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Apr 25, 2018

The Immigration Consequences of ‘I Just Got Fired’

One of the major impetuses of my decision to switch practices and move to a new law firm was to shift my practice from providing advice mostly to employers to being able to provide advice to primarily employees and educational institutions that will grow future graduates.

I believe it is absolutely crucial for all temporary-foreign workers (“TFW”s) whether they are working on an open or a closed work permits in Canada to have access to independent legal advice as it pertains to their Canadian employment.  There are several benefits to this. First, I find many TFWs are not fully aware as to their different pathways to permanent residence. Many, erroneously, assume it is entirely dependent on their employer when in sevearl cases it is not. Still others are kept in the dark as businesses make plays and decisions that have direct impacts on their future in Canada. They are merely asked to sign forms and renew permits – steps that without context could lead to a lack of a full understanding of their legal rights and future opportunities.

Among these major decisions with major consequences is the termination of employment while an individual is in the process of applying for permanent residency, the issue I will examine in this article.

Two of the most common permanent residency pathways that termination of employment could affect are the (1) the Express Entry route, where there is a qualifying offer of arranged employment; and (2) the Provincial Nomination route – which in some provinces is either operated in conjunction with Express Entry or else is a separate process involving a paper-based Permanent Residence Application sent to Sydney-NS that can take a year to several years to process. For the interest of space and due to my own personal familiarity, I will deal with only the BC PNP context. Each Province may have different processes and I would encourage you to familiarize yourself with these internal workings.

Express Entry – Qualifying Arranged Offer of Employment – What Happens When I Get Fired?

One of the first things to avoid is the ‘panic.’ Too often mistakes are made when fear takes over – and inquiries are made to Immigration (especially via the call centre) or even CBSA/border officials without a plan in place.

Before packing one’s bags, it is important on a short-term basis to determine (a) whether you still have the ability to work; and (b) is there a need to obtain work in the near and immediate future vis-a-vis the Express Entry PR application.

Much of this may depend on where you are at in the PR process. For starters, if your Express Entry score is not relying on an arranged offer of employment, your termination likely means very little to your application. Your score will not be negatively affected assuming it was locked in previously at the time you made your application. There is no need to actively work while holding a work permit. Even if your work permit is tied to a specific employer your main question may be whether to try and obtain a new work permit, stay in Canada on the work permit and not work, or else apply for a visitor record so as to clearly indicate you have no intention of working and are abiding by the conditions of your temporary stay.

Several individuals who transitioned off previous work permits have access to a bridging open work permit or otherwise may be on some sort of open permit such as PGWP or an accompany spouse of a student/skilled worker. An open work permit that is not employer specific of course provides flexibility in finding new employment in the event of termination.

If, you are relying on the arranged offer of employment and it’s 50/200 points, you arguably will have to take proactive steps. Indeed, it is my more conservatively-based strategy to update IRCC within a reasonable time on the change in circumstances.

I take this strategy because of my strict interpretation of s.29(3) of the Ministerial Instructions respecting the Express Entry System (17 October 2017) to require ongoing updates. Similar to where a provincial nomination is revoked (we’ll discuss this shortly), the MIs state as follows:

Loss of offer or inability to perform duties

(3) If the offer referred to in subsection (1) is revoked or ceases to be a qualifying offer of arranged employment or if the foreign national is unable to perform the duties of the employment or is unlikely to agree to perform them, the foreign national is no longer entitled to the points assigned under subsection (1) in respect of that offer and the total number of points assigned to the foreign national under the Comprehensive Ranking System is to be adjusted accordingly.

How the adjustment is made is very material. You have to determine how your points are affected. Your example you may have been an individual selected with a draw score of 490 (50 points for arranged employment) during a draw where the minimum score was 432, for example. The 50 point subtraction in your score will have no affect on your selection. However, it is still my practice to update them proactively so as to avoid a misrepresentation finding of not disclosing a factor that could affect an Officer’s assessment. It is not my practice to gamble with the legal interpretation of ‘materiality’ of an omission where proactive disclosure would have no negative consequences.

If the score is brought below the invited score (let us assume that the individual only has 460 after the 50 point deduction), I would consider whether a withdraw can be facilitated and whether there are other points gained or that can be gained that would negate the loss and facilitate a new profile, selection, and application. Before requesting a withdrawal, it may be worth figuring out the ultimate timing of the matter. For example, I have seen several cases where the loss of employment occurred after a final eligibility decision or after approval in principle/passport request that were not actioned by IRCC even following proactive disclosure.

BC Provincial Nomination Program –  What Happens When I Get Fired?

In a BC PNP-Express Entry context, there is a similar provision to s,29(2) found in s.28 of the MIs which talk about the effect of a revoked or declined nomination.

Points for provincial nomination certificate

28 (1) Six hundred points may be assigned to a foreign national if they are named in a nomination certificate referred to in paragraph 87(2)(a) of the Regulations that is issued by the government of a province referred to in paragraph 2(d) of these Instructions and the nomination has been

  • (a) verified by the province; and
  • (b) accepted by the foreign national.
Nomination revoked or declined

(2) If the nomination certificate is revoked by the province that issued it, or if the foreign national declines the nomination, they are no longer entitled to the 600 points under subsection (1) in respect of that certificate and their the total number of points assigned to the foreign national under the Comprehensive Ranking System is to be adjusted accordingly.

BC PNP nominees are currently given documents upon receiving their nomination that clearly set out their responsibilities, including updating BC PNP upon any loss of their employment.  Failure to do so could lead to revocation of the nomination.

BC PNP work permit holders who are doing paper-based applications that can take over a year and often times multiple years can often be particularly susceptible to loss of employment. Companies make a lot of decisions over a year that can affect the allocation of staff and, in particular, the future of their foreign workers.

Generally, when a skilled worker or international graduate is nominated, they are provided an R.204(c), T-13 -based work permit support letter from the Province. This can be used to support an employer specific work permit and/or work permit extension. The other option is an R.205(a) Bridging Open Work Permit (BOWP), but because of the timing of getting together a full permanent residence application and acknowledgment of receipt can be challenging, many opt for the safer first option. There is, of course, an underlying benefit to submitting a BOWP in that as an open work permit, transition to another employer (and perhaps even to another employer who can support a transfer of nomination certificate) would be easier in the event of termination. Working for an employer not listed on your work permit is an immigration violation that can lead to exclusion from Canada for a period of one year.

For BC PNP, the process is more facilitative if the Nominee is diligent in communicating with the program officer relating to the termination. Many officers have given ample time for a new employer to be arranged and for the nominee to figure out a new pathway. BC PNP also has been very supportive where a nomination/support is pulled by the employer late in the process.  is The validity of a nomination, the very basis of one’s permanent residence, is a very material and that termination would require proactive disclosure. I have had clients disclose prior to landing and while it does require a quick confirmation call between IRCC and BC PNP, where BC PNP indicates they are supportive of maintaining the nomination, this has created no issue.

Failure to disclose on the other hand could create challenges. Whether it be in a future sponsorship, PR renewal, support for a family member’s visitor visa, there would be more than a few places where one’s undisclosed termination could emerge to IRCC’s attention.

 

Seeking Independent Advice – Employment Counsel

I often refer my clients who have been terminated to also seek. There are cases such as Nishina v. Azuma Foods (Canada) Co. Ltd 2010 BCSC 502 where an employer’s conduct vis-a-vis immigration status affected damages awards. I have been involved in a few cases where the termination of an immigrant employee was wrongful. Some clients will choose to pursue their claims while others will pursue to focus on pursuing new employment. However, if a matter goes to litigation, it would be important for non-immigration practitioners (and the Court) to know the scope of the immigration consequences.

Why are Employee’s Post-Termination Immigration Options Increasingly Important?

With IRCC and the Federal Government now putting in resources into assisting foreign workers, I suspect that this will balance out an employer compliance regime system that does not, in my […]

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Apr 23, 2018

No Reason For No Reasons – Cruelity in the Case of In-Canada Spousal Refusals

A fundamental principle of natural justice/procedural fairness is that an applicant should have knowledge of the case against them, especially in the context of receiving reasons for refusal. Procedural Fairness requires that applicants know within a refusal why their application was refused and what sections of the law applied.

In my own practice, and at an alarming rate, I have started to see In-Canada spousal sponsorship refusals made often times several weeks/months after the initial interview that do not include anything other than boilerplate refusal language. Indeed, often times the boiler plate language does not even cover the full/actual grounds of refusal. No case-specific analysis is provided.

Several of these individuals have confided in me that during the interviews specific grounds of concern are never even raised and that they had no clue following the interview that credibility, evidence sufficiency, or even the bad faith provision of IRPA was even a concern.  While case law tells us there is no requirement for a “running score,” many times these sponsors and applicants have no clue what the score even is.

In an inland setting, Officers generally write longer refusal decisions than in typical visa office cases where often times a copy of the interview is merely inputting into Global Case Management System (GCMS). These decisions often span several pages and include interview notes highlighting the responses of both Sponsor and Applicant (who often are interviewed together), the Officer’s handwritten notes, and a final written decision. None of this, as Immigration’s general practice, is disclosed to the Client during the refusal process.

In various contexts, although I wish it weren’t that way, it makes sense that detailed/case specific reasons are not made available to Applicants in writing at the time of a refusal. For example, for the volume of study permits and temporary residents that some overseas visa offices process, it would be unduly burdensome for each to write varied, case-specific reasons into the decision. However, even in these cases there is often detailed reasons or else a checklist with boxes ticked off. This baseline reasoning is absent in a majority of the in-land refusal letters I am seeing.

The Applicant only has 15 days to file judicial review from the notice of a failed In-Canada Spousal Sponsorship on the basis that the decision made was unreasonable or not procedurally fair. In most of these cases where reasons are not provided, a judicial review becomes automatic because there is simply no clue as to why the application was actually refused.

In an overseas spousal sponsorship, an Applicant could reasonably get a copy of the reasons for refusal through Access to Information. More importantly, there is a statutory right of appeal provided.

Other than the fact that there is no statutory right of appeal in an inland context, the other challenging factor is that many of these individuals choose inland because of some challenge maintaining status in Canada or a possible inadmissibility concern. One would think that in this context a heightened level of procedural fairness (per Qin/Baker framework) would require greater disclosure than what is currently being provided. Indeed, in an outside Canada spousal interview, there is usually a portion of the interview dedicated to the Officer putting a list of concerns directly to the Applicant near the end of the interview. I have seen this rarely followed in parallel Inland cases which mirror more a fishing expedition.

I call on IRCC to change their current practice/policy to ensure that all In-Canada Spousal refusals receive detailed reasons for refusal that allow them to properly consider actions of recourse: be it reconsideration, judicial review, or filing a new outside Canada sponsorship.  At the very least, the Officer’s detailed written decision should be attached – much like it is in the context of an H&C or PRRA decision. Procedural Fairness suggests that this should be the correct process. The expensive and burdensome process of litigation and ATIPs (in many of these cases) can also be avoided through more transparent decision-making.

*Ps. practice tip = Applicants and their counsel should and can follow-up to ask for written reasons from the Tribunal (decision-maker) in this context. Often times the written reasons will be sent/faxed shortly thereafter.

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Apr 20, 2018

A Fresh New Start – Edelmann and Co.

