Award-Winning Canadian Immigration and Refugee Law and Commentary Blog
These quickly flipped pages, the work of our modern day sages, trapped in our below-average wages, creating pitfalls so cancerous they got stages, they say we’re just going through economic phases, you know the pendulum swings
This over-packed bus
The bane of my existence
My current dream car
Whether it not it takes 21 days to truly make a habit, it is clear that in my life and practice, writing needs to play a more prominent role – for healing, coping, and as a bastion of creativity. Over the next 21 days I will force myself to write various creative pieces
In past pieces I have lauded IRCC’s extension of 180 days for students to apply for post-graduate work permits. From a policy perspective, I believe it gives students more time to find a job and prepare a decent application
In the past year, one of the areas in which I have received the most inquiries and run the most consultations involves international students who have found themselves facing either criminal charges or dealing with the consequences arising from immigration investigations
In the first three months of this month, I have had the privilege (and I would also call it also a personal and familial/community responsibility) to speak on quite a few very controversial issues for media (print and radio).
For those that wonder why I have been posting less frequently than I used to do, one of the major reasons is that I have been putting significant time into building my immigration appeals practice (currently mostly spousals, residency, misreps, and some criminality).
Following the New Zealand terrorist attack, local elements of hate have started to put out threats. Unsurprisingly, among those targeted appear to be immigration lawyers.
After it was posted, a senior colleague from Toronto and mentor Chantal Desloges shared her thoughts about the worrying nature of this incident. Barbara Jackman, OC and probably the greatest living advocate for refugee constitutional rights, thoughtfully suggested we share these messages with our assistants, many of whom are diverse persons of colour, to ensure their safety. Kyle Hyndman, a local lawyer from Vancouver whom I’ve admired for several years for his leadership and expertise, particularly in the field of LMIAs and work permits, added a further message of inspiration for us to be proud of our work.
By the way, at this point I’ll note that I have rarely ever utilized the CBA Listserv to share my thoughts. Indeed, I can count on one hand the entire number of times I have done so in now almost five years of practice (if you include articling, when I first joined the Listerv) – 3. The first time was on a truly unique fact pattern involving an overturned removal order and the Government’s financial obligations, the second was to ask for assistance on our litigation for the Parent and Grandparent Program. This was my third.
As those who read and follow Vancouver Immigration Blog and my Twitter account will know, I have recently taken a huge interest into examining power, privilege, and race. The truth of the matter is, lawyers of colour struggle in balancing these three and in turn it makes us more susceptible to anxiety, self-loathing, imposter syndrome, trauma, and stress. We become often times the invisible practitioners, behind the scenes working long hours, serving as interpreters and arbiters, sometimes even having to translate. After we serve our clients, who will often scrutinize us more because we are not white and therefore do not appear to look like your typical lawyer, we then have to handle returning to our communities to deal with the consequences (both good and bad). There’s a lot of skin in the game and it is not an easy process.
I wrote this email response to that thread.
Thank you Chantal, Kyle, and Barbara (all three fantastic mentors) for raising this important issue to our attention and your words of courage and inspiration to us.
I also wanted to chime in on behalf of myself and other younger immigration and refugee lawyers of colour. For us, we often face additional barriers – without the platforms of power that can serve to insulate and speak for us, yet at the same time with these issues and challenges so deeply embedded in the communities we serve and live in. We become part of the threatened and as well part of the front line of defence, regardless of our own statuses in Canada, simply by the way we look and who we were born to.
I am grateful for a strong CBA Executive and Coordinator team, one that has allowed me to use Twitter as a platform to share stories of inspiration, put out debate, and highlight some of the activities of our immigrant communities and young lawyers who come from them. I continue to ask you to send me news stories and developments of inspiration so we can be part of this conversation in a positive way. We also have a very diverse executive we should all be proud of and is so unique to the CBA that we should continue to champion.
As a final note, I urge you all to reach out to younger, BIPOC (Black, Indigenous, People Of Colour), LGBTQ2+, and Differently Abled lawyers in your firms and also make sure they are doing alright. Vicarious trauma and stress affects us all in different ways and for many of us with lived experience or direct family that have come from migration and struggle, these client matters and associated threats from the public take on a different meaning.
We should also be looking at ways we can help highlight diverse voices in everything we do as an organization – to make sure young lawyers of different backgrounds know they are supported and that they have a place at the decision-making table, even if this requires some of us to cede our own power and privilege in order to make this happen.
In solidarity and with gratitude,
Will
Tomorrow, for the first time I am speaking on the topics of decolonization and intersectionality. I don’t think I have ever been as nervous for a talk. It is a topic I have been engaged in for the past several months, but it still feels to me a new term. However, there is some value into speaking to the newness and humility. That is why I eventually put my name forward and agreed to speak.
It has been a long time coming. A year ago, I don’t think I could have spoke on this topic let along would I have put my hands up to even volunteer. The pathway to learning about colonialism, decolonization, intersectionality, racism, and discrimination in our society has been a difficult one. It has forced me to confront my own current role (and definitely my past roles) in perpetuating my privilege and my power in not only my ‘colonial work’ but in the way I may have approached community service. I lose sleep now in ways that I did not before – because I am exposing myself to my own shortcomings and the painful truths I conveniently avoided in years past.
I am glad that it is slowly stripping away an ego that I think the process of being a lawyer almost inherently instills. I feel more humbled and I thank the learning I am doing and the social activists I am meeting for transforming me.
This process has highlighted mistakes I have made in the past in this regard.
For example, I donated money to a local organization on behalf of my law firm thinking I was doing good while simultaneously shirking a previous responsibility I had to that organization, as a volunteer. I realize that I was donating to cover up my own guilt and that goes against the very principles of decolonization that I am now learning about.
A second mistake I made was for a long time this law blog had an Indigenous logo that a non-Indigenous friend designed over. That appropriation of culture was entirely inappropriate. Even now, I am aware my logo is Indigenous and I am not – something I need to be extremely careful about as I consider the direction my blog goes and the societal/policy issues we engage with. I think that by engaging an Indigenous artist Diamond Point, we’ve made a step in the right direction but Indigenous recognition – much like, can very easily turn into lip service with no corresponding action.
All this to say – I don’t get to become an ally – just by reading a few pieces and attending a few workshops, giving a few talks, writing a few tweets, and making a few donations. Becoming an ally requires an investment in time, but more importantly a humility that this is a fight I care about but a fight that ultimately I need to support my Indigenous brothers and sisters in. I need to advocate but more importantly listen and be present when listening.
I had a colleague tweet in reply, not so long ago to a post of mine, that I also needed to show sensitivity when talking about things such as the residential school experience or the experiences of Indigenous women, as the very bringing up of these themes could be triggering to them.
As lawyers, we love to talk, to write, to share. It almost seems like the test for good advocacy is whether you have been to Court recently, what level of Court, what policy issues, and what media opportunities. The first two months of this year gave me some incredible platforms but frankly I did not do enough to use those platforms to shift conversation or give light to underrepresented and more deserving voices, especially Indigenous voices. Indigenous issues are still so peripheralized and othered in mainstream media – through a lens that more often than not dehumanizes.
We seem more engaged with global events that have little effect on us, but that generate clicks and false outrage, than we do with local suffering that we are all collectively responsible for as settlers on stolen land – which should generate real outrage. It is as if those problems are our Government’s and that ‘reconciliation’ has solved all problems. From what I am seen and heard, it hasn’t even begun to scratch the surface.
When it comes to tomorrow’s talk on decolonization and intersectionality – I plan to share with these young impressionable minds of the amazing RADIUS program I am speaking to – my journey and my stumbles.
I also very much aspire to this idea that decolonization cannot be a metaphor for general social change, social justice, and anti-colonialism/oppression. If we water down decolonization, or worse yet, forget decolonization needs to come hand-in hand with indigenization (and not just of mind and rhetoric) – we may do more harm than good. I am also aware that this process will involve ceding of power, privilege, and land. Anything else, and it turns again into rhetoric and feel good excuses for our continued settler privilege and justifications for modified colonal appetites. We also need to come to global understandings of indigenizing that also doesn’t allow for the term to become homogenization.
