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Oct 14, 2018

Canadian Immigration Law Blog

Authorization to Return to Canada (“ARC”) – A Deep Dive

With an increase in individuals being removed from Canada on exclusion and deportation orders, the practice of filing Authorization to Return to Canada Applications (“ARC Applications”) is on the rise.

Per IRCC:

A52(1) provides that if a removal order has been enforced, a foreign national shall not return to Canada unless authorized by an officer or in other prescribed circumstances. A removal order is considered to have been enforced whether the client either leaves voluntarily or is removed by the Minister.

R226(1) provides that for the purposes of A52(1) and subject to R226(2), a deportation order obliges a foreign national to obtain the written authorization of an officer in order to return to Canada any time after the deportation order has been enforced.

The consequences of trying to return to Canada after an exclusion/deportation order without having filed an ARC is a deportation order per the operation of R. 228(1)(c)(ii):

228(1) For the purposes of subsection 44(2) of the Act, and subject to subsections (3) and (4), if a report in respect of a foreign national does not include any grounds of inadmissibility other than those set out in the following circumstances, the report shall not be referred to the Immigration Division and any removal order made shall be

…..

(c) if the foreign national is inadmissible under section 41 of the Act on grounds of

…..

(ii) failing to obtain the authorization of an officer required by subsection 52(1) of the Act, a deportation order,

As a specified removal order, this does not need to go the Immigration Division and can be issued by a CBSA Minister’s Delegate.

Going Behind the ARC Application

IRCC gives very little guidance (online) on what should be an ARC application.

Indeed, the online guidance is limited to the following as posted on their website.

Important information

When an officer assesses your application, they will consider, among other things:

the reasons for the removal order

the possibility that you will repeat the behaviour that caused the order to be issued

the length of time since the order was issued

your current situation

the reason why you want to enter Canada.

An incomplete or illegible application will be returned without being processed.

There is no guarantee that you will be issued an Authorization to Return to Canada.

There is another source – OP 1 – Procedures at 6.2 that sets out more details on what is assessed:

Note how detailed the analysis at each stage and how it suggests that there is the need for significant documentation.

The above seem to follow the words of Immigration Lawyer, Richard Wazana who said recently in an Immigration Lawyer’s Listserve: “Do not take anything for granted on Authorization to Return to Canada (“ARCs). Make thorough submissions and support them with evidence, like you would an H&C.”

Who Can Issue an ARC?

OP 1 at 6.5 provides the following:

This makes it clear that there will likely be multiple Officers involved in a decision but restrictions around the decision-maker.

It also suggests that there can be other decision-makers other than at visa offices abroad, which a closer look at the Instruments of Designated Authority confirms.

My experiences have been limited to overseas offices but the authority expands beyond that to members of IRCC’s CMB and senior CBSA members just to name a few. It will be interesting to better understand that decision-making/referral network.

Let’s look at it from the inside.

I’ve managed to get my hands on the training guide used (2017 results, so slightly dated and may not be what IRCC presently utilizes), but does add a little more conversation (especially processing-wise) to the resources we’ve been able to build.

The above is important especially to remember that eligibility is assessed before ARC in the process so the need to file ARC does not diminish the need to file a strong baseline application.

In this page remember the issue of paying removal costs and that this needs to be resolved before the ARC.

These factors track OP 1, 6.2 and also refer to the Instruments of Delegated Authority that I pointed to earlier.

Here, note ARC does not need to be filed each time. The first ARC is all that is needed so a strong application is crucial.

Remember too that a TRP can overcome the need for an ARC – but that an exceptional case needs to be made out for this.

Finally, here’s a helpful chart from the training guide that may be worth putting up on your wall to remind you of the interaction between ARC and removals.

All the process is good to know but I would suggest that the most important parts of an ARC involve two stages – (1) making a strong case for initial eligibility; and (2) drawing those factors to make a compelling and exceptional case for why you deserve to return to Canada notwithstanding your past immigration history.

Hope this post helps guide you in that journey!

Oct 10, 2018

Canadian Immigration Law Blog

Non-Immigration Tribunal’s Immigration Confusion – Implied Status for R. 206/R.207 work permit

An interesting decision in a Alberta Workers’ Compensation Appeal Decision No.: 2017-0248, 2018 CanLII 87280 (AB WCAC)

raises interesting issues about how accessible or apparent are some of the nuances of the operation of the Immigration and Refugee Protection Act [IRPA] and Regulations [IRPR], especially around implied status.

Implied status (R.186(u) of IRPR in the context of work) is an often misunderstood concept. It is an area where I have had to write a lot of opinion letters for employers/employees in order to preserve the employees’ ability to maintain employment. As there is no “official” document confirming implied status, and the end of the period will often rely on a worker’s forthcoming updates to their employer about their application, it can be the source of some tension.

In Decision No.: 2017-0248, the status of foreign workers vis-a-vis their implied status is addressed in two major statements in the decision. Without getting into the applicability of the misunderstanding on the consequences, which it appears there may have been, it is important to clarify the law. I hope this piece is ultimately also an argument by getting an immigration opinion from an immigration lawyer may aid in understanding non-immigration law matters. This area of the law is not as simple as ‘googling’ IRCC’s website.

The Worker’s Representative’s made the following submissions as entered into the decision:

[106.12]   The worker’s employer had offered modified work duties. The worker was committed to performing modified duties and signed a modified work agreement on March 19, 2015.

[106.13]   On the same day the agreement was signed, the employer advised WCB that it could no longer employ him because his work visa had expired and the worker had done nothing to renew it.

[106.14]   However, the worker had reported to his supervisor that he had applied for an extension, one month before his work visa expired. He provided the supervisor with an email to support this.

[106.15]   An employer who hires temporary foreign workers should be aware that, once an individual has applied for extension of work visa, he or she remains entitled continue to work for the same employer until a decision is made on the extension. The employer did not follow through with the worker’s implied status as a temporary resident entitled to work and removed the modified work.

[106.16]   Because of the employer’s decision, the worker had to relocate to another province as he had no way to pay his living expenses.

The Appeal Board later addresses the submissions and decides as follows:

[158] We acknowledge the worker’s representative’s submissions with respect to the worker’s ability to continue to work past the date on which his work permit expired.

[159] We note that the worker was issued a work permit on March 20, 2014. The date of expiry was March 20, 2015. The work permit explicitly stated that the work permit did not confer temporary resident status:

“. . .

Remarks/Observations:

DOES NOT CONFER TEMPORARY RESIDENT STATUS. JP/OSC

. . .”

[160] The Government of Canada information, supplied by the worker’s representative and copies of printouts of which were contained in the appeal documents package, stated what would happen if a temporary resident applied for renewal of a work permit which then expired. However, there was no evidence before us to establish that the worker was a temporary resident at the time his work permit expired. To the contrary, the permit stated he was not.

Implied Status is Available for a Work Permit Holder With a Condition “Does Not Confer Temporary Resident Status”

What the Worker Compensation Appeal Board does, in essence, is equate the condition on the work permit indicating that the work permit does not confer temporary resident status to the presumption that implied status cannot be available as implied status requires pre-existing temporary resident status.

While it sounds good in theory, it is wrong on application of law. This is where implied status can sometimes be a misnomer.

*Warning – this part gets a bit reg heavy so if you hate regulations, you may want to avoid reading further.

First, the starting point – what type of work permit does the Appellant in this case have. We can do a preliminary deduction without seeing the work permit that is either a R. 206 of the Immigration and Refugee Protections Regulations [“IRPR“] and/or R.207(c) or (d) IRPR work permit. We are able to do this by looking at R.202 IRPR which sets out the impetus for the condition of not conferring temporary resident status.

This provision applies to work permits that often are applied for by refugee claimants or subject to an unenforceable removal order [R.206], is a protected person within the meaning of subsection 95(2) [R.207(c)], or is applying to become a permanent resident and has been granted an exemption by the Minister per s. 25(1), s.25.1(1), or s.25.2(1) of IRPA [R. 207(d)]. The later is commonly knows as the “first-stage approval” for a Humanitarian and Compassionate grounds permanent residence application, quite common when dealing with individuals without status who are applying for permanent residence.

The provision for implied status falls under R. 186(u) IRPR which allows a foreign national to work on the conditions of an expired work permit while awaiting a decision on a new work permit application. It is worth noting that this is a provision which does not mention anything relating to temporary resident status.

186 A foreign national may work in Canada without a work permit

(u) until a decision is made on an application made by them under subsection 201(1), if they have remained in Canada after the expiry of their work permit and they have continued to comply with the conditions set out on the expired work permit, other than the expiry date;

In fact, R.201 IRPR ties into R. 200, which states and Officer shall renew a foreign national’s work permit [note again – no language around an individual needing to be in status] if they continue to meet the requirements of section (R.) 200.

Application for renewal

201 (1) A foreign national may apply for the renewal of their work permit if

(a) the application is made before their work permit expires; and

(b) they have complied with all conditions imposed on their entry into Canada.

Renewal

(2) An officer shall renew the foreign national’s work permit if, following an examination, it is established that the foreign national continues to meet the requirements of section 200.

SOR/2010-172, s. 3.

Previous Version

Turning now to section 200 of IRPR.

DIVISION 3Issuance of Work Permits

Work permits

200 (1) Subject to subsections (2) and (3) — and, in respect of a foreign national who makes an application for a work permit before entering Canada, subject to section 87.3 of the Act — an officer shall issue a work permit to a foreign national if, following an examination, it is established that

(a) the foreign national applied for it in accordance with Division 2;

(b) the foreign national will leave Canada by the end of the period authorized for their stay under Division 2 of Part 9;

(c) the foreign national

(i) is described in section 206 or 208,

(ii) intends to perform work described in section 204 or 205 but does not have an offer of employment to perform that work or is described in section 207 but does not have an offer of employment,

(ii.1) intends to perform work described in section 204 or 205 and has an offer of employment to perform that work or is described in section 207 and has an offer of employment, and an officer has determined, on the basis of any information provided on the officer’s request by the employer making the offer and any other relevant information,

(A) that the offer is genuine under subsection (5), and

(B) that the employer, except an employer referred to in any of paragraphs 209.91(a) to (d),

(I) during the six-year period before the day on which the application for the work permit is received by the Department, provided each foreign national employed by the employer with employment in the same occupation as that set out in the foreign national’s offer of employment and with wages and working conditions that were substantially the same as — but not less favourable than — those set out in that offer, or

(II) is able to justify, under subsection 203(1.1), any failure to satisfy the criteria set out in subclause (I), or

(iii) has been offered employment, and an officer has made a positive determination under paragraphs 203(1)(a) to (e); and

(d) [Repealed, SOR/2004-167, s. 56]

(e) the requirements of subsections 30(2) and (3) are met, if they must submit to a medical examination under paragraph 16(2)(b) of the Act.

Non-application of par. (1)(b)

(2) Paragraph (1)(b) does not apply to a foreign national who satisfies the criteria set out in section 206 or paragraph 207(c) or (d).

In fact, four subsections of R. 200 specifically highlight section 206 and 207 and indeed in subsection (2) make it that the ability to leave Canada at the end of an authorized stay [i.e. or reframed – maintain temporary resident status] is not a consideration in whether to issue a work permit.

In conclusion – it is very clear from the regulations that an individual with an R. 206 or R. 207(c) and (d) IRPR work permit that has a condition stating the work permit does not grant temporary status CAN still rely on implied status under R. 186(u) of IRPR.

It is unclear what Government of Canada documents were relied upon but websites don’t often tell the full picture.

Oct 10, 2018

What IRCC email “actively pursuing studies” compliance checks look like

As you may have seen from IRCC’s revamped study permit instructions website, the process of verifying whether a student is “actively pursuing studies” is finally being taken up by the Department. While some may find concern in this (given the broad nature of R. 220.1 IRPR), if it leads to less Port of Entry decisions and more assessment by those who understand the challenges of international students and can grant some of discretion, this can be a positive thing.