First week officially in the books. I look around at my office, out at Victory Square through one clear and one not so clear glass window (there’s a story behind this – for another day, no less), I feel as if I have finally settled in.

IMG_6316

I am grateful to have landed in a place of compassion and learning. I love it here. From having a brilliant office manager who I can already tell is a special soul to the equally brilliant colleagues I have. Everyday is filled with discussions about the law and doing good.

This journey won’t be easy. I’m shifting from what I will readily admit to now, a “business man practicing law” to a “lawyer who happens to operate a business.” The stakes are also much higher now as is the level of knowledge and finesse required. The clients that I have started to and well be starting to see often find themselves in vulnerable places, subject to an immigration system that increasing feels turned against them. Every conversed word and every step must now be more calculated than every before – often with lives and families hanging in the balance. It is not enough to simply show a client meets the requirements of a certain permit.

Learning to push myself yet be patient at the same time will itself be a process. Beyond myself, I need to put my faith in God and those around me. My heart is ready and the mind is making it’s way there – it has to overcome.

Over the next little bit, I will revive this blog – with a little bit of law and lot of love. Like the elephant being held up by balloons that sits in my office room I hope to take the heavy burdens in stride and focus on how much support I am grateful to have.

To the mentors who helped me make this decision, I am very thankful to each and every one of you. Now – let’s get back to the grind and do it for the people.

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Mar 8, 2018

Remorse Should Go Two Ways: Lessons Learned Fighting Immigration Fraud in Vancouver

Remorseful_Face

As a lawyer, I ultimately have two major loyalties. The first, to my client, to ensure to defend their interest to the best of my ability and legal knowledge. The second is to the public, to justice, to ensure that the actions I take are always above board, ethical, defendable and do not bring our sacred justice system into disrepute.

Balancing both those obligations I have some ideas on how we can combat immigration fraud and improve our system. For those who have read my previous writing, this may sound like a broken record. However, until someone listens and does something, I figure I will keep playing it.

When it comes to immigration fraud there is one predominant narrative. This is the painted picture of the capricious wealthy immigrant looking to exploit the Canadian immigration system, buy up all of the expensive houses to the populous is left homeless, and then off they go back to their home country to feed their cycle of deceit and fraud. Their practitioner, an often unlicensed overseas or domestic agent, aiding and abetting in systematic manipulation meanwhile making a handsome living on their own.

I do not disagree that these type of individuals do exist and this narrative happens. I have seen a couple that pass by for consultations from time to time. I generally do not like taking on their cases. Not because I do not believe everyone does not deserve equal representation but in a high-volume practice such that I have now, I prefer to help those who need my help the most and who gravitate to me for the right reasons. I cannot professionally take fees where I may have concerns over their originating source of the funds and I prefer not to take cases where I have credibility concerns as to the person providing me material information.

All this being said, in the past three years I have seen a different narrative as well. In that process I have come across countless other immigrants. Shaded and silenced now because of the overwhelming narrative which keeps them at home, often isolated, with few friends and a new world of fear. They want to speak but feel so voiceless. They feel victimized by those fraudulent agents that purported to help them and now they feel resigned to defeat by a country set with an agenda upon deporting them back to their home countries.

Before you stop reading any further – give me just a few seconds to make my case:

Imagine yourself, not fluent in a language, accepted as a permanent resident into a new country with rules and law much different than your own. You are here, but everyone views you as not one of them. Your job interviews highlight that you are overqualified, compensation proposed is low, opportunities out of reach. You go to school with young adults half your age and see them one by one obtain opportunities. You struggle to raise a child who needs their other parent. The astronaut thing that is presented as a scheme is actually a living hell.

Your Permanent Resident Card is about to expire. You look in the local newspaper (it is the only one you can read without having to consult a dictionary or your neighbour that you barely know) and you see the name of someone in a sharp suit. They look established, a good go-between, they say they are professional, licensed, with a high success rate. You come from a country where reputation is everything and usually those with the best reputation are the ones who are advertised.  

You go to their office – located in a central downtown office. Business license on the wall. Attractive employees in their high heels walking to and fro. Business seems booming. The person at the front is courteous and professional. They re-iterate the company’s strong performance, say a few things in your native language about what documents are required and the process, and they say leave it with us. We will guarantee your success.

You appreciate their confidence. You provide them the documents within a few weeks. They send you a contract in English – you cannot read it but you assume it is right. You sign. They provide you some forms, it seems filled in but most importantly it came from the company you trusted. You sign. The forms are submitted and you never keep a copy. You get notice you are successful. You pick up your card. You are happy.

Five years go by.  Out of the blue Canada Border Services Agency flags you. You have misrepresented. You are a crook. You are now an immigration criminal. A liar. A misrepresenter. A burden on society.

I would say seven out of ten cases I am currently seeing following this exact pattern.

Part of the appeal process for these individuals (after they are issued their exclusion orders and assuming they are a permanent resident have the right of appeal), is to demonstrate remorse. They do so by apologizing to those involved and telling their family, friends and employers about what happened. For a culture that values privacy, this is a deeply shameful process. The apologies that are spoken are genuine and are sincere. However, most time the sorry is not enough, too late. It does not matter if they truly had no clue that the mistake was made indirectly by the agent. This lie is treated exactly the same as a deliberate lie in terms of punishment under our laws for misrepresentation.

Should We Be A Little Remorseful Too?

On behalf of some Canadians (I am sure a majority will respectfully disagree), I will provide some remorse of my own. I am sorry we didn’t welcome you as a country with more open arms. I am sorry we did not knock on your door to introduce ourselves or offer to help when you were stumbling with the menu at the restaurant next door. I am sorry that we did not invite you and your spouse to interview or give them that raise when we gave it to everyone else. I am sorry that our legal profession was not diverse enough to provide you with competent assistance in your principal language. I am sorry that our rules and regulations were not tight enough to keep these fraudulent businesses (which outnumber legitimate shops) from obtaining a business licenses because their $56 dollars was all we needed from them. I am sorry that we allowed you to access clearly fraudulent services from the back of newspapers that we had no clue were in circulation in public spaces because we do not read them and cannot regulate them.

There is no excuse for fraud. Two rights do not and never should make a right. But put yourself in the shoes of someone, for just one second, who needs assistance and also gets victimized. Twice. First, by an incompetent practitioner. Second, by a competent society still allowing for too much incompetence and fraudulent animus to pervade in our day to day business.

There are actions that can be taken quickly to try and prevent fraud so we do not end up turning the immigrant deportation process into not a costly play involving two unwilling sides.

First, the Canadian federal government can actively step up in reaching out to foreign governments to step up their regulation of fraud. As these businesses are likely also assisting in capital flight and fraud in these countries, it likely will not be hard to find some willing partners.

Second, the Canadian government can invite a roundtable of relevant parties – regulatory bodies, provincial and civic immigration bodies, to come up with some strategies. This could involve a public relations campaign in different languages (which Immigration, Refugees and Citizenship Canada has started to do but with limited scope), and most importantly to create new regulations. If a business is applying for a business license but does not have the required professional license or good standing to do the work they purport to do – that business license needs to be withheld. Free newspapers should understand their civil liability to advertise only information that is accurate and not fraudulent. Criminal charges, where currently dissuaded under the legislative regime, could be implemented.

Third, we need to figure out the language thing immediately. I would almost purport that all new immigrants be required as part of their permanent resident process to enroll in government sponsored English programs. While it is a positive step that many immigration programs now require a level of basic competence, more must be done. There also need to be more regulators involved in the immigration system who also speak third-languages or hire those who speak third languages and can investigate into wrong-doing. One of the major challenges with the recent massive fraud investigations was that it took several years to get together, during which time more victims continued to add to the cycle of fraud.

I think if these three steps are taken – along with the appropriate firm but fair messaging that the Government is capable of promoting, we can better insulate those who are unwilling victims of fraud from those who are its true perpetrators.

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Jan 9, 2018

Expect 2018 to Be the Year of the “Yes, No, Maybe (After a Delayed While)” in Canadian Immigration

Presa_de_decissions

I have noticed a bit of a trend in immigration over the past half year one that I believe will set the stage for 2018.

There are some applications – straight-forward Express Entry applications (for example) and on the province-side, certain nomination applications that are going fast. Incredibly fast.  I recently had a few Express Entry’s take less than a month when the going rate for 80% is supposed to be six months. My colleagues have had self-employed applications go through in months. Some extensions are being granted in weeks where they previously took months.

There are also applications that will inevitably be “no’d” – returned to sender per R.10 IRPR or S.13 of the Citizenship Act. Applications where seemingly minute details of questionable “legal requirement” are deemed to necessitate the return of Applications. I am already telling my clients (and those self-rep consults that come chat with me) to be extra careful. Dot the i’s, cross the t’s – include specific checklists, flag the fee receipts, include the postal codes, and do whatever you can to ensure the application does not get rejected (especially in the case of something like Express Entry). Refusals will also be quicker on some cases, especially where visa offices have low acceptance rates and the demand for the category (e.g. international student will be higher). Expect temporary resident refusal reasons to leave you scratching your head and learning to file judicial reviews.

The most worrisome pile is perhaps the “maybe pile” – the Citizenship applications missing strong proof of residency and the PR cards that enter what we deem in the industry as the “immigration black hole.” There are applications that I have seen where because an individual barely met the residency obligation (or even met it only by a month), or otherwise claimed an exemption that will sit and linger for months, if not years. I have a file in front of me that has been in processing three years without so much as a person having counted the days or assessed the eligibility of the exemption requested. To avoid the maybe pile, individuals may start choosing to buffer applications with additional days spent in Canada, advanced gathering of exit/entry records, and front-end addressing of back end consequences.

On the immigration appeals side, the lack of sitting members have facilitated a very fast, transparent, and excellent Alternative Dispute Resolution system that many applicants have utilized. However, the transitions from ADR to re-processing, and the wait for those files for members to hear their cases will test patience, no doubt.

Expect more historically straight forward applications – such as PGWPs and self-employed/Quebec investor to hit the maybe pile. There will be more due diligence on certain clients and Immigration will utilize more tools in their tool box – compliance updates from schools, open source intelligence on asset holders in countries such as China, to dig up a little more dirt. Expect misrepresentation to continue to be pursued, sometimes for cases where materiality may be nominal but there, in some form, all the same.

Other quick thoughts…..

Atlantic Canada – will become a hots pot immigration destination. PNPs will continue to flourish. Immigration will eventually have to rethink the current process of whether LMIAs and the Employer Compliance Regime are really serving the needs of local Canadian small businesses and their employees, who may not have the resources of corporate powerhouses and may require a little patience rather than their picking off as lower hanging fruit for non-compliance and other immigration violations. International students will be the education version, with their “employers” – DLIs, in a similar position – jockeying for credibility and strengthened compliance systems.

Information sharing – between administrative bodies – will turn from a consent question to a norm. Threatening to delay some applications and in other reveal webs of possible deceit or planning that traditionally would have been considered smart. Honesty – and hopefully the ability to correct mistakes uncovered prior to Government intervention by way of a 5-year bar or the writing of an s.44 report, hopefully will become the norm.

2018 has officially started kicking into high gear. Cases have started piling up. Time to strap on the boots (dress shoes in my case today), put on my glasses (I’m blind without them) and start reviewing some paperwork and make some submissions.