Canadian indigenization – and where it comes from is historically grounded by systemic and full-scale wrongdoing that sought to wipe out Indigenous culture. Indigenization in another context, for example a country that believes in protecting and preserving one’s indigenous roots at the expense of newcomers or racial intermixing, can become problematic and the basis of racial/ethnic supremacy.
I think the position we come from and the model we develop in Canada will be very unique and we have to be careful to reconcile that with other world views and with the world view of newcomers. Introducing Indigenous issues and history to newcomers will become a major priority of mine, once I go through my own learning process.
On the topic of intersectionality, we need to also develop a Canadian model that takes into account Indigenous women, as a foundation for our BIPOC perspective. Indigenous and two-spirited women have had their identities marginalized and it is routed in the aforementioned colonial policies. Decolonizing will help highlight and tackle intersection issues.
Parallel, and simultaneously, we need (and I am grateful we are starting to see) the rise of powerful women entering newsrooms, media, politics, law, and other area of influence to highlight the structural, political, and representative intersectionality that marginalized and minority women find themselves in as a result of the narrowed patriarchal lens which creates male-dominated viewpoints or allows on some women in on our major conversations.
Our Canadian understanding and study of this concept is so behind, that on major issues – such as Karen Wang and recently, Jody Wilson-Raybould, – no one even brings it up. This gap in analysis (coupled with the consistent racelessness and neoliberal ‘multiculturalism’ espoused by those in positions of power) wipes out the experience of women of colour. This is unacceptable and as a man of colour, I bare my share of the blame for not tackling our own community stereotypes here.
To conclude, where I started, I’ve been thinking a lot about these issues, but I am not an ally (yet). I don’t get that label easily. I may never get it. I need to be listener, a repenter, and learner, a more humbled down human being. I need to use my voice and rather than sit silently while I watch the narrative be shifted, use my voice and privileges to shift the narrative to places where we need it to go.
Some of you will be sick and tired of me writing about race, taking as comedian Aamer Rahman wrote about “white person this, white person that.” On this point, I want to share the recent writing of Sandra Inutiq in her piece Dear Qallunaat. The headline says it best.
Even as a non-White settler, I have benefit from it too and I need to be more aware of this. Similar and parallel systems that made my ancestors Han Chinese and scholars in China from (my late father’s side) relative affluence and education made me benefit there too.
It’s time to strip away ego, recognize and admit privilege, and cede power and land back to our Indigenous brothers and sisters. In the process, I trust that the empowerment and deconstruction of barriers for BIPOCs will naturally occur. Canada will be a more equitable, equal, and truly diverse place.
With peace and love.
Will
I haven’t wrote a fictional, lighter piece in a while so I thought I’d put together this short narrative. Like many stories there are elements of my own life embedded into it. I am also sure many of you can relate to some of the streams of written thought I go on. I’ve made a commitment to myself to do more non-fiction writing in 2019 so here’s a quick one!
I stared at him across the room. Timmy. My part time friend and part time enemy “frienemy.”
Like always he was the centre of attention. Table packed with the most attractive girls from our class, the guys from the hockey team, and today a few young admirers I recognized from last night’s big game.
I did not have the luxury of such a fan base.
Like every other noon o’clock it was my daily period of solitude.
Today my friend Chen was sick – that or his parents took him back to China again. The rumour going around was that all us had the Asian flu. Including me, who I note never ever had stepped a single foot in the motherland, Asia.
It usually would just be us two – talking about, well mostly it was a silent Buddhistic ritual. His mom was a good cook – I would ask him what he was having. It usually looked and smelled better than mine. That and he had the triple layer thermos that neatly separated his rice, meat, and vegetable dishes. My own dented thermos carried a mystery mix or yesterday’s leftovers and some hidden surprises my pops whipped up at 7am. He was up early every day to make our lunches.
It wasn’t that I hated Timmy. If this was PE (Phys Ed) class we’d still share occasional laughs but half the time he may have been laughing at me. See I wasn’t the fittest boy in class. While rap fashion was in and I was of above average weight, the extra large hoodies and pants didn’t help. They were off the discount rank and I didn’t know better. The colours usually a mix of vibrant yellow, orange, and white accentuating how out of shape I was. The gym was a foreign place of growth stinting potential – one of the many places and spaces, the rules dictated I was forbidden to visit.
Timmy went into his brown paper bag and pulled out his sandwich. It looked like Black Forest Ham. I never much liked sandwiches but I was jealous of the neat tinfoil wrapping. His lunch was a series of hidden surprises. Sometimes he would gift a piece to his favourite admirer, who would woo and give him a peck on the check or one of those deep hugs that I desired – the hugs the members of the hockey team would give to each other after a nice goal, or when greeted by their fans after the game. All I had were the handshakes of a good game after a tennis match – usually one I would also be excluded from, riding the pine (or the place behind the chained fence, as it usually was in our tennis games).
Exclusion was a natural concept for me in these years. Excluded from my culture, from Timmy’s culture, from the school culture. I took refuge in my own little world of written words and verses, of Tupac and Em, much to the chagrin of my deeply conservative-music classical music listening family.
Today Timmy took out a cylindrical round thing out of his bag. I could tell by it’s colour – green that it was gold to me. The bane of my existence. Everything I wanted. I had tried asking for it before. Mom’s would tell me – ‘why the heck would you eat that when you eat the actual thing itself?’ and ‘do you think we’re a white family? – it’s too expensive’
I craved the sweetness, the granular, smooth texture. To me it was finer than the fanciest cake (not that we had any options but the over dry, fake peach fruit cake of every birthday ever). Timmy opened it up, licking the lid, blissfully unaware that the three girls surrounding were watching the tip of his tongue with eyes wide of excitement as they were already engaged in second base. Whatever, second base was – for me it was just Roberto Alomar.
A white plastic spoon came out of his brown paper bag. I stared down at my own chopsticks, which in my lack of attention paid had turned into one chopstick and one game of pick-up sticks waiting on the floor.
Timmy was smiling, he blue at his bleached blonde hair – spoon caressing carefully the corners of the plastic cup.
This is a memory I always carry with me. I carried it years later when I was in a foreign land (where what Timmy was having was entirely foreign). One of my classmates at the time had her family from Mid-West USA deliver some packages of the stuff. It was so damn good, I went for thirds and skipped dessert.
But, more than that, it represented a jar of memories, a cup of perfection of a culture that I never could fit in but damn right wanted to. An object of affection to a soul that at material times both crave it and lacked it.
I want what Timmy has. To be honest I still want it today.
I want that damn Apple Sauce.
Part 1: First – A Little Personal History about Pushing Change
In advance, I want to make clear that I am not writing this first section to make it appear as if I had anything to do with the changes announced today. This was done by concerned students, stakeholders, schools, other lawyers, and great IRCC policy people engaged in this issue. I am writing this because I’ve been asked by a number of young mentee law students/pre-law students recently (and other fellow junior lawyers) how I got so engaged with international student issues. Rather than just simply copy and paste the website changes, I thought the process of my interest, advocacy, and how it all plays in – may be of interest to some readers.
Since IRCC implemented their clarified directive Study Permits: Assessing study permit conditions I had a feeling that new instructions on the PGWP would be coming. A month ago, Immigration Representatives confirmed to me by email that this was the case:
A month later, on Valentine’s Day no less, IRCC placed some little cards into the brown paper bags tied into the back of plastic chairs of international students (sorry – as you can tell I’m getting off topic and nostalgic, as I write) .
As frequent readers of this blog will know, I have been advocating for PGWP changes for several years now, having assisted many clients in various stages of challenges with this program – ranging from eligibility concerns, to initial applications at Inland Offices, VOs, and POEs, to the Federal Court, and reconsideration requests. I gave talks, wrote a lot of articles, had student clients who speoke to media, and advised schools – all because of the uncertainty. At one of my talks I think I described being an international student in Canada as being caught in a rough ocean with a life jacket on and a PR island that often appears too far to swim to.
