cassava dish and his wife preparing the side dish of fresh pepper fish. His wife’s radiant smile and hazel-coloured eyes lit up in a concentrated gaze as she asked him if he wanted a third serving. He always did.

Mohamed grabbed a bite of the increasingly-soggy tuna wrap that was sitting in a half eaten glob on his desk. Mohamed hated tuna fish wraps, but they had become someone of a staple of his eight o’clock nights. Mohamed` kept a box of tuna fish and a bag of tortilla wraps under the small drawer on the right side of his desk for these all-to-often emergency session.

A pile of files sat on the left side of Mo’s desk. These were a reminder that he was still four projects behind. In addition to the task for the manager, he owed a draft mock-up to the city’s largest real estate company that was launching a push for new Arabic-speaking clients. Mohamed also had to finish off a marketing report for an up-and-coming luxury car company that wanted to advertise their new fuel-efficient car to buyers.

Having been in the business for twenty years, Mohamed could smell through the proverbial horse dung that was marketing. For example, he knew that that real estate companies were selling their townhouses way above market value, and conveniently leaving out details relating to historical leaks and hydro problems. The ads only focused on the ‘view that will get you laid’ attracting the young generation of the debt-ridden and those who lived off daddy’s wealth.

Mohamed looked at the yellow envelope on his desk. He had waited until the night to open his cheque. The cheque was to contain his much-anticipated year-end bonus. Mohamed had already searched out the beautiful baby blue wool overcoat that he wanted to give his wife for Christmas. Although they did not celebrate Christmas back home, he always used it as a good opportunity to give his wife something special. Doing the math, if his cheque was $1800 (assuming a $300 bonus), he could pay rent for $1000 and would have about $500 dollars to buy the coat. Mohamed’s own shabby suit jacket came from Global Fashion Co. – 70% off the Black Friday discount rack. It fit well enough, but it definitely looked every dollar of its $60 after-sale price.

Mohamed carefully ripped open the cheque with the dull-blade of his desk scissors. To his surprise he saw a few coupons with a handwritten note from his boss. Mohamed scanned the letter:

“Dear Mo, due to our difficult economic quarter, we have decided to cancel the yearly bonus. In exchange, we are giving every member of our team a generous $200 voucher generously provided by our client, Horizon Gas. Please enjoy this with your family (and if you don’t drive, friends!). Merry Christmas”

Mohamed placed his hand to his head. Mohamed didn’t drive nor own a car. Merry Christmas Indeed he thought to himself. Mo continued to work on the resignation later:

“Due to recent financial challenges at work, I have decided…”

It would be a long night before Christmas.

Dec 10, 2015

Canadian Immigration Law Blog

Unpacking the Legal Phrase “Fettering Discretion”

The phrase “fettering discretion” found its way into two important decisions released today.

In Trinity Western University v. The Law Society of British Columbia 2015 BCSC 2326 (“TWU-LSBC“), The Hon. Chief Justice Hinkson found that the Law Society of British Columbia Benchers incorrectly fettered their discretion by binding themselves to a ‘fixed blanket policy set by LSBC members in the form of a non-binding vote (at para 120).

In Kanthasamy v. Canada (Citizenship and Immigration) 2015 SCC 61 (“Kanthasamy” ) the majority decision (penned by Justice Abella) found that the Immigration Officer had unreasonably fettered her discretion by avoiding the “requisite analysis” of s.25(1) of the Immigration and Refugee Protection Act (“IRPA”). The Majority found that the Officer’s adoption of the Citizenship and Immigration Guidelines of “unusual and deserved or disproportionate hardship” as a threshold for humanitarian and compassionate relief, without a proper assessment of best interest of the child, was an unreasonable application of IRPA s.25(1).

The questions to be asked from this are:

What does it mean for an officer to fetter their discretion?
What is the correct standard of review (or is it case dependent)?