I’m going to Federal Court (solo) for the first time (my streak of consents officially ends now) next week on an interesting procedural fairness case. Here’s to making better law and policy in 2018!

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Jan 2, 2018

Why I disagree with CBSA’s approach actioning s.40 IRPA misrepresentation as s.29(2) IRPA failure to comply for not actively pursuing studies

I have seen a worrying trend of clients show up with the following fact scenario.

“X went to U.S. for a day trip. X is referred to secondary at the Port of Entry (“POE”) after attempting to enter on a study permit. There is a misrepresentation or misrepresented statements uncovered. Canada Border Services Agency (“CBSA”) decides rather than to defer examination or refer to inland for investigation that they will issue a removal order on the spot, seizes the study permit and passport, and asks for a plane ticket showing departure within X days.”

A foreign national (e.g. study permit holder) is required to show that they are not inadmissible in order to gain entry into Canada. The burden is on them as the entry-seeker to prove this. The benefit for CBSA of issuing a specified removal order (on their own volition and through their own determination processes) instead of pursuing misrepresentation (which requires a referral to Immigration Division and a hearing (on the facts) to make such an order). This distinction is found in R.228 and R. 229 of the Immigration and Refugee Protections Regulations (IRPR). I have highlighted in blue the relevant subsections.

DIVISION 2 Specified Removal Order

Subsection 44(2) of the Act — foreign nationals

  • 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

    • (a) if the foreign national is inadmissible under paragraph 36(1)(a) or (2)(a) of the Act on grounds of serious criminality or criminality, a deportation order;

    • (b) if the foreign national is inadmissible under paragraph 40(1)(c) of the Act on grounds of misrepresentation, a deportation order;

    • (b.1) if the foreign national is inadmissible under subsection 40.1(1) of the Act on grounds of the cessation of refugee protection, a departure order;

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

      • (i) failing to appear for further examination or an admissibility hearing under Part 1 of the Act, an exclusion order,

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

      • (iii) failing to establish that they hold the visa or other document as required under section 20 of the Act, an exclusion order,

      • (iv) failing to leave Canada by the end of the period authorized for their stay as required by subsection 29(2) of the Act, an exclusion order,

      • (v) failing to comply with subsection 29(2) of the Act as a result of non-compliance with any condition set out in section 184 or subsection 220.1(1), an exclusion order, or

      • (vi) failing to comply with the requirement under subsection 20(1.1) of the Act to not seek to enter or remain in Canada as a temporary resident while being the subject of a declaration made under subsection 22.1(1) of the Act, an exclusion order;

    • (d) subject to paragraph (e), if the foreign national is inadmissible under section 42 of the Act on grounds of an inadmissible family member, the same removal order as was made in respect of the inadmissible family member; and

    • )e) if the foreign national is inadmissible on grounds of an inadmissible family member in accordance with paragraph 42(2)(a) of the Act, a deportation order.

  • Paragraph 45(d) of the Act — applicable removal order

    • 229 (1) For the purposes of paragraph 45(d) of the Act, the applicable removal order to be made by the Immigration Division against a person is

      • (a) a deportation order, if they are inadmissible under subsection 34(1) of the Act on security grounds;

      • (b) a deportation order, if they are inadmissible under subsection 35(1) of the Act on grounds of violating human or international rights;

      • (c) a deportation order, in the case of a permanent resident inadmissible under subsection 36(1) of the Act on grounds of serious criminality or a foreign national inadmissible under paragraph 36(1)(b) or (c) of the Act on grounds of serious criminality;

      • (d) a deportation order, if they are inadmissible under paragraph 36(2)(b), (c) or (d) of the Act on grounds of criminality;

      • (e) a deportation order, if they are inadmissible under subsection 37(1) of the Act on grounds of organized criminality;

      • (f) an exclusion order, if they are inadmissible under subsection 38(1) of the Act on health grounds, unless subsection (2) or (3) applies;

      • (g) an exclusion order, if they are inadmissible under section 39 of the Act for financial reasons, unless subsection (2) or (3) applies;

      • (h) an exclusion order, if they are inadmissible under paragraph 40(1)(a) or (b) of the Act for misrepresentation, unless subsection (3) applies;

      • (i) a deportation order, if they are inadmissible under paragraph 40(1)(d) of the Act for misrepresentation;

      • (j) an exclusion order, if they are inadmissible under paragraph 41(a) of the Act for failing to comply with the requirement to appear for examination, unless subsection (2) or (3) applies;

      • (k) a departure order, if they are inadmissible under paragraph 41(b) of the Act;

      • (l) an exclusion order, if they are inadmissible under paragraph 41(a) of the Act for failing to establish that they have come to Canada in order to establish permanent residence, unless subsection (3) applies;

      • (m) an exclusion order, if they are inadmissible under paragraph 41(a) of the Act for failing to establish that they will leave Canada by the end of the period authorized for their stay, unless subsection (2) applies; and

      • (n) an exclusion order, if they are inadmissible under paragraph 41(a) of the Act for any other failure to comply with the Act, unless subsection (2) or (3) applies.

There are also some cases where CBSA officers are pursuing a s.29(2) inadmissibility  in order to do a bit of a favour for the international student – where they may be victimized by the rampant fraud in the international student market right now or made an honest mistake. While this is commendable, I think the inconsistency under law does pose a risk where individuals with less egregious violations are seeing five-year bans on entry.

However, some of the duration and gaps that the actively-pursuing studies requirement (R.220.1 IRPR) has been applied to (such as one month or a winter break as I have seen in a couple cases now).

I have always said this, but I think the penalty for international students not studying (possibly throwing away their PGWP eligibility) should introduce at least a little leniency into the issue with study gaps (which invariably arise during the course of one’s studies – especially where the person may also be studying while awaiting processing on a PR application or with a boyfriend and girlfriend who is a Canadian citizen or PR).I have also seen in more than a few cases now that the exceptions under R.220.1(3) IRPR have not been adequately canvassed in the brief examinations that are leading to these decisions.

I somewhat hesitate to say this (as I know CBSA does allow some individuals to do this in order to avoid the more serious penalty), but they should be pursuing the misrepresentation as is rather than the not actively-pursuing studies violation. Should there be factors down the road that support it, there could also be the pursuing of the s.29(2) IRPA at a later time or the allowing of the individual to withdraw their entry/cancellation of their visa. However, misrepresentation – particular in the student context is too important of a matter that must be pursued.

Furthermore, having border officer’s remove international students without adequate time investigating their personal situations and even contacting the Designated-Learning Institution (“DLI”) or properly setting out the record makes for the possibility of decisions that are not grounded in fact nor law. There are many considerations, from the aforementioned exception clauses, to DLI’s own policies, to even whether the person was in Canada or overseas during the impugned period.

I ultimately think that the assessment processes for “not-actively pursuing studies” is more akin to an s.41(a) IRPA contravention such as work or study without authorization. I appreciate the legislative intention on allowing Officer’s to remove students not actively-pursuing studies but I think right now it has already gone too far and inconsistent with the original parliamentary intention.

The alternative is for the government to introduce a procedural fairness regime, such as the one it had initially contemplated, that requires CBSA to defer examination and/or refer the matter to IRCC for further action. Another possibility is for IRCC to amend (through interpretation and instruction), R. 222 so that this provisions applies to students who have left school (but stayed in Canada) in the middle of their program . Furthermore, individuals with Canadian spouses and common-law partners (not covered under the exceptions under R. 220.1 and R.222) should be covered for consistency.

I said it before and I will say it again – 2018 will be another year where international students will really have to take proactive (not such reactive) efforts to ensure they know the conditions of their study permit and are being smart about traveling outside of Canada during their studies and engaging in activities (such as work) while being a student.

I am hopeful IRCC will publish some clear program delivery instructions so that schools and students will be on the same page, without unscrupulous agents or incompetent and unlicensed advisors incorrectly coaching the student to their removal from Canada.

 

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Jan 2, 2018

Why Staying in Canada During Your Immigration Appeal Is a Crucial Thing

I have been seeing several clients recently who ask a question about whether they should be (whether in Canada or their home country) during the process of an Immigration Appeal. This is in the context of the fact appeals are taking in some cases several years to be heard. My advice is always the same: “if you want to maximize the chances of being successful – stay in Canada.”

I want to take a little look at discretionary factors and how simply leaving Canada or breaking off your establishment can lead to several negative inferences in the weighing process. In a majority of these cases (especially misrepresentation cases and most residency obligation cases) the fact that the removal order was legally valid will be difficult to challenge. Entire hopes are hinged on whether an Immigration Appeal Division member decides to exercise discretionary jurisdiction after hearing your submissions as the Applicant.

As best summarized in the Supreme Court of Canada Decision in Canada (Citizenship and Immigration) v. Khosa, [2009] 1 SCR 339, 2009 SCC 12 (CanLII), <http://canlii.ca/t/22mvz> at paragraph 7, the Immigration Appeal Division’s jurisdiction is based on the Ribic and Chieu factors.

“…discretionary jurisdiction to grant “special relief” on humanitarian and compassionate grounds under s. 67(1)(c) of the IRPA should be exercised in light of the factors adopted in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), and endorsed by this Court in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3 (CanLII), [2002] 1 S.C.R. 84, at paras. 40, 41 and 90, namely:

(1)               the seriousness of the offence leading to the removal order;

(2)               the possibility of rehabilitation;

(3)               the length of time spent, and the degree to which the individual facing removal is established, in Canada;

(4)               the family and community support available to the individual facing removal;

(5)               the family in Canada and the dislocation to the family that removal would cause; and

(6)               the degree of hardship that would be caused to the individual facing removal to his country of nationality.

If we look at these factors carefully, there is one binding issue – Canada as a home base. It pains me to see so many individuals who are in appeal processes misinformed to the prospects of winning an appeal at the IAD while they are abroad.

I can see why some cases make staying outside Canada a requirement – minor children who are born abroad and who cannot obtain visas to come, sick relatives, and in some cases an economic reliance on another job in another country.

However, for those who are not in Canada significantly during the time of their appeal in addition to the time they were not in Canada during the course of the activity that rendered them inadmissible, the balance of the factors becomes challenged.

Factors (1) and (2) don’t necessary touch on Canada or establishment but given a violation occurred leading to the removal order and “rehabilitation” likely involves proving suitability to Canadian society or any active steps that may have been taken to remedy the wrong, it is difficult to see how staying outside Canada could help.

Factor (3) hits the establishment item straight on the head.  Length of time spent will be considered a negative factor as well establishment in Canada if someone decides to book it abroad.

Factor (4) will make issues difficult when you ask those family and friends for support and they will ultimately have to indicate in their letters why you are not in Canada and how you have the other positive factors (such as establishment). Leaving Canada, you will also likely break a lot of the key relationships that make someone who themselves might be sensitive to making representations to the government and exposing their name (and possibly their own immigration status) to some outside scrutiny.

Factor (5) will be negative if you (and your spouse – regardless of their status may be outside Canada. True, if they are a citizen, you may be able to fall under one of the exemptions to the requirement to physically reside in Canada. However, in the context of discretionary jurisdiction this will not add any points and in fact hurt you.