I have shared an earlier post – what the letter looks like but I want to provide some more details about what we know and what we don’t know. Hopefully, IRCC will also put up some sort of an information page that sets out the guidelines/thresholds to be met and what (if any) steps a student can take to explain peculiarities or normalize their study status when facing such a request. For one, it is not clear how a student is to address medical breaks, time outside Canada (when they are not subject to the requirement to actively pursue studies), or any other explanation in a manner that can lead to the exercising of positive discretion.

Step 1: Receive Email from IRCC

IRCC.DNISPCompliance-ConformitePEERN.IRCC@cic.gc.ca

On this a side note and tip- many international students utilize the email of educational agents, family members, etc. to apply for study permits. For many of them, once you are comfortably in Canada and in school their obligation ceases to exist, but yours still do. I would suggest creating a MyCIC and linking your application to your new MyCIC to ensure that you get communication. Alternatively, you may choose to contact IRCC by IRCC webform to change your contact information. Still, IRCC has been known to send emails to wrong/old addresses. Being proactive will do you well here.

Step 2: Read the Email from IRCC carefully, noting deadlines, format and documents required

In this sample request, there are two things requested – one proving current enrollment status and a second requesting transcripts from past dates. There is also under the “Please note” section the ability to provide additional explanations.

With a deadline, you want to make sure that if (for whatever reason) documents may not be obtained within the deadline [let’s assume your consultant sent you this email three weeks late and a transcript takes one week to obtain from your former institution], make sure to email and ask for a reasonable extension of time.

Step 3: Review the Letter/Transcripts You Get Carefully

Not all letters and transcripts are self-evident when under review. It is possible the educational institution themselves may not have undergone an immigration audit of their letters, attendance records may be inaccurate/missing, or the transcript may have some issue that you were previously not a party to. Schools also may have very unique semester systems that are not captured in their enrollment letters or transcripts. It is important before you pass it on directly to IRCC that you review it for possible flags that may need explaining.

That being said, IRCC’s technology to catch fraud is increasing, comes with high consequences (a possible 5-year bar from Canada for misrepresentation and/or regulatory offense/charges). I would highly advise against any one seeking to alter anything for the purposes of trying to cover up a record of underwhelming studies. There is sufficient enough grey in the legislation that you may be better off providing an explanation of your ongoing intent and explaining short periods of non-compliance than to cover up or hide it.

Step 4: Provide a Response or Determine if You Need Legal Assistance Providing Said Response

Next comes responding. If there are straight forward documentation which clearly establishes your attendance with no issue, you may be okay sending in just the transcripts. However, in many cases a cover letter or timeline may be beneficial to provide. Your job is to make the Officer’s job easier and as well advocate for your own past studies and ongoing-pursuit of studies. Again, at this stage, there are no clear cut rules as to the standard of proof. It is unclear whether students on academic probation, students who failed, and students who were wait listed or prevented from studies due to registration/health issues will be able to get a hall pass. Hopefully, in time these issues clarify themselves and as well IRCC also clarifies their communication with CBSA on students seeking entry who may have violated the actively pursuing studies requirement. In an ideal world, I would like to see CBSA cease issuing removal orders at the Port of Entry and referring cases to IRCC to pursue, giving students fair and reasonable opportunities to respond to concerns and/or make necessary efforts to change their status, if required and available.

Sep 30, 2018

Inside the Migrant's Mind - Poetry and Love

Detained Migrant in Vancouver – A Descriptive Narrative

+00000001_Image_Form_und_Schatten_Sachsen_Germany By Lupus in Saxonia – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=50750508

When my moms was still around, she told me about how they used to put our people in shackles.

They were thicker back then. Big iron shackles. So tight, apparently, the blood vessels constricted and feelings were lost in hands and legs. From our ancestral home, we was apparently brought onto boats to supposed freedom. Instead, years of slavery followed. There were no keys back then so those shackles became the bangles of the day, the number of links remaining a sign of the length of your arms and your worth as a potential worker.

I know my people suffered the consequences of generations of abuse. Maybe that is what led to my own abuse so many years later. My parents abandoning me at such a young age. I don’t know if my parents are alive or dead. My biological mother, they said, was only 14 when she had me. Her and my father never were supposed to be together. They had both runaway from their respective homes and met in an abandoned building that they called home. They both needed to get by and used each other as a lifeline for that fateful year.

My father stayed long enough to watch my first diaper switch and decided that this life wasn’t for him. He went on to other cities and apparently fathered other kids. I tried to ask around, and best I know he is in the hole now – doing life for a murder. They put me in protective services when I was just 10. I didn’t realize moms had thrown me to the wolves back then. Pain was just natural. I only realize the scars I carry now.

My foster family that they set me up with decided I was nothing but a burden on their lives and who put me into labour to feed their own older biological children and their own crack addiction. I would always get the leftovers – the soupy and saucy parts of pasta and stale bread that I needed to dip in water to make edible. I often went to school with no packed lunch. Every day I needed to pretend to use the washroom and instead go to the cloakroom where I took a few pieces here and there from my classmates. I knew which bags belonged to the white kids. They always had more snacks that were easy to steal.

I always slipped out, eating lunch by myself on the roof of a nearby building. Watching the cars go by, women being picked up and driven away. Back then, I had no clue what that operation was, only that these women were real pretty and tall.

I understand that the Fosters were paid to take me in but they decided to keep any money they got to themselves. They would always sober up just enough to tell Child Services at their monthly meeting that I was doing okay and had my older “siblings” nod in agreement in a repetitive, orchestrated routine. I was told if I said anything I would get beat so I just put on that blank starey face that I still use today.

Damn, I wish I could put my hands in my head. Close my eyes and dream of those faint memories of better days. When I was hitting lead off for my high school baseball team. Coach even said that if I played the way I did in my 9th grade there would be college scouts by 10th grade. Unfortunately that year was my last year of formal education. I didn’t pass enough classes to allow me to stay at the school they said. Other schools said their schools were full and didn’t allow me to enroll.

Snap back to reality. Today, I am in those same shackles my mom told me about. Red jumpsuit. Laceless shoes. One foot in front of another, I tell myself. Those cursed feet. The same ones that led me to cross over the arbitrary line to a foreign land that seemed so familiar. To me, it all seemed like one America. Little did I know that I had broken a rule. Hell, I had broken numerous ones before. I don’t what made this one any different. One side of the street had a Taco Bell and the other a McDonalds. I was just trynna get a burger, you feel me?

The guard accompanying me looks no older than 22. Poor kid, I think to myself. He’s a brown skin as well. Isn’t that how society works? They got us coloured people enforcing each other. I wonder if I was his blood brother he would treat me the same way. Regardless, I wouldn’t know. I only met my blood brother a month back. He offered me to stay long enough to find another City to get my sorry ass to. Other than a last name we shared nothing. He clearly didn’t want nothing to do with me other than ensuring I never returned.

I don’t remember what happened over the past week. What day it is? What month it is? What led me here again?

Suddenly my shackles came loose with a pop. I tried to massage my wrist and ankles that were feeling incredibly sore from three hours of constriction and bumpy suburban van rides.

“Hands on the glass, and face the wall” – a new guard came up behind me. “Put your hands on the glass and spread out your legs.” Suddenly I felt a leg stick between mine. Hands started patting me down. This is probably not the best time to think it, but imagine I could just turn around and give a big hug. I haven’t had a hug in years. The touch of this guard made my whole body shiver. Every single human touch I had did the same.

“Do you prefer Turkey, Ham, or Vegetarian for lunch?” I think of making a wise-crack that I would love that Big Mac meal and I would have got one had I had enough money, but it was pointless. I knew the menu here. It is the same as always. “I’ll have Turkey again, sir.” with Ice Tea.

I remember that one Thanksgiving when I was five when Mom’s and I had went to Georgia to see Grandma. She made this Georgia Sweet Tea and they had roasted this big crispy turkey. Apparently it was a slave recipe passed through generations. I will never forget how rich the gravy was. You know that feeling when you hungry and wake up immediately dreaming about food. The turkey and gravy shows up all the time in my dreams, but not enough in reality.

“Where do you want to go when you leave Canada?” I stared blankly at her.

“I unno, I got nowhere to go m’aam, no family” I stammer. I was gonna go into my whole story about how I ended up here accidentally. That I had brought the can of mace from the States as I had been robbed sleeping a few months back and that I never intended to use it.

I decided against being lengthy. She probably already knew my story anyway. This woman truthfully looked like she didn’t want to be here either. I could only imagine her job was like doing laundry, except every time a batch of clothes were washed, they kept getting dirty again.

“Do you wanna go home then?” or “Stay locked up for another week.” she asked in a damned if you, damned if you don’t manner.

“Just get me home, m’aam. I’mma go crazy if I stay here just another minute.” I whispered.

“Come again? You need to speak up, sir.” she barked.

“Get me home.” I spoke – not realizing how loud my response came out. I barely had any water all day. My voice must have sounded coarse and cruel.

“No need to raise your voice,” she admonished. “We will get you home by 4pm today.”

“Sir, in five minutes you will have your hearing,” she continued. “All you have to do is tell the member hearing your case that you want to go home and today we can get you home. Alright. No further questions? Take care.” she left curtly.

I went back to my cell. The two Spanish-speaking detainees eyed me with some interest. “How did it go… esayyy?” one walked up to me.

They had not had their meetings yet and were eager to know what was up. Every time someone was released, there would be ‘high fives’ all around – woots and cheers – even the Guards would sometimes join in. The same ‘high fives’ they used to give when I hit the ball out of the park back in 9th grade. Except, this time I did not want to be a part of it. There was no reason to ‘celebrate.’ This wasn’t a Common song.

I shook my head and said nothing. I went back to my corner of our tiny, too cramped cell and put my head on my arms.

The two Spanish-speaking ones started talking to each other and laughing. They were refugee claimants. Apparently they were just missing identification documents and they would be out in the matter of days. I had taken some grade school Spanish but still couldn’t catch much of what they were saying other than the word ” dis one loco.”

The rest of the afternoon was a blur. I went in and out of a sedated state. I was offered some tylenol yesterday because of a bad headache. Maybe the medication was too strong. Maybe I didn’t sleep well enough last night. Maybe, the 5am cornflakes didn’t go down so well this morning.

I think I spoke to some lawyer. She was helpful enough. She was tall and beautiful. Eyes that had me lost like I was looking into an ocean. I didn’t grow up with any oceans though, we were stuck between Atlantic and the Pacific, dead centre Middle America.

She told me with much empathy that there was not much I could do, that refugee claims from […]

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Sep 22, 2018

Community Building Initiatives

20 September 2018 – CCAC x Punjabi Market Forum – Text of My Intro Speech

Full text (minus a few ad libs from the day of):

I would like to Acknowledge that we are on the unceded, traditional territories of the Coast Salish Peoples – the Squamish, Musqueam, Tsleil-waututh.

It is the resilience of our First Peoples, in the face of adversity and historical and on-going discrimination that inspires us to continue to strive for reconciliation.

I ask that we draw on their collective wisdom, the wisdoms of the ancestors of this land, as we gather in our own circle here today.

Friends, name is Will Tao. Pronouns: he/him/his. I am the Chair of the Cultural Communities Advisory Committee. I am so grateful to be able to provide brief statements to open up today’s packed agenda of events.

For those that don’t know about our Committee we are a 15-member volunteer advisory committee. Our mandate is to enhance access and inclusion for Vancouver’s diverse cultural communities.

Over this present mandate, we have played important roles on some of the City’s major projects. We’ve been part of the Vancouver Immigration Partnership, assisted in drafting the Apology for the Historical Discrimination Against Chinese Project, been part of the Mayor’s Working Group on Immigration, The Assets Naming Committee (who I add just did a fantastic job naming several City assets)!, among others.