Definition

In TWU-LSBC, Hinkson C.J. does quite a thorough job of setting out the law of fettering discretion in British Columbia. He writes (emphasis added):

[97] Fettering of discretion occurs when, rather than exercising its discretion to decide the individual matter before it, an administrative body binds itself to policy or to the views of others: Hospital Employees Union, Local 180 v. Peace Arch District Hospital (1989), 35 B.C.L.R. (2d) 64 (C.A.). Although an administrative decisionmaker may properly be influenced by policy considerations and other factors, he or she must put his or her mind to the specific circumstances of the case and not focus blindly on a particular policy to the exclusion of other relevant factors: Halfway River First Nation v. British Columbia (Ministry of Forests) (1999), 129 B.C.A.C. 32 at para. 62 [Halfway River].

Hinkson CJ expands on this definition in paragraph 114 of his decision and writes (emphasis added):

[114] As discussed in the standard of review analysis above, fettering of discretion occurs when a decision-maker does not genuinely exercise independent judgment in a matter. This can occur, for example, if the decision-maker binds itself to a particular policy or another person’s opinion. If a decision-maker fetters its discretion by policy, contract, or plebiscite, this can also amount to an abuse of discretion. Similarly, it is an abuse of discretion for a decision-maker to permit others to dictate its judgment. As Mr. Justice Gonthier said for the Court in Therrien (Re), 2001 SCC 35 at para. 93:

[93] It is settled law that a body to which a power is assigned under its enabling legislation must exercise that power itself and may not delegate it to one of its members or to a minority of those members without the express or implicit authority of the legislation, in accordance with the maxim hallowed by long use in the courts, delegatus non potest delegare: Peralta v. Ontario, [1988] 2 S.C.R. 1045, aff’g (1985), 49 O.R. (2d) 705…

[115] While Gonthier J. referred to a minority of the members of a body, I see no reason not to apply the same reasoning even to a majority of the members of a body like the LSBC whose elected or appointed representatives are assigned a power that requires the weighing of factors that the majority have not weighed.

This definition of ‘fettering discretion’ is mirrored in the Majority’s decision in Kanthasamy at para 32, where the court discusses the Officer’s use of the Guidelines on Humanitarian and Compassionate Grounds provided by CIC. The Majority writes (emphasis added):

[32] There is no doubt, as this Court has recognized, that the Guidelines are useful in indicating what constitutes a reasonable interpretation of a given provision of the Immigration and Refugee Protection Act : Agraira, at para. 85. But as the Guidelines themselves acknowledge, they are “not legally binding” and are “not intended to be either exhaustive or restrictive”: Inland Processing, s. 5. Officers can, in other words, consider the Guidelines in the exercise of their s. 25(1) discretion, but should turn “[their] mind[s] to the specific circumstances of the case”: Donald J. M. Brown and The Honourable John M. Evans,Judicial Review of Administrative Action in Canada (2014), at p. 12-45. They should not fetter their discretion by treating these informal Guidelines as if they were mandatory requirements that limit the equitable humanitarian and compassionate discretion granted by s. 25(1) : see Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, at p. 5; Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195 (C.A.), at para. 71.

Standard of Review

In TWU-LSBC, Hinkson C.J. appears to adopt a standard of review of correctness – stating that the fettering of discretion is an area where the court owes an administrative decision-maker no deference. Hinkson C.J. writes:

[99] As Mr. Justice Finch (as he then was) explained in Halfway River at para. 58, the fettering of discretion is an issue of procedural fairness, which is an area where the court owes an administrative decision-maker no deference:

[58] The learned chambers judge held that the process followed by the District Manager offended the rules of procedural fairness in four respects: he fettered his discretion by applying government policy…[.] These are all matters of procedural fairness, and do not go to the substance or merits of the District Manager’s decision. There is, therefore, no element of curial deference owed to that decision by either the chambers judge or by this Court.

