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Sep 25, 2015

Canadian Immigration Law Blog

Dual Intention: FC in Jewell Reinforces That it is More than a Buzzword

Introduction

As many of you might know, our Firm recently won an important Federal Court case relating to dual intent, a much maligned but rarely addressed legal concept in our Immigration and Refugee Protection Act (“IRPA”).

I want to discuss a few of the principles of the case, but equally important walk through some of the lessons I learned through this case, my first start-to-finish Judicial Review as an Articling Student.

Dual Intention Is Not Dead

Prior to this case, I remember quite clearly several discussions between lawyers on the Canada Bar Association’s Canadian Immigration Email Listserv, asking the question:

Is Dual Intention Dead?

I think Justice O’Reilly, who it is to be noted has allowed judicial review in quite a few of the recent cases he has heard, came out with an emphatic “no” in his recently released decision in Jewell v. Canada (Minister of Public Safety and Emergency Preparedness) 2015 FC 1046.

To recap, Mr. Jewell was an American-Citizen who had a Canadian-born girlfriend. There were text messages on his phone that were recovered by CBSA Officer through a cellphone search that made the Officer believe Mr. Jewell had established permanent residency in Canada without having obtained permanent resident status purportedly contrary to s.20(1)(a) of IRPA. The Officer and Minister’s Delegate, in their interviews of Mr. Jewell, looked at his pattern of travel over a two week period, and determined that it was consistent with a Canadian permanent resident, commuting to the U.S. for work, resetting his temporary status through his frequent trips. The terminology they used (although not specifically cited in the decision) was that Mr. Jewell was “abusing the privilege of his six-month visitor visa exemption.”

As soon as the case came through the door, something smelled fishy to me. How can any an officer determine over a two week period whether someone had established permanent residence? Why was the physical residence in Canada a trigger point? Aren’t there arguably many temporary residents in Canada (students, workers, visitors alike) who live in Canada and have houses here. We early on isolated, dual intent as the battleground in this case.

From a litigation standpoint, one of the more interesting parts of this case came, after leave was granted, when we learned that a recent dual intent case had been dismissed by the Federal Court in Barua v Canada (Minister of Public Safety and Emergency Preparedness), 2015 FC 172. In Barua, the Federal Court completely dismissed the applicant’s dual intent argument concluding that Mr. Barua had several attempts to establish his dual intent and simply did not not demonstrate that he would leave when required. I remember when preparing our further memorandum that there would be no way Barua would not be cited by DOJ (Minister’s counsel) and made the conscious decision that we would approach and address that case preemptively.

However, an the case carefully I realized there were several factual nuances. Mr. Barua had previously arrived in Canada under false pretenses of having a work permit, but no real job opportunity at the time. He also was counselled several times to apply for permanent residency and ultimately told Officer’s he could not leave and would not leave Canada.

What initially was going to be a dagger blow, turned out to be a blessing in disguise. We were able to clearly draw a line in the sand between the cases DOJ were relying on – all individuals who had long-term patterns, non-compliance, and multiple opportunities to establish their dual intention and Mr. Jewell, who really was not offered even one opportunity to state his dual intention or have his dual intention adequately assessed.

Justice O’Reilly’s decision in our case is a short one. In fact, he managed to summarize in four paragraphs what 20 pages of our Final Memorandum emphasized. I wanted to present those four key paragraphs, as they are quite important to my assessment of the implications of this case:

III.             Was the delegate’s decision unreasonable?

[11]           The Minister submits that the exclusion order was reasonable because Mr Jewella dmitted his intention to reside in Canada permanently. Further, Mr Jewell was behaving as a permanent resident of Canada by commuting from BC to Washington.

[12]           I disagree with the Minister’s position. In my view, the delegate failed to assess Mr. Jewell’s dual intention to be a temporary resident at present, and to become a permanent resident later.

[13]           IRPA provides that foreign nationals may hold the intention to become permanent residents without being precluded from becoming temporary residents if they show they will leave Canada at the end of their authorized period of residence (s 22(2)). If they cannot do so, an exclusion order will be considered reasonable (Barua v Canada (Minister of Public Safety and Emergency Preparedness), 2015 FC 172 at para 22; Sibomana v Canada (Minister of Citizenship and Immigration), 2012 FC 853 at paras 27-28).

[14]           The evidence before the delegate did not show that Mr Jewell intended to become a permanent resident of Canada without abiding by the applicable rules. At best, the evidence was ambiguous. Further, there is no evidence that Mr Jewell would refuse to leave Canada, or that he would fail to observe any other legal requirements.

[15]           Therefore, in my view, the delegate’s decision did not represent a defensible outcome based on the facts and the law. It was unreasonable.

Implications

While arguably that this case is too fact dependent and the reasoning too short to be considered a strong precedent, I think Jewell does bear some weight for future temporary residents trying to come to Canada with an eye to permanent residency.

From having looked at the case law, Jewell is one of the first decisions that really tackles this issues for an individual who does not yet have an application in processing. Prior to Jewell dual intention was commonly considered only available for those who had access to a readily available permanent residence option or more often had a sponsorship application in process and wanted a Temporary Resident Visa to visit in the interim.

With Jewell, I can see more challenges to cases where evidence such as cellphone records or bag searches turn up evidence which suggests lives are being packed in preparation for immigration. The case suggests it is not enough to simply look at private text messages between couples saying “I am moving to Canada” or look at whether an individual is shipping his household furniture to Canada.

Jewell suggests that at the very least a dual intention analysis needs to be carried out by the Officer. I would assume that such a process should be done pursuant to CIC’s explicit instructions on the issue. Importantly, as stated in the instructions:

Officers are reminded to use their own judgment and the flexibility afforded to them by A22(2) when making decisions in cases with a dual intent aspect. CAIPS/FOSS/GCMS notes should clearly demonstrate the officer’s reasoning when assessing a case.

In Mr. Jewell’s case, while there may have been some assessment of where he lived and what he had been texting to his girlfriend, there was ultimately no assessment of dual intention or if Jewell would leave Canada and abide by the rules and regulations.

Possible Mitigation Strategy

I do not see “dual intention” being a magic incantation that an individual can simply recite at the Port of Entry. An individual who’s travel history clearly demonstrates that they have no intention and/or means to establish legal permanent resident status but are still trying to come in as long-term repeat temporary residents (i.e. through frequent flagpoles) will increase their risk of having their dual intention requests denied.

On this note, obtaining a visitor record may assist in establishing dual intention and facilitating entry (particularly for cross-border couples).

Sep 21, 2015

Canadian Immigration Law Blog

Nuance in Federal Court’s ruling in Guerrero should be explored

Introduction

My mentor and colleague Steve often tells me when I go on and on about having found the “perfect precedent” for my case that in the realm of the Federal Court such a term is not so easily contrived and applied.

The fact specific nature of immigration inquiries combined with the cautious nature of many judgments written by the Bench that emphasis this, make it often difficult to establish precedent. The standards of review (reasonableness and correctness) themselves open up a certain level of discretion. What may be reasonable in one circumstance can become unreasonable in another. What is procedurally fair in one circumstance can be unfair in another.

More often than not using Federal Court case law (in the context of Federal Court) becomes the task of not arguing whether legal principles are right or wrong but taking your client’s case, case law in support, and case law not in support, and sussing out the factual nuances.

Certifying a question, the only way by which the case can go to the Court of Appeal and eventually to the Supreme Court of Canada is becoming more and more difficult. You are more frequently seeing Federal Court judges rule this way: (example taken from Steve’s recent win in Federal Court in Gupta v. Canada (Public Safety and Emergency Preparedness) 2015 FC 1086).

[26] The respondent takes the position that this matter is too fact-specific to merit certification of a serious question of general importance. At the respondent’s suggestion, I will not certify a question.

That being said, there is a recent case of cautious judicial writing but one that makes what amounts to quite a strong criticism of some of the elements of the CIC’s current practice if sending admissibility procedural fairness letters.

For those that are new to the term, procedural fairness letters are the letters CIC sends when there is further information they need or further submission they require you to make in order to dispel them of their concerns. In some application contexts, failure to submit an adequate response will lead to applications being thrown out. In other contexts, such as inadmissibility, the consequences will be more sever as an s.44 inadmissibility report may be written up on your client.

For immigration lawyers/practitioners, it represents the first (and possibly last) opportunity we will have to effectively represent the client before any litigation (i.e. Federal Court and Immigration Appeal Division in some cases) where the onus shifts quite drastically to the Applicant to prove his or her case.

Guerrero v. Canada (Citizenship and Immigration) 2015 FC 1086

The Guerrero case is a very interesting one for the situation is not an uncommon one but the consequences are quite severe. In fact, in our office we have done a few consultations on related situations.

To sum it up briefly (as you can read the entire case: here), Mr. Guerrero applied for permanent residency through the Federal Skilled Worker program in 2010 and added his wife, Merambel, after marriage in 2013. During his interview at the Port of Entry and prior to finalization of the PR application, it came to light that Guerrero had had an affair with a lady named Martinez (a coworker). He made some statements at the Port of Entry during his interview, that formed the basis of Officer’s notes.

Based on CIC’s concern about the relationship, a procedural fairness letter sent referencing misrepresentation and the bona fides of the relationship. In response, Mr. Guerrero sent statutory declarations and provided evidence of his relationship.

Finally a decision was issued, finding that he had misrepresented himself in statements he made at the port of entry as they contradicted with his written statements in response to the procedural fairness letter.

Justice Southcott’s decision in Guerrero turned on an analysis of procedural fairness and whether the failure to provide the Applicant a fair opportunity to contradict or corrective statements amounted to a breach of procedural fairness.

Justice Southcott’s decision, I found, very clearly distinguished between situations where the applicant themselves provides information versus the use of extrinsic information that the applicant is unaware of (para 28 of that decision).

The nuance here is that Justice Southcott found that the officer’s port of entry notes, containing statements purported to have been made by Guerrero and Martinez, was not considered evidence that Mr. Guerrero should have been aware of. Justice Southcott writes (emphasis added):

[31] The challenge for the Respondent in advancing this position is the fact that, prior to production of the Certified Tribunal Record as part of this judicial review application process, the Applicants had never seen, reviewed or approved these notes. The notes are therefore different from a written statement or other documentary evidence submitted by an applicant and different from someone else’s record of what an applicant has said where the applicant was provided an opportunity to review such record. In my view, in the absence of such an opportunity, depending on the use of the record, the duty of procedural fairness may be engaged so that the impugned individual is not deprived of the opportunity to raise concerns about whether the statements were recorded accurately.

Interestingly, Justice Southcott went into an even more nuanced analysis by looking at the specific language of the procedural fairness letter and whether it provided the Applicant with the required opportunity to respond. He concluded that the letter (emphasis added):

“does not set out the detail of the statements, purported to have previously been made by Guerrero and Martinez as reflected in the port of entry notes, on which the Officer’s concerns were based. Guerrero’s affidavit, filed in support of this judicial review application, states that he advised the CBSA officers in November 2013 that his relationship with Martinez came to an end in April 2013 when he married Merambel and that he never stated that he would end the relationship when his wife came to Canada.”

Finally, and again consistent with what I was discussing earlier, Justice Southcott applies judicial caution in explicitly suggesting that this case was fact specific and that he was not suggesting a general requirement for the provision of Officer’s notes (usually obtained by counsel at ATIP but sometimes only received at the CTR stage). He writes (emphasis added):

[40] I am conscious of the Respondent’s point that it is not common practice to provide port of entry notes in circumstances such as these as part of the duty of procedural fairness. I am not suggesting that there should be a general obligation to do so. Rather, my conclusion is that, in the specific circumstances of this case, given the particular use that was made of such notes by the Officer in making the Decision, the content of the procedural fairness letter did not contain sufficient detail to satisfy the duty of fairness. My finding is that the Officer’s approach to the discharge of that duty was accordingly incorrect and, if I were to afford some degree of deference to the manner in which the Officer approached that duty, I would also conclude such approach to be unreasonable.

Why I Hope This Case Gets Emphasized More By Counsel

Even in light of all of Justice Southcott’s cautious reasoning, I think his analysis does raise a very real challenge to the status quo of broad procedural fairness letters.

For example, in one of the recent cases we worked on in this office relating to criminal inadmissibility, we were quite sure the tactic of CBSA was to pass the ball to us first rather than to have them weigh through the thousand pages of evidence. The procedural fairness letter was very broad and did not even specify what criminal code provision our client was being found to have ‘committed’ an equivalent offense under.

While perhaps most relevant in the inadmissibility context, where the consequences on the applicants are very severe, I could see this principle applied to all types of economic and family immigration cases. Many procedural fairness letters that are sent are standard-form, and certainly much less detailed than the ones the Guerrero’s were afforded.