The past few years began to see a lot of challenges in the area. Refusal rates began to climb and international students, especially from those with non-traditional study programs or for reasons outside of their control had to take leaves in order to complete their studies. While I was successful in restoring several international students who had been refused, either for having their study permits lapse or having paid less than the required fees, the case law during the time (notable FC cases from Raj Sharma and later Ravi Jain), started to close the door on that process.
There was also a huge health toll, one that was lost in the rhetoric of blame placed on international students in mainstream media. I talked a bit about it with journalist, Melanie Green here.
International students, many already dealing with separation anxiety, isolationism, and culture shock, not only pay often times 3 to 4 times the tuition than domestic students, but also face other barriers limiting their ability to work and seek access to crucial settlement services.
From a personal perspective, my own spouse was at the time going through the international student experience as were her colleagues (and I was footing the bill of course!) I saw these issues affect a lot of her friends, especially the financial challenges. Personal experience goes a long way into building a passion for practice.
Looking back, given I was having a conversation about this with IRCC program managers such under three years ago about the need for change – it has indeed been a long time coming. It has been incremental – but now there is a clear list of DLIs on the website, as discussed earlier, the aforementioned actively pursuing studies requirement was clarified, and now this.
I am very proud of IRCC for stepping up for international students. Without further ado, here are the changes.
Part 2: The Changes
IRCC’s changes can be found here and are titled “Program delivery update: Processing Instructions for the Post-Graduation Work Permit Program.”
Wow big changes here! – 6 month period from completion of studies to apply for PGWP and no more requirement to hold a valid SP when applying. Plus others. Will unpack throughout today! #cdnimm #intled https://t.co/uaWF4eRbPb
— Will Tao|陶维 (@TheWillTruth) February 14, 2019
There are two major changes from IRCC and one change that I would also add to the list, around the leave provision.
Change 1: Deadline to Apply Extended from 90 Days to Six Months
There is now a six month period, instead of a 90 day period in which to apply for a Post-Graduate Work Permit. This gives a lot of flexibility for students to further explore after graduation whether they want to continue studying or apply for a post-graduate work permit. It also removes a lot of the uncertainty which arose when a student was told they had completed their studies but did not formally graduate until several months later, creating confusion on the 90 day period starting point. Six months will make that much better.
One of the things I do see arising out of this is change is a lot of schools that were previously thwarted (or had negative fallout) from four-month add on programs now integrating it into their programs. The raison-d’etre is that these programs could assist into entry-to practice and help students secure employment without killing valuable time off their PGWPs. It may also encourage some students to continue studies rather than graduate and apply for PGWPs.
One prediction – if I may so boldly state it is that more schools will tack on four month post-graduate programs given now the 6 month window. PGWP application timing becomes an interesting art in those circumstances. #cdnimm #intled
— Will Tao|陶维 (@TheWillTruth) February 14, 2019
This could create problems though if a student applies at month 4 of 6, makes a mistakes, and becomes ineligible for restoration. Furthermore, I think IRCC and related stakeholders do have a role to play with respect to sussing out that interplay between R.222(1) (a) IRPR which could invalidate the student status of individuals who intend to apply for a PGWP at month 4 or 5 but not continue their studies. These students could lose status unknowingly.
To note – @CitImmCanada & advisors will need to spread awareness – tho students now have longer (6 mo) to apply for PGWPs – 90 days after completion of studies their SPs still statutorily lapse per R. 222(1)(a) IRPR. Could presumably now restore to #PGWP but may be tough. #cdnimm pic.twitter.com/rieEcUx3JX
— Will Tao|陶维 (@TheWillTruth) February 14, 2019
Change 2: No need to hold a valid study permit while applying for a PGWP
This is a big one – which unfortunately came off the backs of several deserving applicants who were refused. Previously, students whose study permits were going to expire before they were able to apply for PGWP had to extend their status, creating a weird scenario where they had graduated but still had to apply to maintain student status at the institution. This also affected a lot of students who decided to leave Canada right after they graduated and apply abroad, forgetting to extend their study permits.
This was also the main issue in my colleague Ravi Jain’s case of Nookala v. Canada (Citizenship and Immigration), 2016 FC 1019 which unfortunately for awhile closed the door.
Now the language is hold or held a study permit.
This also opens the door for restoration at least within the six month period. This goes again to the importance of applying earlier (rather than later) for a PGWP in most circumstances.
I would like a little more clarity around Restoration and think it should be a separate section on the program guidelines.
Change 3: Leave Exception – Discretion to Issue PGWP Where Not Continuous Full-Time Studies
IRCC has added to their instructions information about leave which specifically carve out an exception for those students who took a leave.
The Instruction state:
Leave from studies
If the applicant remained in Canada while a student and took leave from their studies during their program, the officer must determine if the applicant was compliant with the conditions of their study permit, as outlined in Assessing study permit conditions. Officers may request additional documents to complete their assessment. Per paragraph R220.1(1)(b), students must
- be enrolled at a DLI
- remain enrolled
- be actively pursuing their course or program of study
If the officer determines that the student actively pursued studies during their leave, the student may still be eligible for the Post-Graduation Work Permit Program (PGWPP).
If it is determined that the student has not met the conditions of their study permit, they may be banned from applying for a post-graduation work permit for 6 months from the date they stopped their unauthorized study or work, per subparagraph R200(3)(e)(i).
This suggests that in addition to leeway – there could also be individuals banned from applying, depending on the time elapsed before graduation. However, as we know there is also a final semester rule that does provide some comfort to international students who are part-time in their final semester.
IRCC’s Guidelines on Leave provide more insight on how this may apply in practice:
D. Leave from studies
Students may be required or may wish to take leave from their studies while in Canada. For the purpose of assessing if a student is actively pursuing their studies, any leave taken from a program of studies in Canada should not exceed 150 days from the date the leave commenced and must be authorized by their DLI.
A student on leave who begins or resumes their studies within 150 days from the date the leave commenced (that is, the date the leave was granted by the institution) is considered to be actively pursuing studies during their leave. If a student does not resume their studies within 150 days, they should do either of the following:
- change their status (that is, change to visitor status or worker status)
- leave Canada
If they do […]
The below piece was inspired by a recent experience in an Inland Spousal Sponsorship interview. In a moment of empowerment, I decided to step in for the Officer and question my clients, in a manner that went beyond my ‘courtesy’ role as counsel. I reflected on the power/historical dynamics that led me to believe that I could do this, and believe that part of it was because the officer was a Filipina-Canadian woman and in the back of my mind, as a lawyer, I could speak for her or over her. I connected it to other experience in front of white decision-makers of power and recognized my parallel silence. It is a position I could not reconcile with myself and therefore I have written the below letter.
The first version I wrote (but was accidentally deleted in a WordPress saving issue) was arguably better. I think I went more in detail and hit harder. Perhaps, it was to personal and would have drawn criticism from those individuals who may have recognized themselves in the parables. I hope that in this version, I still capture that essence. I will continue trying to find back the words I wrote but in the meantime please take these words.
Dear Sister (in Law):
While we are not bound by blood, we are bound as siblings by our mutual decision to enter this profession. You, like me, entered to be able to pursue a profession where you would be valued for your contribution, where you could fight to promote justice, and where you could secure a better future for you and your clients.
I am writing today to apologize to you and to share a few accounts both of my privilege and the ways in which we (as a Male Bar, writ large) have not given you the space or opportunity you deserve, as our gender equals.
To those of you of colour, we have even further made difficult a journey that is already made difficult by the trauma of practicing areas that hit often too close to home or too distinct from experience.
We have created environments that have further make you feel without a place and/or we have used our own space to take away yours, our voice to silence yours. For that, we need to acknowledge that we’ve fallen far short. We need to take immediate remedial action to empower you and humble ourselves in the process.
I take personal responsibility for my own role. Looking back on the past years, I have made so many mistakes. I have participated in speaking over women colleagues in male-dominated meetings, all-consumed in the toxic male ego. I have engaged in the backroom small talk of discussing visceral appearances, and generally not being a-tuned enough to how much I was contributing to the denigration of my own sister. I cast gazes that were inappropriate, had conversations that re-enforced my own alluster. I was selfish and wrong.