In Kanthasamy, the Majority adopts the reasonableness standard of review. However, arguably this was done with respect to the decision as a whole and not directly with reference to the issue of fettering discretion:

[44] The Federal Court of Appeal refers to one case from this Court to support this point: Hilewitz v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 706. This case is not particularly helpful. It was decided before Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, there was no discussion of the impact of a certified question on the issue of standard of review, and the parties asked that correctness be applied: para. 71. In any event, the case law from this Court confirms that certified questions are not decisive of the standard of review: Baker, at para. 58; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, at para. 23. As the Court said in Baker, at para. 12, the certification of a question of general importance may be the “trigger” by which an appeal is permitted. The subject of the appeal is still the judgment itself, not merely the certified question. The fact that the reviewing judge in this case considered the question to be of general importance is relevant, but not determinative. Despite the presence of a certified question, the appropriate standard of review is reasonableness: Baker, at para. 62.

My Analysis

I want to bring in another definition of fettering discretion (going way back to the archives here) that I like personally. I found this on a Worksafe BC memo dated 20 December 1991 but I think it sets out the law quite clearly (emphasis added):

“A general principle in administrative law is that administrative bodies must not fetter their discretion. In other words, a body entrusted with a discretion must not disable itself from exercising its discretion in individual cases by adopting a fixed rule of policy. As summarized by Jones and de Villars in Principles of Administrative Law (Vancouver, 1985): … the existence of discretion implies the absence of a rule dictating the result in each case; the essence of discretion is that it can be exercised differently in different cases. (at p. 137).”

I think eventually there will need to be two standards of review for fettering discretion cases. When an officer is fixated on the application of a policy or discretion that is narrower than the written law – I believe that the reasonableness standard should apply. For example, as in Cha v. Canada (Minister of Citizenship and Immigration) [2005] 2 FCR 503, the Officer unreasonably fettered discretion by adopting a narrower approach (not conducting a full analysis) in reaching a decision that legally flowed from the imputed act – the issuance of an s.44 report and subsequent deportation order. However, if the officer is fixated of a policy that is broader than, or even more egregiously, contradictory, to the law I think it becomes an issue of correctness. I think that a blanket relevant/irrelevant considerations analysis is broad for the purposes of a fettering discretion assessment (see: Gleason J’s judgment in Jia v. Canada 2014 FC 596 at para 68).

Regardless, expect “fettering of discretion” to receive more judicial play in the years to come. I know in the immigration context, several refusals (subject to litigation) are based on discretionary applications of policy and Citizenship and Immigration Canada-generated requirements rather than the plain-language of the law.

Corresponding, you will likely see from this (if I were the government) more Ministerial Instructions and Regulations that codify existing policy. The reasonableness standard itself, where as long as balancing and factor consideration was arguably attempted is sufficient, may be enough to defend the decision-maker in those cases.

Ps. for a great article on “fettering of discretion” in the Canadian administrative law context check out Professor Paul Daly’s 2014 post “Fettering of Discretion and the Reasonableness Test” here.

Dec 6, 2015

Canadian Immigration Law Blog

Seven Things You Should Know Canadian Parent and Grandparent Class Family Sponsorship Program in 2016 and Five Policy Changes I Would Implement

Introduction

On November 23, 2015, Citizenship and Immigration Canada announced the details of 2016’s offering of the much-anticipated Parents and Grandparent Family Sponsorship Program. The full details of the program can be accessed here.

For the past several years, this program often fills up by the second week of January. In fact, many applicants submit their applications by express courier just prior to the New Year to ensure arrival by the program’s opening date.

This year’s program comes with even more anticipation as the Parent and Grandparent Class was at the forefront of at least two pre-election promises of the Liberal Government.

In their pre-election platform paper “A New Plan for Canadian Immigration and Economic Opportunity,” the Liberals set out those promises as follows:

Nearly doubling the budget for family class immigration processing, in order to restore processing times to the levels achieved before the Harper decade.

Doubling the number of new applications allowed each year, for parents and grandparents, from 5,000 to 10,000.

These proposed ideas found themselves into Prime Minister Justin Trudeau’s Mandate Letter to Immigration, Refugee, and Citizenship Minister John McCallum where these promises are reiterated as follows:

As part of the Annual Immigration Levels Plan for 2016, bring forward a proposal to double the number of entry applications for parents and grandparents of immigrants to 10,000 a year.