We are particularly proud of our Committee-driven initiatives, from the Spaces survey studying challenges in securing ethno-cultural spaces, to hosting the City’s International Day for the Elimination for Racial Discrimination, to our Voices of Vancouver statement, and to the exciting Islamic History Month, the city’s first, coming up on October 27^th.

If you have any questions about our Committee’s work, I ask that you approach our Committee members. We have seven members here today – almost quorum (joke for all of you who do advisory work).

Today, marks a continuation of our efforts to ensure that diversity is more than a check mark.

Today marks our first meeting of the 3.5 half years I have been on this committee – held outside City Hall.

This brings me to the heart of today’s conversation – the Punjabi Market Community. One member of our Committee told me a few days back that this would be nostalgia for her. As a kid, Punjabi Market (like for many of the community members in this room today) was their backyard. A place to shop, to eat, to spend those cherished family memories that today we look back fondly on.

This is a special community that stands for resiliency over time. That stands for everything great about our City and our people. It is our past, present, and future, all rolled into to one diasporic dosa.

When community members Ajay Puri and Gulzar Nanda, whom I will introduce momentarily, asked to attend a CCAC meeting a few months back and told us they needed our help. We immediately heeded their call. Their passion for this neighbourhood – tied into their honouring of the legacy of their forefathers is an inspiration to all of us. I see our role today not only to share our own experiences and advice but to be active listeners to what this community wants us to hear as it heads to its half-century birthday in a mere two years.

I would like to close my brief remarks on just one more point.

For those that may not know, I have been adopted into a Punjabi-Sikh family myself. Had a traditional Punjabi wedding (even though my partner is Chinese). Spent hours in prayer at the Ross Street Gurdwara reflecting on God’s good graces.

I love the expression of Chardi Khala and how it ties in to work today.

Chardi Kala teaches us that even through difficult and trying times, that some of us may be facing be-it through life, work, paying rent, affording to run a business on 49^th and Main, that we are all interconnected with one another. That our work here is for more and greater than our own selves and our own ambitions.

This community’s fate and future is our fate and future. By being here you have stepped into the shoes of this community for the evening, and have left your shoes at the door. Having stepped in it, it is not simply good enough to come back once every four years. You are bonded as well all are.

Today, let’s choose to face this challenge of community building with eternal optimism and positivity – Chardi Kala. Thank you for all being here.

Some Additional Thoughts:

Growing up on the west side, Main Street was already considered too far East. I had very few South Asian classmates in high school. In University I was blessed to meet Davinder Sethi and his family who took me. Later. I studied South Asian migration and took Dr. Oberoi’s South Asian Beyond South Asia Class. It was also during this time I was first exposed to the Punjabi Market. Davinder and I filmed an intro video to our Asian Representation in Politics course featuring Kohli’s and what was then Guru Bazaar.

For the past ten years, I will have to admit I lost touch with the Punjabi Market. I went to Pabla’s maybe twice. Even moving to South East Vancouver in April, I stayed within the confines of Fraser St. on the West and Victoria Drive on the East.

Recently, I was very fortunate to have two special individuals enter my life – Ajay Puri and Gulzar Nanda. They took not only the initiative to meet with our Committee but both took initiatives to meet with me individually. With Ajay, earlier this summer, we walked around City Hall talking about his engagement work. In mid-summer I met with Gulzar over coffee, bringing Davinder and hearing their stories of growing up in the neighbourhood. Both Ajay and Gulzar share commonalities with me. We’re all around the same age. Both of us have lovely partners (clearly better 1/2s), all three of us have lost a parent. I am so grateful for their passion for this City and their neighbourhood and that they were willing to welcome me into their networks with open arms.

This brings me to the picture above . The Cultural Communities Advisory Committee decided to host its first ever meeting outside of City Hall in the Punjabi Market thanks to the work of Ajay and Gulzar. The tour of the Market was incredible – I learned so much about the history of the businesses, the art work, and some of the changes in the works. The Forum was equally aspiring, particularly the participation of the neighbourhood elders who were eager to engage with youth, sharing their wisdom while appreciating the young energy. I think some of the ideas that were recommended can be implemented very soon. I cannot wait to see what the next Diwali, a possible mural festival, and Indian cooking/dance classes will look like. I will certainly be there.

Now that we have these ideas, its time to start implementation. We have a host of really talented political candidates, who (whether elected or not) appear ready to ensure this neighbourhood is not forgotten for another four years.

As I said in my speech – I definitely view these next years with a sense of chardi kala.

Keep posted with the progress – https://www.punjabixmarket.com/

With gratitude!

Will

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Sep 12, 2018

Guest Blogs

Guest Post: ‘Homage to Canada’ – by Ms. Zayneb Khairy

Vancouver Immigration Blog often receives posts from individuals seeking to share a platform for their thoughts and ideas. When I received this piece by Ms. Zayneb Khairy (through an email to me), I immediately connected to her words. I hope you all enjoy this beautiful account of one Vancouverite’s views of working with Arab refugees and how it has affected her worldview as much as I did. I have not made any edits, and it appears in it’s original form. It is truly inspiring – WT.

Photo captions: By Ahill34 – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=53280088

I would like to share with you what I consider a perceptive account of my personal experience with the Arab refugees’ situation – particularly Syrians and Iraqis — here in Canada.

I believe most of you know that the Canadian government — in keeping with its humanitarian duties — has been welcoming thousands of refugees, most of whom are fleeing their homelands for a wide array of reasons. However, I assume what most of you do NOT know is that the government is not the sole sponsor for these refugees. Apparently, groups of individuals and private corporations have also been very actively involved in the settlement process of these refugees, either by privately raising funds or by using their own money to sponsor and support people coming from abroad. It turns out that the involvement of the Canadian public dates back to 1979, when Canada started welcoming Vietnamese refugees, something that made Canada a world-class pioneer in such an initiative.

Needless to say, bringing refugees to Canada is just the beginning of a long journey those private sponsors take along with the sponsored refugees, where they venture together into the different possibilities and opportunities awaiting the newcomers in their new home Canada. It is worth mentioning that the amount of resources needed to accommodate the new settlers and assist them in adjusting and acclimatizing to the new environment, are incredulously tremendous. Yet those private sponsors have pledged to do their best to make the lives of their guests as smooth and as comfortable as possible.

For me, this was a stunning revelation. It truly made me question the entire ethical, moral, and ideological systems ingrained in the societies in which I was born and brought up. In fact, hundreds of lingering questions have been bubbling in my head since I came upon these valuable eye opening facts about the refugees’ sponsorship process in Canada. For starters, it made me think, why on earth would these sponsors go out of their way and go through all the trouble of securing the necessary resources, whether by fundraising or by sharing their own income, to willingly and all wholeheartedly bring complete strangers, the majority of whom happen to be Muslims, to their home Canada ? Haven’t they heard of xenophobia, for God’s sake? What happened to the ”Islamophobia” narrative? Where did all the animosity the media have been relentlessly trying to feed us go?

Well, apparently Mr. Trump has no audience here, and North America is not after all America! As you will see once you continue reading, fortunately the world is still “Arab and Islam friendly”.

I won’t say I have found the answers to all of my inquiries so far, but I can confidently say I have come to a sound, reasonable understanding, at least for me. I started looking back at the countries I had lived in, mainly in the Arab world, the part of the world where my generation has been struggling, until this very moment, to justify its moral obligation towards those who were facing different forms of hardship, be it war, famine, or natural disasters, and were in need of dire help. Of course, we were expected to fulfil this obligation for some reason. And to be clearer, for some corny, run-of- the mill reason at least from my perspective. There should be a reason, no?

As if the mere idea of lending another human being a hand was not enough, we would frequently hear — particularly in the last few years that followed what has been called the Arab Spring — from those who called themselves scholars and preachers, clichéd justification to legitimize any act of kindness, generosity, or help. For example, we would hear them talk about helping people with whom we shared the same religion, beliefs, history, land or language, or those who belonged to our tribe, race, or sect.

They would go on and on to fill an entire list of vain reasons reflecting centuries of racial and bigoted attitudes.

Sad to say, none of the reasons had to do with our humanity. The message was never as simple and straightforward as “we are morally obliged to help other human beings facing any form of adversity only for the sake of being humans.” There were always earnest attempts to dig and search for labels, labels laden with bias and prejudice, to apply to those who needed our help, to qualify them and render them help-worthy.

These ignorant attempts have stripped human beings from their perfect sense of humanity. We were unconsciously led to look at those in need from the narrowest, tiniest, and unfortunately ugliest discriminating angle that reflects ages of narrow-minded and shallow thinking.

Going back to the situation here in Canada, I would be lying to say that people here are angels, and that there are no fanatics or extremists. Canada is not the kingdom of heaven , it is just an example of a society that has been trying to put its differences aside and look at the bigger meaningful picture. A lot of people here have been trying to lead a purposeful life where “giving back to the society” is their daily mantra. Those people have created a contagious culture, where volunteer work is valued, respected, and encouraged; where diversity is celebrated, and differences are appreciated. Those are the people who believe that they are meant to live as citizens of the world and don’t limit themselves to the narrow boundaries of their surroundings.

For those of you who know me well, you know that I have no personal gain out of writing these words, nevertheless I found myself morally obliged to share with the rest of the world my deep experience in the midst of global nonsense about race, religion, gender, and nationality. I truly believe that people have been purposefully steered away from the bigger cause of their existence. Instead of peacefully coexisting, and sharing the natural resources available to them, they have been fiercely drawn into endless struggles that have created nothing but frenzy, chaos, and devastation.

Frankly speaking, living in a diverse, inclusive society is not just a blessing, it is a learning experience by itself. It takes living to a whole new level. I believe the learned lesson from my own adventure is that we humans are all part of a bigger beautiful holy puzzle. Each one of us has a crucial, carefully scripted role to play, to make this puzzle a complete masterpiece. Every piece counts, and every single piece is equally important. And that humanity is a priceless value, worth being celebrated by itself.

I would like to invite all of you to share with me this conviction, by pledging to cherish and to live up to our humanity.

Author’s Statement

Ms. Zayneb Khairy:

I was born and raised in the Middle East. In 1999 my family came to Canada as immigrants. In 2008 I moved back to the middle east to work as pharmacist as I hold a BS.C in pharmacy. In 2011 I went through an extreme career change, from the health sector to the hospitality sector, as my family at the time had ventured into the hospitality industry in the Middle East, particularly in Jordan. In 2013 I got married and in 2017 my husband and I decided to move to Vancouver, so here I am back to Canada but this time working as an Arabic / English interpreter for new comers especially refugees who have limited English proficiency.

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Sep 9, 2018

Canadian Immigration Law Blog

International Students and the Law

Summer ’18 – Study Permit and International Student Law Federal Court Case Law Summary

By Desmond1234 – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=46866616

As Canadian students ease their way back into studies and as school staff and administrators start thinking about the million responsibilities that come with a new cohort of international students, I thought it would be useful to review Federal Court Case Law over the past few months and uncover a few points.

I will focus on four points.

[1] PGWP regime not unconstitutionally vague, does not trigger s.7, and refusing a graduate from a private institution that was not eligible under guidelines, not unreasonable. – Brown v. Canada (Citizenship and Immigration) 2018 FC 452 [link to decision] – Manson J. presiding.

Jeremiah Eastman (a former DOJ lawyer for over 11 years) appeared to make a valiant effort attacking the PGWP regime from all sides, but Manson J upheld the reasonableness of the decision and constitutionality of the PGWP regime. It is important to note that IRCC has now proactively addressed the issue at the heart of this matter by adding a list that sets out whether the DLI is PGWP-eligible and/or if certain programs offered are eligible.