Inexplicably, I have at the same time showed deference to white men in a manner where I would not have showed deference to you – and it is something I cannot explain but damn-right want to fight in myself and in others. It makes me sick to my stomach that I would allow the historical colonial role of white men in Canada, to not only silence me but then turn around, as a silenced person of colour and not take away your voice.
Meanwhile I have listened but not acted when you told me about that partner who made you do 90% of the work and would take 100% of the credit. When you have told me of clients who would email them to complain about you and who treated you as a disposable assistant rather than the capable lawyer you are. I should have knocked on the doors of patriarchy or helped you fight back. My ‘it will be okay’ simple wasn’t an okay response and was reflective of my silence and misuse of privilege.
When you told me that you received a position on a Board and that the Partner thought you were filling a ‘diversity quota’ I should have made clearer that I was on your side. Instead, I tried to justify his response.
I regret not telling the lawyers who told me that I was at an advantage because I was male and would not have babies and go on mat leave that this was not fair to my sisters who often do not choose to abandon profession but often have the decision imposed on them by the external forces of child-rearing, with little more than a “that’s your natural responsibility.” I want a child but know full well that this decision will change my partner’s life and career choices in a way it does not affect me. I can show up the next day to accolades without having to feel an announce of the pain or the prejudiced judgment of bottom-line driven employers.
I regret the times I participated with the white man in casting that wicked gaze over you – commenting on your appearance and not your last appearance in Court. The times I saw your high heels as symbols of sex but not the band aids behind the heels as symbols of pain of needing to please in a profession with it’s priorities all wrong.
I regret not telling the powers that be that maybe they need to speak to you first before speaking to me and that my rubber stamping of their authority added to simple majority but paid lip service to you, who was truly affected by the choices they were making. We allowed our cultures to develop into mini fraternities and boys clubs, where we feigned listening to your monologues one second, and immediately after closed the doors and laughed at you the next.
I regret not trying harder to convince media that they do not need another male talking head or that they should assume that ‘he knows’ when ‘she knows better’ and has the credentials to back it up. I should have deferred or set ultimatums where simply I was happy taking the limelight, myself. It has made you question why you have to work twice harder to get half the accolades, at a portion of the pay – something your client may never know.
How do I fix this? How do I be a true ally to you?
For one, I should no longer contribute to ‘mansplaining’ your situation or always wanting to be the head of the table, especially in your conversations.
For second, I should ask you as my sister what you want – and not assume it is protection, a father figure, a direction seeker, and that maybe I am actually the one needs all three.
For third, maybe it’s time I stop enabling the powerholders and brokers by kow-towing and pumping their tires.
I should challenge their authority, that they are no King and maybe it is time for a Queen to be given her chance to reign. In my personal life, when I see situations of inequality affecting women and women of colour, I need to raise my voice rather than sit there content in silently being served by a woman, like the experience is normal. It isn’t.
I have a lot of historical wrongs to right. My response to feeling dispossessed as an ethnic male during my high school years was to try and join the popular forces of ‘whiteness’ and ‘maleness.’ I had encounters and moments where I crossed lines I had set for myself. In law school and my early practice, I felt male dominance was just part of a normalized environment. Little did I know that it was a environment built specifically to keep women out of power – while simultaneously undervaluing/underappreciating their work. Next year they would always say – you would get what we have, but the goalposts would always shift.
What a difference time makes. I am now in a place where I work for badass women. They are now (currently) my office manager, two out three of my Firm owner’s, my mentor, my spouse, and my mother. I have cut from my life those elements of male toxicity. I am stepping (although it is a process) outside of my perpetrator role. The events of recent show I still have a long way to go.
Sister – I hope this next generation of lawyers is your generation. I hope you take seats on our highest bench where you hold decision-making power over us, molding law with your genius and maturity.
If I ever, talk for you, walk over you, gaze at you, in a manner in which you are uncomfortable I want you to tell me. I want you to tell me when another one of my brothers does it to you as well. I want you to share with us (when you are ready) how we have failed you. Any Firm that takes such a piece as an offense or tries and dissuade you from doing so, is no home for you.
It is with sincerest apologies and hope that we can do better, as men and allies.
Sincerely,
signed
Your Brother (in Law)
In this long read, I thought it would be interesting to tackle an area I am quite interested in – the legal concept of ‘reasonable apprehension of bias’ and how it applies to Federal Court decisions where counsel are raising this argument. I focus this piece on Federal Court decisions issued in 2018 (one is a FCA decision).
My early thesis is that as administrative burdens on the Government increase along with a growing demand on immigration to Canada (which subsequently will increase the requirement to removal individuals who have ‘fallen out of favour’ – either by status or admissibility), more decisions may be perceived by applicants of demonstrating bias or being grounded in biased policies.
Simultaneously, we may see a subsequent increase in counsel going after the procedural fairness of a decision, on the basis of alleged bias.
What is the current state of the law? How does this all play out?
What is a Reasonable Apprehension of Bias
The test for Reasonable Apprehension of Bias was recently restated by Justice Gagné in Alcina Rodriguez v. Canada (Citizenship and Immigration), 2018 FC 995 (CanLII):
[34] The test to determine whether there is a reasonable apprehension of bias is established by the Supreme Court of Canada in Committee for Justice and Liberty et al. v National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 SCR 369 at page 394, and confirmed in Baker at paragraph 46:
…the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . . [T]hat test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
[35] An allegation of bias must be supported by convincing evidence and cannot be made lightly. The burden of proof is on Mr. Rodriguez, and the threshold to be met is high (Fouda v Canada (Immigration, Refugees and Citizenship), 2017 FC 1176 (CanLII) at para 23). In essence, he must demonstrate that the decision-maker was closed-minded and not open to persuasion.
Emphasis added.
Another common setting out of the test of bias quotes from R v. S RD) 1997 3 SCR 484 which can also be found in Justice Brown’s decision in Kamal v. Canada (Immigration, Refugees and Citizenship), 2018 FC 480 (CanLII), at para 32. In the decision, he endorses Justice Kane’s setting of the test in Poczkodi v Canada (Immigration, Refugees and Citizenship), 2017 FC 956(CanLII) at para 50:
[48] In R v S (RD), 1997 CanLII 324 (SCC), [1997] 3 SCR 484, 151 DLR (4th) 193 [RDS], at para 113, Justices L’Heureux- Dubé and McLachlin referred to the test and noted that the threshold for a finding of real or perceived bias is high, explaining that “an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice.” The Court cautioned that allegations of bias are serious and should not be made lightly. The same principles apply to allegations against other decision makers.
As set out in Wewaykum Indian Band v Canada, 2003 SCC 45 (CanLII), [2003] 2 SCR 259, recently re-iterated by Justice Strickland at para 27 in Yuan v. Canada (Citizenship and Immigration), 2018 FC 755 (CanLII), the test is not whether there was any conscious or unconscious bias or to utilize it to fill evidentiary gaps, but to view it from the viewpoint of the objective ‘reasonable person’:
66 Finally, when parties concede that there was no actual bias, they may be suggesting that looking for real bias is simply not the relevant inquiry. In the present case, as is most common, parties have relied on Lord Hewart C.J.’s aphorism that “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done” (The King v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256, at p. 259). To put it differently, in cases where disqualification is argued, the relevant inquiry is not whether there was in fact either conscious or unconscious bias on the part of the judge, but whether a reasonable person properly informed would apprehend that there was. In that sense, the reasonable apprehension of bias is not just a surrogate for unavailable evidence, or an evidentiary device to establish the likelihood of unconscious bias, but the manifestation of a broader preoccupation about the image of justice. As was said by Lord Goff in Gough, supra, at p. 659, “there is an overriding public interest that there should be confidence in the integrity of the administration of justice”.