While the practice of counsel ATIPing to get the ‘cards held by CIC/CBSA’ will continue, it does suggest that our immigration officials need to be more thorough in laying out their claims before sending the letters.

Sep 13, 2015

New Technology, LPM, and Canadian Immigration Section

Recently, I have become very interested in the way new technology, legal project management (LPM), and Canadian immigration are intersecting.

In fact, I wrote a piece for a legal app/tech-startup Kabuk law titled The Double-Edged Sword of Recent Technological Development in Canadian Immigration Law, that many individuals might find interesting.

Please stay tuned for posts relating to how I believe technology will impact immigration, how prospective applicants can use technology to better manage their own immigration affairs, and how immigration practitioners are starting to use technology.

Sep 10, 2015

#MorethanaLabel: Immigrant Stories

I am participating in #MoreThanALabel: Immigrant Stories, Simmons College’s online MSW Program’s campaign to promote transcending labels. By participating in this campaign, I will be sharing my story and how I believe we can shatter the stigmas often attributed to immigrant communities.

I am a Second-Generation Chinese-Canadian, an Immigration Lawyer and Mentor. I believe that to combat labels and stigmas and to create more immigrant pride, we need more spaces and forums to share our stories. Here is mine.

————-

[Now I am going to break the requirements a little and write more about this topic. I hope the Simmons College organizers will forgive me a little given ‘breaking the norm’ appears to be theme of this campaign.]

Why I Am Participating In This Campaign

I was invited by Simmons College, through a very kind message by Community Manager at Simmons College, Megan Dottermusch, to contribute their #MoreThanALabel campaign. Asides from my belief that social work is such a valuable, yet largely underappreciated profession, I also found the question they are asking about immigration quite engaging and useful.

“How are immigrants currently combating labels and stigmas, and what can we do more to promote immigrant pride?”

While I am not an immigrant to Canada, by virtue of being born here, my life is very much intertwined with immigrants. I am the product of first-generation Canadian immigrants from China. I will be very likely be married to an immigrant. I work with immigrants every day. Immigrants from China, India, Iran, Guyana, and Trinidad and Tobago are, quite literally, my best friends.

In my opinion, the only way to combat labels and stigmas surrounding immigrants is to overpower the labels and stigmas by telling our stories, teaching our cultural lessons, and embracing our similarities and differences.

Experiences from My Work

In my role as both a Canadian immigration lawyer and career mentor to several new Canadian immigrants, I have had to assist my clients and mentees in navigating the broad spectrum of labels and stigmas unfairly assigned to them. I have walked immigrants through the process of presenting their cultural marriages and untraditional love stories into sponsorship applications and appeals. I have worked with foreign-trained lawyers looking for ways to transition their credentials and tackle the issue of ‘over qualification’ for entry-level Canadian jobs. In the process, I have seen and heard immigrants labeled as uneducated, liars, burdens on society, criminals, and animals (among others).

I have come to realize that the reason I defend immigrants so vigorously against these labels and stigmas are that I too faced similar labels and stigmas growing up in Vancouver, as a second-generation Canadian.

My Experience Growing Up

My awareness of labels and stereotypes began in my youth. Early on in my elementary school days, I found myself being not so randomly selected, during the first day of many of my school years, for participation in English Language Assistance Classes (LAC, as it was fondly called). I was never assessed for proficiency, rather assumed to be struggling simply for being Chinese. I never lasted more than two weeks in the group but every year I’d be selected like a roster player sent to the minor leagues. Ironically, from then on, English became my strongest subject, although at the unwarranted cost of losing and abandoning much of my Mandarin.

In secondary school, my excitement to eat home-cooked Chinese lunches thoughtfully prepared by my parents was ruined by the stigma from classmates that I was again eating their pet animal. I laughed aloud at their biological organ-related jokes, but truthfully their insults hurt. I was always worried that classmates would label me a FOB (Fresh off the Boat) and not one of them.

I remember also feeling stigmatized at that time for not having a stay-at-home parent who could volunteer and sell flowers to raise money for the school. Having two working class immigrant parents was not the norm in my more affluent program. Teachers probably thought I was “lazy” for not trying but truthfully there was not one well-off family friend or businessman I could call to try and fundraise. I felt embarrassed every year.

I also struggled internally handling the labels thrown at me by friends, teachers, and parents. For one, I was always more interested in hip-hop music and poetry rather than math, physics, and cars. More than a few people told me I was on a “criminal” path pursuing “black people culture” that was not suited for a person of my Chinese background.

In my second year of University, I finally decided to accept and embrace my Chinese cultural heritage, pursuing language studies in Mandarin and focusing my academic focus on Chinese-Canadian migration history. In these early advocacy days, I saw and dealt with several (mostly non-ethnic) community individuals who dismissed my efforts. They saw me as being too vocal for a Chinese boy and too young to be sharing such poignant opinions. I could tell that to many, by virtue of being second-generation Canadian, I was not Canadian enough to deserve a voice or forum.

Today, in the practice of law, I continue to see colleagues of ethnic-descent struggle to find opportunity or to advance their careers. I live in a country that has elected few immigrants to positions of major influence in the executive or judiciary level. Even fewer are women of non-European ethnic descent.

Personally, I cannot count how many times I have been asked if I am interpreter or consultant rather than a lawyer. In one memorable incident leaving work in my business suit, a woman ran to her car across the block and thought my briefcase was a ticketing machine. In another incident two years back, a female Asian colleague and I were met in Downtown Vancouver with the “F-word” and “Chank” in the same drive-by insult. I am not going to chalk all these incidents up to labels and stigmas, but I am sure at the very least preconceived notions based on visual perception played a huge role.

Reflections on My Responsibility

I am consciously aware that by virtue of now being a lawyer, I have a privilege that not many immigrants have, of being able to defend myself of unfairly assigned labels and stigmas. I believe that translates to a corresponding responsibility to guide, educate, and defend those without the ability to respond.

Unfortunately, newer immigrants without language skills and without financial resources are the most victimized by society – by strict laws enforcing the will of the majority, by abusive employers seeking to profit of suffering, and generally by the haves of society. Yet rather than being presented as victims, they are presented as the “illegals” and “wrongdoers.”

Our collective responsibility is to speak out when this type of injustice occurs, not fearing the personal consequences to us of speaking out, and not failing to speak out even when the consequences aren’t always personal. For me, the #MorethanaLabel campaign is about challenging the statistics, the media, and the popular opinion when unwarranted positions are being tenured against our immigrant communities and, by extension, our families.

Truthfully told, many labels and stigmas, redefined, are actually some of the traits and characteristics immigrants should be most proud of. Yes, we can be silent because it is often because we are busy quietly analyzing things from more-holistic view. We can be overly private and anti-social but only because we are busy taking care of our families and loved ones. Yes we are overly hardworking because several generations of individuals, often oceans apart, rely on our end product.

Finally, to conclude, I will dedicate this paragraph to my American friends. I understand that you are currently in the process of contemplating some major reforms that will make enforcement measures stronger against undocumented immigrants and may lead to increased deportations. I ask you to be conscious and aware of the labels and stigmas that may underlie these pending changes. I ask you to constantly question whether immigration legislation that is aimed at protecting the integrity of the system and punish international criminals and terrorists may have the unintended consequence of tearing up innocent families and punishing innocent mistakes by innocent applicants. I ask you to not blindly buy into the assumption that the immigrant family of five living on welfare next door is a burden on your family’s access to health care and education. Rather have faith in their potential to be as the next group of doctors, engineers, social workers, and artists that can make your children’s lives collectively more cultured, happy, and healthy.

We are more than the stigmas assigned to us. We are more than labels placed on us. We are part of your family as you are part of ours. We are all immigrants.

Sep 5, 2015

Canadian Immigration Law Blog

The Problem with the ‘Actively Pursuing Studies’ Study Permit Condition

Back in one particular undergraduate semester, I will admit that I had a tiny bit of a skipping problem. It was a problem of the academically inconsequential kind. I knew that by virtue of taking certain courses, with only term paper requirements, that I could free up that one course time to pursue my other research, write papers, and organize projects. Arguably had I filled my course schedule with all of the toughest courses at the worst 8am times, I would not have made it to where I am today.

One of the courses in particular was an European History of Economics class that I managed to make approximately three classes for. The first class to the get the syllabus, the second class to hand in my term paper, and the third class to attend the final exam preparation session. I was able to self-read and self-teach my way to an A (not that proud of it looking back).

For an international student, that luxury as of June 2014 no longer exists.

Speaking from my recent experiences with CBSA (an ongoing matter so I will go into no specific detail on it), I know that officers are now armed with an incredibly thick binder of information on each student. They have access to school policies, attendance records, late records, and transcripts. This is in addition to the school’s own requirement to report student progress.

All of this is in relation to the following legislative requirement that was introduced to the study permit changes in June 2014.

Section 220.1 of the Immigration and Refugee Protection Regulations (IRPR) now reads (emphasis added):

Conditions — study permit holder

220.1 (1) The holder of a study permit in Canada is subject to the following conditions:

(a) they shall enroll at a designated learning institution and remain enrolled at a designated learning institution until they complete their studies; and
(b) they shall actively pursue their course or program of study.

Individuals found in violation of this provision can be hit with an exclusion order on the basis of subsection 41(a) of the Immigration and Refugee Act (IRPA) for non-compliance based on the requirement of subsection 29(2) of the act which requires that a temporary resident comply with any condtiion imposed under IRPA or IRPR. This type of removal is also a Specific Removal Order pursuant to subsection 228(c)(v) of IRPR which does not require referral to the matter of the Immigration Division for an inadmissibility hearing. The decision is essentially made by the Minister’s Delegate at the conclusion of his review with the Applicant (and counsel should he/she obtain one).

Worse yet, is that by operation of s.229(1) and s.229(3)(b) a combination of two inadmissibilities can be lead to a deportation order. A deportation order is a permanent bar on returning to Canada, unless authorized by the Minister.

s.229(3)(b) states (emphasis added):

Exception

(3) The applicable removal order in the circumstances set out in paragraph (1)(f), (g), (h), (j), (l) or (n) is a deportation order if the person

(a) was previously subject to a removal order and they are inadmissible on the same grounds as in that order;

(b) has failed to comply with any condition or obligation imposed under the Act or the Immigration Act, chapter I-2 of the Revised Statutes of Canada, 1985, unless the failure is the basis for the removal order; or

(c) has been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment or of two offences under any Act of Parliament not arising out of a single occurrence, unless the conviction or convictions are the grounds for the removal order.

1(f) covers inadmissibility on health grounds, 1(g) covers inadmissibility for financial reasons, 1(h) covers misrepresentation, and 1(g) failing to appear for examination.

Why this condition is problematic?

First of all, it must be accepted that this provision does serve a purpose. Individuals who come to Canada on study permits but do not study or are simply buying time to try and obtain other permits harm the integrity of the system and arguably take away opportunities for other Canadians.

However, the condition is, on its face, very subjective. It does not specify what level of attendance is required, how many absences or skipped dates can be submitted, or provide a legislated ground for the Applicant to be exempt from the requirements due to certain personal events. For different programs, such as field-based Masters or pHD work, where the study path is not so clear and research breaks are often part of the overall process, the ‘actively pursuing’ requirement adds a layer of uncertainly.

I think that at the very least the provision requires an oral hearing (much like in the case of most misrepresentation). This is a factual inquiry, specific to each school’s policies, requirements, and the overall study program of the student.

For example, I could have easily been found to be not actively pursuing studies by virtue of skipping my Economics class, but by virtue of the result and my overall program I certainly was actively pursuing studies. The legislation states “course” or “program” which makes the application very broad.

Finally, I also find the combinations that can lead to deportation quite troubling. While misrepresentation and failure to appear, combined with a not-actively pursuing studies finding, makes some sense. In the case of financial or health inadmissibility, which itself may be-correlated with the inability to actively pursue studies, a deportation order seems particularly harsh.

My Overall Recommendation to International Students

Go to Class. With the current rules and regulations, it is probably not the best idea to try and plan class-time day excursions or trips with your Canadian boyfriend to Europe during scheduled course time.

I had a good after-hearing discussion with a particularly helpful CBSA Hearings Officer on this issue. From their perspective, it is about the international student constantly updating CIC on decisions such as withdrawing from one institution to attend another or taking certain leave of absences.

I would go a step further and argue this is a tripartite relationship. If I were an international student I would ask the school as much as possible to keep you informed as to the type of notes on your record. For example, should you have permission to take a leave, this leave needs to communicated appropriately not only to professors but to the administrators in charge of providing this information to CIC. Any information gap could lead to negative consequences.