[2] In the context of the requirement of “actively-pursuing studies,” it is often parallel proceedings that will trigger investigation. CBSA Officers found to have broad discretion by Courts. – Kone v. Canada (Citizenship and Immigration) 2018 FC 845 [link to decision] – Locke J. presiding.

Kone is a fascinating decision because it occurs in a context that I have lectured on for several years in my international student presentations. The Actively-Pursuing Studies requirement (which I have written about several times as being problematic) is most problematic when triggered by CBSA. There are many cases of international students who have missed one or two semesters (due to scheduling/health issues) but have not had issues entering new programs or getting student renewals. Kone gets triggered, not by an investigation into his studies initially, but by a related fraud matter where he is arrested.

Once this occurs, the books become open and the actively-pursuing studies allegation was sought after. We have seen this occur in other contexts as well – border entry incidents, criminal charges, arrests, etc.

The individual at that stage is often in a situation where their ability to provide further explanation is compromised. IRCC’s own process (triggered by compliance reporting and their own investigations) is much more fairer and consists of a PFL that often looks like this.

Students can then present a timeline including explanations as to why certain programs were unavailable or registration was delayed.

I also find the decision fascinating because, it does not (it appears) parse out the statutory requirements of what defines a failure to actively-pursue studies. At one point Justice Locke writes about one period of study:

[62]  First, I note that the applicant makes no reference to any authority indicating that his absence from Canada could excuse him.

The very provision of R. 220.1(1) of IRPR requires actively-pursuing studies only when in Canada on a study permit. Indeed, one of IRCC’s pieces of advice on this issue is to depart Canada or seek a visitor record if there is major gap due to issues such as illness or inability to enroll.

Finally, one thing that still needs to be resolved (in my mind) is whether this type of non-compliance can be cured by leaving Canada in the same way as other unauthorized work or study. IRCC’s Enforcement Manual – ENF 2- Chapter 11 states as follows:

If a student who has not been actively-pursuing studies leaves Canada and returns either as a visitor (awaiting the re-engagement of their studies) or at a time prior to studies commencing, can the Border Officer go back to previous periods of study and render a decision that they were not actively pursuing studies while holding their study permit. It seems like an area where there is still not absolute clarity, and I’ve certainly seen most border officer’s take the later approach. Even IRCC’s PFL letter suggests that this assessment can be made irregardless of the Applicant’s travel history.

It is also worth noting a second case came out this summer El Kamel v. Canada (Public Safety and Emergency Preparedness) 2018 FC 730 [see attached link] occured in the context of a student who was advised by his consultant to seek to amend his study permit at the Port of Entry (likely by flagpole) where he was subsequently issued a s.44 report and exclusion order. The Officer noted the student’s good faith action at the Border, but noted that there were no grounds for review of the decision finding Mr. E-K did not actively pursue studies.

Expect that the actively-pursuing studies issue continues to be pursued as a ground for refusing non-compliant students but in many cases capture students that border the cusp of being also unfortunate, unhealthy, or unsuccessful which the provision can also apply to.

[3] Study Permit Refusals Should Continue to be JR’d – Raymundo v. Canada (Citizenship and Immigration) 2018 FC 759 [see linked decision] – LeBlanc J. presiding.

As discussed in my last post on the Omijie case [see link here], there has been an increasing judicial scrutiny around study permit refusals. It is understandable. There are now increasing number of study permit applicants, and while Canada has pledged more seats, within a global context it cannot take all applicants. Rates of granted study permits in many countries are still very low (15% or less, and in some cases close to 5%).

Many of these applications will begin with the starting point that the visa officer will likely refuse the application and assume the applicant will not leave Canada at the end of their stay, unless the applicant can demonstrate otherwise. While this is not how the laws and regulations should directly apply, it is a reality of the over-extended demand on a Canadian study permit.

In Raymundo, a study permit applicant from the Philippines applying for Centennial College’s International Business Program was refused a study permit. He had explained in his application why he intended to return to the Philippines to start a marine transportation business. It appears he had family in Canada who would be providing financial support but Mr. R’s wife and kids would be staying in the Philippines. The Officer found that the proposed studies in Canada were not consistent with a logical study plan and that the Applicant did not demonstrate significant socio-economic ties to the Philippines.

Justice LeBlanc found that the decision was not reasonable, rendering the following lines:

The Applicant directly addressed his attempts in his personal study plan that he tried to find a similar program, yet the program was still found not to make sense.

The Officer also took major issue with the fact that the Applicant had left his wife and son in the Philippines and that this factor was not mentioned at all in the reasons for refusal.

These are such common reasons for refusal that I see in many study permit consultations. Even with the Federal Court’s guidance with these cases, I still believe that visa officers will continue to refuse study permit applicants with short, trite, and little explained reasons knowing that 95% of them will either abandon their plans or re-apply to a similar refusal. I think the only way to challenge the system is to bring up these cases to judicial review.

I note a second decision this summer, Demyati v. Canada (Citizenship and Immigration) 2018 FC 701 [see link to decision] where a 18-year old Syrian national with a scholarship was refused a study permit. Justice Roy seemed very concerned with the lack of transparency and intelligibility in concerns that the individual would not return home because of the country conditions. Justice Roy also appeared pertrubed by the type of requirements IRCC was expecting of a young student with respect to his employment history, etc. This is particularly true as parsed out in the facts presented by Justice Roy.

One of the key differences in this matter that the officer appeared to also go too far in presuming the Applicant would not “actively pursue studies” in Canada without pointing to any evidence. The speculative nature in which was done was criticized by Justice Roy, ironically in the context of s. 7 of the Charter which is rarely ever in the same context of international students, who have no Charter rights in a context of a study permit application. Yet, his criticism, highlights the very real concerns about arbitrary reasoning that comes with many temporary resident visa refusals.

I expect more and more judicial review of these types of decisions. It may be worth considering whether the Government eventually is better off with a per country quota system (that allows for the ceasing of intakes) as opposed to needing to find reasons to refuse applicants that often times will prima facie meet statutory requirements, pending issues about credibility or misrepresentation.

[4] Students Need to Better Pathway Their Studies –  Masam v. Canada (Citizenship and Immigration) 2018 FC 751 [see link to decision] – Walker J. presiding.

I will not break down this case too much (as it is somewhat related to what occurred in Brown above). Ms. M appeared to, likely on the cases of other students, transition from a DLI, George Brown College, that was on the PGWP list to a non-eligible DLI, Canadian College for Higher Studies (CCHS). Upon completion of that second program, it had already been 90-days + since the completion of studies […]

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Sep 9, 2018

Canadian Immigration Law Blog

International Students and the Law

The Need to Show Study Progression and Judicially Reviewing a Study Permit Refusal – A Closer Look Through Omijie FC

In the recent case of Omijie v. Canada (Citizenship and Immigration) 2018 FC 878 [CanLII link], Mr. Omijie is a 26-year old citizen of Nigeria who sought to study at Alberta’s NAIT for a Bachelors of Business Administration program after he had previously graduated, three years prior, from a Bachelors of Science from a university in Nigeria. Mr. Omijie’s student permit application was rejected, and not for the first time [as will be discussed below].

This case highlights the dilemma faced by many study permit applicants, particularly from countries such as Nigeria, where the last figures we have from January – March 2017 show that the number of successful applicants (371) compared to unsuccessful (2,174) and total applications lodged (2,545) leads to a 14.5% success rate.

371 2,174 2,545 53%

I would assume that rate has worsened since with the volume of students seeking entry into Canada from all over the world.

One of the major issues under scrutiny was the fact that the Applicant was seeking a degree to continue studies in a related area at a related level.

It is also important to put into context that the Applicant’s study permit refusal had already gone back once to the visa office for reconsideration after a decision by Justice Diner. The reason it was sent back by the Federal Court was due to (as we will see also from this decision) a lack of explanation for why the “educational and employment history” was problematic. As summarized in this decision about the first judicial review:

Justice Pentney (former Deputy Minister of Justice and Deputy Attorney General of Canada many of those practicing will recognize from filing previous Judicial Reviews) made two very interesting points, set out over three paragraphs of his decision, as to why judicial review should be granted and the matter sent back to the visa office for redetermination.

In paragraph 23, Justice Pentney exams the evidence that was put forth by the Applicant for explaining why he wishes to pursue studies in Canada – specifically a desire to pursue hands-on, practical, and technologically advanced training. The Visa Officer does not question the evidence provided but finds fault in the cost of relocating to Canada to undertake study at the same financial level.

This is very common among international students who do often come with Bachelor’s or ther advanced degrees from abroad but wish to gain Canadian specific qualifications which may require them to start at a lower level or pursue diplomas.

Justice Pentney acknowledges that the Applicant may not have set out the grounds of why there was a logical progression between the two studies clearly but that the Officer’s decision to reject what was presented without adequate explanation was itself unreasonable.

A recent trend of overseas visa office refusals that I have seen (both on the student and TRV side) is that the decisions are generally becoming more and more trite, with less and less reference to evidence provided. While a decision-maker is presumed to have reviewed all evidence, silence with respect to evidence that can corroborate the Applicant’s statements and that directly contradicts the visa officer’s decision, can render a decision unreasonable.

That being said, with judicial review being a costly procedure, and with the possibility that matters such as these can end up in a loop of judicial reviews and refusals, it is pertinent to put the best foot forward in the first application and make it abundantly clear how the Applicant meets the statutory and regulatory requirements of a bona fide student (or visitor as the case may be) that will leave Canada at the end of their stay. In this matter, reference to policy and to previous refusals (if any) is crucial. Whether it is putting a succinct cover letter or organizing the online submission in a manner where the visa officer is clear as to where documents are located, these small steps when a visa officer has only a few minutes to review a file and render a decision, goes a long way.

The Omijie decision also highlights another issue (and common point of misunderstanding) for those who pursue judicial review and expect that either the process will allow the judge to grant the study permit or else that once it is returned for reconsideration a student permit will be shortly granted.

As discussed by Justice Pentney, granting the study permit (which was sought b y counsel) is simply not an available remedy.

S. 18.1(3) of the Federal Courts Act states:

Powers of Federal Court

(3) On an application for judicial review, the Federal Court may

(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or

(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

In a case of this nature there has been no unlawful failure, refusal, or delay in performing the act of approving a study permit under (a), this is clearly a case of (b) where the setting aside for the re-determination is the only appropriate remedy.

Back at the visa office, it is likely (but not always the case) that the Applicant will be granted the opportunity to provide further documentation. The Applicant will need to re-demonstrate that they still hold an LOA to this program, and likely update (in a matter such as this one) proof of finances, study plan, etc.

With the Federal Court now having clearly indicated that the missing piece appears to be the brevity of the decision and no indication why the Officer found the Applicant’s failure, it would be very likely for a more detailed examination of why the Applicant’s study plan fell short. In the alternative, other areas of the decision could be re-examined (proof of finances, etc.), and possibly even an interview set up to determine the Applicant’s credibility in presenting this plan, in person. The other option is for the Visa Officer to simply stop the litigious process and approve the study permit application. Again, neither option is clearly guaranteed through a process like this.

Too often, unauthorized or underqualified representatives will never advise judicial review and end up having their client go through a slew of repetitive refusals that very much harm the prospective chances of ever getting a temporary resident visa. If not early on, at a certain point in time, there needs to be an acknowledgment of whether the application deficiency is a factual one (i.e. the facts are bad and can’t be fit to meet the requirements – but can also be “improved” upon) or if there are legal deficiencies that lead a visa officer to be unable to budge on their interpretation of the law. In the later case, judicial review (and the heavy expenses that go with this process) may be the only way to go.

I will be posting other cases of judicial reviews in a second (Summer 2018 in International Student Federal Court Litigation) so you will better see the nuances of how the Federal Court process works.