[Emphasis in original]
In Abdi v. Canada (Public Safety and Emergency Preparedness), 2018 FC 733 (CanLII), <http://canlii.ca/t/ht3wq> at para 48, Justice McDonald reminds that the threshold is extremely high:
[48] The threshold to establish bias is high. The party alleging bias must do more than
“hint”that the outcome is tainted (Turoczi v Canada (Citizenship and Immigration),2012 FC 1423 (CanLII) at paras 11-17 [Turoczi]). There must be an evidentiary foundation in support (Zundel v Citron, 2000 CanLII 17137 (FCA), [2000] 4 FC 225 (FCA) at para 36; Southern Chiefs Organization Inc. v Dumas, 2016 FC 837 (CanLII) at para 46).
We also know that:
“a reasonable apprehension of bias does not arise merely because the same officer has made the decision on the different processes whereby an applicant seeks legal status in Canada.”
[IRB Legal Policy Guide – https://irb-cisr.gc.ca/en/legal-policy/legal-concepts/Documents/SpoPar11_e.pdf – citing Kouka, Serge v. M.C.I. (F.C., no. IMM-1823-06), Harrington, October 17, 2006; 2006 FC 1236.}
2018 FC Decision Citing the Reasonable Apprehension of Bias in the Context of Immigrants and Refugees
In this data set, I looked at 19 cases that directly mentioned “reasonable apprehension of bias.” Fourteen are immigration and refugees cases and one is in the context of a CSIS matter, but significantly similar so I included it.
The cases are included in numerical order, from earliest in the year to latest in the year. I acknowledge that there could be other ones that address bias under procedural fairness. In narrowing the list, some decisions where reasonable apprehension of bias were raised at earlier tribunal levels but not raised to the Federal Court, were excluded. Those cases where the Court acknowledged but did not directly address the arguments were also included.
Given the above, how did the reasonable apprehension of bias argument fare in 2018 judicial reviews related to immigration? Out of the 19 cases analyzed, not a single ‘reasonable apprehension of bias’ argument, was altogether responsible for the granting of a judicial review. Indeed, in the large number of cases where JR was dismissed, the analysis of the failure of the argument was more robust compared to those where JR was allowed (see Analysis below).
I tried to provide a brief quasi-summary where there wasn’t a paragraph in the decision that did it clearly. Some descriptors are longer than others for that reason
I also decided to go with replicating portions of decision that addressed reasonable apprehension of bias as opposed to attempting to summarize the decision. This choice was made consciously to allow us to look at the exact wording.
[1] Malit v. Canada (Citizenship and Immigration), 2018 FC 16 (CanLII), <http://canlii.ca/t/hppb2> – McDonald J. – JR Dismissed.
The Applicant (a Filipino national) was refused a study permit as the accompanying spouse of a study permit holder on the basis of financial inadmissibility (s.39 IRPA).
On the question of whether the Officer demonstrated a reasonable apprehension of bias, Justice McDonald writes:
[18] Although the Applicant suggests that the Officer was operating under a bias, the Applicant was not able to identify any evidence or indication on the record which would support this contention.
…….
[21] Here the Applicant’s assertions of bias are not substantiated by any evidence. Therefore the Applicant’s bias arguments are without merit.
[2] Oyejobi v. Canada (Citizenship and Immigration), 2018 FC 107 (CanLII), <http://canlii.ca/t/hq5jv> – Ahmed J. – JR Granted.
The Applicant’s (a Nigerian national) judicial review of a RAD decision upholding a RPD rejection of a protection claim based on sexual orientation. RPD member noticed similarities of BOC with that of another claimant. Applicant tried to have RPD member recused. Decision was refused on negative credibility. Applicant argues that there a reasonable apprehension of bias, erred credibility assessment, and failure to analyze Applicant’s claim under s.97. Justice Ahmed reclassifies the issue as whether there was a breach of procedural fairness and focuses attention on RAD’s failure to determined whether RPD followed Rule 27 of the RPD Rules by not notifying Minister.
[3] Hosseini v. Canada (Immigration, Refugees and Citizenship), 2018 FC 171 (CanLII), <http://canlii.ca/t/hqhd0> – O’Reilly J. – JR Granted.
The Applicant (an Iranian national) found inadmissible pursuant to s.34(1)(d) IRPA, re: an Iranian chemical engineer who was formerly worked for the National Iranian Oil Company Company (NIOC). Justice O’Reilly finds that the decision was procedurally unfair and in doing so does not address the Applicant’s third argument on reasonable apprehension of bias.
[5] The issues are:
[6] The applicants also argued that the officer’s analysis gives rise to a reasonable apprehension of bias. In light of my rulings on the first two issues, it is unnecessary to address the question of bias.
[4] Mathurin v. Canada (Immigration, Refugees and Citizenship), 2018 FC 172 (CanLII), <http://canlii.ca/t/hqg19> – O’Reilly J. – JR Dismissed.
The Applicant (a St Lucian national) was an H&C PR applicant who had a previous refugee claim refused on credibility and also a prior H&C refusal. Her argument was that the Officer’s reason gave rise to bias in the analysis of the birth of her children in Canada (similar type argument to the seminal case of Baker). Justice O’Reilly dismisses the argument and defends the Officer’s assessment, ultimately denying the JR.
[3] Ms Mathurin argues that the officer’s decision was unreasonable because it overlooked important evidence supporting her application. She also maintains that the officer’s reasons give rise to a
On 7 January 2019, IRCC updated their study permit program instructions to include more clarity on the actively pursuing studies requirement. See link here: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/assessing-conditions.html#completion-courses
There’s a lot to unpack but here’s a few points worth noting:
Discretion to IRCC – re: Institutional Changes
It is not uncommon for international students to change institutions a number of times during their studies. These instructions clarify that this can be examined by an Officer when determining compliance. The instructions write:
However, to assess if a student who has changed institutions or programs of study a number of times should be considered to be actively pursuing their studies, the officer should consider the student’s reasons for the changes. In cases where multiple program or institutional changes do not appear to support the expectation that the student is making reasonable progress toward the completion of a Canadian credential, the officer may determine that the study permit holder has not fulfilled their study permit condition to actively pursue their course or program of study.
150-Day Deadline for Program Changes, Leave, Deferral, and School Closures
A 150-day deadline has been set in these instructions for individuals seeking to resume studies after previous studies completed, leave, deferral of studies, and school closures.
The instruction in those cases is to change to visitor status/worker status or else leave Canada.
One thing missing in all of this is a formal way to invalidate study permits. Per R.222, the application for a visitor record does not do this (as much is also repeated in section G. Change of Status in the instructions.
Invalidity
222 (1) A study permit becomes invalid upon the first to occur of the following days:
Marginal note:Exception
Evidence of Compliance
One of my previous concerns with the actively-pursuing studies requirement and the new email
Examples of evidence that officers may request include but are not limited to the following:
Clarifying the Consequences of Non-Compliance
I am glad IRCC has clarified the consequences of non-compliance. The instructions state
Non-compliance with study permit conditions may result in enforcement action; that is, an exclusion order can be issued for non-compliance, per subparagraph R228(1)(c)(v).
Non-compliance with study permit conditions or engaging in unauthorized work or study may also negatively affect future applications that are made under the IRPA and IRPR. For example, a subsequent study permit or work permit may not be issued until a period of 6 months has passed, since the cessation of the unauthorized work or study or failure to comply with a condition, per section R221 and subsection R200(3).
The first step to curbing non-compliance is providing clear knowledge of the consequences of violations.
Clarifying Exemptions
Given the lay challenges of tracing the legislation, it is useful that IRCC has now clearly laid out the exemptions.
In accordance with subsection R220.1(3), the following people are exempt from the study permit conditions under subsection R220.1(1):
It will be important for IRCC to standardize in their processes a request for a family information form. One common scenario especially in this context is the spouse of a skilled worker (PGWP) or perhaps another student (SP holder) who is unaware of the nature of their relationship (e.g., common-law partnership).
Conclusion
Overall, this is much needed clarity and change I’ve been pushing for. The 150-days seems fair and offers a guidepost for both student and school. I also liked that IRCC put in blue, the importance of updating contact information and creating a MyCIC account to ensure updates are received.