Develop a plan to reduce application processing times for sponsorship, citizenship and other visas.

So how will this year’s application process fair? How would I change things?

Ten Things to Note

This year’s program opens up on 4 January 2015 at 8 am Eastern.

There will be a cap on accepted applications. The current cap on new completed applications is 5,000 (pending any future Ministerial directions or changes provided in the 2016 Immigration Levels Plan).

Law Firms/Consultants Beware – Citizenship and Immigration Canada is not accepting bulk Applications. Each must be individually packaged and enveloped.

Minimum Necessary Income For Sponsorship Has Increased Again

Federal Income Table for Parents and Grandparents Sponsorship
Size of Family Unit	Minimum Income 2014	Minimum Income 2013	Minimum Income 2012
2 persons	$38,272	$37,708	$36,637
3 persons	$47,051	$46,354	$45,040
4 persons	$57,125	$56,280	$54,685
5 persons	$64,791	$63,833	$62,023
6 persons	$73,072	$71,991	$69,950
7 persons	$81,355	$80,153	$77,879
If more than 7 persons, for each additional person, add	$8,271	$8,148	$7,929

Note that an Applicant must meet or exceed the Federal Income Table from the date the sponsorship is signed until the day the family members become permanent residents. What this means is for the 10 years that an application is in processing, a sponsor theoretically has to meet the requirement in every year and can be subject to reassessment at any time.

Processing Times are Currently Astronomical – averaging 9-10 years total, with bulk of time spent at Visa Offices around the World

Parents and Grandparent sponsorship works on a two step process (much like Spousal Sponsorship via the Outside Canada Family Class process). The first stage, assessed at Case Processing Centre Mississauga, where the applications are received, is currently taking 48 months (i.e 4 years). Currently, they are working on applications received on or before November 4, 2011.

Following this, the applications are sent overseas for assessment. During stage two – the process is currently taking anywhere from 1 year to 7 years at some visa offices. Averaging out at around 5 years.

CIC has posted average processing times (last updated 10 July 2015), and they are available below:

Last quarterly update: July 10, 2015

Africa and Middle East
Visa Office	Processing Times IN MONTHS (based on a complete application package)
Abu Dhabi – United Arab Emirates	35
Accra – Ghana	79
Amman – Jordan	77
Ankara – Turkey	77
Beirut – Lebanon	79
Cairo – Egypt	72
Dakar – Senegal	77
Nairobi – Kenya	79
Pretoria – South Africa	67
Rabat – Morocco	76
Tel Aviv – Israel	63

Asia and Pacific
Visa Office	Processing Times IN MONTHS (based on a complete application package)
Beijing – China	71
Colombo – Sri Lanka	74
Hong Kong – China	62
Islamabad – Pakistan	80
Manila – Philippines	76
New Delhi – India	77
Singapore – Singapore	75
Sydney – Australia	35

Europe
Visa Office	Processing Times IN MONTHS (based on a complete application package)
Bucharest – Romania	75
Kyiv – Ukraine	71
London – United Kingdom	82
Moscow – Russia	74
Paris – France	71
Rome – Italy	66
Vienna – Austria	81
Warsaw – Poland	66

Americas
Visa Office	Processing Times IN MONTHS (based on a complete application package)
Bogota – Colombia	65
Buenos Aires – Argentina	76
Guatemala City – Guatemala	–
Havana – Cuba	–
Kingston – Jamaica	78
Lima – Peru	26
Los Angeles – United States	83
Mexico City – Mexico	74
New York – United States	–
Ottawa (Case Processing Centre) – Canada	69
Port-au-Prince – Haiti	53
Port of Spain – Trinidad and Tobago	74
Santiago – Chile	–
Santo Domingo – Dominican Republic	–
Sao Paulo – Brazil	22

Essentially, if my numbers are correct – it will be a least a decade until many Canadians see their parents/grandparents. These are 10 years that many Canadian families simply do not have with the increasing age and declining health of elderly parents and grandparents.