Factory (6) if you move yourself and your family overseas, have an abode, start a job, and rely on another country to support you – it will be difficult to turn around at an Immigration Appeal Division hearing and suddenly say this is a source of hardship.

The reality of the situation is, if you leave Canada – and exercise that discretion, and IAD member will likely turn around and exercise discretion to do you in on possibly all 6 factors. One of the common things cited by IAD members is alternatives to allowing you to maintain your status. For someone who simply breaches the residency obligation this may be a visa in one year and for someone who misrepresents themselves but has a spouse maybe this is sponsorship back with an Authorization to Return to Canada (although the timing of this, especially overseas, is anybody’s guess).

Some advisors will tell you to keep living life and make no changes. I would suggest that it make their advice (later on) for you to abandon the appeal easier and creates less work for them. Facing a possible removal order and later appeal is a sign (regardless of whether a member deems them after the fact actions) to start taking positive actions to bind yourself and your family in Canada.

Do yourself a favour in the appeal process and (if possible) stay in Canada to create the best discretionary conditions for your success at hearing.

 

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Dec 22, 2017

A Little Winter Note of Gratitude – Thank You For Being Part of My 2017

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Dear Clients/Friends/Colleagues/Readers/Supporters/Mentors:

After a very eventful 2016 where too many things happened, 2017 served certainly as a nice respite.

Practice-wise it was a busy one.

  • I exceeded the practice volume targets I set for myself and by changing my model a little from “applying for clients” to “coaching clients to submit their applications” – my solicitor’s practice was able to touch even more clients. Litigation-wise, there were a lot of good stories in 2017. Files that been in processing for multiple years or had multiple previous refusals that we were able to turn around. Several families reunited or with decisions that will soon see them reunite.
  • My first gratitude goes to all of those clients (current and past) that I came into contact with in 2017. I thank you for putting your trust and faith in me and I hope that I imparted a little of my passion for helping others in you and your file. Regardless of if we were successful, not successful, or on the pathway to success, I hope I gave you someone that stood up and stood in when you needed. On those occasions, I fell short I ask for your grace and patience and promise to do better.
  • On that transitory note, I thank you to all my lawyer colleagues and staff at LR. Our Firm went through some major changes but to see everybody growing and building their practices and so invested into helping our clients – be them corporate or individual – it is truly fantastic. TL – my assistant – your value to my practice I do not think I can put into words. You have my back always and I appreciate that so much.
  • This year also introduced me to several very key mentors. I won’t name them (for fear of forgetting important names) but those call backs to help me walk through legal questions, those coffee chats where you provide your insights on my practice, and the time and care you have put into me has not gone unnoticed. Thank you and I hope that the new year will offer us chance to collaborate eeven further.

Outside of work, I was grateful to have the opportunity to serve the community a little in various capacities.

  • The Cultural Communities Advisory Committee (“CCAC”) of the City of Vancouver which I had the unique opportunity to become Chair of – I thank you. You are all so incredible – and your efforts have not gone unnoticed. We have made some progress (although we know we can and should do more). We have been part of important initiatives and our projects are sure to make a mark in 2018. I hope you all have a restful holidays and come back even more motivated.
  • The CBABC Equality and Diversity Committee lead by our fearless leader, Tina – thank you. You are a group of inspiring lawyers. Our monthly meetings and subcommittee meetings are times where I truly learn from all your experiences. I cannot wait to tackle some of the issues around Lawyers with Disability, Truth and Reconciliation, and Diversity in Firms and on the Judiciary we have planned for 2018.
  • The team at FACLBC – although I stepped off the board, the opportunity I had truly gave me my legal wings. You are the one group of lawyers/students I will always call family. Thank you for hosting such incredible events and introducing me to the future of Asian-Canadian leadership (not only just legal leadership). We’re in good hands.
  • The past two months teaching at Ashton have been incredible. I feel so invested in the journey of my students and they bring me so much light in the depth of winter. Thank you for caring, thank you for learning from me, and thank you for putting your efforts into the studies making my job of teaching a little easier. I truly mean this when I state that we have learned together and I continue to learn from you each every day.

I would be remiss not to mention my friends and family who have been there to guide me – especially emotionally and spiritually – through a rebuild year. I am gracious to Auntie, Uncle, Dav, Steve, Bhabs, Chantelle, Shami, and the little ones Jiya and Nia for always being a second family to me and always being there to celebrate milestones and successes. My mother and little sister, for opening our family home to our return and reminding me to keep a focus on health and balance. Last but not least, my other – my partner-in crime, the Bonnie to my Clyde, Olivia for her endless support. She is my rock and this year having seen her grow into an HR professional has been the single biggest accomplishment for our family in 2017. The future is so bright for her. I thank her employers, Alliance Maintenance Ltd. as well for being such incredible mentors and a fantastic business to work for.

Finally, a year end message would not be complete without putting some hopes for 2018. While my deepest, privatest hopes I will keep for my capsuled New Year’s Resolution (which Olivia and I share with one of my best friends from law school, Afsoun – ever year) – for 2018 – I can certainly share a few of them.

1) I want to go back to the roots of helping people through their difficult immigration situations. 2017 saw me focus a little too much about doing more through being busier. 2018 – I will look more inward, be more thorough, and learning to be a strong litigator. Those areas I initially feared I now feel stronger about. I want to be braver lawyer.

2) I want to start getting back into more writing. I will write more blog posts and hopefully start working on the many novel, poetry, etc. ideas I have brewing. I cannot allow myself to lose my creative edge.

3) I will get back in shape and actually go to the Gym when scheduled in my calendar. I thank Joe, my amazing trainer, for pushing me but now its on me to prove that I can sustain this and that physically I can do more than I have demonstrated.

4) I will be a better mentor and take better ownership over my commitments. This is self-descriptive but again – casting too wide a net with too many holes allows the little fish to swim away. I pray that I can find my own little area of the ocean cast my own little net and make sure I don’t forget those others that fish with me – while keeping the sustainable harvest of course 🙂

5) I will learn to relax and disconnect. Easier said than done but for me probably the most important.

With love and hope,

Will

 

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Dec 22, 2017

Looking Back at Law School…. Five Things to Think About

I realize I am writing this piece on the coattails of two of my incredible mentors who have done so earlier this year. Yet, with so many individuals asking me and emailing me about their pending decisions/LSAT woes/life choices it only make sense to address it here.

Before you start, check out the pieces of my mentors, ironically Steve and Stephen who wrote the pieces below:

1) Steve Meurrens’s very insightful look at pieces of advice for law students http://meurrensonimmigration.com/10-pieces-of-advice-before-entering-first-year/

 

2) Stephen Ngo’s fantastic piece

Alumni perspective – Steven Ngo

Both of them provide very sage advice in their piece, from – keeping open minds (Steve M) to truths on reality

Without further ado, here are five things that I would think about. You will note that I am not calling this “advice.” Advice necessarily presumes that I did something right or wrong and I have some lessons to impart because of this. I don’t believe most things in my life, anyway, to be so clearly defined. If they are, I am still searching through the dictionary on this one.

1. “What Got You Here Will Get You Out of Here” – then second-year colleague, LK

When I started law school, I had an older colleague at this time – I’ll call her “LK” who was different than all the other mentors. While most older students approached us with their war stories and exam tips, LK kind of showed that kind of quiet, confidence from afar. I remember eventually having an opportunity to chat with her. The only one real thing she said to me was – “Look, there are a lot of people who have gotten here through many different paths. Everybody learns a different way. Everybody will succeed a different way. Remember, what got you here will get you out of here.”

It was a lesson that I should have heeded earlier. My initial motivation was to pursue international law (I had applied to a Masters-IR joint program but abandoned the application at the last minute). I ended up abandoning much of the advice LK provided in pursuit of the big firm pathway. I wanted it because it was considered elite, coveted, and unknown when it fact it wasn’t aligned with who I was and what would have made more sense .

I am grateful that eventually the path led me to going back to pursue my passion for culture, people, and histories as an immigration lawyer. I am also able to advocate on behalf of those individuals who traditionally have been dis-empowered. I use this arsenal of lived experiences and past experiences every day in my work assisting new and potential immigrants.

Too many people I know abandoned elements that made them uniquely themselves. Those that did not – are pursuing (if not as a primary job) efforts in niche areas or side hustles that supplement and/or become their day jobs.

2. Law Doesn’t Kill Creativity, You Do

There’s a misnomer that law school turns everyone into robots first, a pre-evolution stage of the billable robot we later become. Looking back for me, law school was actually a time of immense creativity. I was involved and captained a volleyball called “Denning Digs Dis”, played floor hockey, spent hours observing life in a cute Korean coffee shop, and learning Indian card games.

While first-year black letter law is a required rite of passage, it is only to build the foundation of the house. Second and third year is a time for designing and sprucing the space into something more liveable. Those of my colleagues that did internships/externships, took creative opportunities starting law clubs, went on overseas internships are some of the most successful today.

For myself, taking an optional course in project management was one of those things that really made a difference I felt. I learned about an entirely new area and how it could combine itself into law. I studied what some of the Firms are doing in this regard. While I don’t use it enough (admittedly still), the idea of treating a file as a project and engaging the end-user in the process and the product were lessons that have stayed with me. I very much treat my immigration applications, especially appeals, not as a commodity to be delivered but a game plan requiring various moving pieces to align. There is so much room to be creative within a system that rewards this over just the pure time spent and billed.

Creativity is an understated part of my work. Often times the solutions I come up for clients and strategies I plan out are now presented on immigration websites or discussed openly. My creativity draws me to look at the law as not confined space but one where corners can be navigated.

3. If You Leave Law School More Humble(d), You’ve Succeeded

I was humbled by law school. Like many of you preparing to go, I got through undergrad – a few bird courses. I received some good grades. While I stumbled during the LSAT, I thought that I could write my way to some semi-decent grades.

It couldn’t be further from the truth. I realized that I struggled to synthesize large amounts of information into small principles. Looking back at my undergraduate studies that were in history, I was doing the entirely opposite thing – taking smaller concepts or unknown events and making bigger statements.

In addition to exams, I also ended up being humbled by the journey of being in a class with incredibly talented and smart individuals. There were more than a few occasions that I really had to throw cold water on my face to snap out of thinking I did not belong. This was especially true when some of my colleagues had twenty-years of professional work experiences, graduate degrees from world-class universities, and many of them had even held previous jobs as engineers and consultants with top global companies. I was a wide-eyed youngster who’s resume consisted of working front desk at sport and recreation facilities. I was a nobody but eventually I learned to embrace this as a challenge rather than a weakness.

Through the process, I learned that law was ultimately a beast that I did not tame in my three years but that it was the actual taming of the beast (process) that was the work we would be doing.

Through law I also learned to accept myself – embrace my stronger characteristics but also recognize those weaker ones. In my day to day practice today, I am still aware of these and they keep me grounded and focused. In fact, right now I would argue that the biggest plague for younger lawyers today is not having too narrow of a focus but trying to overextend themselves and grow too quick for their current capacities. The same could be said about start-up firms.

4. Understanding Power Structures, Politics, and Being a Professional Through All Of It

I was at Heenan Blaikie during the downfall. I recently had a chance to read the book written by former co-managing partner, Norm Bacal on the events.

Starting from law school, I started to realize that certain privilege was access. There were certain students who had “in’s.” Some made those “in’s” very obvious. A majority of them hid it in their day to day. I was immune to it all. I did not know any lawyers.