We will see how it all works out in practice and it is my hope that IRCC does not exercise discretion to remove students heavy handedly.
The Minimum Necessary Income (or “MNI”) requirement affects the ability of a Canadian citizen or permanent resident to sponsor certain foreign national members of the family class.
IRPR s. 120 states (emphasis added):
120. For the purposes of Part 5,
(a) permanent resident visa shall not be issued to a foreign national who makes an application as a member of the family class or to their accompanying family members unless a sponsorship undertaking in respect of the foreign national and those family members is in effect; and
(b) a foreign national who makes an application as a member of the family class and their accompanying family members shall not become permanent residents unless a sponsorship undertaking in respect of the foreign national and those family members is in effect and the sponsor who gave that undertaking still meets the requirements of section 133 and, if applicable, section 137.
Section 133(1)(j) states (emphasis added):
133. (1) A sponsorship application shall only be approved by an officer if, on the day on which the application was filed and from that day until the day a decision is made with respect to the application, there is evidence that the sponsor…
j) if the sponsor resides
(i) in a province other than a province referred to in paragraph 131(b),
(A) has a total income that is at least equal to the minimum necessary income, if the sponsorship application was filed in respect of a foreign national other than a foreign national referred to in clause (B), or
(B) has a total income that is at least equal to the minimum necessary income, plus 30%, for each of the three consecutive taxation years immediately preceding the date of filing of the sponsorship application, if the sponsorship application was filed in respect of a foreign national who is
(I) the sponsor’s mother or father, (my note: i.e. parent)
(II) the mother or father of the sponsor’s mother or father, (my note: i.e. grandparent) or
(III) an accompanying family member of the foreign national described in subclause (I) or (II), and
(ii) in a province referred to in paragraph 131(b), is able, within the meaning of the laws of that province and as determined by the competent authority of that province, to fulfil the undertaking referred to in that paragraph;
“Minimum necessary income” is defined in IRPR sections 2 and 134 and identified as “… the minimum amount of before-tax annual income necessary to support a group of persons ….”
minimum necessary income means the amount identified, in the most recent edition of the publication concerning low income cut-offs that is published annually by Statistics Canada under the Statistics Act, for urban areas of residence of 500,000 persons or more as the minimum amount of before-tax annual income necessary to support a group of persons equal in number to the total number of the following persons:
(b) the sponsored foreign national, and their family members, whether they are accompanying the foreign national or not, and
(c) every other person, and their family members,
(i) in respect of whom the sponsor has given or co-signed an undertaking that is still in effect, and
(ii) in respect of whom the sponsor’s spouse or common-law partner has given or co-signed an undertaking that is still in effect, if the sponsor’s spouse or common-law partner has co-signed with the sponsor the undertaking in respect of the foreign national referred to in paragraph (b). (revenu vital minimum)
By the above definition, it is important to properly calculate the size of your family and as well take into account any changes that might occur if your family size were to change during the application process.
It is also important to note R.134(1) on how income is calculated, especially the exclusions and how that may affect the income amounts (emphasis added)::
Income calculation rules
134 (1) Subject to subsection (3), for the purpose of clause 133(1)(j)(i)(A), the sponsor’s total income shall be calculated in accordance with the following rules:
(a) the sponsor’s income shall be calculated on the basis of the last notice of assessment, or an equivalent document, issued by the Minister of National Revenue in respect of the most recent taxation year preceding the date of filing of the sponsorship application;
(b) if the sponsor produces a document referred to in paragraph (a), the sponsor’s income is the income earned as reported in that document less the amounts referred to in subparagraphs (c)(i) to (v);
(c) if the sponsor does not produce a document referred to in paragraph (a), or if the sponsor’s income as calculated under paragraph (b) is less than their minimum necessary income, the sponsor’s Canadian income for the 12-month period preceding the date of filing of the sponsorship application is the income earned by the sponsor not including
(i) any provincial allowance received by the sponsor for a program of instruction or training,
(ii) any social assistance received by the sponsor from a province,
(iii) any financial assistance received by the sponsor from the Government of Canada under a resettlement assistance program,
(iv) any amounts paid to the sponsor under the Employment Insurance Act, other than special benefits,
(v) any monthly guaranteed income supplement paid to the sponsor under the Old Age Security Act, and
(vi) any Canada child benefit paid to the sponsor under the Income Tax Act; and
(d) if there is a co-signer, the income of the co-signer, as calculated in accordance with paragraphs (a) to (c), with any modifications that the circumstances require, shall be included in the calculation of the sponsor’s income.
Exception
(1.1) Subject to subsection (3), for the purpose of clause 133(1)(j)(i)(B), the sponsor’s total income shall be calculated in accordance with the following rules:
(a) the sponsor’s income shall be calculated on the basis of the income earned as reported in the notices of assessment, or an equivalent document, issued by the Minister of National Revenue in respect of each of the three consecutive taxation years immediately preceding the date of filing of the sponsorship application;
(b) the sponsor’s income is the income earned as reported in the documents referred to in paragraph (a), not including
(i) any provincial allowance received by the sponsor for a program of instruction or training,
(ii) any social assistance received by the sponsor from a province,
(iii) any financial assistance received by the sponsor from the Government of Canada under a resettlement assistance program,
(iv) any amounts paid to the sponsor under the Employment Insurance Act, other than special benefits,
(v) any monthly guaranteed income supplement paid to the sponsor under the Old Age Security Act, and
(vi) any Canada child benefit paid to the sponsor under the Income Tax Act; and
(c) if there is a co-signer, the income of the co-signer, as calculated in accordance with paragraphs (a) and (b), with any modifications that the circumstances require, shall be included in the calculation of the sponsor’s income.
Finally, a clause that frequently captures individuals, especially in those applications that take increased time to process is IRCC’s ability under R. 134(2) [subject to R.134(3) calculation rules] to ask for updated evidence of income if more than 12 months have elapsed since the receipt of the sponsorship application or an officer receives information that the sponsor is no longer able to fulfil the obligations of the sponsorship undertaking (emphasis added):
Updated evidence of income
(2) An officer may request from the sponsor, after the receipt of the sponsorship application but before a decision is made on an application for permanent residence, updated evidence of income if
Modified income calculation rules
(3) When an officer receives the updated evidence of income requested under subsection (2), the sponsor’s total income shall be calculated in accordance with subsection (1) or (1.1), as applicable, except that
(a) in the case of paragraph (1)(a), the sponsor’s income shall be calculated on the basis of the last notice of assessment, or an equivalent document, issued by the Minister of National Revenue in respect of the most recent taxation year preceding the day on which the officer receives the updated evidence;
(b) in the case of paragraph (1)(c), the sponsor’s income is the sponsor’s Canadian income earned during the 12-month period preceding the day on which the officer receives the updated evidence; and
(c) in the case of paragraph (1.1)(a), the sponsor’s income shall be calculated on the basis of the income earned as reported in the notices of assessment, or an equivalent document, issued by the Minister of National Revenue in respect of each of the three consecutive taxation years immediately preceding the day on which the officer receives the updated evidence.
What is the $$ Required for the Minimum Income Requirement (as of the date of this post)?
IRCC sets out the MNIs for parent and grandparent sponsorship, which discussed above, are the Minimum Necessary Income (“MNI”) plus 30%. IRCC obtains that information by either by an Applicant’s consent on Question 8 of the Financial Evaluation for Parents and Grandparents Sponsorship form or by completing the Income Sources for the Sponsorship of Parents and Grandparents form and submitting NOAs for the three preceding years.
Expect this to […]
The gruff beard counterpoints the cheerful Santa Hat.
Perhaps a cover to the balding hair – alas another year gone – it certainly has been a long one.
Two men – brothers, lovers – who knows and frankly it’s not my place to judge.
Human love is human love – and I can see in their tenderness with each other that it is love by very definition of the word.
A pink haired goddess. Rapunzel of today’s generation. She leaves but acknowledges her presence or maybe I have acknowledged hers.