Undertaking for Sponsors is for 20 years

This means that you must promise to provide financial support and basic requirements for the person you are sponsoring including – food, clothing, utilities, personal requirements, shelter, fuel, household supplies, AND any health care not provided by public health such as eye and dental care.

If your family member receives financial support from a federal, provincial, or municipal program while the undertaking is valid you will be considered to be in default which will have consequences for any other sponsorship application.

Your Spouse/Common-Law Partner is the only one who can act as a Co-Signer.

Five Policy Suggestions Moving Forward

If I were advising the Minister, I would have the following suggestions on how to improve the Parent and Grandparent Sponsorship Program:

Contact individuals in the current four year queue/waitlist and ask for updates on their family. Offer an expedited/expanded super-visa option (3 years) to any family who has an urgent need.

Create a second 5,000 draw. Have this draw conducted randomly with a select portion set aside for humanitarian and compassionate circumstances. Promise 2 year processing on this set of applicants. Offer all applicants the option to convert to a super visa at any time during processing;
Announce the end of first-come, first-serve family immigration. I believe it is out of line with the rest of the Canadian immigration programs focused on quality and quantity rather than speed of application;

Explore the option of an electronic ‘points-based’ process for a selection of family class applicants (perhaps ones that qualify for expedited) – 2 year processing. Criteria can include families that can demonstrate the greatest need (i.e. need for parent/grandparent to take care of child in case of two working parents) or other grounds necessitating family reunification (no family member/spouse in home country); and
Allow other Canadian siblings other than the principal sponsor/co-signer to act as sponsor for the purposes of Minimum Income Requirements for the Federal Sponsorship Table. Have the requirement be a proactive provision of an account showing locked/frozen funds over the period of processing.

What are your thoughts on parents and grandparents? Would love to hear them in the comments below.

Nov 30, 2015

Six Reflections From My First Six Months of Practice

It is officially six months since I was called to the bar. These six months have gone by quite fast. From both a practice and personal perspective they have been eventful, thrilling, devastating, and all feelings in between.

Perhaps the best way to ‘reflect’ (or over-reflect, as I am prone to doing) on my last six months is to ask myself some inner questions. So here we go.

What have been the successes and challenges so far?

Successes

Purely from an immigration perspective, the biggest successes so far have been gaining positive client results, particularly in a litigation or contested application context.

Immigration law is so fascinating as it is one of the few areas in law where the practice is really a hybrid between barristers and solicitors work. I think my most memorable moment in practice was seeing my client call his wife in Africa and tell her they won their appeal, both of them near tearful in their joy. A close second when Justice O’Reilly of the Federal Court summarized a subsection of my memo of argument in Jewell v. MPSEP 2015 FC 1046 in ruling in our client’s favour on a difficult case.

Overall, I think the success of my blog and article writing has been the most unexpected but surprisingly. I remember that I really caught a break – with the CIC training guide on ‘sham marriages,’ an issue that really affected me personally. I was very lucky that a social media connector and writer, Marco Campana, recommended that I write for New Canadian Media which eventually turned into this piece. I am very grateful that I have been able to become an advocate for several immigrant groups through my writing and I look forward to doing more writing and presenting moving forward.

Challenges

The biggest challenge has been dealing with the business of law. I think all junior lawyers find practice management, billing, and filing to be very tedious parts of their work. I am grateful in that I have amazing support staff at my firm that has been great in assisting me in these regards. However, as a lawyer (as opposed to an articling student I am not the first (and often times only) eye and line of communication with clients. I have come to learn that as much as clients are very concerned about the overall result, they are also very keen on the process. Lawyers must be accountable for this process.