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Aug 26, 2018

Canadian Immigration Law Blog

The Extent Unauthorized Immigration Agents Go to Hide Your Situation – A Case Study in Fraud

Recently, I was on Global News, talking about international student fraud (often times originating from overseas) where students get lured into Canada on a study permit and end up as precarious, exploited workers. You can find that piece here: https://globalnews.ca/news/4409552/aldergrove-subway-allegations/

In today’s piece I want to tackle a related issue that I have first hand knowledge of is affecting individuals across the spectrum – from individual seeking TRVs to study permits and work permits, and even to applications for permanent residence/permanent resident cards. This fraud takes place both inside Canada and outside Canada, although predominantly with unlicensed agents abroad or those agents who claim to work with “Canadian registered consultant partners.”

This type of fraud has affected a recent client of mine. I’m sharing his story (with permission). I’m modifying the facts so this will have no impact on his future immigration yet it can still serve as a warning to those who get caught up in these type of situations.

Scenario

You are a citizen of China seeking to visit Canada where you have a sibling who is currently on a post-graduate work permit. You engage in the services of a local agent in the service of your small town on the outskirts of Qingdao. He says he is an immigration service. They have a 95% success rate and they can help you with the process. They say they will go to the Visa Application Centre (“VAC”) VAC on your behalf. It is easier that way and you will not need to do anything other than to give them documents.

You provide them the documents. They tell you that they believe you will be granted a visa and to wait approximately three to four weeks for notification. They do not provide you any receipt or file number other than a brief voice message indicating it has been sent. You have not seen the final package.

They notify you on 29 April 2016 that your application was unfortunately refused but that the refusal was out of their control. They say that refusal decision appears to put the onus entirely on you for not providing enough financial documentation.

You see the letter. The heading says:

The letter is addressed to you, it has the file number.

The content of the letter says:

You accept the refusal as par the course. You don’t blame the agent. Your family accepts it (they got their visas after all) and you let the matter go.

Several years later you find a licensed Canadian representative. You now wish to visit Canada again to celebrate your brother’s wedding. Your brother hired a representative in Canada who assisted him on his PR paperwork (economic immigration) which went smoothly.

As part of the process, your new representative recommends that you do an access to information request to get a copy of the Officer’s Electronics notes and the refusal letter. You ask for a copy of the physical file as well. you pay $5 dollars for this request.

A month later, IRCC responds stating that they have unfortunately disposed of your information in correspondence to their data retention policy.

Two years have passed since the last administrative action. However, they do send you a copy of the refusal letter as per below:

This date is 6 days before the date of the refusal letter you received from your consultant.

There is also a different address located on the top of the letter – not just your name listed.

You also note the number of pages in the refusal is very different

There is another page that you are surprised to see – that the refusal is not just one page long:

In the electronic notes, you learn from the notes that a large portion of the refusal was actually due to the submission of unclear photocopies.

The reasons for refusal were entirely the same as the one included in your letter for the consultant. Why was the refusal letter transferred to a new form?

Breaking Down the Fraud

There are two major elements to this particular fraud case. These likely are the reason why said fraud agent

1) The Date of Refusal – this allows these fake agents/consultants to sit on refusals. They can pass the decisions within their networks and decide how to scrub them before sending it to you. While in this case they did not adjust the reasons for refusal, it would be very foreseeable that they would scrub it for wrongdoing (misrepresentation, poorly submitted documents, etc.);

(2) The address of the agent involved. You did not ask a Beijing firm for support. Why is there a Beijing address? By scrubbing the refusal letter and writing their own fake one, they were able to preserve their network of addresses. This would stop a line of investigation from IRCC. This would insulate the fact that the individual in Qingdao was not doing the work potentially and may have been a sub-agent for someone in Beijing.

Best Practices

As a client, you should always review everything that goes out, demand a copy of everything that is sent on your behalf, and require a file number as soon as possible. If you are passive and don’t take these steps, these are the types of frauds that will be perpetrated on your behalf.

While in this case, the only misrepresentation was a passed on refusal letter (not anything directly submitted to IRCC), it would not be out of ordinary for a fraudulent document to have been submitted on your behalf. With two years having passed, you will have no way of ever knowing.

I encourage all applicants to act prudently. Immigration works very differently than likely in your own countries where the process may be done in person, or through a process where you know exactly what is being passed on and when. With the move to electronic communication, and the lack of regulation of overseas agents, expect to see much more of this moving forward until preventative steps (such as sending a copy of the entire file to the client as well as the agent) are implemented. by IRCC.

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Aug 26, 2018

Law Student Advice and Mentorship

The Asian Struggle in the Law That We Never Talk About – 5 Reflections on Battling Our Upbringing

This post is inspired by a series of older conversations with my sister (in LAW) and former colleague, Krisha Dhaliwal who is starting her LLM at the University of Toronto in September.

I’ve been involved with Asian representation in the law for awhile now. I’m been grateful to be on the front lines with organizations seeking to break through the bamboo ceiling with ambitious goals such as to see that more diverse partners are appointed and that our judiciary starts to reflect our country’s diversity. As young Asian lawyers we often get together and discuss ways in which the system holds us back by sorting and filtering us through monikers such as “firm culture” and “fit” to mentorship being so difficult for us to access.

One of the things that rarely gets talked about, that I want to raise here, is the very struggle Asian lawyers have with themselves. I figure, with all the attention being placed on Asian Representation in Hollywood, Film, etc., that now is a good time for this (rather personal) post.

With this topic, I won’t touch upon mental health issues. It is quite well understood that is is an area with a huge stigma in our community and among lawyers no-doubt magnified by a legal profession that puts even higher expectations on outwardly appearances of confidence and success. We will keep this topic for another day but that day will come.

I want to focus on our upbringings. I want to focus on the very foundations of how we were brought up as first and second-generation Asian-Canadians by our parents and how some of the values we grow up with can often clash or challenge or absorption into “mainstream” law. Yet, for many of us it is this very journey into understanding and reclaiming our own voices and identities that for inspired our careers in the law.

In writing this post I acknowledge that there are very diverse experiences of Asian parenthood, so I’ll necessarily need to generalize how I and many of my colleagues responded. Some of you may relate to some or none of what is contained in this piece. Others may have had entirely polar opposite reactions influenced by the same life lessons but in different ways.

While it may seem I’m drawing primarily negative influences in relating to these lessons from our upbringing [indeed, I call the title of this articling “Battling”], I acknowledge they are entirely double-edged. Some of our best traits such as thoughtfulness, emotional intelligence, humility are all cut form the same thread that brings us those more challenging aspects that make being a lawyer difficult. For all of us who are Asians and lawyers (especially junior), I hope we can step back from the lens of lawyering and see how we are very blessed by our upbringing and how it made us better human beings first and foremost.

Without further ado, here we go:

Reflection from Upbringing 1: Don’t Say Something Until You Thought it Through a Million Times – Silence is Powerful

Growing up, it was engrained in me at an early age that I was not supposed to be vocal as an Asian-Canadian. Perhaps this was the product of my own parents not having space to be vocal and being of the head down, hardwork type. The idea that “if you do not have anything to say, don’t say it at all” was very much the mantra around the house, dinner table, and definitely public interactions with other families and friends. What ended up materializing is that I became quite nervous speaking out. You may not see it as obviously today, but a very deep fear of public speaking naturally followed. For many years (in fact I would say that it has only recently subsided a little through my teaching, guest-speaking, and speech giving), even introducing my name and what I did around a roundtable would lead to sweaty palms and constant overthinking. I was used to being behind the scenes, to let others do the talking.

I remember in law school feeling constantly overwhelmed by those speaking up around me. Those that were brilliant and provided brilliant answers – prevented me from feeling confident to provide my own thoughts. I chalked up their confidence to their socioeconomic status (she’s the daughter of a Judge, or his aunt is best friends with an SCC Judge) or their intelligence (relating to my lack thereof). Those that spoke because they liked the sound of their voice or made comments that were shot down by professors I internally criticized and/or felt a sympathetic camaraderie towards. They had violated the cardinal Asian household rule.

As a result, in law school I may have put my hands up less than 5 times in three years. I faded away, never engaged enough with my classmates on an academic level, and it is something I deeply regret to this day. Indeed, I still feel overwhelmed around brilliance yet it is so crucial to the development and growth of juniors such as myself.

Similarly on a silence perspective, I still find it challenging putting out a controversial or strong-minded opinion as opposed to harbouring it for myself or sharing it among a smaller, trustworthy circle. I am sure that these similar feelings I hold also contributes to why we are as a larger cultural group we are not as engaged in politics or leadership as we ought to be. As a community, I find we tend to be afraid to say things and especially afraid of the consequences of saying them when viewed by others (the majority).

In a litigation context (especially in-person) this also becomes difficult. We have to do extra work to battle that voice (be it your own voice of that voice of your parents from childhood) telling you that you are wrong and that you have not thought it through. I still write everything down more than I’d like to and find it challenging to go off script.

Reflection 2: Don’t Show Off, There Are Always Those Better/Wiser Than You

Another major lesson from my childhood was one of humility. I wasn’t a brilliant kid, so admittedly there was little to show off about, but in public I was told never to gloat over accomplishments. My parents would never publicly acknowledge that I was doing well in school or sport. Ironically, to this date, my mom still asks whether I am having a successful practice or not and tells me she has trouble pitching my services for the lack of knowing this answer.

Behind closed doors, we were always told to look at others as pillars of success and desire. The occasional kid whose parents would gloat or whose accomplishments would become public knowledge would end up being the topic of dinner-time conversation. “You need to be more like him – look at his grades. He already is doing AP. What are you doing with your life?” When it came to performance it was always about how everyone else was doing when compared to you. I believe that a large part of this mentality was generated from the roots of the homeland, where opportunities for our parents truly were mostly merit/exam-based and where failure on things such as the gaokao exams inevitably led to different and less prosperous pathways (more on failure later).

There was also very clear authority in most of our families. As children, we were of low authority. Our parents were the higher authorities. Higher still were police and government.

This indoctrinates in many of us, now as lawyers, a need for constant validation from others, especially those higher in the hierarchy. This creates in us the constant want for someone to tell us that either we are “doing well.” We also come to expect criticism and in fact criticize ourselves more than we need to. I see a lot of self-deprecating Asian lawyers – no doubt still viewing their own (already brilliant accomplishments) in the lens of their equally successfully colleagues.

Reflection 3: Failure (and Wrong Turns) are to be Avoided

The third lesson was about failure. This is one I will be sure to teach my child differently when I become a parent. I entirely understand why our parents taught us to equate failure as a negative. For them, every one of their moves from choosing to abandon their lives in their home countries, to seeking employment, to buying their first house was so calculated. They always saw (and still see) our generation as too impulsive. There was not margin for failure or/else they had experienced that failure and wanted to shield us from it.

In my childhood, failure was most often of the academic variety. Where grades were below class average/median, it was considered a clear negative. Again, as discussed above, failure was also intertwined with the success of those around you.

I would argue that particularly for Asian law students and young lawyers – learning to fail and fail hard is a very eye-opening experience but much required experience. Starting from the graded curve in law school to the adversarial nature of litigation, failure is ultimately part and parcel the experience of lawyering, especially when you represent clients who are vulnerable.

For myself personally, I cannot think of one important practice tip or thing I believe I do well that was not influenced by something that went sideways.

Still, the competition of law – the feeling of needing to constantly be successful – in court room wins and positive news, affects the reality that a large chunk of law is addressing situations that are negatives for all parties involved and seeking understanding as opposed to a positive outcome.

This is also why I find myself particularly sensitive to the question that clients have about success rates (that anything who tells you a number is entirely making up). I almost recommend that the best way to judge a practitioner is to ask them about their greatest failure and the lessons learned from it rather than the amount of their success.