Sep 3, 2015

Quick Updates: NCM Article + Ongoing Projects + Thoughts on Aylan

Hi VIB Friends!

It has been a good minute since I last posted and not for a lack of topics to post about. Just today, we have arguably seen Canadian immigration law thrust back in the forefront of the political agenda through the tragic news of little three year-old Aylan Kurdi, his sibling, and his mother drowning while trying to leave Turkey. I will share my brief thoughts on that later.

Vancouver-based #NoOneisIllegal (NOII) launched their very well-designed site/project, http://www.neverhome.ca which has been accused by former Minister of Canadian Immigration and current Minister of Defence, Jason Kenney of being a “fringe anarchist group.”

Even with immigration legislation being paused by the pending October election, the week to week always brings new updates

But before that, here are some quick updates on my past week.

NCM Article

As many of you know I wrote this piece in response to a Toronto Sun article that I felt quite unnecessarily and inappropriately threw foreign national spouses under the bus for marriage fraud perpetrated by Canadians. I also suggested other root causes. My piece can be found here.

Outside of the article itself, I felt that I was able to engage many foreign national spouses who felt that their narrative was not being adequately represented in this piece – trying to use a ‘bad apple’ example to paint the entire orchid rotten.

I understand that several foreign national spouses who currently are in the process of sponsorship may be working to write a response piece that highlight their true day-to-day struggles – uncertain processing times, inability to work and study, and obtain the respect and acceptance necessary to establish their lives in Canada.

Ongoing Projects

First on the work end, I have been working on new “fringe areas” of the law including vehicle importation and passport revocation. The passport revocation case that I have ongoing I am particularly proud of because it is the first in the office and an area of law I believe will continue to increase thanks to recent amendments and Bill C51. See Canadian Passport Order legislation.
On the freelance/writing side, I am working on a new piece regarding technology and immigration law for Kabuk Law. It should be quite an interesting read and I think it will really play off the current focus of the Canadian Bar Association with respect to increasing accessibility of law and justice through technology and adapting to pending change.

I also received a really kind email from a blog follower in the United States. I can’t talk about all the details yet, as I want to understand it first, but it sounds super exciting. Thank you to the individual who emailed me for making my day!

Finally, I am working on some exciting ideas to launch my business immigration practice. I have been quite busy with my litigation/refusals practice but I was recently inspired by a close law school friend to look more into the area. I hope to liaise with more of the experts in the field as I begin trying to build a base. Exciting, scary, but necessary to stay competitive in the immigration law business.

Outside of Work

Some of you may know that on a personal level I am going through quite an emotionally challenging time. My father is quite ill and this has forced me to rethink a lot about work, life, and family. I joke, sadistically, that I have now been employed as a part-time dishwasher. I have had to step back a little on some of my commitments with organizations that I care a lot about. I also have taken up meditating, although this week has been increasingly difficult. I really thank Jeena Cho, a lawyer based out of San Francisco, for inspiring me along that route. Check out her podcast here on Soundcloud. She also has links on Itunes and other apps.

On this front – and I apologize for sounding like a broken record in recent posts. Family always comes first. Health of family would be the first of first. Time is too precious to spend worrying about your own career success/failure and I think even on a work end – clients respect and appreciate when you approach business with a family-oriented perspective.

On a more positive note, my girlfriend/fiancee to be is making her first trip to Canada in mid-September. I am very excited to show her our future home and begin planning for my future extended family.

On Aylan

I am absolutely devasted by the news of Aylan. The images of his lifeless body washed up on the shore stirred up strong emotions. Apparently, he may not have been included in the initial refugee claim that was refused by Canada but the case has definitely began a much needed dialogue.

Again, as I have discussed in an earlier NCM post on the topic, there needs to be some caution in reporting news. Perhaps we all (myself included) unfairly placed blame before even verifying the facts. I’m going to give it a little more time before commenting further on his particular case.

Yet the fact still exists that we need to do more. Canada, as a bastion of global humanitarianism, of human rights, needs to do more. The numbers of refugees we have currently resettled from Iraq and Syria are not sufficient given our capacity. Politics aside, this is time for us to hold up the values that we stand on as Canadians. Yes, it is a recession. Yes, essential service for Canadians, have taken a cut in recent years. But to stand on the sidelines we will never be forgiven for, by whoever the higher power may be.

As we head into the long weekend (I am attending my law school big sister’s wedding, with law school little sister in tow), I wish everybody the best. Love and health. Always.

Aug 28, 2015

Canadian Immigration Law Blog

Why is Express Entry So Tough on International Students?

A common theme of many of my recent consultations has been the challenge many international students are experiencing as a result of Express Entry. I am finding more and more second and third-year international students asking me about best practices in planning their paths to permanent residency.

There are several reasons why this path is so difficult

1. Meeting Basic Economic Immigration Program Requirements Tough for Many International Students

First, just to meet the basic requirement of either the Canadian Experience Class or the Federal Skilled Worker a year of skilled experience (at a NOC 0, A, B level) is required.

For the Canadian Experience Class (CEC), that work experience must consist of one year obtained within the past three years and cannot include work experience obtained while on a study permit (e.g. as a co-op student or during scheduled breaks). It also excludes time working as a contractor, an economic model growing increasingly popular for its Canadian tax-benefits to employers during the economic crisis. For newly graduated international students, who can be granted no more than three-year post-graduate work permits, obtaining that one-year of skilled work experience can be a tall order.

For the Federal Skilled Worker (FSW) Program, the one-year of skilled work experience can be in the past ten years, but that work experience has to have been continuous over a period of a year. Many international students have had to balance work and school, many taking part-time jobs that are not considered continuous under the FSW program requirements

2. Express Entry Does Not Award International Students Favourable Points

Second, many of the points that are awarded for Express Entry that bring individuals over the threshold are awarded for language and work experience (or a combination of both). For example, under the skill transferability factors in part C for the Comprehensive Ranking Score (“CRS”) criteria, two or more years of Canadian work experience, two or more years of foreign work experiences, or CLB 9+ can double CRS scores in this caregory. Again, work experience is difficult to come by for young individuals and many international students (particularly from non-English speaking jurisdictions) may find it difficult to obtain the CLB 9+ that boost CRS scores

3. Employers Will Be Hesitant to Pursue LMIAs for Skilled International Graduates

Third, Labour Market Impact Assessments (LMIA) for newly-minted international graduates are difficult to obtain. Holding a valid LMIA for a skilled position awards an Express Entry applicant 600 points and, as of this current date, guarantees them an invitation to apply for permanent residency. Many individuals after the expiry of a three-year work permit find that they require to obtain LMIAs in order to get a work permit that will allow them to work beyond their PGWP.

Unfortunately for them, in most circumstances employers will have to advertise the position to demonstrate that another Canadian cannot fill an international student’s shoes and do not possess equivalent qualifications. In this difficult job market, most non-managerial skilled positions will attract multiple candidates, many of whom are equally, if not, more qualified than the Canadian. Unless the candidate has a unique profile (that can’t include a third language in most cases, as a third language cannot be a job requirement unless it is mandatory for the position), it will be difficult to prove.

Finally, with CIC’s new employer compliance system which subjects Employers to sever administrative monetary penalties that can range up to the millions of dollars, the cost benefit of hiring an international student may not justify the associated compliance cost

4. Many Skilled Worker PNP Programs Require “Several Years of Work Experience.”

In British Columbia, the BC Provincial Nomination Program Express Entry category, requires that an applicant have several years of related experience in the occupation. More recently, the BC PNP has come down more firmly on the requirement that several years is equivalent to at least two years. The challenge here is most International Graduates are given maximum three-year work permits. This essentially requires them to have two years of skilled experience in that particular NOC occupation. International students who start in entry level, low-skilled positions, such as bank tellers and customer service representatives will find this very difficult to achieve.

Potential Tips for International Students

Unfortunately for international students, many of those looking for permanent residency two years into their post-graduate work permit will be limited to skilled worker categories. Individuals should begin planning their educational and work paths right away.

For example provincial nomination programs designed for international graduates become have become more important in today’s Express Entry environment. Here in British Columbia, the International Graduates Program (as of the date of this piece) is currently available only through Express Entry. Importantly, eligibility for this program requires applying within two-years of graduation.

While having to meet Express Entry requirements is a challenge, as described earlier, the 600 points provided by the nomination would counteract the low score issues.

Finally, the idea of pursuing further graduate studies prior to obtaining a PGWP may be more attractive. Further studies allow an individual to gain a key qualification that may differentiate them if a LMIA is required. It also may open up other options including post-graduate immigration streams, fellowships, and various professional positions under trade agreements, that could provide the crucial work permit required to get the necessary skilled work experience.

Aug 25, 2015

Canadian Immigration Law Blog

VIB STUDENT WEEK (Post 2): BRAVING THE FALLS – Canadian Immigration Challenges and Designated Learning Institutions

Introduction

Without drowning out the metaphor, it is clear that the Canadian immigration environment that Citizenship and Immigration Canada’s Designated Learning institution (“DLIs”) find themselves in today is more akin to a huge waterfall than a calm ocean.

Over the past two years, DLIs have found themselves subject to increased scrutiny, tasked with greater and increased responsibility, and have been left arguably uncertain as to how to best advise international students (“International Students”) on their various Canadian immigration challenges. DLIs now have to answer to provincial educational authorities as well as the Federal government, all eager to ensure appropriate compliance. All this in the context of most student advisors (those that are not certified consultants or lawyers) being unable to provide advice but are required to provide updates on their International Students’ academic progress.

Heading into the Fall 2015 semester, student advisors for DLIs find themselves in a transitionary phase. The contours of the new International Student Program regime, now more than a year old, have gone through their obligatory hiccup phase. The year-old regulations, for better or for worse, are now clearer and DLIs will be expected to communicate these regulations more clearly to students. While significant and positive ground has been made by the Immigration Consultants of Canada Regulatory Council (ICCRC) to put together the training and curriculum for Regulated International Student Immigration Advisors (RISIA), the certification program will not be done in time for the Fall. Many DLIs will still be left without adequate immigration legal representation.

Where I see this year going for International Students and DLIs

Whereas last year there may have been “school-hall passes” provided for individuals who were not actively pursuing studies (there have been quite a few interesting cases of U.S. day trips gone wrong) or enrolled in co-op programs where more than 50% of the curriculum was outside of the classroom, you can expect this to end. Schools may bare the overall brunt for not clarifying attendance policies or building non-compliant programs.

This year, possibly more than past years, International Students may have questions about the transition to Permanent Residency or how their programs may set them up for this transition later on. The Express Entry system has highlighted the challenges of International Students obtaining the requisite work experience to be selected under Canada’s economic immigration program. Seemingly harmless questions such as “should I try and get a work permit now and then apply to graduate school later?” or “should I transfer into another University’s online business program” may hold heavy immigration consequences for both applicant and advising institution.

This year, I predict that we will get some much needed clarification on some of the grey issues in International Student advising. These include concerns about distance learning, sick leaves, non-coop research gigs, and immigration status for students needing to make up courses or take extra credits.

I also predict that increasingly, International Students unhappy with immigration results will increasingly go to public forums (including the media) to voice their displeasure. Although the immigration challenges may be completely unrelated to the advice provided by the DLIs, there will likely be a presumption of institutional wrongdoing grounded in the fact students are paying a lot of money to attend classes. Advisors who did not advised (due to being unable to) or inadvertently providing immigration advice (when trying to provide information) may be on the hook for those mistakes.

What may DLIs do to protect the Fall?

As several schools begin their orientation sessions, it may be useful to seek professional advice (from a qualified consultant or lawyer) prior to distributing material containing immigration information/advice. Websites, for many DLIs now many months (and possibly years) old, should be updated accordingly. Proper disclaimers regarding general information and legal advice should always be prominently displayed. Proper, contemporaneous notes of all one-on-one immigration-related conversations are now a must.

One of the major challenges for DLIs is keeping up with the legislation. I have seen the materials for more than a few schools that is out of date (even if only by a few weeks). Individuals have approached me during consultations and I have had to tell them that the program is not open to Applicants and that they should keep themselves updated on regular basis as law and immigration policies can (and do) change that quickly.

Many DLIs may wish to invite consultants and lawyers to provide talks and assist in reviewing important program requirements and decisions. Many DLIs may fear working with nit-picky outside counsel, but their services may be invaluable. For example, I know of more than one case where an immigration representative in helping a failed applicant was able to inform a DLI as to the reasons why study permit refusal letters were being sent.