The most unexpected challenge that I have had to deal with is the role of administrative delay and processing times in my work. Clients often want guarantees and success rates and daily updates. This is not always possible and, in fact, providing false guarantees or even predictions can be very negligent

2. Do you regret choosing just one area of the law to focus on? Do you regret joining a small firm?

I do not regret choosing just one area of the law. I think, if anything, I would have ended up in immigration given the way my academic career and personal interests aligned. I am happy I had this happen to me earlier rather than later. I think the fear that it is impossible to transition from one area of law to another or one type of firm to another is largely man-made. I have seen many cases of individuals who have started new practices and transitioned new practices very successfully. I think what is important for me is that I am doing something I am passionate about and that I wake up every morning and genuinely look forward to doing. At this point in time, I have yet to find anything like immigration that quite as inspires me.

As someone who as seen big firm culture and small firm culture I could not be happier to be at a small, boutique firm. I think that having a small physical work environment where it is easier to take two steps and have a face to face discussion with an assistant or lawyer is so valuable. One of the things I love is that when I am in a client consultation on an issue I have not handled before I can within one minute call up a colleague to come join and share his/her expertise. It is really a beautiful set up.

3. How does being an Asian-Canadian lawyer affect your practice?

I take it as a chip on my shoulder. Many times the first thing people think when I tell them I am an immigration lawyer is that I must have a strong Chinese practice. Truth-be-told my clients come from all over the world (and all over a very diverse China) for that matter.

I think also having been a product of immigrant parents myself and having interacted with so many immigrants gives me a window into their lives and their concerns. I think I may have an advantage in relating to my client’s situations and cultural perspectives and use that mutual respect to harness their trust. Without trust, I don’t think any client relationship can be successful and without that relationship applications themselves cannot present the necessary story to convince visa officers, tribunals, and judges.

4. What are your strengths and weaknesses so far? What one area do you most want to improve?

I think my strength has been in analyzing complex client cases to see where the deficiencies lie and how to address them while emphasizing the strengths of the case.

I think where I can be better is in tightening up and strengthening my communication with and on behalf of clients. With the uncertainty, layer of discretion, and constant change that exists in immigration lawyer, it is too easy to step in the shoes of the client and panic and worry. I think immigration lawyers have to be the voice of reason, confidence, and patience at all times. We also have to learn to step away from certain cases emotionally and objectively analyze and criticize – even if it is to challenge our clients on their positions on certain issues.

We also have to be honest, something I take a huge pride in and I think will be the basis of my success moving forward. I would very much tell a client the truth – that it depends on our hard work together and the discretion of an officer then offer an arbitrary percentage success rate. I think clients that are lawyer shopping should be concerned if a firm (lawyer or consultant) starts offering specific percentage of success rates.

5. How do you balance law with other commitments in your life?

It is difficult. Very difficult. Particularly when work becomes one of the more stable things in your life. I am grateful in that I have a very flexible arrangement as a contractor rather than an employee. When family matters arise or when I need to work from home this is absolutely facilitated and often times even encouraged.

I think that maintaining a health body and healthy relationships is absolutely key. Work stress tends to affect a lot of individuals in making them more prone to sleeping less, working out less, eating more, and detaching from family and friends. I think it is absolutely crucial that there needs to be time away from work and work email. I have not quite yet gotten to the point where I can ditch my cellphone on weekends (particularly given the number of overseas clients or working clients that only have time to work on their immigration on weekends), but I recognize the needs to take a step back sometimes.

6. What are three things you recommend law students/articling students to do to facilitate the transfer into practice?

A) Obtain great mentors.

Find mentors in your work place. I have been fortunate in having great partners and Larlee serve as my mentors. Peter teach me everything about immigration litigation and handling difficult clients, Ryan teaches me everything about how to be attentive and diligent, Steve teaches me how to be a well-rounded practitioner and to write and argue effectively. My colleagues, Vivian, Dan, Jeevyn, and Darren always and I mean (ALWAYS) say yes when I have a question or need to share their insight. Importantly, as human beings (not just lawyers) they have been great mentors on how to balance work and life through turbulent waters.