A stunning beauty.
I said I would stay local but I find myself again in Starbucks. Work is the agenda but people watching is the reality show.
“I’ll pick you up tonight” kissed to the head and check from one man to another. He leaves. He stays. Sniffles either from a persistent cold but more likely from an insistent love.
I can imagine he’s texting him as he leaves the door. I remember all too well those days as well. Phone a lifeline and whatever the maker decided to do with battery life, the heart beat.
Christmas does different things to different people. Those with stories of loss are all to conscious of what they have lost. For others, the ability to take a much needed deep breath. To spend a little of the hard-earned money on loved ones. To reconnect with those we have spent too little time with.
Friends from fargone places send messages wishing you happy holidays. The warm moments that remind you that the stocking isn’t always full of coal.
In all this global uncertainty, caravans and controversy – the universal truth that we are all human spirits and souls on the same sleigh ride of life is an important one. Taking time aside to love one another, interact with one another, smile at one another – a raison d’etre for living.
Wishing you and your loved ones endless love and happiness over a cup of Starbucks coffee (no sugar – my weight is becoming problem).
(p.s. the guy with the Santa hat actually works here!).
(p.p.s I will be putting up more blogs in 2019 – it is my resolution every year but this year I’m committed).
Recently Canada’s Foreign Minister Chrystia Freeland made an announcement that 17 Saudi Nationals linked to the death of journalist Jamal Khashoggi had been sanctioned under the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).
Within her announcement, she mentioned that these 17 individuals (which notably do not include the Crown Prince MBS) are now inadmissible to Canada.
Given the Sergei Magnitsky Law is relatively new, I thought it would be worth looking at how these two legal provisions tie into each other.
They tie in to each other via the related amendments made to section 35 of the Immigration and Refugee Protection Act (IRPA) noted in the preamble and the Related Amendments in Section 18 of the Victims of Corrupt Foreign Officials Act.
As stated in the Regulatory Impact Analysis – “The Immigration and Refugee Protection Act renders inadmissible to Canada persons, other than permanent residents, subject to orders and regulations made under the new Act. Therefore, the individuals listed in the Regulations are inadmissible to Canada.”
We need to look at the IRPA to better understand the application of an s.35(1) IRPA inadmissibility.
IRPA and the Victims of Corrupt Foreign Officials Act
Human or international rights violations
35 (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for
(e) being a person, other than a permanent resident, who is currently the subject of an order or regulation made under section 4 of the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).
Clarification
(2) For greater certainty, despite section 33, a person who ceases being the subject of an order or regulation referred to in paragraph (1)(d) or (e) is no longer inadmissible under that paragraph.
2001, c. 27, s. 35;
2013, c. 16, s. 14;
2017, c. 21, s. 18.
In order to get one’s name off the list, one needs to make an application under section 8 of the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).
Rights of Foreign Nationals Who are the Subject of an Order or Regulation
Application
8 (1) A foreign national who is the subject of an order or regulation made under section 4 may apply in writing to the Minister to cease being the subject of the order or regulation.
Recommendation
(2) On receipt of the application, the Minister must decide whether there are reasonable grounds to recommend to the Governor in Council that the order or regulation be amended or repealed, as the case may be, so that the applicant ceases to be the subject of it.
Time limit
(3) The Minister must make a decision on the application within 90 days after the day on which the application is received.
Notice if application rejected
(4) The Minister must give notice without delay to the applicant of any decision to reject the application.
New application
(5) If there has been a material change in the applicant’s circumstances since their last application under subsection (1) was submitted, he or she may submit another application.
Currently, there are no cited cases to this law.
What If the Individual is in Canada
In the off chance that they are in Canada already when the order is made, the application removal order per R. 229(1) of the Immigration and Refugee Protection Regulations is
229 (1) For the purposes of paragraph 45(d) of the Act, the applicable removal order to be made by the Immigration Division against a person is
(b) a deportation order, if they are inadmissible under subsection 35(1) of the Act on grounds of violating human or international rights;
Update: On 22 December 2018, Canada Gazette, Part 1, Volume 152 Number 51: Regulations Amending the Immigration and Refugee Protection Regulations was released, which proposes to turn the applicable removal order (with Immigration Division designated responsibility) into a specified removal order (with the Minister’s Delegate designated responsibility. See more, here.
Conclusion
So far there is not a single case citing to s. 35(1)(e) IRPA – it is no doubt still in it’s legislative infancy. More is certainly yet to come on this interesting piece of law!
Readers of this blog know that one of the concepts that I am very fascinated/still struggle with the idea of fettering discretion. For whatever reason, my 2015 post where I tried to harness my inner Paul Daly and assess it, is a top Google search for the definition [use with caution/take it for what it’s worth].
While researching for a judicial review I am preparing when an Officer went beyond the policy scope of their discretionary assessment of humanitarian and compassionate grounds factors, I came across a 2017 Boswell J. decision in Alagaratnam v. Canada (Citizenship and Immigration), 2017 FC 381 (CanLII), <http://canlii.ca/t/h3bsc> that does a very good job of laying out the state of the current standard of review analysis.
For now, I think this is the best way to address standard of review until we may get clarity with the new trilogy heard in December with Bell Canada, et al. v. Attorney General of Canada (37896), and with National Football League, et al. v. Attorney General of Canada (37897).
I have reproduced paragraphs 23 to 28 below.
A. Standard of Review
[23] An officer’s decision to deny relief under subsection 25(1) of the IRPA involves the exercise of humanitarian and compassionate discretion and is reviewed on the reasonableness standard (Kanthasamy at para 44). Under this standard of review, the Court must determine whether the Officer’s decision “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” and whether the decision is justifiable, transparent, and intelligible: Dunsmuir v New Brunswick, 2008 SCC 9 (CanLII) at para 47, [2008] 1 SCR 190. Those criteria are met if “the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes”: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII) at para 16, [2011] 3 SCR 708.
[24] It warrants note that the Supreme Court in Kanthasamy applied a reasonableness standard of review, yet ultimately concluded that the officer had inappropriately fettered her discretion by a literal obedience to the adjectives “unusual and undeserved or disproportionate” hardship, leading her “to see each of them as a distinct legal test, rather than as words designed to help reify the equitable purpose of the provision” (para 45).
[25] As to the standard of review for an allegation that an administrative decision-maker has fettered their discretion, this is somewhat unsettled in the jurisprudence. In Stemijon Investments Ltd v Canada (Attorney General), 2011 FCA 299 (CanLII), 341 DLR (4th) 710 [Stemijon], Justice Stratas explained how fettering of discretion was traditionally an automatic ground for setting aside a decision, but now it should be subsumed into the reasonableness analysis:
[21] The appellants’ submissions, while based on reasonableness, seem to articulate “fettering of discretion” outside of the Dunsmuir reasonableness analysis. They seem to suggest that “fettering of discretion” is an automatic ground for setting aside administrative decisions and we need not engage in a Dunsmuir-type reasonableness review.
[22] On this, there is authority on the appellants’ side. For many decades now, “fettering of discretion” has been an automatic or nominate ground for setting aside administrative decision-making: see, for example, Maple Lodge Farms Ltd. v. Government of Canada, 1982 CanLII 24 (SCC), [1982] 2 S.C.R. 2 at page 6. The reasoning goes like this. Decision-makers must follow the law. If the law gives them discretion of a certain scope, they cannot, in a binding way, cut down that scope. To allow that is to allow them to rewrite the law. Only Parliament or its validly authorized delegates can write or rewrite law.
[23] This sits uncomfortably with Dunsmuir, in which the Supreme Court’s stated aim was to simplify judicial review of the substance of decision-making by encouraging courts to conduct one, single methodology of review using only two standards of review, correctness and reasonableness. In Dunsmuir, the Supreme Court did not discuss how automatic or nominate grounds for setting aside the substance of decision-making, such as “fettering of discretion,” fit into the scheme of things. Might the automatic or nominate grounds now be subsumed within the rubric of reasonableness review? On this question, this Court recently had a difference of opinion: Kane v. Canada (Attorney General), 2011 FCA 19 (CanLII). But, in my view, this debate is of no moment where we are dealing with decisions that are the product of “fettered discretions.” The result is the same.