Other issues that immigration counsel may be able to advise on:

Will the distance learning portions affect the eligibility of International Students for Post-Graduate Work Permits?
Does the program I am offering still qualify for the immigration program the International Student is seeking?
Are their some programs or options that have not yet been provided to International Students?

Finally, DLIs should consider having an immigration strategy in place, in the case of a student who has been refused by immigration or receives negative information regarding their immigration status comes to the school’s attention. Too many chefs (advisors) in the kitchen, diagnosing immigration refusals may lead to very confused students and unnecessarily bureaucratic (and possibly public relations) nightmare for the school.

A final word

Like much of Canadian immigration legislation, the regulations in the International Student Program are challenging and can be counterintuitive to regular practice. Education remains a huge opportunity for Canadian institutions, both public and private, and building teams and strategies around better communicating with and competently advising International Students around Canadian immigration issues should be a priority.

Aug 22, 2015

Canadian Immigration Law Blog

VIB Student Week (Post 1) – Distance Learning, Our Distant Understanding

As we welcome the end of the summer, and Canada’s begins welcoming international students to its many world-class learning institutions, Vancouver Immigration Blog (VIB) will take an in-depth look at student-related Canadian immigration issues. This is student week! We hope students and institutions alike find this series particularly useful.

What is Distance Learning?

With the recent news of several Niagara College student suing the Designated Learning Institution (“DLI”) for allegedly promising the ability to obtain Post-Graduate Work Permits (“PGWPs”) through their four-month transfer program, it is an appropriate time to study why Distance Learning is causing so much trouble.

Citizenship and Immigration has provided the following description of Distance Learning on their website:

Distance learning can be through e-learning, correspondence, or internet courses. Distance learning is a process by which technology is used in ways where the student does not have to physically be in the place where the teaching is taking place.

Since by definition distance learning does not require one to be in Canada, a study permit cannot be issued for this type of course. For example, if a foreign national authorized to work in Canada is prohibited from engaging in studies as per a condition of their work permit, they are allowed to engage in distance learning courses.

However, some distance learning courses include an in-Canada portion to the program (e.g., special tutorials or the writing of final exams). If the overall course of study is greater than six months, then the student requires a study permit for the in-Canada portion of the program, even if the in-Canada portion is less than six months. The duration of the study permit should be for the duration of the in-Canada portion only.

(emphasis in original)

The issue with this definition of distance learning is that in its attempt to be “catch-all,” it oversimplifies the much more complex world of curriculum design. Many schools, for reasons completely unrelated to immigration, have courses where Professors teach via virtual lecture, where students do not meet physically in class on a regular basis, or even where experiential-based learning is taught through field research. It is also not clear whether a program itself can be non-distance learning if it has only a few distance learning courses as constituent elements.

On the contrary, you can see that trying to carve out a too-narrow definition of distance learning can certainly open up the Canadian immigration system to abuse. Individuals who study in “distance learning” programs (without Canadian in-class components) can take these courses while working in Canada or even as visitors. Without rules and regulations around distance learning, arguably schools could design purely-economic motivated programs and avoid the study permit process altogether – leaving international students duped.

Complicating matters is the importance of a strong study permit scheme to our overall immigration regime. It that our strong educational institutions are one of our most attractive features to new immigrants. It is well-known that international student industry brings in to Canada at least $8 billion dollars a year (and this is just from old 2010 estimates). The common ratio is that 1 international student can cover tuition for 4 domestic students. Education attracts students and immigrants to Canada and with it, the next generation of young Canadian permanent residents and citizens.

It is important to note that this stage that for students who want to be in Canada, beyond merely the term of their study, rely on the PGWP, a program that allows graduates of Canadian institutions to obtain work permits equal (but no longer) than the length of their studies. This period of time provides the university graduate the period to gain the requisite skilled work experience to qualify for Canada’s economic immigration programs or obtain a provincial nomination. The PGWP can only be obtained once per international student, regardless of whether further academic degrees are obtained.

Taking a program of study by Distance Learning however, does not qualify one for Post-Graduate Work Permits. As stated by CIC on their website.

Distance learning

Students who complete a program of study by distance learning (from outside or inside Canada) are not eligible for the PGWPP.

As discussed earlier, this short policy position raises many questions. What if the program is a mixture of in-class courses and distance learning courses? Why does the PGWP definition use ‘program of study’ while the earlier definition of distance learning rely on ‘course.’

Complicating matters further, CIC says the following about educational programs with an overseas component (such as an exchange).

Educational programs with an overseas component

If a student completes a program of study that has, as part of the program, an overseas component, they will be eligible for this program as long as they earn a Canadian educational credential from an eligible institution.

According to this definition, arguably an individual could qualify for the PGWP through an overseas exchange course (if credits are earned in Canada), but taking a program of study domestically in Canada (where credits are similarly earned in Canada) would disqualify them.

This sort of defies logic.

How have Canadian Courts handled Distance Learning?

The simple answer is the Courts have not yet had to dealt with this issue directly.

In Dehar v. Canada (Minister of Citizenship and
Immigration) 2007 FC 558, the applicant argued that the Officer’s position, that distance-learning was not considered to be attending a full-time, regular courses for the purposes of including the daughter as a dependent child, was unreasonable. Justice de Montigny ultimately did not address this issue, finding that the Officer’s use of an affidavit to change his initial written decision was unreasonable. However, the judicial review was dismissed on other grounds.

In Muhandiramge v. Canada (Minister of Citizenship and
Immigration) 2009 FC 752, Justice Russell cited CIC’s old policy on Federal Skilled Worker credential assessment (which has now changed under Express Entry), which gave credit to distance learning courses.

These were the only two relevant case law references I could find.

Following the United States Model?

It appears Canada is not alone in its unclear laws and regulations surrounding distance learning. A Google search turned up several inquiries by individual with working holiday visas in Australia wondering if distance learning was permitted.

Arguably in Canada, where it is clear distance learning without a Canadian component greater than six months, is permitted, shows that we may be a step ahead of our Aussie compatriots.

However, south of the border in the United States, Distance Learning has been better defined by lawmakers.

Under the new U.S. Code of Federal Regulation: [8 CFR § 214.2 (f)(6)(i)(G)]), the following rules apply to nonimmigrant international students (Disclaimer: I am not a U.S. immigration lawyer, this is only my understanding based on independent research) (my emphasis added):

(G) For F-1 students enrolled in classes for credit or classroom hours, no more than the equivalent of one class or three credits per session, term, semester, trimester, or quarter may be counted toward the full course of study requirement if the class is taken on-line or through distance education and does not require the student’s physical attendance for classes, examination or other purposes integral to completion of the class. An on-line or distance education course is a course that is offered principally through the use of television, audio, or computer transmission including open broadcast, closed circuit, cable, microwave, or satellite, audio conferencing, or computer conferencing. If the F-1 student’s course of study is in a language study program, no on-line or distance education classes may be considered to count toward a student’s full course of study requirement.

I think this above definition is a mass improvement on the Canadian definition. It clarifies that a course that has some physical attendance requirements including examinations that are integral to the courses may be considered regular courses and not distance learning courses. It also provides a more specific definition of distance learning and by that definition, appears to exclude field studies or experiential-based learning from falling under ‘distance learning’.

A second arguable benefit of a definition like this is the immigration regulations can clarify when study permits are CLEARLY required. For example, it seems unreasonable to me that a school in Canada could skirt around the study permit rules by offering only distance courses. As mentioned earlier, such a program could also be very deceiving to international students who think they have a path to permanent residency.

Where to go from here?

Under the new Study Permit rules in effect since May 2014, CIC and the DLIs have established a line of communication. We know they are talking about key issues such as sick leaves and suspensions.

Distance Learning should be on top of the next CIC stakeholder meeting agenda list.

Aug 17, 2015

Canadian Immigration Law Blog

AND… It’s Coming: Immigration Minister’s Broad ‘Authority for Negative Discretion’

Introduction

In an earlier blog post on Electronic Travel Authorizations (eTAs), I wrote about my “theory” that Negative Discretion declarations under section 22.1 of Immigration and Refugee Protection Act (IRPA) would increase.

To recap, IRPA allows the Minister’s on his own initiative to declare that that a foreign national may not become a temporary resident for a period of up to three years if justified by public policy considerations.

I mentioned that this provisions is quite young and so far there have been no Federal Court case law on the topic that I can point to interpreting what those public policy considerations are.

It turns out that there are more, recent instructions that Citizenship and Immigration Canada (“CIC”) have put out on this particular IPRA provision.

Analysis of the New CIC Guidelines

In an online update last modified 17 July 2015, CIC has issued Guidelines for the Negative Discretion Authority that lay out what specifically is being targeted by this provision.

They are accessible here.

I have added emphasis below.

Promoting Terrorism, Violence, or Criminal Activity:

A foreign national who makes public statements or uses any means to broadcast, write, produce, publish or distribute material, including a website and public speaking, to express views which:

promote or glorify terrorist violence;

promote or glorify a listed entity under Regulations Establishing a List of Entities pursuant to the Criminal Code of Canada, Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism or the United Nations Al-Qaida and Taliban Regulations;

counsel, encourage or incite others to commit terrorist activity or terrorist violence;

incite hatred that is likely to lead to violence against a specific group;

promote, counsel, encourage or incite serious criminal activity.

This section is very #C51-esque with some language that mirrors very closely the Criminal Code amendments under that Bill.

What is interesting is that the wording of this possible group that Negative Discretion can be issued against is very broad. I can easily see bloggers and scholars, who express more extreme political views, to be potentially caught under this provision. The already common-practice of “googling” or “researching” individual applicants (both through the Temporary Resident Visa and eTA process) will likely increase from Canada Border Service Agency’s (CBSA’s) side.

The “promotion and glorification” wording also seems highly problematic, especially in combination with no apparent standard of proof required for this negative discretion to be issued. Does sharing an ISIS video on a private blog count as promotion and glorification? Does writing a pro-Russian, anti-Ukrainian independence piece meet the requirement? Who is to be the judge of the ‘academic’ elements in the piece in the case it is scholarly work or the work of a journalist?

It is very possible under this provision, we could be preventing a journalist like a foreign national equivalent of Mohamed Fahmy from coming to Canada.

On a different note, I query whether this provision could also be used to keep individuals such as Daryush Valizadeh, a.k.a. Roosh V out of Canada. Arguably, point 4 is triggered by a pick up artist who encourages the rape of women.

Foreign Nationals from Sanctioned Countries or Corrupt Foreign Officials:

A foreign national of a country against which Canada has imposed sanctions under the United Nations Act or the Special Economic Measures Act, where that foreign national is:
1. a former or current senior official of the government of that country, or of any entity owned or controlled by, or acting on behalf of the government; or
2. an associate or a relative of an official or person set out in paragraph (a).
A foreign national who is a politically exposed foreign person listed in regulations to the Freezing Assets of Corrupt Foreign Officials Act.

This section is in my analysis equally broad.

The countries that are covered under the first subsection (UN Act or Special Economic Measures Act) include the following:

Canada has imposed sanctions and/or related measures against the following countries:

You will note that these are among the countries that already have significantly lower TRV success rates.

Also, you will note in particular the Guidelines cover off associates and relatives in addition to the current or former official. It is interesting to note that relatives is not defined. Being a second cousin twice removed may be enough to catch you under the breadth of this section.

I think that the second bullet point of the Foreign Nationals from Sanctioned Countries or Corrupt Foreign Officials provision also will attract attention to individuals from country such as China.

This provision refers to the Freezing Assets of Corrupt Foreign Officials Act (FACFO Act), which itself is extremely far-reaching in its application. Section 2 of the FACFOA Act defines politically exposed foreign person as (emphasis added):

“politically exposed foreign person”

« étranger politiquement vulnérable »

“politically exposed foreign person” means a person who holds or has held one of the following offices or positions in or on behalf of a foreign state and includes any person who, for personal or business reasons, is or was closely associated with such a person, including a family member:

(a) head of state or head of government;

(b) member of the executive council of government or member of a legislature;

(c) deputy minister or equivalent rank;

(d) ambassador or attaché or counsellor of an ambassador;

(e) military officer with a rank of general or above;

(f) president of a state-owned company or a state-owned bank;

(g) head of a government agency;

(h) judge;

(i) leader or president of a political party represented in a legislature; or

(j) holder of any prescribed office or position.

In the case of China, you will possibly Negative Discretion declarations made under Subsection (f), particularly as we are seeing with the rise of fraud cases arising from the leadership changes and rule of law reforms in China. Parent of astronaut families should be careful moving forward with their business and political dealings (even those holding 10-year multiple entry visas).

Mitigating Risks to Public Health:

A foreign national who may introduce, contribute, or pose a risk to public health in Canada. This could include a foreign national who has been in a country with an unusual or unexpected and serious communicable disease with the potential for international spread and significant impact on the health of the Canadian population.