Find mentors outside your work place and outside your profession. I have had the privilege of having great mentors outside of work. Jenn Lau and the FACLBC exec crew and John Kim as Faskens are two names that come to mind. Also, I have been lucky to be mentored by several great, outstanding leaders outside of law. Getting involved in the City of Vancouver’s Cultural Communities Advisory Committee has been a huge blessing, as I meet many individuals who I look up to for their ability to fight and achieve social change. My old university colleagues, Adrian and Carlos Vonarx have been great as a model of success. All my best friends are also great mentors for many of the periphery issues that we as lawyers need to take care of in order to thrive in practice.

B) Find something or someone you love outside of the law.

I find that every lawyer/practitioner that is genuinely loving and thriving at their work has something or someone outside of work that gives an extra raison d’etre and level of support when things go down south.

Law has this reputation for soul-sucking, depriving individuals from pleasures of their previous life. I think a lot of this occurs because we try to fight against old habits rather than integrate law into our existing habits. It is funny how the moniker that “whatever got you into law school, will get you out of law school” goes out the window in private practice.

I find lawyers that are able to find a creative outlet for their legal work are often also able to use that passion for the creative work to draw in clients. Potential immigration clients in Vancouver, these days, be it study permit applicants or intra-company transfers are often directly involved in or one degree separated from the creative industry. Being able to connect […]

Nov 3, 2015

Canadian Immigration Law Blog

Restoration Problems – Studies to Begin at a Later Date

I wanted to share a recent response to an inquiry I was provided CIC and why I think it creates unreasonableness – call it reasonableness in the unreasonableness.

Here is the scenario. For whatever reason, your client’s Application for a Post-Graduate Work Permit is refused or never submitted. The client’s study permit has also expired. The 90-day after meeting graduation requirement period in which to apply for a Post-Graduate Work Permit has also lapsed. Restoration is the only option. The restoration date is calculated either 90 days from the expiry of your status (in the event an extension/work permit application was never submitted) or 90 days after you receive a refusal of your application (in the event an extension/work permit application was submitted).

Let us also assume that it is now September. Fall program registration has ended. The program you are interested in starts in the New Year.

My question was below:

Question:

I have a general question about restoration of student permits for studies to begin at a later date.

Individuals who have their post-graduate work permit (PGWP) applications refused and are no longer eligible for a PGWP due to expired study permits and passage of time have the option to restore their status (in-Canada) as a student on the basis of a student permit extension, which itself is based on a new offer of acceptance.

However if the offer of acceptance is for studies to begin at a later date (i.e. a later semester) is it possible to have a student stay in Canada on a study permit, on deferred enrollment, while not actively pursuing studies for that period of time?

I was unable to find the answer to this on CIC’s available material on study permits and the new study permit rules.

Response:

The determination of whether or not a study permit can be issued for individuals who have applied for a restoration of status with a letter of acceptance for a program expected to commence on a date in the future (e.g. a later semester), rests with the officer assessing the application. It may be determined that a study permit can be issued based on the date the program is expected to commence, or the study permit may be denied because the period of time before the program commences is not considered reasonable. If the study permit is denied the individual must leave Canada and can apply for a study permit at a later date.

The students who have lost their status may also apply for a restoration of status as a visitor. If the restoration of status is approved the individual could remain in Canada, however, they will not be authorized to study, and will still be required to apply for a study permit outside of Canada a later date as per R213.

This is the particular section I have trouble with: “It may be determined that a study permit can be issued based on the date the program is expected to commence, or the study permit may be denied because the period of time before the program commences is not considered reasonable.”

With processing times for a restoration of status frankly “up in the air,” how does one time the restoration application? Without legislative guidance, what does “reasonable mean.” For me, reasonable is three months but for the Officer that may be unreasonable.

It will be interesting to see if there are any refusals from the application of this discretion. Would be fun to challenge this in the Federal Court.

Oct 12, 2015

Canadian Immigration Law Blog

Recent Experiences with PGWP Problems (Updated – 15 September 2016)

One thing I have noticed recently in my practice is the number of individuals who are having challenges with Post-Graduate Work Permits, more specifically the period of time between which they complete their final academic session and the time in which they receive their post-graduate work permit (PGWP).