There is a power structure. There is a bamboo ceiling. There are politics. No matter how you want to dice it up, there will always be individuals on the outside looking in within the legal system. In law school, my reaction (admittedly a mistake) was to try and fit in. I was determined to get to a Bay Street (type) firm. I was determined to be able to chat about yachts, boat trips, and golf scores. I was determined to know which of the five forks and spoons to use, even though I grew up utilizing chopsticks.

When HB fell, the reality was the writing was on the wall for first (the students), second those lawyer’s that did not have the business case to be there, and ultimately there were a core set of individuals who made it through based on existing relationships, mentorships, and connections.

HB was a wake up call that (1) I didn’t have any connections; and (2) that I needed to start making those connections for myself.

I did not take being let go and having my articles cancelled  professionally. I struggled. I cried (I can admit this now). I had frantic calls. Looking back I overreacted. I was a self-absorbed law student who felt that I could control everything.

There are structures, power structures, politics – ultimately beyond your control. You can either let these things consume you or you can keep your head up eye – take losses like future wins, and push through.

5. A “No” Is a Pathway to a Future “Yes” – if you are Grateful for the No

Even today, I learn more from failed applications and difficult cases than I do from cases that are successful. I wish in law school I had spent more time seeking  follow-up from my exams and assignments rather than just caring about the grade.

I didn’t see it that way then but the low LSAT scores, rejected law school admissions, rejected transfer applications after first year, initial OCI rejections, and eventually the HB meltdown have all made me a more realistic lawyer.

What law firms and clients want these days is not someone who has never failed but someone who can pick up something in a very difficult situation and try your best to turn it around in a confident and resilient way. Law school will threaten to turn you from a process-based person to a solely-results based one, so you will need to do everything you can to balance the scales the other way.

Embrace the failures – embrace the lessons learned from making mistakes. These will be the toolkit for your tomorrow.

Finally, a bonus piece to consider….. I remember a fellow student sent me this back in the day. The firm (not HB) no longer […]

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Dec 20, 2017

Want to Try My Immigration Quiz on Entry to Canada/Inadmissibility?

I thought it would be fun to share the quiz I had my brilliant Ashton students write. Part creative writing part immigration. Enjoy! I will try and post an answer key soon 😉

Mr. Chow and His Friends Have a Tough Day at the Border

 Mr. Orlando Chow (“Mr. Chow”) is a 35-year old foreign national and citizen of Hong Kong. He is travelling to Canada with his two friends, Juan Jose (“Mr. Jose”) a permanent resident of Canada and citizen of Mexico and Pierre Lacroix (“Mr. Lacroix”), another foreign national of France.

They are returning by plane from a month-long trip to Vegas where they had a good time, some would say too much of a good time. Upon entry into Canada, their glazed looks and alcohol in the breath led to a referral to secondary for all three.

Officer Bruce Boulder (“Officer Boulder”) is a two-year vet of the Canada Border Services Agency (“CBSA”) working secondary examination at Vancouver Airport (“YVR”).

Officer Boulder greets the three of them at the border. Greet may not be the best descriptor. He is not having a good day. His boss told him that he had been making one too many mistakes. Recently, a Bulgarian individual he had let into Canada had ended up robbing a local convenience store and making headlines. Apparently, he had a criminal history that Officer Boulder missed in his review. Officer Boulder, being the consummate professional that he is, was not going to screw up one more time.

Orlando Chow, twirls his gold chain as he comes up to the border. “Dogg, you can’t being do this to me Officer.” You have to prove that I am not allowed into Canada.” Your primary guy, this Rookie, said something about me proving I am not inadmissible. Get him some training or something. He is making no sense.

 Question 1: Is Officer Boulder’s colleague right that the burden of proof is on Mr. Chow and his cronies to show that they are not inadmissible to Canada.

TRUE or        FALSE (1 mark)

 

Officer Boulder checks his computer and to his surprise something pops up. Mr. Jose, during a binge drinking session apparently had received a misdemeanor Driving Under the Influence (“DUI”) charge while on the trip to Vegas. Global Case Management System (“GCMS”) never lies. Officer Boulder asks to see Mr. Jose’s bags. A bag of soiled underwear revealed a white powder of the non-flour variety. The drug test machine showed it was a 100% match for cocaine. Caught red-handed.

Officer Boulder places handcuffs on Mr. Jose and orders him against the wall. He calls his supervisor on the intercom to come as it looked like a serious issue. “Boss, I think I got one – he’s got a charge on him from Las Vegas. I’m thinking s.36(2) – it doesn’t matter what the punishment is – I know this is a hybrid offense and he’s indictable. I have a reasonable ground to believe he committed an offense outside of Canada– this is a home run.” “But I am a permanent resident!” Mr. Jose yells from the wall trying to get Officer Boulder’s attention to no avail.

Question 2: Officer Boulder is right about the standard of proof and section of IRPA that Mr. Jose is inadmissible under.

TRUE or        FALSE (1 mark)

 

Officer Boulder then turns his attention to Mr. Lacroix. Officer Boulder notices on his GCMS check that Mr. Lacroix had recently obtained an eTA to fly to Canada from France. He had indicated no previous history of detention, arrests, or refusals. Before Officer Boulder could even begin to ask, Mr. Lacroix smirks, his Parisian accent starting to flow through: “You have nothing on me monsieur!” Listen mon ami, this is not my first rodeo. I remember in zee Australia. They had me in zee handcuffs and I called my lawyer and he comes in with paperwork storming in and zey let me go on the spot. We actually end (sic) up suing them and I got enough money to allow me to stay in Australia for two years and not work a single day (before, you know I had to do that under the table thing). Anyways, I am done talking to you guys. You aren’t asking me another questions – I need my lawyer here now”

 Question 3: Mr. Lacroix has the right to counsel at this stage of secondary questioning even though he has not been detained.

TRUE or        FALSE (1 mark)

 

Officer Boulder tells Mr. Lacroix that on the balance of probabilities he has reason to believe that Mr. Lacroix has misrepresented himself. Officer Boulder’s boss, Superintendent Jenny Jones (Superintendent Jones) shows up on the scene. “What is wrong” asks Superintendent Jones. “Zee Officer thinks I misrepresented myself because I wrote that I had never been arrested before on my application for an eTA” answered Mr. Lacroix, noticeable sweat pores started emerging on his forehead. “That was done by my travel agent. Not my fault at all. I cannot be found responsible for misrepresentation as I never intended to answer that.”

Question 4: Misrepresentation under A40 IRPA requires intent therefore Mr. Lacroix is right. 

TRUE or        FALSE (1 mark)

 

Superintendent Jones tells Officer Boulder that he will interview both Mr. Jose and Mr. Lacroix (given the severity of their situations) and that Officer Boulder should talk to Mr. Chow to make sure he had met his conditions for entry (you know, the one from Question 1). IRCC had flagged Mr. Chow for CBSA to ask a few questions. It was easier to question him this way.

Mr. Chow tells Officer Boulder that he did indeed have an application in for permanent residence as a sponsored spouse and that everything will be okay once he is a permanent resident of Canada and says that given he had done nothing wrong. Mr. Chow told the Officer that an American friend of his, Lily Chow, had done the same thing in sponsoring her spouse (or was it common-law partner?). The Officer asks if he was aware that his Canadian wife had received a procedural fairness letter from IRCC about three issues. First, there were concerns that his relationship was not genuine. Second, there was a concern that there was a financial inadmissibility concern due to his wife’s disability (she was a paraplegic and currently receiving disability payments as the source of her living expenses). Finally, there was issues with his daughter (remember not her daughter)’s autism being an excessive demand on Canadian society. His daughter was seven and also born in Hong Kong to his ex-partner. He had met his Canadian wife online before they arranged to see each other in Taiwan. A week later and they were engaged to be married.

Officer Boulder remembers his recent training session and thinks to himself. If Mr. Chow’s relationship is not genuine, the financial inadmissibility issue does not even matter to the appeal division as he will found not to be a family member.

Question 5: Does Officer Boulder remember correctly that if the relationship is not genuine, there is no need for an appeal division to consider financial inadmissibility?

 TRUE or        FALSE (1 mark)

 

Officer Boulder grabs his laptop out and searches “Orlando Chow” just to see who he was dealing with. He sees a relatively sketchy website with information suggesting Mr. Chow was a member of the Triads – Canadian chapter. “This is enough. I need to only prove this only on a reasonable grounds to believe. S.37 – Organized Crime. I got this. Or was it balance of probabilities? What does section 33 say again?

Question 6: Is balance of probabilities the standard of proof for a finding of organized criminality?

 TRUE             or        FALSE (1 mark)

 

Officer Boulder decides to make a note to send this issue to inland enforcement but not to action it now. As he writes, Mr. Chow, who continues to read the letter setting out how his wife’s inability to prove care and support was being challenged. “This letter is BS – listen my wife can sponsor me.” Mr. Chow shouts. “I know, my lawyer told me that a Canadian sponsor can receive disability payments – there’s an exemption for this.” My wife’s disability has nothing to do with me. I can make $0 dollars for all that matters. Plus, I have a job lined up in a motorbike shop. I even have a contract to start once my open work permit arrives. Look” Mr. Chow provides a one page letter with two lines. A faint electronic signature can be found on the page. “Juan Jose.”

Question 7: Given his wife is eligible as a sponsor, there is no requirement for Mr. Chow to have anything to demonstrate that he is financially admissible other than an employment letter.

TRUE  or       FALSE (1 mark)

 

Mr. Chow then reads the section about his daughter’s condition. This is ridiculous – absolutely ridiculous… how can there be an excess demand on social services. I have an uncle in Hong Kong who is a millionaire. He can just give me some money and we can pay for it. No problem. This “mitigation plan” will be easy to prepare.

Officer Boulder responds: “Clearly you haven’t read the case law in this area, money does not matter. Your plan does not matter! The Officer does not even have to look at it in the context of social services”

Question 8: Officer Boulder is right that any individualized mitigation plan that Mr. Chow comes up with in respect to social services will not matter and cannot be considered given the nature of the medical inadmissibility.

 TRUE or        FALSE (1 mark)

 

Officer Boulder asks Mr. Chow if he intends to leave Canada and that he could not intend to be a permanent resident without holding a permanent resident visa. Mr. Chow flips open his bag showing that he still owned property in Hong Kong, had an adult daughter that he still visited often and in fact was planning to visit in another 6 months. Officer Boulder realized Mr. Chow was low key about social media – his #hashtag game was not strong. Officer Boulder states: None of this is relevant. You are only allowed one intention and you made that clear with your permanent residence application.

Question 9: Is Officer Boulder right that only one intention is allowed once a permanent […]

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Dec 13, 2017

Think Twice Before You Rely on an Immigration (Even Canadian Immigration’s) Website!

Through teaching my wonderful students at Ashton, I’ve had a few practice epiphanies recently, one of which I would like to share.