This provision is very interesting. Previously these types of situations were subject to Operational Bulletins, but it looks like the authority to prevent an individual from a country with major health/disease concerns is also widened by these instructions.

Where I See This All Going

Without being overly predictive of the results of the next election, should the Conservatives regain power and in line with the other reforms that are occuring, the use of the Citizenship and Immigration Minister’s ‘Authority for Negative Discretion’ will increase drastically.

This provision, against affects both Temporary Resident Visa applicants and eTA applicants. In fact, even holding a TRV or eTA may not exempt an individual from Entry requirements. I am aware that the CBSA is in the process of training Aircraft Carrier companies to provide information which will allow CBSA to trigger a last minute review of a possible Authority for Negative Discretion.

Information sharing is at the heart of this Government and this current Immigration Regime’s direction. It is too early to see how a provision like this would withstand some of our Charter rights, particularly Section 2 which applies to everyone (including temporary residents in Canada).

Which brings up a hypothetical question to conclude on: If I were a Muslim scholar studying religious independence with a family in Canada and no permanent resident status, would I think twice about writing a blog or giving a speech about my area of research?

I would.

I don’t think I should. But I would.

I think this, as a policy, is ultimately too broad to enforce. There is too much of a gap between the wording of an s.22.1(1) Negative Discretion Authority declaration and the proposed policy implementation.

Ultimately, I believe the laws will have to be re-written by the government to provide for more specifications as to when the provision can be applied, particularly as its effect is essentially the same of many exclusion orders and inadmissibility findings under IRPA.

Aug 16, 2015

Canadian Immigration Law Blog

OPINION: Why Immigration is My Canadian Election Issue – Changing Our Attitude and Communication

Like many of my Canadian friends heading into the end of the summer, I am what the pundits would call an ‘undecided voter.’ Speaking very frankly, none of the three catch-all parties, have to this date won my votes on their policy positions.

For me, like many of my first and second-class Canadian friends, the policy issues that truly matter to me this 42^nd Canadian election, are a product of the experiences in this country; for me, a country I know I have the unique privilege of having been born in. The environment, jobs, health, security are all issues that I am keenly aware concern several of my compatriots. Yet, fortunately, I have not run into any of these challenges on a personal level.

For me, it is the single policy issue of Canadian immigration that keeps me up at night. I say this not only because I spend 12 hours a day at work worrying about immigration for my clients, but also because I spend 24 hours worrying about this issue for the security of my family and my future children, who will have an immigrant parent.

Both Raj Sharma and Mario Bellissimo, in respective pieces here and here, have expertly laid out issues and views I strongly side with, in terms of the direction of Canadian immigration policy on both family and economic fronts.

Both cite family reunification as something that needs to be given more value and viewed as a greater economic opportunity. I completely concur. There is also clearly the need for more humanitarianism in our system. I applaud the current Harper government’s decision to open the door to more Syrian refugees, but I think regardless of the pending election, Canada must do more for refugees both domestically and abroad and act faster in responding to global humanitarian crises. Canada also needs to send clearer messages to foreign caregivers who bring invaluable services to Canadian families while carving out their new lives in Canada that they are an asset and not a liability.

However, I think what I want and many Canadians want from the next government is not a specific policy change. Increasing a quota from 5,000 to 8,000 will never full capture the demand that exists for our beautiful country. It is inevitable that people will be left on the outside looking in.

I think what we want is a general attitude change by our policymakers to better communicate with an issue that often trumps several other policy concerns that newcomers to Canada have.

A Little Parable – At the Chinese Visa Office

Many months back, I was applying for a visa to go to China to visit my girlfriend. Due to the unclear Chinese-translated wording on the forms and the uniqueness of my situation I’ll admit I made a bit of a mess of the forms. As I went to the front desk, confusingly pointing at what category I should be applying under, the friendly individual at the front desk kindly guided me through each question and told me to fix and sign next to my corrected answers. My final application form looked like the first draft of an immigration form I help my clients edit. After one last check I was told to come back Thursday to pick up my visa. Sure enough when I came in a week the visa was approved.

It is quite easy to say China is not a comparable and that with that many people seeking entry there is no way to process everybody’s application as thoroughly as we do in Canada. However, I want to drive home the point that if the world’s most populous nation can station helpful humans across the world to personally assist with immigration challenges, surely can we do more. Surely we realize how a functioning visa system can reflect on a nation’s attitude as a whole. It is for many the first point of contact for Canada. It is not good for system integrity or our nation’s reptuation, when applicants need to rely on change.com social media campaigns to have their mother’s attend their wedding.

Furthermore, refusals themselves are a major burden on the system. While some will follow the literal message of the refusal letters and “apply again when they qualify,” many will try to judicially review or appeal decisions, make expensive Access to Information and Privacy requests, flood the call centre, and write letters to MPs. I once had a colleague who once told me the cost per hour of conducting an ATIP request could pay several government workers. I am not sure if there’s a more up-to-date report on this issue, but we know that the issue is at least 15 years old.

A report on Canada’s visa system commissioned in 2013 made several recommendations in March 2014 including providing standardized letters of invitation and complete reasons for refusal to failed applicants. Neither of these recommendations have been acted on. Other suggestions such as providing short-term emergency visas secured by bonds have also not been acted on. The Government’s own Open Source figures, which do not include returned application, show a huge discrepancy against applicant’s from Middle Eastern, South Asian, and African countries. Yet little has been done to try and address these clear communication barriers between Applicant and Government.

The problem of communication extends beyond Canada’s visitor visa regime and is a microcosm of a larger communication challenge. The Express Entry system, in place since January 2014, replaces officer communication with mathematical algorithms that attempt to cookie cutter applicant lives without taking into account the necessary discretion provided by the laws themselves. In the Temporary Foreign Worker context, communication still occurs largely by unverified fax. Answers to seemingly two-second administrative issues take months and months of attempted communication and legal action to resolve. These all add up to costs and could all be saved by more human (or effective digital) communication.

Ultimately, had I applied for my Chinese visa under a system as uptight and rigid as the current Canadian system, I would have not been able to see my girlfriend. It would be unclear if that future family I dream about every night would even be able to materialize given it was my only permissible vacation in 9 months.

Better Communication and More Transparency

I think Canadians deserve to know the why of our immigration system. The why usually only comes out in a short paragraph in the Canada Gazettes that most of the time leaves those of us who study these laws closely quite unsatisfied. Canadians deserve to know why certain amount of parents and spouses approved every year. Canadians deserve to know why their family members cannot attend their weddings and funerals. Canadians deserve to know at the very least what the program requirements are of each program without having to rely on a user experience forum or a high-priced lawyer to figure out basic program eligibility questions.

What party can come out and say they will invest in immigrants and invest in increasing communication and transparency. My election vote will go to that party.

Aug 6, 2015

Canadian Immigration Law Blog

Canada’s New Electronic Travel Authorization Regime: 5 Things You May Not Have Known

Because the actual requirement to hold an Electronic Travel Authorization (eTA) does not kick in until March 2016, the regime has been understudied and largely unreported outside of the immigration legal community.

On the surface, the new eTA requirement conceptually seems quite simple. Up to now, those exempt from the temporary resident visa requirement process did not undergo any prior screening or vetting. Decisions were made solely at the port of entry and concurrently Canada’s border/immigration system was susceptible to allowing in visitors, who had not made prior applications to Citizenship and Immigration Canada (CIC) and who are ultimately inadmissible, into Canada.

Importantly, Canada made some commitments in the Canada–U.S. Beyond the Border Action Plan several years ago where they pledged to introduce an eTA regime. They were bound by those commitments to introduce the regime.

I want to highlight in this piece, five things you might not know about the eTA regime.

By the way, I will not go through a comprehensive review of the regime. For those who want to read more about the policy changes in general, check out CIC’s Program Delivery Update for August 1, 2015 and the text of new Immigration and Refugee Protection Regulations (IRPR) via the Part 2 – Gazette in April of this year. Check out also my colleague Steve Meurren’s post for a summary of the new regime.

#1 – The eTA now allows for visa-exempt visitors to Canada to be issued removal orders from outside Canada. Until that removal order is enforced, the visitor will not get an eTA and not be allowed to come to Canada.

This authority is created by by subsection 240(2) of IRPR which states (emphasis added):

240. (1) A removal order against a foreign national, whether it is enforced by voluntary compliance or by the Minister, is enforced when the foreign national

. . . .

When removal order is enforced by officer outside Canada

(2) If a foreign national against whom a removal order has not been enforced is applying outside Canada for a visa, an authorization to return to Canada or an electronic travel authorization, an officer shall enforce the order if, following an examination, the foreign national establishes that

(a) they are the person described in the order;

(b) they have been lawfully admitted to the country in which they are physically present at the time that the application is made; and

(c) they are not inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.

And until that removal order is enforced (i.e. they meet the above requirements), s.25.2 of IRPR applies:

Electronic travel authorization not to be issued

25.2 An electronic travel authorization shall not be issued to a foreign national who is subject to an unenforced removal order.

#2 Cancelling an eTA (at least from a legal perspective) is not as easy as CIC makes it seem (from a policy perspective).

The intersection between policy and law always play an interesting role in Canadian immigration law. As the Federal Courts have made clear on several occasions, online instruction guides, processing manuals, operational bulletins (which now can be extended to include program delivery updates) do not constitute law.

Often times CIC will provide instructions that summarize the law without providing its full details or make recommendations that aren’t legal policy (e.g. when they tell applicants they should apply for extensions 30 days before expiry for several programs, when often times doing may hurt their implied status).

CIC writes on their webpage regarding eTAs:

For how long is an eTA valid?

Section 12.05 of the Immigration and Refugee Protection Regulations indicates that an eTA is valid for five years or until the applicant’s passport expires, whichever occurs sooner.

Section 12.06 of the Regulations indicates that an eTA can be cancelled by a designated officer. Once cancelled, an eTA is no longer valid.

While this statement is not incorrect per-se- it omits a few important details.

Cancellation

12.06 An officer may cancel an electronic travel authorization that was issued to a foreign national if

(a) the officer determines that the foreign national is inadmissible; or
(b) the foreign national is the subject of a declaration made under subsection 22.1(1) of the Act.

Subsection 22,.1(1) of the Act (Immigration and Refugee Protection Act) is an interesting one.

This section allows the Minister, on his or her own initiative, to declare that a foreign national cannot be come a temporary resident for a period of three years, justified by “public policy considerations.” The underlying provisions has been in force since August 2013 but it appears no Federal Court jurisprudence (at least none that I could find) talk about this provision. To me it is a very discretionary provisions.

Could we see an increase of cancellations of eTAs on s.22.1(1) IRPA grounds where inadmissibility has not yet been made out but there is some concern about the individual’s background? I certainly think so.

#3 – Adverse Information on your immigration file may mean your eTAs might take a while.

CIC has made available by way its most recent program delivery update, updated instructions for how to assess adverse information on file for an eTA applicant.

CIC writes (emphasis in original and added):

If the applicant previously applied for entry to Canada (either through a CIC program or through the CBSA at the port of entry), or if they are already known to CIC (through intelligence, for example), and if there is adverse information on file for the applicant, it will be uncovered through the automated eTA screening process, which will cause the application to be referred for manual review.

Officers should consider:

Did the adverse information result in a previous refusal?

If so:

What is the full story behind the refusal? Look at the case notes to fully understand the reason for the previous refusal. It is not sufficient to only look at the refusal ground(s).

Was the applicant previously refused because they did not meet the specific needs of the category to which they were applying? For example, if they were refused a work permit because they did not provide a labour market impact assessment, would this impact their eligibility to come to Canada as a visitor?

Have their circumstances changed since the refusal? Is this still a concern?

Has the applicant received an approval between the time of their eTA application and the adverse information on file? Note that the automated eTA screening process will not take this into account when determining if a case should be referred for manual review.

If not:

What type of adverse information is on file?

How long ago was it entered?

Has the applicant received an approval between the time of their eTA application and the adverse information on file? Note that the automated eTA screening process will not take this into account when determining if a case should be referred for manual review.

An officer must be satisfied that an applicant is not inadmissible to Canada under A34 to 40 prior to issuing an eTA. Officers initiate and conduct admissibility activities as needed. This may include screening requests to partners, criminal record checks, info sharing, medical exams and misrepresentation activities.

I find CIC’s example of applying for a work permit without an LMIA kind of curious, as not meeting program requirements does not directly lead to an inadmissibility. However, it appears to suggest that for these type of cases, a procedural fairness letter may be sent to eTA applicants asking them to “explain the circumstances”, with the ultimate fear being that an applicant is attempting to enter Canada to work without authorization.