[24] Dunsmuir reaffirms a longstanding, cardinal principle: “all exercises of public authority must find their source in law” (paragraphs 27-28). Any decision that draws upon something other than the law – for example a decision based solely upon an informal policy statement without regard or cognizance of law, cannot fall within the range of what is acceptable and defensible and, thus, be reasonable as that is defined in Dunsmuir at paragraph 47. A decision that is the product of a fettered discretion must per se be unreasonable.
[26] In Frankie’s Burgers Lougheed Inc v Canada (Employment and Social Development), 2015 FC 27(CanLII), 473 FTR 67, the Court followed this approach:
[24] With respect to the fettering of discretion issue that has been raised, it is not necessary to definitively determine whether the standard of review is correctness or reasonableness, since the result is the same: a decision that is the product of a fettered discretion must per se be unreasonable (Stemijon…at paras 20-24).
[27] More recently, in Gordon v Canada (Attorney General), 2016 FC 643 (CanLII), 267 ACWS (3d) 738, the Court noted the unsettled question as to whether a correctness or a reasonableness standard of review applies to an allegation that an administrative decision-maker fettered their discretion, observing that:
[25] Some confusion exists regarding the appropriate standard of review where the fettering of discretion is at issue.
[26] Traditionally, the fettering of discretion has been reviewable on the correctness standard: Thamotharem v. Canada (Minister of Citizenship & Immigration), 2007 FCA 198 (CanLII) at para 33, 366 NR 30.
[27] However, the Federal Court of Appeal has recently posited that post- Dunsmuir, the fettering of discretion should be reviewed on the reasonableness standard, as it is a kind of substantive error. The Federal Court of Appeal has, however, also been careful to say that the fettering of discretion is always outside the range of possible, acceptable outcomes, and is therefore per se unreasonable: Stemijon at paras 23-25…
[28] It is sufficient to state in this case that the fettering of discretion is a reviewable error under either standard of review, and will result in the decision being quashed: JP Morgan Asset Management (Canada) Inc. v. Minister of National Revenue, 2013 FCA 250 (CanLII) at paras 71-73, 450 N.R. 91; see also Stemijon Investments, above, at para 23. Simply put, if the Minister’s Delegate fettered her discretion, her decision should be set aside regardless of the standard of review applied.
[28] For the purposes of this case, it is sufficient to conclude that, regardless of the standard of review to be applied to the fettering of discretion issue raised by the Applicant, if the Officer fettered his or her discretion that would constitute a reviewable error under either standard of review and would require that the decision be set aside.
One of the questions I’ve always struggled with (and tended to advise much more conservatively on) is the question of whether an individual should apply for a study permit while they are residing in their country of habitual residence/citizenship or whether they should apply for one while they are in Canada as visitors (processed in LA).
The general incentive overseas is made clear by a series of sub-categories such as Study Direct Stream and Post-Secondary with GIC, that have been created to try and encourage applicants to apply to local offices with local standards. Furthermore, the main temporary resident assessment is whether one will leave Canada at the end of their authorized stay – something made more difficult by someone who may have visited and decided they would like to stay for long (remember, there’s no implied status provided by a study permit application assessed in Los Angeles – as it is still considered an initial study permit application, NOT an extension).
I’ve always avoided Los Angeles where possible – the Visa Office there is quite tough on temporary resident applicants especially on the factor of whether they would leave Canada at their end of their authorized stay.
Justice Norris, who has established himself as a progressive voice on the Federal Court bench, has challenged the logic that negative inferences or speculations flowing can be drawn from the fact an Application was made in Canada rather than from abroad.
In Cervjakova v. Canada (Citizenship and Immigration), 2018 FC 1052 (CanLII), he writes in paragraphs 11 – 16 (emphasis added)
[11] The GCMS notes record the reasons for the decision as follows:
After considering all information available including principal applicant’s personal circumstances, employment/financial/family situation, significant cost of proposed study, accessibility of similar programs in home country, I am not satisfied principal applicant’s motivation for pursuing studies in Canada is reasonable, primary purpose is to study, and will leave by the end of an authorized stay period.
(In the interests of readability, I have taken the liberty of replacing the abbreviations the officer used in the notes.)
[12] Having regard to all the circumstances of this case, in my view the officer’s conclusions fail the tests of transparency, intelligibility and justification. The conclusion that the applicant would not leave Canada at the end of her authorized stay is especially troubling. A finding that the applicant could not be trusted to comply with Canadian law is a serious matter. The applicant had done everything she was supposed to. She obtained a visitor’s visa when she first came to Canada. She applied for a study permit when she decided to undertake further studies in her field (she had worked in accounting for several years in Latvia). The only suggestion that she had not complied with Canadian immigration law is found in the officer’s observation that the applicant had listed the occupation of her two children as “students” but there was no record of them having been issued study permits. The children were ages 4 and 11. While one might expect them to be in school, there was no evidence that they were when the application was submitted.
[13] Similarly, the officer notes that it is “unclear” why the applicant did not apply for a study permit before she left Latvia for Canada. The applicant was not required to do so. The only requirement was that the application be processed by a visa office outside of Canada. While the applicant was in Canada when she sent off her application, she was here lawfully. She was entitled to submit her application when and how she did. Simply being unclear about why this happened does not reasonably support a finding that the applicant had not conducted herself with bona fides.
[14] The officer was also not satisfied that the applicant had the financial means to afford the programme and to support herself and her family during an extended stay in Canada. This conclusion is not reasonably supported by the record, either. The applicant presented evidence that she had adequate funds to support herself and her family, especially considering that a policy manual states that the applicant’s ability to fund the first year of the proposed course of studies is the primary consideration. (After that, an applicant need only demonstrate a probability of future sources of funding.)
[15] The applicant applied for an open work permit for her husband under section 199(e) of the Immigration and Refugee Protection Regulations, SOR/2002-227. While it was not obvious that her husband would be able to find work in Canada, the evidence of the applicant’s financial circumstances suggested that the viability of her plans did not depend on this happening. It is true that the applicant’s husband had left a job behind in Latvia. The applicant’s decision to study in Canada could well entail financial sacrifices for herself and her family but the evidence suggested they could afford to make them. This is often what is required to improve one’s circumstances in life. There was no basis to conclude that this was an unreasonable decision on the applicant’s part that raised doubts about her true motivation.
[16] It may strike one as odd that the applicant and her family would suddenly decide to extend a summer vacation in Canada into a five-year commitment. But life often takes unexpected turns. Nothing in the circumstances of this case reasonably supported the conclusion that the applicant had failed to establish that she wanted to stay in Canada to study in her field, that she could afford to do so, and that she would leave when she was supposed to.
Alone the lines of several other recent successful study permit JRs we’ve seen, this decision reaffirms that speculative reasoning should not be employed in refusing applicants. I return to a premise I’ve held for awhile – if we continue to hold the number of study permits in Canada at a level where supply exceeds demand, and where targets are reached earlier, how do we avoid this? The very assessment of a study permit is by nature speculative. Indeed, I’ve yet to meet very many internal students who do not meet the study permit requirements, but for that discretionary – will they return to Canada at the end of their stay. How are we going to balance all this out without a quota system?
Food for thought. For now, applying through LA (though still not my first choice in most cases) can’t in itself be a deal-breaker.
My name is Will Tao and I am a Barrister and Solicitor practicing exclusively in the field of Canadian Immigration and Refugee Law. I work for a full-service Canadian immigration and refugee law firm called Heron Law Offices based in Burnaby, B.C.
he/his/him
Acknowledges that he lives and works on the traditional, unceded territories of the Coast Salish peoples – sḵwx̱wú7mesh (Squamish), sel̓íl̓witulh (Tsleil-Waututh), and xʷməθkʷəy̓əm (Musqueam) nations.
This site reflects my personal opinions and views only and should not be relied on and should be verified prior to any professional use. Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be outdated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