Don’t Trust Everything You Read On Immigration

This starts from websites. From well-know eTA scams to even more subtle “outdated” information – you have to be careful. Forums, more often than not, are individuals with complicated/negative experiences panicking over their cases. The complexity of some of their fact scenarios and the added discretion added by various overseas processing visa offices makes these cases by no means precedents to follow. There are a lot of unauthorized representatives or even individuals who are authorized but are writing on the basis of “one or two” experiences that purport to be experts. Indeed, one of the reasons I am also being more careful about posting technical/legal blogs until I do my due diligence (and cross reference multiple sources) is I know very well what occurs on paper and in practice can often be very different.

Be Careful About Reading Immigration’s Own Website

Even Immigration’s own website is not always accurate or up to date. They are doing a much better job of client service and updates but you should be diligent. One of the issues is with updated forms. The website will often indicate the form is from March 2017 for example, but you click a few links and realize the latest version is October 2017.

Another issue is with websites providing generally “ideal” processing advice (purely policy) that is treated by Applicant’s as law. For example, the idea that an extension application needs to be extended 30 days before expiry is ideal for IRCC’s processing but can be a very poor decision if you are awaiting something (like the basis for your very extension or documents) to come through.

30 days

The other one I have a really hard time with is the issue of putting information before the officer in a follow-up after application submission.

no more information

There are many times (for example when you notice an uploading or submission mistake) or have an important update/follow-up where you will need to send a new document and hope that it gets to the Officer before they process.

I think Immigration should frankly remove/amend the above two pieces of advice because they do not align with the Act and Regs.

Immigration was quick on updating one issue after realizing a mistake it had made on it’s website. Previously, the website has suggested a post-graduate work permit holder lost the ability to work upon return from a trip outside Canada. They made a quick fix after realizing they had the wrong info.

Sometimes the information from immigration is not “wrong” per se but rather can be too broadly interpreted too broadly to the detriment of the Applicant. This is what happened in Zhang v. Canada (Citizenship and Immigration), 2016 FC 964 (CanLII), http://canlii.ca/t/h4g53 where the Applicant took a broad interpretation of the ability to study for six months upon authorized entry to cover the period of time that extended beyond the initial six month entry period. By the wording of the website, again without reference to the Act and Regs, this all sounded good and kosher. However, once those definitions were explored, it not only grounded the reasonableness of the Officer’s decision but arguably (in my opinion) made it the only reasonable decision.

Where a provision of law or a procedural fairness letter or an obscurely written website instruction causes you some doubt, my recommendation is always to go see someone.  I know it’s my overused moniker, but it is much easier to prevent a problem than to clean one up.

 

 

 

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Dec 5, 2017

Crossing Roads With Wiser Souls – (Hope on Howe Vol 1.) 

Growing up I used to play a game. A game, I will sheepishly admit that I still play to this date.

As soon as the light goes green - in fact, the split second it does - I rush to take the first step from the street corner on to the road. If I am in a car at a stoplight I press hard on the pedal as I were some Formula 1 Driver waiting for the light to turn green. I used to be a huge Greg Moore fan.

Today, I was walking along Burrard. At night. The kind of cool November night that you are grateful for - no rain for the first time in was seems like an eternity. I am exhausted by the late minutes of Monday monotony.  Head swimming with too much commotion and perhaps not enough emotion. The high of a great day coupled with the reality of not enough done. Again. Just like every other day.

As I step into the gates ready to play my little game again, I hear two voices. Voices of wisdom and sage, older voices, but also one a youthful exuberance of a type of conversation I rarely have anymore unless a phone is against the side of my face. These two were playing the game with me today. I had competition.

Listening to them carefully, I watched as one figure put out their arm so the second one could use it as a railing to step off the ledge. "Thank you ma'dear" said the second silhouette, the challenges of the task ahead apparent. Slowly, slowly, slowly they made their way across the street. At this stage I was already miles ahead.

I rush forward. I miss my bed. I worry about work. The usual. Yet, I'm pre-occupied with this couple behind me. The green figure with two legs turns slowly into the red hand but the two silhouettes are still moving along solely. Easy comes as easy goes. My shoulder check tells me they've cleared my visual angle.

As I stare back and think forward, my brown dress shoes go straight into the curb as I stumble awkwardly, catching my balance at the last second and attempting to gracefully make it appear I am choreographing a routine for a local ballet house.

The two silhouettes walk past, leaving me with cellphone dangling in my hand like a rotten carrot. "You were listening to your music weren't you" one silhouette asks, shaking his head at my lack of grace. 

I try to laugh it off but the truth was my earphones were not blasting music - although for most of the day they were playing Mariah Carey's Christmas album. I was not reading my cellphone (or was I) - these lines pretty much are blurred just like if I am working or not at any given minute. 

No. I was distracted by the million lights and sounds of a busy street, in a busy city, during a busy time and a million more thoughts. Yet these two bastions of stability were thinking only of each other. Crossing the street, not in a manner that required them to do so - the so called "street-rules", but only when both of them had made it to the other side. Together.

Damn.... I thought to myself - this is where I want to be with who I want to be 40 years from now. 

Crossing roads not because of the time it takes to get to the other side but in order to get there with the right person by my side.

I picked up phone and dialed my love.

 

old-couple-crossing-road-at-traffic-lights-with-walking-stick-hyk3fr

 

hope on howe

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Dec 1, 2017

Study Permits Don’t Automatically Invalidate 90 Days After “Incomplete” Studies…. However

I’ve written previously on the way R. 222(1) of the Immigration and Refugee Protections Regulations (“IRPR”) operates with respect the invalidation of study permits. Initially, I was somewhat skeptical that a student whose studies were “incomplete” or who took a long leave could have their study permits extend beyond the 90 day period after the break.

Turns out, IRCC has been interpreting that it the study permit remains valid as per the below response obtained by ATIP.

Incomplete Studies

However, the recommendation is to “switch” your status to visitor or leave Canada so as not to violate the R.220.1(1) IRPR requirements to remain enrolled in a DLI and “actively pursue their course or program of study.”

However, this creates a further problem. A student who switches their status to visitor by way of requesting a visitor record still holds  a valid study permit – it isn’t a one to other proposition (per IRPR).

I presume the idea is that the visitor record can be provided to show that  you are in Canada as a visitor and abiding by those requirements. However, there needs to be some clarification if the student is indeed “switching to visitor” that they are given an exemption to the requirement to actively-pursue studies. It would almost make sense in this case for all students to apply for an emergency visitor record in the event of breaks in their study. This may create processing problems for IRCC if this becomes a requirement.

Of course, and as discussed as an earlier post, gaps in studies also hold major consequences for post-graduate work permit eligibility. Right now, IRCC’s position is that finding an eight-month period of continuous study within a program is not enough. That entire program must have been completed through full-time, continuous studies. The “question is still live” as to what happens when you try and utilize transferring between institutions to try and overcome previous part-time studies.

I’ve been told that immigration is still in the process of putting out instructions – on issues such PGWP. I hope the actively-pursuing studies, expiry of study permits, and exceptions for students with serious and legitimate explanations can be made clear.

Immigration – if you are reading – I’d be happy to help consult on writing these rules ;).

 

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Nov 10, 2017

Financial Sensitivity, Legal Fees, and Addressing This With Your Immigration Representative – Five Recommendations

Vancouver Is Getting Expensive. Legal Fees Are Hard to Come By

Regardless of your income bracket, Vancouver has become a difficult place to get by from a financial perspective. The Lower Mainland is seeing shelter-to-income ratio figures where close to 40-45% of homeowners spend 30% of their household income on shelter. If we factor in new  immigrants, where we know wages are lower and many expenses (international tuition, fees, etc. are higher), we could expect this number to be even higher. City of Vancouver statistics showed that in 2010, approximately 7% of all renters and 4% of all owners spent 50% to 99% of their household income on shelter – a figure I imagine has continued to climb up to today.

Increasingly, and not surprisingly,  I am seeing individuals facing extreme challenges to afford their legal fees, particularly where they do not have the support of a well-established employer willing to foot the bill.

However, their legal matters are becoming increasingly complex – including complex legal issues of procedural fairness, appeals, and judicial reviews. As immigration law has become better defined, it has become the finite details (many of which require the expertise of a professional to understand) that are the source of contentious decisions – and the ones that need to be litigated carefully.

The natural result of this are individuals seeking of free consultations, or even perhaps success fees. The quoting of a “price” has become the first, rather than the last question, where in the scope of solving legal problems its proper place is the later. Individuals are taking on their own cases now with more fervor – perhaps influenced by Immigration’s own “you can do it yourself” pitch and making some major, sometimes non-fixable, mistakes.

What has happened through this – and I have seen this in subsequent consultations and clients that I have retained – is delay, often times near fatal to their status in Canada, poorly prepared application, and ultimately the need to spend more getting out of a difficult situation than would have taken to prevent in the first place.

Five Things You Can Relay to Your Immigration Representative

I recommend all individuals now to be very proactive and very upfront when seeking legal advice. Let us, as your practitioners, know your financial situation, your budget, and your A to Z concerns. Be very cautious about paying for an entire service up-front without any stages of billing. Particularly with dealing with agents and those who are not abiding by their own professional codes of conducts, there may be more value being extracted by your money being utilized to make more money than by any actual provision of services. We saw this a lot with the investor immigration programs a few years back before they were unceremoniously dropped.This is entirely illegal for a lawyer to undertake in and one of the reasons our profession has strict trust accounting rules that watches the placement of our every penny. I usually bill about a third to a half on commencement of work and then the rest split between submission and/or a portion when the application is approved (in the context of a longer-term application).

Second – set up payment plans (if necessary). While most practitioners are unlikely to work for free before an initial payment is secured – many (myself included) are happy to break this down into monthly payments fitting your financial budget. Payment plans help ensure you are not creating more household debt by paying fees that you cannot afford upfront.

Third – don’t underestimate the value of a paid consultation – thirty minute free consultations here and there are more likely to end up being sales pitches than actually problem solvers and running into the wrong 30 minute consultation can embed incomplete and false advice that could take you on a more expensive path than you would have needed to go on. Sending your information via an online form or via emails to anonymous websites (on the other hand) are a huge sacrifice of personal privacy and more than a few individuals have ended up being victims of identity or immigration fraud in the interest of saving upfront consultation fees with an actual lawyer.

Fourth – ask us to train in addition to asking us to do. Whether it is on a set fee or an hourly fee if I see a client who is proactive in gathering their documentation and acts almost as a second legal assistant in championing their case – I will reflect this in the price that I charge. If I have to cross every i and dot every t on a form, this is something that we will have to charge extra for because our time is money. However, if you come see me in a consultation with several forms already drafted accurately and your questions and asks clearly defined in an application context, or in an appeal context if you provide me a strong factual record and your thoughts up front, it can save hours of work. A prepared client = an always more facilitate process = that will provide financial benefits.

Fifth – understand the difference between an hourly agreement and set fee agreement. Hourly agreements are not necessarily a bad thing (notwithstanding their bad public rap) especially where the work may be piecemeal or your budget may be a little tight.

However, if you want the security of the process being taken care of for you without any unforeseen work being charged – consider a set fee agreement. It is never a bad thing to share your budget and your ask in either case. Some cases are more suitable to one over the other, and an experienced practitioner will tell you which one and why and give you the option in each circumstance.

Faster and Cheaper is Not Always Better

Many of you will end up going to a website that purports to process volume and success rate at a high rate. You may end up sending a webform with your information, receiving an email from some administrator, and eventually having some “case manager” or “project manager” contact you. In many cases the more well-oiled the online marketing machine appears to be, the more careful you need to be about the process.