What this all means, is an Applicant needs to be very careful with misrepresentation (a topic I have written about quite extensively, so see previous posts!).

#4 Permanent Resident Problems are Coming

Strategically for a permanent resident, there may have been reasons in the past to enter Canada on a separate passport or travel document (particularly if their permanent resident card had expired or was lost and/or they no longer met the residency requirement).

eTAs effectively end that practice and create an added barrier – the e-relinquishment process.

CIC writes in their website section titled “Manual processing Electronic Travel Authorization (eTA) applications“) (emphasis added):

Officers should consider:

Based on case history, is the applicant indeed a permanent resident?

Based on case history, has the applicant renounced their permanent resident status? Often, even though a person has renounced their status, their GCMS profile still shows them as a permanent resident.

Procedure

Level 1 decision-makers at the OSC will query for these applications by performing a search in “IMM activities, Auto Searches.” The “Activity” will be “Derogatory information,” the “Sub-activity” will be “Client Derogatory Information,” and the “Status” will be “Review Required.”

If the applicant is a permanent resident and has not already gone through the formal process of relinquishing their status, they should be contacted to determine whether they would like to voluntarily relinquish their status

If the applicant does not wish to relinquish:
- The officer must withdraw the application
- Advise the applicant that they will need to get an appropriate travel document that demonstrates that they are a permanent resident, which may necessitate a determination of their status (PDF, 665.91 KB)
If the applicant would like to relinquish:
- They may do so electronically
- Once they have done so, and assuming they are otherwise admissible, the officer may issue the eTA

Again, expect this new eTA to increase the number of residency determinations and will likely trickle through to more appeals at the Immigration Appeal Division.

#5 Interactive Advance Passenger Information (IAPI) and Carrier Messenger Requirements (CMR) make Airline Staff the Front-Line Messengers for the new eTA program

An Applicant holds a valid eTA and is now booking a plane ticket. Now what?

There is a whole process that runs in the backdrop between commercial Airline Carriers and Canada Border Services Agency to inform them of who is on the plane that will be arriving in Canada. A lot of the front end information sharing will essentially begin with you entering your name into a flight reservation system to buy tickets all the way until you arrive in […]

Aug 3, 2015

Canadian Immigration Law Blog

The Federal Court in Huang Challenges the Spousal Interview Process

I found Justice Boswell’s judgment in Huang v. Canada (Citizenship and Immigration) 2015 FC 905 to be a very fascinating read.

The background facts in Huang are not presented very extensively, as the decision turned mostly on procedural fairness. Ms. Huang was a 63-year old citizen of China who was being sponsored by her Canadian husband. This application came after a 2012 sponsorship via her daughter was refused regarding concerns about the biological relationship and misrepresentation. They submitted their application through Hong Kong.

The interview led the Officer to find that the relationship did not “share a level of financial and emotional interdependence expected of a genuinely married couple. The Officer was also “not satisfied that this is not a bad faith marriage entered into primarily for immigration purposes.”

Interesting aspect #1 – Federal Court Affidavits Containing New Information

As it is well established in jurisprudence, affidavits filed in support of Federal Court proceedings cannot contain new evidence that was not in front of the officer/tribunal who rendered the initial decision on review.

Counsel Richard Wazana brought forward an argument through the Federal Court of Appeal’s decision in Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 20 that the new evidence should be admitted. Justice Boswell, concurred on this point in part, writing at paragraph 5 of his decision:

However, since the Applicant has alleged various procedural defects not apparent on the face of the record (Association of Universities at paragraph 20), some of this additional evidence adduced by the Applicant may be considered by the Court in reviewing the procedure by which the decision was rendered.

I have similarly used this argument in a Federal Court case (pending in decision) although we did not expand on it as much as we probably could of. The Association of University Colleges case has not been cited as much as I think it should and it can prove a good counterbalance to selective “recording” of GCMS notes that can often occur and needs to be disputed with affidavit evidence.

Interesting aspect #2- opportunity to meaningfully address Officer’s concerns.

I am sure many of you have seen the classic game show “The Newlywed Game” where newly-married couples are asked a set of similar questions which often reveal contrasting and contradictory answers.

While on the TV show this is a source of laughter and entertainment, in real life this is a major source of application refusals and arguably the very premise of the Immigration Appeal Division (IAD) Spousal Appeal witness testimony process. Differing answers, unsatisfactory answers, culturally unappealing answers can all lead to refusal or negative factors against the genuineness of the relationship.

I applaud Justice Boswell for being very open about his criticism of the current process in his reasoning.

I want to take out a series of interesting quotes from the judgment, as to rewrite them would not do his decision justice. I have also run into almost every single one of these issues in my spousal/judicial review work thus far. Emphasis has been added at several locations.

[7] In the GCMS notes, the Officer listed numerous concerns, notably as to: the inconsistencies or discrepancies in the Applicant’s and her husband’s answers; the Applicant apparently receiving social assistance for housing; her frequent travel to Windsor to visit her daughter and grandchildren; the Applicant seeming to know very little about her husband’s private or personal life (e.g. his hobbies); her previous permanent residence application being refused due to non-compliance and misrepresentation, something which the Officer stated “undermines the credibility of the relationship”; her husband’s economic plans and wanting someone to take care of him, which prompted the Officer to write that “it seems that sponsor’s relationship to applicant is more like a caregiver”; and, lastly, not being satisfied that the stated genesis and development of the relationship demonstrated they were in a genuine relationship.

[8] I agree with the Applicant that it was procedurally unfair for the Officer not to apprise her of some of these concerns as they arose and not to offer her a meaningful opportunity to address such concerns.

[9] Furthermore, I disagree with the Respondent that the duty of procedural fairness was satisfied in this case merely by granting the Applicant an interview and did not require the Officer to tell the Applicant whenever her story diverged from that of her sponsor. The Officer’s concerns in this case were not related to the sufficiency of the evidence but, rather, to the credibility of the Applicant herself and the genuineness of the marriage. The Officer here should have provided the Applicant with a meaningful opportunity to respond to the concerns in this regard.

A little later on Justice Boswell writes…

[15] In my view, maintaining an arcane exception for spousal interviews is unwarranted in cases where an applicant’s credibility is an issue. There is nothing particularly unique about spousal interviews which would warrant such special treatment. Although applicants may present their spouses as witnesses to the genuineness of their marriage, this does not mean they should be presumed to know exactly how their spouses will respond to every question.

…….

[17] A duty to confront the spouses with any inconsistencies would also not be unduly onerous. It would usually just add a few extra minutes to the end of an interview. This is something which appears to be not unusual (see e.g. Singh v Canada (Citizenship and Immigration), 2012 FC 23 at paragraph 7, 403 FTR 271; Rahman v Canada (Citizenship and Immigration), 2013 FC 877 at paragraphs 8 and 10; Ossete Ngouabi v Canada (Citizenship and Immigration), 2013 FC 1269 at paragraph 9; Lin v Canada (Citizenship and Immigration), 2015 FC 53 at paragraphs 9 and 31).

Why I believe this case has the potential to be VERY important

This case is important because it represents a real challenge of the status-quo of the interview process. Applicants and Sponsors are often put in a lose-lose situation with these interviews. Prepare too much, and sound scripted and not genuine. Prepare not enough, or just be a normal forgetful person, and be found to have differing answers and not genuine.

Furthermore, Citizenship and Immigration Canada in their OP 2 – Processing Members of the Family Class Guide has specifically removed the guidelines/instructions of determining genuineness of the relationship in order to protect system integrity.

Our only real sense of genuineness is (asides from previous case law) has unfortunately come from the controversy surrounding the CIC training manual applying very cultural and economically insensitive characteristics, an issue that I previously covered.

On that note I often find the use of the caregiver ground of refusal (found in Huang as well) very frustrating and insensitive. Cases where there is discrepancy in the financial earnings, career aspirations, and mental/educational capacity of Applicants and Spouses are often chalked as “caregiver” rather than genuine relationships. The cases of this I seen have most often involved spouses from Mainland China. I equate it to an officer questioning “why the hell would you ever marry that person?” It can be quite hurtful.

Overall, what I think Justice Boswell is saying, is that this process needs to be fixed up. Offering an interview and trying to play “good cop/bad cop” to elicit different answers on very minute details in order to undermine credibility requires more procedural fairness.

It is a great decision that I hope visa officers begin applying. My perspective has always been – you never punish 99% of legitimate Canadian couples to try and get at the 1%. In truth, it is the 1% that probably has every single detail memorized and shared to a T.

Jul 31, 2015

Canadian Immigration Law Blog

Media Must Be Cautious Covering Individual Immigration Cases

This article has been reposted from my New Canadian Media piece: http://newcanadianmedia.ca/item/29342-media-must-be-cautious-covering-individual-immigration-cases

The media has recently served as a powerful platform for immigrants seeking to appeal negative decisions, such as deportation orders and permanent residency denials.

This year alone, a star American CFL football player used the media to obtain his Canadian permanent residence, a family was able to keep its deaf child in Canada, and a Nigerian family was able to remain in Canada with their American-born son.

It’s part of a growing trend that has seen immigration issues receive much better coverage in the Canadian media from articles discussing Bill C-24 to stories about immigrant applicants’ trials and tribulations.

Interestingly, the way recent reporting on individual immigrant stories has occurred contrasts greatly with coverage of other legal issues, such as major crime. Rather than prematurely vilify and convict, the media has been quick to defend many immigrants, and to criticize the Canadian government for its poor policymaking.

Ironically, this has injected the presumption of innocence into an immigration system where such a concept did not previously exist. In my view, this has helped to level the playing field for applicants and to bring awareness to the challenges of our immigration system.

However, several recent stories have also highlighted the worrying trend of the mainstream media being overused or improperly used to deliver specific, individualized Canadian immigration results.

Emotion alone should not guide decision-making

It may seem hypocritical for an immigration lawyer and freelance journalist to be writing this piece. Like some journalists, I, too, have taken off my lawyer hat and criticized the government for producing certain immigration results, sometimes prematurely.

The recent case of the U.K. man who was allegedly excluded from Canada for helping his girlfriend renovate her house is a great example. It was carried by two major British newspapers not necessarily known for balanced perspectives or understanding of Canadian immigration law issues.

I know I commented angrily based on my own experiences with clients with border issues, but admittedly both stories were short on the relevant facts needed to assess whether it was the correct decision by the border officers.

An immigration system cannot be based solely on who can present the most emotionally compelling case.

I find that an increasing number of stories that I read tread dangerously close to appeals to emotion, where incomplete facts are presented and an ideal outcome is then suggested.

Perhaps even more troubling is the fact immigration officials are responding to these cases, seemingly only as a public relations effort, but not in accordance with their own laws and policies. As a result, I have seen clients in similar situations left scratching their heads, contemplating their own media campaigns.

An immigration system cannot be based solely on who can present the most emotionally compelling case. Successful applicants should be asked to meet a baseline of legally clear requirements.

Some individuals have stories of hardship, but will have no immigration options. There are also Canadian immigration programs that specifically consider applicants’ hardship. This balance is necessary. Anything else would inject too much officer discretion and encourage too much exaggeration from applicants, both of which are deeply harmful to system integrity.

Media coverage also raises an underlying ethical dilemma (we can call this the “Conrad Black example”) – should we be giving preference in our system to high-profile immigrants?

Inaccurate reporting can dramatically impact applicants’ lives

Don’t get me wrong. Some journalists write on immigration issues carefully. The best present the facts of immigrants’ cases diligently, outline their basic legal issues clearly and ensure that both the immigrants’ and the government’s sides of the story are presented properly. They encourage dialogue and protect privacy and anonymity when appropriate.

However, I have also read several stories in the media recently where it was apparent that outside input and assistance was not sought prior to publishing.

It is vital that journalists seek some outside assistance when publishing pieces because their articles, while generally of limited evidential value in courts of law, can be relied upon as documentary evidence in immigration applications and appeals.

I would suggest that the recent case of the American-born child to Nigerian parents is an example of this. I do not want to comment on its substantive merits, given the case is still in progress. However, I found that some of the articles failed to adequately present the law and policy in the area, which although quite harsh in its consequences, is more clear in its application.

The information contained in these reports can also serve as outside evidence considered by immigration officers who verify applicants’ information themselves.

Factual inaccuracies or ill-advised quotes in these articles could affect future immigration. Meanwhile, if too much personal information is revealed in these news stories, some immigrants’ abilities to obtain jobs or travel safely to their home countries may be compromised.

The media’s role moving forward

Rather than acting as a mouthpiece for individual applicants on an ad hoc basis, the media could speak up with a loud and clear voice when a high-level of wrongdoing occurs – either to individuals or groups.