Reflection 4: You are Responsible for Everything, Don’t Burden Others With Your Problems

This one may be more of a product of the rational atheism I grew up in (that I know a […]

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Jul 6, 2018

Law Student Advice and Mentorship

Building a Long-Term Sustainable, Values-Driven Legal Practice

It has been a while since I shared a “mentorship-related” piece, but I feel right now is an appropriate time. Given that I have spent much more time being a mentee and in fact even with my mentees having them listen to me rather than vice versa (remind to work on this), I would call this more an experience sharing piece than anything else.

More than a few individuals have emailed and called me recently – asking me about my move; why I switched Firms, and how I balance work with extra-curricular commitments, married life, and the whole nine-yards of trying to keep those around me from telling me I’m a failure (which they do constantly, by the way). Truthfully, I don’t balance it all very well yet – leading to why I was up and contemplating at 3am in the middle of the night (or early in the morning as is more factually correct). I think I’ve finally had my “got it” moment, so let me try and lay it out a little here.

For the last few years, I admit that the part of me wanting to grow my practice/recognition/accomplishments list became more dominant than that part of me that was eager to learn more about the law, the community, and ultimately I was losing track of my life focus on helping others. This is ultimately what led me to move. The people I worked with were great – but I needed a wake up call to get myself back in the proper mindset. My legal practice was along the pathway of becoming more about “my wins, my loses, my billings” than the situation of my clients. I needed to start fresh, and I am very grateful I have.

Moving involves embracing a new work environment, culture and accepting (very humbly) that one needs to continue to work on one’s craft to improve. For the many things I thought I knew this Firm has exposed me to a million more I don’t. Coming here has exposed me to a level of legal expertise on complex legal issues that has (I will admit) challenged my own self-confidence in what I thought I knew. It made me question whether I have played it too safe. Through these challenging emotions, however, it has also inspired me to pick up academic articles, legal journals, and start studying new concepts of law, and re-think what I was previously doing (albeit we were quite successful) to accept my shortcomings and knowledge gaps.

This humility has also been balanced with a gratitude towards my existing skill set. What I thought was simply “common-knowledge” and “tricks of the trade” has also proved incredibly helpful and indeed in high demand. I now see balancing high level legal analysis with a client-level understanding of practical know-how as truly a legal harmony.

Delving into social justice issues in new ways has also exposed me to a debate that I am sure many young lawyers in Vancouver are having. This debate is not only between work-life balance but also between self and others. This question is: how dowe balance, especially in a city like Vancouver, our underlying human desire to do good and help others (regardless of what we get in return) with the demands of a growing economic unstable city – where everything becomes a value-trade off/opportunity cost proposition.

I am going to share three practice tip from one of my new mentors here. It is how he views it (in a summarized nutshell, although I am sure my paraphrasing is imperfect);

1. Accept only files that meet three criteria: (1) converge with an area of your passion or interest; (2) tackle a legal issue you are interested in; and (3) can provide financial re-reimbursement commensurate with an amount you feel necessary to obtain your life goals.

2. Create a six month plan, a one year plan, and a five year plan for how you want to get to where you are and how the pieces and files you take on.

3. Learn to say no. Saying yes to something that you are not passionate about is like saying no to someone else or an existing basket item you are passionate about.

This move hasn’t been all easy – but the practice of law and the process of self-improvement isn’t. Just like going to the gym again after years of lying around on the couch is – one has to make measurable goals, be patient, yet persistent in executing the million steps.

I have also had to make sacrifices. I’ve decided against entering into the housing market at this time, my spouse and I have downsized where we live, and we treat every dollar we spend (just like every dollar we collect) with a greater reverence. I don’t allow myself to study fancy cars, nice real estate (this one can still be a tough one), bitcoins, or investments. I am probably not allowing my money to grow the way it can but I’d rather not put my mind of something that brings me little value. Many of my closest friends are involved in real estate and investments. When they discuss how much they make on a yearly basis, I try and tune myself out of those conversations and think beyond my year to year income-earned.

I’ve also stopped thinking about life as getting to a “peak.” There is no peak, the are just experiences. I have created ambitions driven not on myself but on those around me, my loved ones, my clients, and those I care about.

This is just a bit of a reflection of where I am at. Now that my lunch break is over it is time to get back to my client work!

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Jul 5, 2018

Canadian Immigration Law Blog

Beware of a Newer Type of Immigration Fraud – Employer-Recommended Consultant Scheme (“ER-C Scheme”)

There is a new type of immigration fraud out there, particularly affecting graduating international students who are desperate to seek grounds to extend their status in Canada and obtain work. I will call it the (ER-C) Scheme.

The fraud works this way. IG (international graduate) gets an interview with a Potential Employer (ER). Employer mentions there is a possible job offer coming and that they have a consultant (C) who can assist on the work permit extension application (let us assume IG went to a school that does not offer a PGWP and cannot afford further studies at this stage). (IG) books (C) for a consultation and engages them with legal fees to prepare the entire application. At the very last minute (ER) backs out. (C) acts as though this is entirely out of their control and that this is an unfortunate situation. IG is left stranded. (C) later splits earnings from those legal fees with ER. The IG is now dealing with a status issue and is desperate to find a new opportunity – for which (C) the recommends another option that will bring her further legal fees.

This diverges from traditional fraud methods (fake documents, fake job, fake tax returns) and is dangerous in that it insulates those perpetrating it from the direct attention from immigration unless the victim directly contacts IRCC to report this matter. Given the victim themselves may have status issues precluding them from wanting to make their situation too obvious, there is that additional layer of disincentive. The paper trail between ER and C can be hidden through case only transfers or other gifts exchanged.

How do you prevent this type of fraud?

Always ask the Employer whether the representative they are recommending is their own representative and will be assisting on a dual representation agreement. If not (or if not clear) seek independent legal advice or perform an independent verification of the representative before engaging their services. Ensure that you do not sign any contracts without clear indication that there will be no financial benefits shared between ER and C.

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Jul 4, 2018

Canadian Immigration Law Blog

Reframing the “Problem” of Birth Tourism – a Few Alternative Perspectives

Recently, there has been another media influx relating to the “problem” of birth tourism. In the past, I have commented on this issue twice publicly – for Chatelaine/Macleans Magazine and CTV News.

Unfortunately, much of the debate again has revolved around what I strongly to believe strong ethnocultural tensions, particularly through Richmond where tensions have been brewing for quite some time and understandably so, with various related debates or controversies no doubt fueling the fire.

Positively, some media have been very clear about distinguishing between birth tourism and non-resident births. It is understandably easy to view all problems as coming from the same source – illegally planned and operated birth tours and birthing hotels. In actuality, however, the situation is much more complicated and the numbers of foreign billing addresses cannot correlate directly to the problem of birth tourism.

I want to highlight just a few modified situations that are very common, that I have seen, and would lead to non-resident births.

A is an international student and her husband B is a permanent resident. They have lived in Canada for 15 years. Because of an immigration matter, X has lost status. She is ineligible for MSP, even though her husband is a permanent resident. They want to have a baby because both are heading to an age where must have a child or else fear not having a dependent. If A leaves the country, she would never be able to return;

C is a temporary foreign worker in Canada. She had a one night stand with a fellow club go-er and found out she was pregnant. Her work permit is set to expire and she has no grounds to renew her status. Her MSP is expiring. Religiously, she is pro-life and does not believe in abortion. She chooses to have the baby but cannot afford the fees.

D has returned back from her home country. She recently returned with her son and uncovered that her husband had been having an affair with a younger woman. This occurs after the couple has sex. She returns to Canada and on the advice of her family members decides to keep the baby.

The above are all situations where the mother would be non-resident that have nothing to do with birth tourism.

In my opinion, the fact individuals are avoiding bills should be considered a separate issue from that of who is giving birth. Theoretically, if they are utilizing birthing hotels and paying exorbitant (and highly illegal fees) to these underground birthing houses – why is this money not flowing to hospital. Who is trying to cover up the paper trail here? Are women subject to minimum standards of care at these facilities? If the women who are arriving to give birth are truly low income and unable to pay bills, what are the circumstances that have created this?

Second, this issue should not also mask a deeper problem of complex diasporic families that has arisen as a result of immigration. It is not uncommon for a mother and her children to be left in Canada while one spouse obtains work or manages affairs from abroad. In this sense, the fact that they would seek assistance (if they have financial means) of some third-party help seems reasonable. Yet, why are these individuals seeking services that appear not to hold legitimate business licenses? Are there barriers/distrusts of local services and how do we create a more inclusive environment?

Government resources, in my perspective, should not be focused on creating legislation that curbs non-resident births but instead severely punishes those who engage in the exploitative practice of encouraging (for profit) individuals to risk the lives of their children to come to Canada to give birth. Inputting intent to individuals who legitimately want to have children in Canada because they have “non-resident” status here as international students (short-term students – awaiting MSP), are awaiting spousal sponsorships as visitors, or have lost status is going to be a necessarily overbroad solution.

What worries me – is that there is so much that occurs in the underground economy – that takes years for government officials from different levels to respond to. Those years of bureaucracy create a perfect breeding ground for exploitative businesses. Add into the mix many newcomers and/or local residents struggle to make ends meet at survivor jobs, the prospect of being able to run a business outside of the view of regulatory bodies at a higher income starts appearing more attractive. This is an issue that goes beyond one community and is very rampant in Vancouver – be it the drug trade, illegal loan sharking, barely above water investments, etc.

Returning to the main point – should Canada have citizenship by birth? For me this is a foundational principle that should not be altered. Rather than allowing our citizenship to simply flow through descent and passed through generations, those born here with real physical connection to the country should be allowed to obtain citizenship. Indeed, for a country of settlers that arrived the same way, to now try and alter laws to preserve some sort of uniformity would be highly contradictory and deeply unaligned with the Canadian values that I firmly believe in.

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Jun 27, 2018

Canadian Immigration Law Blog

International Students and the Law

Why IRCC Should Pay Attention to the B.C. Small Claims Case Li v. Dong 2017 BCPC 285 – Re: Custodian and Unauthorized Immigration Practice

Picture from Wiki Commons

Background of the Case

Li v. Dong, 2017 BCPC 285 (CanLII), <http://canlii.ca/t/h6ftb> was a five-day small claims matter between two educational agents, Ms. Chunmei LI and Mr. DONG.

Without delving too much into the myriad of messy facts – Mr. Dong was an educational agent and Ms. Li was a sub-agent. They had primarily verbal and one written agreement between them to split the cost of recruitment fees and percentage of tuition fees for minor students recruited from China.

Among part of this play was the fact Ms. Li charged students (who were from her own English language institute in China) $5000 to $6000 for “supervisory services” including custodianship. Ms. Li (new to Canada as a PR) wanted to better understand the educational market in Canada and therefore assisted Mr. Dong for various amounts per school. Some schools offered their own student services/custodianship services but this did not dissuade Ms. Li from charging her pretty penny.

Mr. Dong also benefited by charging CDN $300 for a custodian notarize fee from Ms. Li and CDN $1200 for a custodian fee of the CDN $5000 wanted to charge the students she referred to Mr. Dong.

Adding another layer to the mix, was Ms. Cindy Lii, who testified on behalf of Mr. Dong at Small Claims Court, discussed the fact she prepared documents for student visas and school applications for the students. She would refer students to Mr. Dong and also collect a cut [side note: there is no one last name Lii on the ICCRC registry]. Ms. Lii also took fees from Ms. Li to help prepare study permit applications.

Why should IRCC care about this?

From my perspective, the current rules around minor children – where, unlike with Universities there is no #DLI or sense that a student has to meet certain bona fide requirements in order to qualify – is broken. With no regulation of educational consultants and the cross-border movement of children and money, the natural consequence is the type of taking advantage of (I would deem it exploitative to call it mildly) that is ultimately being done at the expense of young children and their unbeknownst parents.