While it is not unheard of for some practitioners to be relatively sheltered from their clients, primarily having communication go through an assistant, I know at our Firm and through my practice that is not the case. Advice needs to come from me and instructions need to come from me. You may have a visa application or a study permit application turned in a day and realize it was so bare bones that a refusal is the only logical consequence. In that case (the basic filling out of forms) – I would even argue that you as an applicant have a better chance of doing it accurately than a visa mill trying to transfer your information from a generic client form.

I cannot tell you how many clients I have ended up helping that made a mistake of submitting a substandard initial application or eventually responding to a request letter the next day without giving proper though to content, form, or law. For some straight forwarded cases, a skeletal application may be good enough but increasingly – especially with respect to temporary residence applications from countries with more challenging local visa offices or permanent residence applications where the facts aren’t straight forward.

There’s a difference between – taking time (by delaying someone’s file) vs. taking time (by being diligent). Accuracy within a reasonable set time is very crucial and something unfortunately lacking in a majority of practices set today.

Conclusion

The legal landscape is certainly changing – and financial challenges threaten to influence consumer decisions away from the traditional trust model of legal representation to one based on speed, accuracy, and results. These three, I find anyways, are products of good work not the good work itself. Being transparent about financial challenges with your potential advisor, building rapport, and taking ownership of an immigration file as a collaborative venture is the key to success.

As always, please email me at will.tao@larlee.com if you would like to get in touch at anytime about your situation.

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Oct 19, 2017

Why I Believe Refusing Some Post-Graduate Work Permits for Lack of Full-Time Study Is Problematic

 

Post-Graduate Work Permit Refusals are on the up and up.

My colleague, Steven Meurrens, recently posted a chart showing how in 2016 the refusal rate for PGWPs began to spike:

Capture-7

Source: http://meurrensonimmigration.com/the-post-graduation-work-permit/

I don’t have the numbers but I would suggest 2017 is seeing more of the same

Some of the reasons are understandable:

  • Schools that are not eligible for PGWPs (although as I have mentioned a public, national list should be made clear);
  • Incorrect fees (failing to pay the open work permit holder fee);
  • Expired passports; and
  • Incomplete transcripts and deficient completion letters.

One of the reasons I find highly, highly problematic is the requirement that the student be in full-time studies for the entire duration of the studies as defined by the institution.

The current eligibility for PGWPs (all policy – as you may remember from my previous posts) is this:

 

 

 

Who is eligible to participate?

To obtain a work permit under the PGWPP, the applicant must meet the following requirements:

  • have a valid study permit when applying for the work permit;
  • have continuously studied full time in Canada (i.e., studies must have taken place at a Canadian educational institution) and have completed a program of study that is at least eight months in duration;
  • have completed and passed the program of study and received a written notification from the educational institution indicating that they are eligible to obtain a degree, diploma or certificate. The educational institution must be one of the following:
    • a public post-secondary institution, such as a college, trade or technical school, university or CEGEP (in Quebec);
    • a private post-secondary institution that operates under the same rules and regulations as public institutions;
    • a private secondary or post-secondary institution (in Quebec) offering qualifying programs of 900 hours or longer leading to a diploma of vocational studies (DVS) or an attestation of vocational specialization (AVS); or
    • a Canadian private institution authorized by provincial statute to confer degrees (i.e., bachelor’s degree, master’s degree, doctorate), but only if the student is enrolled in one of the programs of study leading to a degree, as authorized by the province, and not in just any program of study offered by the private institution. 

Applicants must apply for a work permit within 90 days of receiving written confirmation (e.g., an official letter or transcript) from the educational institution indicating that they have met the requirements for completing their program of study. Calculation of the 90 days begins the day the student’s final marks are issued or the day formal written notification of program completion is received, whichever comes first.

http://www.cic.gc.ca/english/resources/tools/temp/students/post-grad.asp

 

 

The June 2014 amendments added the requirement to “actively-pursue” studies and made full-time study a requirement so as to encourage international students not to unnecessarily drag out their studies and treating it as a periphery purpose of their stay in Canada.

However, the reality on the ground is that the rule has been applied in an overbroad manner. In recent cases I have seen or heard from includes students who choose to take one less course during the semester and make it up in the summer, students who are prevented from registration due to a lack of space in their required course, and finally medical leaves.

Transcript shows

Students who have been refused, do not have the current ability to restore – given the jurisprudence put out by the Federal Court. Many are stuck trying to seek other exemptions to a Labour Market Impact Assessment (a process very difficult for a recent graduate), an option through Provincial Nomination Programs, or restoration to a new study program. All of these are generally prohibitively expensive procedures filled with too much uncertainty.

Issuing Temporary Resident Permits (“TRPs”)  for 3 years, while I have seen that on some files, I believe is frankly not a solution. A TRP holder who has been in Canada for three consecutive years can apply for permanent residence even without having completed the required one-year of skilled work experience required of the Canadian Experience Class (for employed work) or the Federal Skilled Worker Program (in the event of contractual /self-employed work).

There is one thing I think all institutions need to do better. I have seen letters of completion from many reputable institutions that simply do not meet the cut from an immigration standpoint. I think some of these institutions, frankly, are opening up themselves to some liability by not having systems in place or resources available for students.

Rather than being contacted or advised that the 90 day window has started running – some of these students are stuck downloading generic letters from portals that do not set out any of the required information for a completion of studies letters.

The follow-up request for transcripts, that often are not finalized – due to the fact graduation has not occurred or that are problematic – due to unexplained or documented credit systems, are fatal to applicants.

From a non-legal perspective, it is simply bad business to take four times the tuition and provide inadequate advisory services to these students.

How should the law change then? More correctly – how should the policy change? – given the policy is itself an object of IRCC discretion perhaps more discretion could be applied to fringe cases. Perhaps a set template or form for letters of completion can be shared with eligible designated learning institutions and a section around discretion or discrepancy can be made into policy. Schools would be forced into taking some time to answering this questionnaire for their students and explaining those minor transcript discrepancies.

I think change has to happen quickly. While our international student program is expanding, the students that are being caught in the middle due to vague reasons and minor mistakes, stain some of the success. I think a fairer approach – that adds some leniency where leniency should be granted – helps all parties.

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Oct 16, 2017

I’ve Been Nominated by a Province and Need to Extend My Work Permit – Bridging Open Work Permit or Work Permit With Provincial Support Letter?

A question that I continue to get particularly from B.C. based,  provincially nominated, clients requesting assistance on extending a work permit is how to choose between selecting an open bridging work permit or a province supported closed work permit based on a work permit support letter. Authority for the province supporting a foreign worker is provided by R.204(c) of the Immigration and Refugees Protection Regulations.

IRCC’s Coming to Canada survey does not always make it clear when you are selecting that you want to apply for work permit extensions but here are at least five factors you should take into consideration before selecting on a strategy:

  1. Timing – when is IRCC going to receive your PR Application/are there any complications with your PR Application; When does your nomination expire?
  2. Paper vs. Online – this is a very important choice that can carry pros and cons on both sides;
  3. Category of Application – Are you applying as an international post-graduate? Skilled worker? Entrepreneur? – what are your commits to your employer under each and how much flexibility are you provided?
  4. Stability of your current job – Are there reasons to believe that your PNP nomination may be at risk (i.e. company having financial difficulties, discussions of downsizing, etc.). Would you possibly need to “jump ship” in order to maintain your status in Canada in such a circumstance.
  5. Is there the existence of an Express Entry PNP option – if so you may be able to fast-tracked your usual paper-based process and could be aided by having an employer-specific work permit.

I have seen several cases where individuals who would have been better off one over the other. I have seen more than a few individuals lose status because of the extension process.

This is certainly an issue I would seek legal advice on and early – to prepare a strategy earlier rather than later.

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Oct 12, 2017

Announcement: I’m Starting My Teaching Career – Ashton College

Hi Vancouver Immigration Blog Readers:

I’ve had a busy couple of weeks. Been asked to step in on advocacy a little these last two weeks which is a change. The City of Vancouver committee that I currently chair has been asked to be part of a few City initiatives involving poverty reduction and immigration – both issues with a heavy cultural lens. I’ve also had the opportunity to be a part of a CBC piece on international students and some of the mental health issues they’ve been dealing with that may be triggered by immigration (http://www.cbc.ca/news/canada/british-columbia/crying-your-guts-out-some-international-students-fear-seeking-help-for-burnout-1.4295700) and as well as a Vancouver Sun piece on international students leaving Canada after their graduation and their challenges getting qualifying employment (http://vancouversun.com/feature/how-international-students-are-filling-funding-shortfalls/chapter-4) [see esp: embedded video].

One thing I’ve learned quickly I feel as a young lawyer is the concept of balance. For this I owe a lot of peopler recent credit – Steven Meurrens (my colleague and mentor), Jeena Cho (author and meditation teacher), Andrew Verwey, Jenn Lau, and Dave Namkung just to name a few.  There were so many others (my colleagues and seniors) who have been teaching me and helping me at every corner. I always say it, but the one thing I’m grateful to God for is putting good people in my life – not for giving me any particular skills otherwise.

On that very positive note, I am pleased and humbled to announce my next major venture.

Teaching (just for a little history) runs in the Tao genetics. My great grandfather was a teacher (I’m still trying to learn more about him). His most famous pupil was the badass feminist Qiu Jin. My grandfather was a teacher. He taught second-language (English I believe it was) acquisition and wrote several books on the topic. My father was a teacher as well (student-teaching in China, UVic, and UBC – if I’m not mistaken).

In my first two and a half years of practice I’ve had the opportunity (thanks to LR, IMEDA, etc.) to get in a lot of lectures, talks, and presentations. I love it. I love sharing my passion with others.

I am going to be teaching consultants during a time of some turmoil in the consulting industry. I’ve decided I want to be part of the solution.

It is well-documented in the media that consultants have gone through some smudging and will soon (I understand) go through a bit of a wash as they discuss how to fix up the issues. Regardless of the internal conflicts that I am not privy too,  my understanding is everyone involved wants to have better, competent services provided to immigration clients and less fraud that negatively impacts all immigrants.

I am joining Ashton College because I believe in the vision that Ron and his team have put out to train immigration consultants the right way. I respectfully disagree with some of my esteemed colleagues (many of them wiser and more learned than I will ever be), who want consultants entirely removed from the immigration practice. I believe that there should be a space carved out for the competent, thoughtful, multilingual consultant who want to serve others and their communities for the interests of promoting access to justice.

As a young lawyer I can provide that passion in my classrooms so that young practitioners can see immigration law as not a business of profit, but rather one where people always come first.

I have already decided I will be a tough but fair instructor. Fighting my tendencies to be a nice guy I will make sure students come ready to learn and engage with the class materials. I am also humbled enough by my experiences so far to know I’ve only scratched the surface of immigration law and that the fact we are all learning, adapting to change, and developing our own interpretations and best practices makes our professions dynamic and awesome.  I’m excited and I’m grateful. For those interested the program is here.

Ashton – let’s do this! See you in November 🙂

AC logo_digital

 

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Oct 11, 2017

The Little Things that Send Back Spousals – Advice Blog

The December 2016 changes to the spousal sponsorship process has (to-date) served as a double-edge sword. While applications for many have sped up, for others, the process has turned into a nightmare. There have been increased cases of applications having be returned back to sender – for failing to meet the strict requirements of a complete application.