I think the best case for media importance is the Lucia Vargas Jimenez suicide in 2013, which began the present day scrutiny of our immigration detention system and the push to end the practice of transit police reporting immigrants to Canada Border Services Agency (CBSA) simply for fare violations.

On the contrary, it is interesting to note that in the Jimenez case, CBSA’s internal response was muted due to fear of a media explosion over the issue. From the government perspective, more balanced media coverage may encourage proactive disclosure of negative news.

I believe the media can, and does, play a key role in uncovering and highlighting institutional challenges.

The media can also play an important role in probing key immigration stakeholders. By presenting more stories about the work of immigration settlement services, pro bono legal clinics and others serving immigrants, the media can help fund those resources.

Finally, the media is a key catalyst for access to justice. The fact that individuals have been increasingly willing to go to the media with their stories before engaging legal counsel and resolving issues with government officials highlights the inaccessibility of our immigration system. I believe the media can, and does, play a key role in uncovering and highlighting these institutional challenges.

Overall, the rise of media coverage that informs Canadians of, and holds government officials accountable on, immigration policy is a good thing for our democracy. What the public must do next is ensure the media is used to advance the integrity of the immigration system as a whole, rather than for just a few individuals.

Will Tao is a Canadian immigration lawyer and freelance journalist based out of Vancouver, B.C. He is the co-founder and lead-author of the Canadian immigration blog, Vancouverimmigrationblog.com.

This article was written with assistance from Abigail Cheung. Passionate about immigration since her undergraduate studies in Ethnicity, Race and Migration at Yale University, Cheung will enter her final year at Osgoode Hall Law School this fall.

Jul 25, 2015

Canadian Immigration Law Blog

Can I Lose My Open Work Permit If My In-Canada Spousal Is Refused?

As a relatively new (December 2014) immigration program, the One Year Pilot Project which provides an Open-Work Permit to In-Canada Spousal Sponsorship/Common-Law Applicants raises many interesting factual scenarios – particularly in relation to refused applications.

Under this pilot project, prior to first-stage approval, Applicants who currently are in-status and in Canada are given open work permits allowing them to work anywhere in Canada while their spousal/common-law applications are in processing. I was asked an interesting scenario, one that was brought up by the folks in the Canada Spousal Sponsorship Practitioners Facebook Group.

What if an in-Canada Spousal Application is refused? Can the individual continue to hold and work on their Open-Work Permit.

The relevant Immigration and Refugee Protection Act (“IRPA”)provision states as follows, regarding the circumstances in which temporary status (i.e visitor, student, worker) may be lost (emphasis added):

Temporary resident

47. A foreign national loses temporary resident status

(a) at the end of the period for which they are authorized to remain in Canada;

(b) on a determination by an officer or the Immigration Division that they have failed to comply with any other requirement of this Act; or

(c) on cancellation of their temporary resident permit.

Applying Section 47 of IRPA, there are currently no grounds to require a foreign national holding a open spousal work permit to leave Canada because the Spousal/Common-Law Sponsorship application has been refused.

When does the authorized period to remain in Canada end?

Section 183(4) of IRPA states (emphasis added):

Authorized period ends

(4) The period authorized for a temporary resident’s stay ends on the earliest of

(a) the day on which the temporary resident leaves Canada without obtaining prior authorization to re-enter Canada;

(b) the day on which their permit becomes invalid, in the case of a temporary resident who has been issued either a work permit or a study permit;

(b.1) the day on which the second of their permits becomes invalid, in the case of a temporary resident who has been issued a work permit and a study permit;

(c) the day on which any temporary resident permit issued to the temporary resident is no longer valid under section 63; or

(d) the day on which the period authorized under subsection (2) ends, if paragraphs (a) to (c) do not apply.

Extension of period authorized for stay

(5) Subject to subsection (5.1), if a temporary resident has applied for an extension of the period authorized for their stay and a decision is not made on the application by the end of the period authorized for their stay, the period is extended until

(a) the day on which a decision is made, if the application is refused; or

(b) the end of the new period authorized for their stay, if the application is allowed.

Non-application

(5.1) Subsection (5) does not apply in respect of a foreign national who is the subject of a declaration made under subsection 22.1(1) of the Act.

Continuation of status and conditions

(6) If the period authorized for the stay of a temporary resident is extended by operation of paragraph (5)(a) or extended under paragraph (5)(b), the temporary resident retains their status, subject to any other conditions imposed, during the extended period.

It also important to look at when an authorized stay begins. The Immigration and Refugee Protection Act states (emphasis added):

Authorized period begins

(3) The period authorized for the stay of a temporary resident begins on

(a) if they are authorized to enter and remain in Canada on a temporary basis, the day on which they first enter Canada after they are so authorized;

(a.1) if they have become a temporary resident in accordance with subsection 46(1.1) of the Act, the day on which their application to renounce their permanent resident status is approved; and

(b) in any other case, the day on which they enter Canada.

On my reading, as long as the Applicant has a valid temporary resident visa allowing them to re-enter Canada, they cannot lose their open work permit simply by leaving Canada. This is not a case of implied status.

Of course, there may be challenges in obtaining a visa, which is another matter for another post. From my reading of the legislation, if you leave Canada during the duration of your Canada

Note, that there are several conditions by which an individual can apply for a visitor visa within Canada and holding a work permit in Canada is one of them. See: http://www.cic.gc.ca/english/visit/cpp-o-apply.asp

Opportunities Created By an Open Spousal Work Permit

There are several potential opportunities created by a foreign national spouse-applicant who holds an open work permit. There may be several economic options worth pursuing if the required work experience can be obtained.

Also, an Overseas application can be initiated and the ability of the individual to travel back to their home country can facilitate any officer interview conducted overseas.

However, given the current uncertainty with Port of Entry examinations and Officer discretion leaving Canada while holding an Open Spousal Work Permit and a In-Canada Spousal Sponsorship refusal may not be the most desirable choice.

What I Would Do – Issue all Spousal/Common-Law Applicants Open Work Permits

I think Citizenship and Immigration Canada has really shot itself in the foot with making the open work permit option only for In-Canada Spousal Sponsorship applicants. Should this option exist for Overseas applicants as well (who by the way can be in Canada when applying). If there did so there would less of a burden and backlog of the domestic system – currently holding up families for 26 months +.

While well-intentioned, the Open Spousal Work Permit has become an emergency lifeline for Canadian couples with a foreign national spouse/common-law partner. It creates the potential for poorly prepared applications filed to save a relationship. If I were CIC I would encourage more individuals to apply abroad, put more resources abroad to boost those processing times, and encourage more spouses to stay and work in Canada on a dual-intention pending processing of their Sponsorship applications.

Jul 18, 2015

Increased Canadian Immigration Obligation on Transportation Companies (Pt. 1)

This is the first part of a multi-part series which will look at the effect of the Canadian Government’s increased security and information sharing measures may have on transportation to and from Canada.

On June 27, 2015, the Federal Government introduced new proposed “Regulations Amending the Protection of Passenger Information Regulations” through Part 1 – Canada Gazette.

While these regulations are several months away from being in force, I thought it would be an interesting exercise to see how the Immigration and Refugee Protections Regulations are being amended by the new legislation. In essence, I wanted to ask the question – “what will change?”

You will see below in the embedded pdf that I have taken a particularly interesting snippet from the proposed regulations, those placing obligations on commercial transporters to report information about their passengers, and done a comparison.

IRPR-Proposed-Amendments-Transport

The highlighted portions represent major changes.

Lessons Learned from this Exercise

I think the one thing we can take away is that the legislation in this area is becoming much more specific. The broad language that governed previous rules is being replaced by specific steps that commercial transporters (with a heavy emphasis now on both air and ground transport) must take and when they must take it.

It is very interesting to note that the requirements will be placed on commercial transporters to provide information about not only who was on the vessel but who is expected to be on the vessel. While not clarified in the legislation, it can be reasonably assumed that the Government wants to know more about the entire process – from the reservation to who actually boards the flight.

Another very interesting revelation is that the proposed regulations suggest that there will be much more communication between Canada Border Services Agency (CBSA) and the commercial transporters. CBSA will let the commercial transporters know in advance who may be inadmissible and who may not have adequate documentation. This makes a lot of sense in the context of the electronic-Travel Authorization (eTA) requirement being implemented on August 1, 2015. Meanwhile, commercial transporters appear now to have increased obligations to guarantee the swift exit of those who are not authorized to enter Canada, including strict time deadlines.

What does this mean for the traveller? I think it means that much more vetting will occur at the front end with many airline/transport companies playing the role of a “quasi-2nd line CBSA officer.” I think travellers also need to be very careful when questioned by CBSA officers that they provide accurate information about their travel itineraries. What does this mean for the transport companies? I think it is time to seek competent counsel (either in-house or external), as I expect the liabilities and compliance costs to increase drastically under several of these new regimes.

More to come in future posts on this topic!

Jul 14, 2015

Canadian Immigration Law Blog

Providing Your Social Insurance Number for Citizenship

Introduction

Thanks to the new changes to the Citizenship Act, all of which are now officially in-force as of June 11, 2015, there are also new Citizenship Forms and Regulations.

Part of the changes to the Forms and Regulations are new requirements for Applicants to provide their Social Insurance Number. Unlike in the context of permanent residents, where Citizenship and Immigration Canada (CIC) has made providing Social Insurance Numbers an option, for Citizenship failure to provide a social insurance number if you have one and tax filings if you are required to file them will lead to your application being returned pursuant to s.13 of the Citizenship Act.

While reviewing the CIT0002E form, I noticed something that is worth knowing about providing your SIN number. I will explain this point in a series of screenshots (apologies in advance if they are slightly blurry). You can follow along with the form here.

Section H: Income Tax Information

In this section you are either asked to provide a SIN, a TTN, or an ITN. Canada Revenue Agency (CRA) has clarified what each of these are in here. In short, if you are not eligible for a Social Insurance Number and have submitted a T1261 you are given an Individual Tax Number. If you have immigrated to Canada or become a tax resident and are eligible to apply for a Social Insurance Number but has not yet received it, CRA will issue you a temporary Tax Number

The selection box is kind of confusing as you can see above. It appears the only thing that would trigger selecting no (which also exempts you from having to provide a part 9 consent to allow Canada Revenue Agency disclosure) is if you are not required to file taxes [ps form creators there’s a typo it says part 8].

Importantly, the form reminds you that with your consent CIC will use that information to determine if you meet the income tax filing requirement of the Citizenship Act. If you do not consent, it states that your application will be returned as incomplete and not processed. It also states that the information may be used to determine whether you meet the physical presence requirements. As a reminder those requirements are 4 years out of 6 years and 183 days or more in four calendar years out of the six calendar years being relied upon.

Again, with social insurance numbers and at the ability to trace your financial steps that is easily verifiable.

Part 9 (E) CANADA REVENUE AGENCY

The section begins with another reminder that if you do not consent your application is not complete according to the Citizenship Regulations. Arguably, there’s no real consent being asked for and again the regulations make it clear it is a requirement.

What is very interesting about this section and that it is important to be aware of is that the sections being cited as the impetus for the disclosure are not the only purposes for which the information can be used.

Subsection 5(1)(c) is the grant provision. However, as the wording of the Regulation states there are other purposes that the information will be used for:

Section 26.6(2) of the Citizenship Regulations clearly suggests that the information can also be used to determine discrepancies of material circumstances made in the curse of an application. Not necessarily just the Citizenship Application and arguably also within the realm of other government programs.

What Does This All Mean?

Misrepresentation. You can kind of tell it is the theme of the posts today. With the new regulations, it is very possible that misrepresentations on any previously submitted application related to tax or immigration could trigger misrepresentation under s.40 and perhaps even the offense of misrepresentation under s.127.

Prior to submitting a Citizenship Application it is crucial that a full Access to Information and Privacy request to Citizenship and Immigration Canada, Canada Border Services Agency, and the Canada Revenue Agency is performed to ensure the consistency of past submissions and correct any inconsistencies before applying for Citizenship.

Jul 14, 2015

Canadian Immigration Law Blog

Forgetting A Period of Employment = Misrepresentation? Quite Probably.

Introduction

Under Canada’s new Express Entry system for Economic Immigration, Applicants are required at the profile creation stage to list their entire employment history for the past 10 years or since the age of 18 in an electronic form.

Particularly for individuals who work contract on short term duration work, this record could be very long and it is very possible that inadvertent omissions could be made.