In the same way that a recruiter cannot charge both the employer and the employee, somehow in the business of minor students and educational agents, we have lost all control. This same problem affects post-secondary students but at least there are some safeguards and students themselves can advocate for themselves in a complaint.

Why are educational agents charging funds to have an immigration (custodianship document) signed?

Given notaries are all able to sign them (they don’t require any s.91 rep) – who is keeping track?

How is someone who is presumably not a designated immigration representative able to not only charge students to do visas, but charge other agents to do visas on their behalf and simultaneously collect funds from the very schools these students are obtaining visas for through agents?

I actually wrote this in part of a s.44 submission to CBSA not so long ago – but the fact is these agents are being inherently authorized by allowing to practice (without investigation by authorities), given business licenses, and provided advertisement space. How much fault can you really pin on the end user when 90% of what is provided in your own language in front of you is falsely claiming to be legitimate.

Why are schools not being regulated in the amounts they can charge for services and what these services are directed at?

We talk so much about big money – and rightfully so – through casinos and real estate, but the impact of money being washed through innocent children in the name of the education should raise some sort of moral conundrum that IRCC would want to step in on.

I would suggest IRCC make major clarifications to the custodianship process and indeed require clear third-party legal advice prior to accepting the form.

To go a step further, I would suggest that with the looming influx of minor students that will become university students and later put upward pressure on our economic immigration system, that schools be issued quotas for minor international students consistent with a prescribed ratio – based on Canadian students, with an emphasis on schools outside metropolitan areas that may require economic assistance or greater diversity.

Schools should also require designations in order to ensure minimum standards are met prior to enrolling minor international students. Private Schools, especially should have to provide some sort of compliance update to the Ministry.

Whether the Provincial/Federal Government knows it or not – education has become an exportable commodity. Therefore just like goods require taxes, tariffs, and customs law – so does education and especially international education. I think the Governments should reach out to one another and strike up a working group. I know I’d sign up given the stories I have been hearing and the type of preventable catastrophes that are looming around the corner.

Hopefully IRCC puts focus on this issue as I definitely see the snowball and these type of cases increasing without clearer guidelines and stronger deterrents.

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Jun 27, 2018

Canadian Immigration Law Blog

Lessons from Losses – Importance of Good Interpretation in Immigration

I recently was counsel on a multi-layered case named Zhang v. Canada (Citizenship and Immigration), 2018 FC 502 (CanLII), <http://canlii.ca/t/hs2j6>

In Zhang, the client (my client) attended an in-Canada spousal interview with former counsel and as well with an interpreter who former counsel had assumed was certified, but was actually not. In-Canada spousal interview have a heightened level of procedural fairness. Only a few cases to through to this interview stage. Without appeal rights, this interview serves as the final decision, and often with clients that have status issues, a refusal could be a trigger point for enforcement and possibly long-term separation.

The Officer in the matter decided to proceed, even know the interpreter was unqualified. This lack of qualification was not shared with the Applicant, only the Sponsor, who himself conducted his portion in English. For the Applicant, the Officer asked merely if she “understood the intepreter.”

While Justice Phelan did not rule our way, I found it interesting how this case and my recent experiences with my new Firm have really opened up my eyes to interpretation and the importance of certified interpretation.

Interpreters can truly make and break cases. Even for something as seemingly simple as a client consultation (and where you yourself may have a working understanding of the language), having a certified interpreter present is crucial. Even where an assistant may be fluent in a language, having an independent certified interpreter available to provide accurate accounts and swear required affidavits. I have seen in too many cases the haphazard signing of affidavits in the English language where the affiviant has little clue of the content.

The case law around interpretation, from my preparation on the file, is very scattered. I won’t go into too much detail here, but it appears that it is only in cases where Tribunals or Government’s are providing the interpreter, where the interpretation is not clear and contemporaneous, and where the Applicant attempts to draw this to the attention at the earliest possible time that procedural fairness/Charter rights are ultimately triggered.

In Huang, the Federal Court set out the requirement as follows:

[8]                The Applicant has a right, under section 14 of the Charter, to continuous, precise, competent, impartial and contemporaneous interpretation. The Applicant is not required to show that he has suffered actual prejudice as a result of the breach of the standard of interpretation in order for this Court to interfere with the decision of the Board (Mohammadian v. Canada (Minister of Citizenship and Immigration), 2001 FCA 191 (CanLII), [2001] 4 F.C. 85 (C.A.), leave to appeal dismissed, [2001] S.C.C.A. No. 435 (QL) ; R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951 ).

Huang v. Canada 2003 FCT 326 at para 8

However, this is contrasted by another decision, Baloul, that applies a much higher standard for mistakes made by the Applicant (any by extension, their counsel) themselves:

[22]… The applicant had sufficient time to obtain an interpreter, but chose not to. The risks associated with this choice were spelled out in unequivocal terms and the applicant chose to assume these risks. I would add that the onus placed on the applicant to provide an interpreter has been upheld by this Court (Kazi v Canada (Minister of Citizenship and Immigration), 2002 FCT 733(CanLII) at paras 16 -18, [2002] FCJ 969).

[23]  When it became apparent the applicant was having difficulties understanding and answering the immigration officer’s questions, for the benefit of the applicant and though she was not required to, the officer offered to invite a colleague to interpret. The applicant agreed to this suggestion of her own volition and cannot now question the quality of this interpretation when she was well aware of the consequences of not arranging for her own professional interpreter. Furthermore, it is well established law that where there are translation problems, the complainant must raise the problem at the first reasonable opportunity (Oei v Canada (Minister of Citizenship and Immigration), 2002 FCT 466 (CanLII) at paras 40 and 42, [2002] FCJ 600; Kompanets v Canada (Minister of Citizenship and Immigration), 2000 CanLII 15377 (FC), [2000] FCJ 726 at para 9, 196 FTR 61; which the applicant did not do in this case.

I don’t change my own legal position (that I presented) that this requirement should run both ways. For an Applicant who does not speak English and a Counsel who does not speak the Applicant’s first language, interpretation is a complicated exchange. I do believe that there needs to be a clear instruction to IRCC Officers that if the interpreter is not qualified and upon confirmation that this was not a bad faith error, that the Sponsor and Applicant should be fully advised of the fact and asked to sign a document either confirming a new appointment or waiving the requirement for certified interpretation.

This level of heightened procedural fairness is consistent with IRCC’s position at the Port of Entry.

OP4 of IRCC’s Port of Entry Manual states:

A border services officer who is using a non-accredited interpreter to conduct an examination should suspend the examination if it becomes apparent that the person may be inadmissible. The examination can be continued once a competent interpreter is available. This is important for the following reasons:

When making a decision on admissibility, the border services officer needs a reliable and trustworthy interpreter in order to be sure that information provided by the client is accurately translated. Inaccurate translation could result in a decision based on misinformation, which is detrimental to the person. This would constitute a breach of natural justice.

Information obtained at examination is often used as evidence in admissibility hearings and, less frequently, in criminal prosecutions. If a competent interpreter is not used, the evidence can be discredited or rendered inadmissible.

All immigration decisions relating to admissibility are subject to judicial review by the Federal Court. The Federal Court reviews the fairness of the process leading to the decision and will strike down any decision based on evidence obtained through an interpreter whose competency is in doubt.

Not ironically, in a June 2018 update not long after my case was published, IRCC put an additional section regarding complaints about an interpeter.

Complaints about an interpreter

Complaints regarding interpreter competency or comportment can generally arise before, during and/or after the interpretation services are delivered. The complaints could range from no-show or last-minute cancellations, to poor interpretation, to after the service when the interpreter could engage with clients and claimants in communication that could be a ground for conflict of interest.

Authorized IRCC users and clients/claimants must raise concerns with respect to interpretation during the course of the interpretation service, at the first opportunity, unless there are exceptional circumstances for not doing so.

Where concerns arise regarding interpreter competency based on information that only became available after the service is rendered, the authorized IRCC user should discuss these with an interpreter as soon as possible.

It is so very crucial for counsel to clarify that their interpreters are properly engaged. I strongly recommend familiarizing yourself with the STIBC (https://www.stibc.org/).

Hopefully, with more counsel utilizing interpretation and clients realizing how important this additional $50 dollars an hour (or so) could be to their immigration cases, that we reduce the types of mistakes that could have devastating impacts, particularly on those without financial means to seek legal support and advice.

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Jun 8, 2018

Inside the Migrant's Mind - Poetry and Love

A Tribute To Anthony Bourdain

Like many, I woke up this morning to the shocking and devastating passing of Anthony Bourdain.

I never met Anthony Bourdain in person, but like many, I religiously followed his shows, read his books, and planned countless travel itineraries (including busing hours) to visit spots that he had been to. Because of him, I was inspired to go to Singapore, to the Philippines, and most importantly, to better understand my own roots and Chinese origins.

He was one of the first writers to truly put everything on the line – cut all of the bullsh*t and tell us how he really felt. That honesty, I feel, by osmosis, landed into my own life. His ability to tell stories, his verbage, and “Bourdanisms” morphed into my own vocabulary. I write, speak, and talk like Anthony did.

While he inspired me to get up and go, he also inspired me when I was at lowest points. Challenging days at the office or at school would often be solved by late night time with a rerun of No Reservations that I had probably watched a hundred times. I would re-read passages of Kitchen Confidential and Medium Raw as a way to get a better night’s rest. He was a cure to depression for many of us in ways I wish we could have only told him now.

I am a foodie – because of you. I wandered into the unknown – including to Chongqing, China where I met the love of my life – because of you. I appreciate my city more and use your storytelling tips in my everyday work – because of you.

Thank you. May you find peace, adventure, and what you are seeking in the afterlife. I trust God to take care of your family and the rest.

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May 16, 2018

Canadian Immigration Law Blog

Clarification Needed: Why the IEC Work Permit and Implied Status Problem Needs Fixing

Other than the permanent resident delay problem, the surprising #2 line up outside my door question this late spring/early summer has been about International Experience Canada (“IEC”) Work Permit Extensions. Several individuals hold IECs and are now asking about obtaining Bridging Open Work Permits and Spousal Open Work Permits, hoping to rely on implied status to transition from to the other.

This Moving 2 Canada post (I am not sure if they are qualified immigration consultants or not so I will just throw up big disclaimers here) captures well the uncertainty, confusion, and problem with how the law/regs often interfere with policy.

Source: https://moving2canada.com/iec-implied-status/

I also found other examples of where IEC’s FB appears to condone implied status with the arbitrary 30 days before expiry rule – that also isn’t a “must” under law (?).

Even as late as earlier this week I had an individual walk in my door stating that the call centre agent was adamant that they could not extend an IEC work permit/seek implied status.

IRCC’s website doesn’t provide a clear cut answer either but leans towards the possibility of protecting your legal status by extending to another work permit:

Legally – No barrier to IEC Implied Status

Here is the scene: Canada has signed several agreements with countries and organizations under the #IEC. Under these agreements, there are written in rules that limit the duration of stay to no more than 12 months. This extract is from our Youth Mobility Agreement with Slovakia.

Source: http://www.treaty-accord.gc.ca/text-texte.aspx?id=105237

However the relevant regulation, R.186(u) of the Immigration and Refugee Protection Regulations does not provide any qualifications on implied status or working on implied status:

No permit required

186 A foreign national may work in Canada without a work permit

……

(u) until a decision is made on an application made by them under subsection 201(1), if they have remained in Canada after the expiry of their work permit and they have continued to comply with the conditions set out on the expired work permit, other than the expiry date;

Regulation 201 states:

Application for renewal

201 (1) A foreign national may apply for the renewal of their work permit if

(a) the application is made before their work permit expires; and

(b) they have complied with all conditions imposed on their entry into Canada.