The period in which an international student holds a PGWP is the most crucial period in their ambition to become a economic permanent resident. As I have discussed in several prior posts, the PGWP provides the student the opportunity (albeit often challenging to obtain) to get the one-year of skilled work experience that can set them up for the Express Entry process.

Problems 1: Late/Mistimed Application

An increasing problem I am seeing is that individuals are applying too late for their post-graduate work permit. A post-graduate work permit must be submitted with 90 days from meeting the requirements of completing the program of study. This DOES NOT always mean (and usually does not mean) the actual date of your graduation. Most programs (and inquiries should be made with your institution if this is not the case) issue letters or notices indicating that you have completed your requirements and are now eligible for graduation. This is the date the clock starts ticking.

For many individuals their study permits may extend beyond the period of their full-time studies. This can also be very deceiving for an individual preparing to apply for a PGWP. Since June 2014, the new study permit requirements have created an oft-confusing provision that allows you to work full-time during regularly scheduled breaks (i.e. summer/winter/spring vacations) as long as you maintain full-time status as a student. Importantly, this DOES NOT cover the summer after you graduate UNLESS you have a pending application for a PGWP.

Right now PGWP Applications (submitted online) are also taking several months. CIC does not specifically post processing times for PGWP but from several individuals, I have heard this has taken up to 4-5 months. If the PGWP Application is made before the study permit expires, this will give the Applicant the ability to work (accordingly to the terms of their study permit, until a decision is made on their PGWP. While this is all good, the waiting period can be particularly challenging on students who had accompanying spouses who had their open work permits tied to the PGWP applicant’s expiring study permits. There is no implied status for the accompanying spouse and their own ability to receive a further open work permit will be tied to the PGWP Applicant receiving their PGWP and demonstrating their employment in a NOC 0, A, B position.

Resultantly, Individuals who have the ability to apply for a work permit at the port of entry and/or flagpole are strongly advised to look into the option and seek advise from competent counsel prior to attempting to make the application. The process, if done properly, could save several months of worry. I recommend reading my colleague Steven Meurren’s excellent piece on flagpoling and its potential risks here.

Problem 2: Poorly-Prepared Application

The challenge with PGWP is that they are a “one shot deal.” Whereas a refusal for a temporary-resident visa or initial study permit can often be addressed through a new application, which may cost an Applicant a few months or a semester of wait time, a failed PGWP Application can possibly alter by several years, a potential foreign students plans in Canada.

For example, let us assume an Applicant is informed in May 2016 that their program is completed. That Applicant duly submits an online Application for a PGWP right away. Their study permit expires in July. Should they receive a refusal in September 2016, they will now be out of the range to apply for a PGWP (more than 90 days). Furthermore, they will be ineligible as they no longer hold a valid study permit. The Applicant’s restoration of temporary resident status would only be possible on the basis of a study permit extension (which will require a new acceptance) or switching to visitor status.

Again, I think this is a major gap/flaw in the way the PGWP program currently operates but it gives way to possible strategies (that I have not yet myself explored) that may be employed to try and mitigate the situation. The way the rules currently operate, I am advising most of my clients to have a “back up plan” ready (i.e. further studies or other work permit options) in the event something goes array with the PGWP Application.

Please note the recent decision in Nookala v. Canada (MCI) 2016 FC 1019 where Madam Justice Mactavish explicitly rejects the strategy of restoring to a study permit for the purposes of obtaining a new post-graduate work permit where no program of study has been entered into at the time of restoration.

Generally speaking the PGWP Application is quite straight forward, and CIC does give further information requests to facilitate this process. However, I can certainly foresee with the new study permit regulation’s greater scrutiny of work and study during the validity of study permits, more PGWP refusals down the road. PGWP Applicants would be wise do double and triple check that all fees, documents, and especially dates before submitting their Application.

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