Upon accepting an Invitation to Apply (ITA), a pre-populated form will be created based on the jobs initially listed in the created profile. For positions not listed, a letter of explanation containing the omitted information is highly recommended. Ultimately, if there are serious discrepancies, such discrepancies should be resolved prior to accepting the Invitation to Apply as doing so begins to triggers the recording of information into CIC’s Global Case Management System (GCMS).

This all leads to a very interesting question:

Could failure to include a position of employment lead to misrepresentation? What if that period of work is not being relied upon to qualify for a specific program?

Paashazadeh v. Canada (Minister of Citizenship and Immigration) 2015 FC 327

Ms. Paashazadeh was a Federal Skilled Worker (FSW) Applicant who in her application failed to disclose two period of employment. Upon receiving a procedural fairness letter requiring her to provide a Social Security Organization certificate, she disclosed a part-time job with a tourist company and a respective full-time job. She wrote in response to the request/procedural fairness letter that she did not intentionally withhold the material and honestly considered the work to be insignificant, given she has already fulfilled her employment requirements for the FSW program.

The Program Manager disagreed, and upon receiving the Social Security Organization certificate refused Ms. Paashazadeh’s application and cited her for misrepresentation under s.40(2) of the Immigration and Refugee Protection Act. The Program Manager noted that the complete and accurate employment history was material to the assessment of eligibility and admissibility.

In denying the Applicant’s Judicial Review, Justice Zinn found that the employment history was material and added the following about the threshold and definition of materiality in the context of misrepresentation (emphasis added):

26 A misrepresentation need not be decisive or determinative to be material; it must only be important enough to affect the process: See Sayedi v Canada (Minister of Citizenship and Immigration), 2012 FC 420 at paras 26-27. I agree with the respondent that a failure (innocent or otherwise) to supply a “truthful, complete and correct” application is material because it prevents the reviewing officer from assessing all of the applicant’s personal facts and to verify all of the information concerning an applicant to determine whether he or she is properly admissible to Canada.

This idea that a misrepresentation only needs to be “important enough to affect the process,” appears to be much a much lower threshold than CIC’s own policy definition of materiality (emphasis added) from ENF2/OP 18- Evaluating Inadmissibility:

10.4. Materiality

With respect to relevancy and materiality, the following principles apply:

What is relevant is a broader concept than what is material.
All material factors will be relevant. However, what is relevant may not always prove to be material:
(1) information requested from applicants will be considered relevant, otherwise this information would not be requested; but
(2) this relevant information will not always affect the process undertaken by an officer or the final decision. Only when it affects the process undertaken, or the final decision, does it become material. At this point, misrepresentation of the information means section A40 would apply, regardless of the decision outcome.

Conclusion

Perhaps with only one case and one definition, it is premature to suggest a trend that the threshold to misrepresentation is lowering. However, this is a very important question given we know the penalties and consequences of misrepresentation are certainly increasing.

Again, it is uncertain how misrepresentation will be applied in the context of Express Entry and in the context of misrepresentation.

A question and an answer that will be update for sure.

Jul 14, 2015

Canadian Immigration Law Blog

The New Direction of Misrepresentation in Canadian Immigration: Criminal Inadmissibility

Introduction

As I have covered in previous blogs on the topic, I believe Misrepresentation under s.40 of the Immigration and Refugee Protections Act [IRPA] is the new tool that CIC will be increasingly using to defend program integrity.

The penalty for misrepresentation used to be only two years, only a year greater than the penalty resulting from an exclusion order and almost negligible in the case of Applicant filing a Permanent Resident Application to benefit from processing during the two years.

Now with a 5-year bar and the inability to file a PR Application during the 5 years, a misrepresentation finding against an Applicant (or the spouse of the Applicant) has serious consequences and can act as both a punitive and deterrent measure of our immigration system.

It is also important to note that punishment for misrepresentation extends well beyond s.40 of IRPA. In fact, s. 127 of IRPA, creates the offense of misrepresentation. Section 128 clarifies that the offense is a hybrid offense, and thus by operation of s.36(3)(a) IRPA‘s criminality provisions is deemed an indictable offense. By operation, an offense of misrepresentation can trigger not only an s.40 inadmissibility but also a serious criminality or criminality inadmissibility. Criminal inadmissibilities have consequences that last far beyond the 5 year period.

What makes a misrepresentation the IRPA offense of misrepresentation?

Just recently, the Canada Border Services Agency (CBSA) in a news release, raised a very interesting scenario that caught many of us in the immigration bar a little by surprise. Generally, misrepresentation cases that are brought to light by CBSA (or that we hear of in the media/case law) involve some sort of illegal human-trafficking or illegal immigration scheme. These individuals have generally not been the Applicants themselves and their wrong-doing has affected the general public in a detrimental way.

On June 29, 2015, a Senegalese resident Momar Diba, was found guilty of misrepresentation and charged under ss. 127(a) of IRPA. On June 16, 2014 Mr. Diba had attempted to gain entry into New Brunswick where he was referred to secondary inspection. During that inspection, it was discovered that Mr. Diba had offered to pay a New Brunswick woman money to marry him so he could stay in Canada.

To many, this case seems like a classic s.40 misrepresentation case, where the individual would be referred to the Immigration Division and sent packing shortly thereafter with a 5-year bar in hand. So what made this more than that?

Comparing the legislative language, it appears that the main distinguishing factor between an s.40 inadmissiblity and an s.127 offense is knowledge of the misrepresentation.

S.127 of IRPA states (emphasis added):

MISREPRESENTATION – No person shall knowingly

(a) directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

(b) communicate, directly or indirectly, by any false or misleading information or declarations with an intent to induce or deter immigration to Canada;

(c) refuse to be sworn or to affirm or declare, as the case may be, or to answer a question put to the person at an exaination or at a proceeding held under this Act;

Knowledge of misrepresentation is not a requirement for s.40. Consequentially, I think the main differentiating factor between the inadmissibility and the offense is this mens reus element.

What does this all mean?

My assessment of the situation is that in cases where CIC believes the Applicant is knowingly misrepresenting or withholding material facts and where the facts are egregious, misrepresentation charges will be pursued in addition to the inadmissibility allowing for a deportation order to be made. A deportation order bars the return of a foreign national to Canada without authorization.

It is also important to note that just because a more serious punishment for the offense of misrepresentation exists, it does not make knowledge a requirement for the inadmissibility of misrepresentation to be made out. In the case of Paashazadeh v. Canada (MCI) 2015 FC 327, Justice Zinn rejected the Applicant’s argument along those lines and reaffirmed that innocent failures to provide material information can lead to misrepresentation and intention is not a requirement of the provision.

Jul 10, 2015

“Bad” Google Searches as Extrinsic Immigration Evidence + A Possible Solution

The recent Federal Court case of Chen v. Canada (Minister of Citizenship and Immigration) 2015 FC 771, highlights a growing problem in the assessment of immigration applications, Immigrant Officer relying on poorly researched extrinsic evidence to reject applications.

In Chen, the Applicant, Zhaohui Chen had been convicted of manslaughter and found inadmissible to Canada for serious criminality under section 36(1)(a) of the Immigration and Refugee Protection Act. Mr. Chen exercised his statutory right to file a Pre-Removal Risk Assessment claiming a fear of persecution in China by being Baptist and possible retribution by the manslaughter victim’s family. Mr. Chen cited the risk of Double Jeopardy under Chinese Criminal Law.

The immigration officer (“officer”) in this case conducted his own internet, “Google” search of the term “Zhaohui Chen” and upon finding no results indicating his conviction, concluded that Double Jeopardy was unlikely. Justice Zinn found that failure to put the name search results to the Applicant for comment prior to rendering a decision breached natural justice and allowed the Judicial Review.

When is CIC Required to “Put Their Concerns to Applicants?”

Procedural fairness requires that Applicants have the opportunity to respond to an immigration officers’ concerns under specific circumstances. Two of those particular circumstances include where there are credibility concerns about the Applicant or where the officer relies on extrinsic evidence. Often these two areas are correlated, as a credibility concern can trigger the officers’ extrinsic evidence search or the extrinsic evidence search can reveal information which creates a credibility concern.

In these circumstances, the officer is generally required to contact the applicant laying out the area of concern . The burden of proof is on the applicant to put all necessary information in front of the visa officer and there is no requirement to inform the applicant of all application deficiencies. See particularly: Olorunshola v. Canada (Minister of Citizenship and Immigration), 2007 FC 1056.

Responding to extrinsic concerns is particularly challenging in the context of Port of Entry examinations. Whereas, with procedural fairness letters one can be given 30-60 days, which upon application can be extended, similar luxuries do not exist at the Port of Entry. Officers in the process of gathering evidence to issue removal orders, can (and do) look through phone evidence, computer evidence, and Google search evidence. This evidence is asked and put to the applicant on the spot to disabuse them of their concerns.

This can be particularly difficult for the already panicking traveller, who is now shown a screenshot of their perceived wrongdoings or a third-party document they have never seen before. With new information sharing regimes coming in, I foresee the use of extrinsic evidence (particularly by CBSA officers) to increase in the near future.

Personally, I also think the amount of time and level of access to extrinsic materials that an applicant has to CBSA officer evidence should have some bearing on the procedural fairness analysis. Unfortunately, in the administrative law context, procedural fairness has become an all-or-nothing proposition. either it was provided or denied by the officer – with nothing in between. In very few Federal Court case law that I have read has procedural fairness been established on the totality of several small administrative breaches that have disadvantaged the Applicant, something that I believe is increasingly happening within the Canadian immigration context.

The Real Problem is the Google Search

Back to the root of the matter, I have a huge concern with Google searches as extrinsic evidence. In fact, in most Canadian legal contexts (notwithstanding the fact the ‘evidence’ rules are laxed in administrative matters and in particular immigration law administrative matters), Google searches are inadmissible.

In fact, as discussed in this great Canadian Lawyer Magazine article by Ontario-based lawyer Ben Hanuka. One particular judicial comment I quite like from the article, is a quote from then Ontario Supreme Court Justice George Strathy:

“[t]here is no evidence that one can extrapolate factual conclusions from the number of occurrences of a particular search phrase on Google.”

But outside of a legal realm, it is worth assessing the utility of relying on mere Google searches factually and practically as well.

Why don’t we begin with the context of the Chen case, from a completely factual perspective. The Immigration Officer attempted to use Google, a North American search platform currently banned/unavailable in China, and insert the Applicant’s Alphabetized pinyin name, one that legally does not exist in China, to conduct investigative research.

Second, there is no evidence that Immigration Officers are even trained in searches. Having gone through multiple seminars of legal research training on Boolean searches and the proper use of connectors, etc, I still am clueless on how to properly conduct a Google search to give me optimum, specific results.

I have seen even worse than the Chen case. I have personally been involved in files where Google searches pull up outdated or incorrect results that have been used against applicants. Again, within the North American context we consider Google the central hub of our internet activities but in many countries and languages different search engines are used. Google results can be both outdated and limited when compared to these other engines. In fact, Google results can simply “not exist” for various individuals.

Solution – Technological Interaction

The number one way to limit the use of extrinsic evidence is quite logically for an Applicant to submit more, and better evidence. One of the major challenges I have seen with evidence submitted by the Applicants is that the quality and content can often be poor. Photocopies are often unclear. References (i.e. where the evidence was obtained) is often not cited. And often times, particularly if not included in the proper place within an application package or submission, can be difficult to tie to the underlying fact its trying to prove.

I foresee in the not so very future, procedural fairness letters shifting to virtual form, an upload-able table where the Officer’s concerns are listed alongside the evidence considered – consider like an interactive/virtual foss note system.

I think one of the main solutions that CIC can employ is to implement such a system so that Appicants can also respond, or arguably even submit in advance relevant evidence in a logical way. My one concern, with the way the online portal is currently set up for such things as visa applications and express entry applications, is that it predefines your categories. Documents that do not fit certain categories have to be pdf’d into the “Explanation Letter” or put under an unrelated category where it may be possibly missed.

I like the idea of a using a virtual platform to interact with applicants on their applications and their office concerns.

For example, if an officer were to make a comment challenging the bona fide’s of an individual’s job title by relating to extrinsic evidence from a google search, the applicant would be able to “reply” back virtually through use of his own submissions and evidence. This back and forth could continue as much as would be required to give the Applicant a “necessary opportunity to respond” at which time both officer and applicant would be required to lock-in their inquiries on the matter.

Only time will tell whether this level of interactivity can be implemented or is even desirable from a cost-recovery perspective. Nevertheless, I do hope that Counsel in their judicial reviews take a stronger stance against extrinsic evidence so we may get better jurisprudence on this increasingly important issue.

Disclaimer: I am a chronic Googler who, outside of the legal evidence realm, believe it is the best search platform in the World, bar none.

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