In short, other than the international commitments made to other countries through these youth agreements, there is nothing in IRPR stopping implied status UNLESS someone it was made a condition of the work permit that it was not extendable (#IRCC, please don’t get ideas). It seems to be a Government website wanting to not advertise it as an option in light of it’s other written commitments.

So far I’ve run into no push back but if there are cases of refusals, I query…..

Will this implied status period count towards permanent residency work experience?

Can someone be removed from Canada per s.41, s.29(2) for working on implied status?

Remember – implied status does not work the other way (for certain!). An IEC work permit is an application made outside Canada and therefore you need to physically obtain a WP approval letter before heading to the Port of Entry and/or applying at a foreign visa post!

IRCC could use some clarifying policy on this! Applicants are getting confused.

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May 16, 2018

Canadian Immigration Law Blog

International Students and the Law

Canada’s Minor Children Custodianship Crisis – IRCC Needs to Step In

I read a recent piece quoting my mentor Richard Kurland and his prediction of Canada’s Express Entry system being flooded by international students who come to Canada in their K-12 years. In it, he predicted that they will then go on to attend college and university and are therefore will very qualified and achieve high eligibility under our existing permanent residency rules.

Clearly there is a bottleneck issue that must be addressed sooner rather than later to ensure that there is not a challenge with these graduates in the job market and later applying for permanent residency. This could put additional strain on our humanitarian and compassionate grounds – permanent resident stream as well, if not properly navigated.

I wanted to focus on a related spin-off issue involving minor children. This piece is on a practice that has come to my attention recently that IRCC needs to urgently investigate and with priority.

Currently, there is a major trend of global educational consultants and families working directly with public and private K-12 institutions to facilitate study permits for minor students whose parents do not accompany them or accompany them as a visitor (i.e. without work permit/student status themselves). In these cases, a custodianship form – IMM 5646E is required. They need a custodian in order to study in Canada.

The Problem with Custodianship in Immigration

Custodianship is defined by IRCC as follows:

“A custodian is a responsible adult (Canadian citizen or a permanent resident) who takes care of and supports the child.”

The problem with this term is it is a Canadian immigration definition, not grounded in family law and the more significant and onerous term “guardianship” and thus creates a major knowledge gap in what the custodian can and cannot do, and the minor children (and their parent’s) ability to intercept. What happens also when a custodian is unable to fulfill their duties or a student needs to switch custodians. Are there any legal requirements other than PR/Citizenship to become a custodian?

Where this becomes particularly problematic is in the environment now where you have schools and their administrators/staff/teachers/related agent parties serving as said custodian. Indeed, recently I learned of individuals being custodians over 300 students at some elementary/secondary schools. To me, this is a recipe for disaster. Putting one individual in charge of over 300 students for their “care and support” in any context does not make practical sense and opens up a whole can of legal worms.

Worse yet is the relationship between the agent and the school or the staff and the school. Should the minor child (let us use the example of a high school student) have a conflict with the school – for example academic challenges, breach of school rules, etc., there is arguably no incentive to seek any care and support for the child .

In fact likely an incentive to seek the student’s immediate return to their home country. Adding to the fact there are major barriers to language and communication between parents and the minor student – often times beyond the abilities of the custodians, it is unclear how these disputes are to be resolved.

I was recently contacted on a case where the custodian (rep from school) was prepared to drive the child to the airport to facilitate their return from Canada, without their parent or the minor’s permission. They allegedly prevented the student from obtaining a phone and created other restrictive barriers – all, likely, for the interest of likely protecting the school rather than the student.

Minor children should not be the poker chips in the process. It is not clearly transparent what limits there are on custodians receiving fees from minor children and their families and limits of what they can and cannot do with respect to the security of the child.

What can IRCC do? I have a few suggestions:

Clearly define custodianship vis-a-vis family law definitions of guardianships and require more than a two page signed form in English to formalize this agreement;

Clearly set a limit on how many students one custodian can be responsible for the care and support of;

Set an obligation for full disclosure to the parent/child where there is a existing relationship with the educational institution OR ELSE bar individuals with said relationships from acting as custodians.

Consult with experts in the field such as Justice for Youth and Children (http://jfcy.org/en/);

Ultimately create a set of much more detailed guidelines setting out where additional fees can be charged, the rights of the child, etc.

I hope this issue can be solved before it becomes worse. With the numbers of minor students coming to Canada without parents seeking study permits, I do worry that it may only get worse before it gets better unless urgent steps are taken now.

With the more restrictive issuance of study permits at a post-secondary level and the penultimate demand for minor student study permits – now would be a great time for IRCC to proactively tighten the rules and clarify the policy.

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May 6, 2018

Canadian Immigration Law Blog

R. v. Eustaquio, 2018 ABPC 55 – Lessons Learned About Misrepresentation as an Immigration Offense

This case comes from the Provincial Court of Alberta, with the judgment having been released in March 2018.

Ms. Eustaquio (“Ms. E”) is a 60-year old Canadian citizen with no criminal record. She has two elderly parents who are in their mid-to-late 80s. The deterioration of Ms. E’s father led to Ms. E supporting her niece. Mari Ann Gantuangco (“Ms. G”) to apply for a work permit.

In 2015, Ms. E supported Ms. G’s permanent residence application as part of the live-in caregiver class per s.133 of the IRPR. Ms. E supported the applications through an employment letter – signing a statutory declaration and declaring hours of work.

In reality, Ms. E’s representations were not true. Ms. E’s parents were out of Canada in the Philippines for six months and the United States for thirteen days, contrary to what was stated on the employment letter.

In this matter both Crown and Defence supported relatively lesser penalties, with Crown suggesting a suspended sentence (with probation0 and the Defendant’s counsel suggesting an absolute discharge was appropriate.

Justice Fradsham reviewed several recently cases (nationally) from 2013 to present day and as well looked the appropriateness of a conditional/absolute discharge.

Notwithstanding the personal circumstances of Ms. Eustaquio, which covered several difficult personal circumstances, Judge Fradsham determined that a conditional sentence was not consistent with the general sentencing provisions of the Criminal Code. He writes:

[71]           I am of the view that when all the factors are considered, it would be contrary to the public interest to grant a discharge to Ms. Eustaquio. A discharge, in the circumstances of this case, would unduly undermine the immigration system as it relates to those seeking permanent residence status. A discharge on the facts of this case would prevent the attainment of the sentencing objectives of general deterrence and denunciation.

Judge Fradsham also chooses not to follow Crown’s position and instead imposes a $1000 fine (with CDN $750 reduced due the 55 hours of community service performed.

Why this is important?

With auditing of Express Entry applications and other employer-based support letter becoming more and more frequent, it is foreseeable that there will be more cases of employers (especially where family or closely-held business) being scrutinized. While a majority of these cases will likely result in misrepresentation against the immigration applicant as the end of the enquiry, particularly where the employers are comprised of Canadian citizens and in order to denounce and deter this type of conduct, I do suspect more cases to be brought forward. Ms. E was on the generous end of sentencing – she did not seek to do this primarily out of financial gain but instead to help a family member. I don’t see as much generosity being shown where an Employer is actively reaping benefits from an individual (e.g. some sort of payment in lieu of work).

See the case here: http://canlii.ca/t/hqtzb

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May 4, 2018

Canadian Immigration Law Blog

Snapshot Thoughts on the Canada British Columbia Immigration Agreement 2015 – Foreign worker protection (Annex B, section 9.4)

First of all, the intention is good. It carries out an obligation from 2015. Foreign nationals in B.C. who hold an employer-specific work permit for an employer or who are authorized to work without a permit per IRPA  or IRPR now have access to foreign worker protection in the case of a real and substantial risk of physical, sexual, psychological, or financial abuse.

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/british-columbia-agreement.html#definition_of_abuse

With stories of these abuse being well-documented, especially for low-skilled and precarious workers, providing a six-month open work permit to allow the facilitation of a new LMIA-based work permit or employer is a positive step compared to the usual, tedious and challenging process of trying to obtain a TRP inside Canada.

Foreign workers caught in this situation are advised to either directly contact enforcement agencies, seek the support of an approved settlement service agency (I have provided screenshots of the Vancouver ones below), or the worker can themselves approach IRCC (Vancouver) to self-report.

Interviews with IRCC can be arranged directly with the settlement service providers.

Possible Challenges

I have to admit that the first time I read the updated instructions I read them wrong. I thought that if an agency is approached by a foreign worker in an abusive situation that they should refer them to an enforcement agency as/opposed to vice-versa. It is enforcement agency that, in practice, should be referring. It would be useful to make this abundantly clear and set out much clearer guidelines than those currently in play. Having these in additional languages (especially where we know much of the abuse occurs in the ethnic economy) would be additionally helpful.

Ironically, this type of approach reminds me a lot of the recently retired conditional permanent residence (https://www.canada.ca/en/immigration-refugees-citizenship/news/archives/backgrounders-2012/backgrounder-conditional-permanent-resident-status.html) where individuals were similarly stuck between the “to report or not to report” conundrum.

Given the complexity of provincial and federal laws around employment and human rights, even the grey-ing discussions around human rights legislation (the legal responsibility of employers over their subcontractors, etc) this could create a lot of complicated legal scenarios. I wonder personally how IRCC plans to train the authorized service providers and how the authorized service providers plan to coordinate or add capacity in these areas of law prior to making the referral.

A challenging scenario could exist in the potential following fact pattern: sex worker (who does not disclose this is her line of work – and let say says he or she is in the make up/massage business) seeks help from a settlement agency. The Settlement Agency, confused by the written instruction, makes a referral to CBSA or contacts the RCMP (assuming this policy is in play) rather than IRCC. The resulting consequence is that CBSA investigates, uncovers the sex work, and issues an s.41 IRPA) non-compliance order (per s.29(2) IRPA) and a referral is made to Immigration Division before the individual is even able to contact IRCC.

A second scenario: worker is is being debt-bondaged at work and wishes to make a claim against a recruiter/agent. The individual, because of this policy, goes to IRCC Vancouver to complain. His expectation is the instructions (and the advice of his fellow workers) that there is a provision to give a work permit to abused workers. He does not realize that he has never seen a single copy of an immigration form filled out on his behalf. At the initial interview, IRCC uncovers that there was a failure to disclose a previous U.S. refusal on his work permit application or disclose a drunk driving offense. IRCC makes a referral to CBSA to begin the inadmissibility process.

Ultimately, putting such big responsibility in the hands of these authorized service providers or foreign workers who believe this is a clear-cut solution is going to be a challenge. If I was one a authorized settlement agency, I would be building a strong team of outside advisors and brushing up on the s.91 IRPA do’s and don’ts with respect to immigration advice. While they are not receiving a “fee” per se, their very funding by the government or private donors (and “payment as settlement employees” could indirectly constitute immigration advice in some circumstances. Do all these organizations now need lawyers and RCICs?

Also – what happens with this advice goes wrong? – would an individual who was removed from Canada turn back and try and sue a settlement agency. What kind of agreements or waivers are in place before the referral to IRCC (or accidentally to CBSA) is made?

What I know this move does, and as someone who has been pushing for foreign worker rights I fully support, is create the need for more expertise in the intersection between employee-side employment law, human rights, criminal law, and immigration law. Ultimately, I think we do need to create one independent think tank (be it the Migrant Workers Centre or elsewhere) to monitor this program in B.C.. Ultimately, an independent referral agency (as opposed to the settlement agencies) may be needed.

Overall Thoughts

Purely on intent, I like the idea (in theory) of providing an option for workers to safely obtain a new work permit in cases of abuse. I hope that advisors for these foreign workers do not abuse the abuse provision.

This program and it’s pilot nature (expires April 2020) is fascinating from my perspective. How does it work? Will it become a model adopted by other Provinces? Time (and trial and error) will tell.

I do hope an organization like the CBABC creates manuals and other resources to help direct what is sure to be a very complicated process.

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

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