Regulation 10 of the Immigration and Refugee Protection Regulations (“IRPR”) governs when an application is complete:

Form and content of application

  • 10(1) Subject to paragraphs 28(b) to (d) and 139(1)(b), an application under these Regulations shall

    • (a) be made in writing using the form, if any, provided by the Department or, in the case of an application for a declaration of relief under subsection 42.1(1) of the Act, by the Canada Border Services Agency;

    • (b) be signed by the applicant;

    • (c) include all information and documents required by these Regulations, as well as any other evidence required by the Act;

    • (d) be accompanied by evidence of payment of the applicable fee, if any, set out in these Regulations; and

    • (e) if there is an accompanying spouse or common-law partner, identify who is the principal applicant and who is the accompanying spouse or common-law partner.

IRCC has taken a rather narrower and stricter approach in determining when an application should be sent back. It appears that where documents or content is not in-line with their instructions (regardless of whether defined in IRPR or IRPA there is a good chance the application is being returned.

The consequences of a return are heavy – it could mean loss of status (where one is basing their work permit extension on an in-Canada Spousal). At the best it’s a loss of a few months and at the worst it could lead to enforcement action if no steps are taken in time to remedy the mistakes.

In a sense, after ATIPing to learn one of the impetuses behind the changes I am not surprised. The following are excerpts from some of those ATIPs where directives were provided to IRCC officers at Case Processing Center – Mississauga (the office responsible for intake):

Capture

Capture 1

Top Issues Noticed (with Some Input from Immigration and Other Practitioners)

Recently on the Immigration Listserve there has been increasing outrage from representatives (expressed on their on files and on behalf of self-reps) on the return of applications. IRCC has acknowledged that some are returned in error. However, there are some issues that are not errors that will lead to return that should be carefully looked at:

 

  1. Providing a document issued by CRA as proof of Sponsor’s employment and if (not available) a letter in lieu – where something is missing or unavailable (for example self-employed) – it is not enough just to write n/a on the checklist and omit.
  2. Record of solemnization – this is not a legal marriage certificate. neither is any other hand-drafted document (such as a license) – wait for the official/legal certificate;
  3. Birth Certificate (particularly for dependent children) – while many countries don’t have proper processes or records – this must be explained. In general, a medical certificate must be provided.
  4. Missing postal codes or North American addresses – be complete, and don’t be sloppy in putting incomplete information
  5. Missing signatures or improper digital signatures – for spousals original signatures are required. Don’t forget to date and as a rep don’t backdate or future date.
  6. Explanations hidden in lengthy submission letter – if it is a very important explanation consider adding it in two locations – both where it arises and maybe flagged in the submission letter.
  7. Incorrect fee payment or missing receipt – double check how much needs to be paid and review instruction guide for this information. Perhaps even flag the fee payment form with a tab in the event it is missed in a thick package;
  8. Have the rep sign the Use of Rep – if you are paying a representative who is asking you to sign your own forms and pay them money and not disclose them – not only is this possible misrep but you may run against the completeness requirement of 10.2(c.4)
Required information

(2) The application shall, unless otherwise provided by these Regulations,

  • (a) contain the name, birth date, address, nationality and immigration status of the applicant and of all family members of the applicant, whether accompanying or not, and a statement whether the applicant or any of the family members is the spouse, common-law partner or conjugal partner of another person;

  • (b) indicate whether they are applying for a visa, permit or authorization;

  • (c) indicate the class prescribed by these Regulations for which the application is made;

  • (c.1) if the applicant is represented in connection with the application, include the name, postal address and telephone number, and fax number and electronic mail address, if any, of any person or entity — or a person acting on its behalf — representing the applicant;

  • (c.2) if the applicant is represented, for consideration in connection with the application, by a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, include the name of the body of which the person is a member and their membership identification number;

  • (c.3) if the applicant has been advised, for consideration in connection with the application, by a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, include the information referred to in paragraphs (c.1) and (c.2) with respect to that person;

  • (c.4) if the applicant has been advised, for consideration in connection with the application, by an entity — or a person acting on its behalf — referred to in subsection 91(4) of the Act, include the information referred to in paragraph (c.1) with respect to that entity or person; and

  • (d) include a declaration that the information provided is complete and accurate.

A final mistake i see many self-reps make is in trying to present their application too cute: multiple envelopes, binders, staples and paper clips. We keep it very simple here. Generally one rubberband and if required separate rubberbands to separate packages. The more obstacles you give the processing officer at IRCC the more likely they will be frustrated and (1) look for problems and reasons to return; or (2) actually lose a document in the process which may lead the application to be improperly returned.

Finally – scan everything for yourself AND make a physical copy so you can have something to fall-back on.

Hope this helps.

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Oct 5, 2017

In Advance of the October 11th Citizenship Rules Changes – Some Best Practice Pointers

DLTV5wYWAAQm0YF.jpg large

(Image Credit: Minister Hussein’s Twitter Page)

With four major changes set to go into legal affect next Wednesday (October 11th), a lot of questions I have been fielding are from individuals who are asking me how they should prepare.

First off, there’s no gaming the system. IRCC will not release forms until 11 October 2017 and unless you are eligible under the old rules and ready to submit a complete application prior to 11 October 2017 filling out yesterday’s forms for tomorrow’s application won’t do any good.

Citizenship Changes

What will do some good may be the following:

  1. Start gathering your travel history – create a table and put in relevant dates and passport stamp references. Where no stamps -try and get your old flight itineraries and proof from other countries travel history records (if applicable). Think about other ways to prove residency (lease docs, employment records, etc if needed);
  2. Start preparing supporting documentation – based on old checklist (http://www.cic.gc.ca/english/pdf/kits/citizen/CIT0007E-2.pdf) but taking into account the possibility new things may be needed (i.e. proof of status/residency prior to PR);
  3. Dig up that diploma/degree for proof of language (if applicable) – if you can’t find it order a new one from your school’s registry;
  4. Figure out your police certificates – this requirement has not changed.Police Certificates
  5. Coordinate your courier strategy. Assuming everybody is going to be applying all at once and the mail room might be frantic, you may be smarter not to use snail mail and have a tracked process.

Finally and most importantly! Don’t Rush

We’ve seen it time and time again with changes (think last December re: spousal sponsorships). When there is an uptake in applications, this is also where front-end processing becomes more crucial. I would not be surprised if CPC-Sydney has sent out word to it’s staff to be critical and return incomplete applications. Be sure you double check the final instructions and forms when they come out to know where original signatures are needed, what fees are correct, and what documents needed to be copies, notarized copies, and certified translations.

Best of luck to all of you and I look forward to welcoming you all as New Canadian Citizens!

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Oct 5, 2017

What to See About CETA Re: Entry of Temporary Business Persons

On 21 September 2017, the much anticipated Comprehensive Economic and Trade Agreement (“CETA”) came into effect. Along with the new trade agreement, Chapter 10 sets out the rules around temporary entry of business persons.  As complex as the CETA negotiations were themselves, the agreement’s reciprocity agreement around business persons is similarly detailed and complicated.

For the purposes of this piece (given we’re discussing Canadian immigration), we will look at the Canadian side. Those looking to enter the European countries should refer to Annex 10-A carefully depending on the country entry is being sought in, the category, and the occupation.

The Basics

I would highlight encourage you all to read my colleague Steven Meurrens blog post on the topic where he looks at the five things you should know about CETA – going through the (1) Intra-corporate transfers (including graduate trainees), (2) investors, (3)  contract service providers, (4) independent professionals, and business (5) business visitors categories.

As a broader summary, CETA will allow several European business persons the ability to enter Canada without the need to obtain Labour Market Impact Assessments (“LMIAs”) for the purposes of carrying out their business purposes. Labour Market Impact Assessments have historically served as a deterrence for Canadian business – due to their cost (both in terms of application and compliance) and as well for the onerous nature of advertising requirements and proving that a Canadian could not be hired for the same position and in many cases preparing either voluminous transition plans (in the case of high wage employees) or advertising to historically disadvantaged groups (in the case of low wage).

This is specifically true where the worker has no intention of applying for permanent residence and the employment/projects are more limited in nature or short-term in duration.

CETA provides that alternate for many of these business persons to obtain a work permit in Canada for a short-term purposes.

  • Eligible Contract service professionals and independent [professionals will be able to work for 12-months out of every 24 month period  on a work permit.
  • Eligible Intra-Corporate Transferees could be given terms of up to the lesser of 3 years or their length of their contract with extensions up to 18 months. Graduate trainees can receive one year work permits but are not eligible for an extension.
  • Investors can be issued 1 year work permits with possible renewals (consistent with the provisions of NAFTA).
  • Business visitors will be able to come to Canada to perform a range of activities extending beyond the scope of the legislative ability to work without a work permit (R.186 and R.187 IRPR)

Three Things You Don’t Want to Miss When Considering CETA

1. IRCC has provided an excellent resource guide on “how to extend CETA permits” – and the requirements are more substantial than they were under NAFTA.

Per IRCC:

Examples of acceptable documentation to support an extension

  • A service contract extension justification from the offering enterprise
  • Updated business plans
  • An offer for a new contract
  • Feasibility studies and marketing plans

Additional questions to help officers determine eligibility

  • Consider the intentions of the applicant:

    • What is the applicant doing in Canada?
    • How long has the applicant been here?
    • How long is the request for?

  • Consider the reason given by the applicant for applying for the extension:

    • Are the plans well thought out or merely frivolous?
    • Has the applicant previously received an extension?

  • Consider the applicant’s situation in their home country:

    • What family, employment or other responsibilities and obligations has the person left behind?
    • How have these responsibilities been discharged?
    • Is a prolonged stay in Canada reasonable and feasible?

  • Consider the initial intent of the application:

    • What was the original purpose of the business visit to Canada?

    • Has it been fulfilled?

    • If it has not been fulfilled, was sufficient time originally granted to fulfil the purpose?

With NAFTA there were mechanisms in place that made refusing an application quite a bureaucratic headache. I am predicting with CETA that extensions (particularly for ICTs  – Senior Personnel, Specialists, and Start-Up Investors), will be more discretionary than they were under NAFTA and other agreements. These questions really delve at some issues around dual intention (A22(2) IRPA – see IRCC’s instructions on this)

2. IRCC’s NOC Equivalency Page for the Contract Service Providers/Independent Professionals is a Fantastic Resource

With an agreement that has many “unbound” (think not-included) professions and different eligibility for contract service providers and independent professionals, things can get messy. Especially when Appendix 10-E covers every single European country, with many of them split down the line into whether an occupation is included, not included, or specific educational/experience requirements.

IRCC did a Coles Notes table – took out all of the Canadian requirements, and put it in a very handy table that I think should be a starting point.

See: http://www.cic.gc.ca/english/resources/tools/temp/work/international/canada-eu/a10-e.asp

3. Knowing how CETA interacts with the rest of the IMP/TFW Program Will Be Crucial

One of the interesting aspects of the provisions of the CETA is that in some cases they are less advantageous than the general provisions of IRPA and IRPR . For example, a business visitor (non-CETA) can stay in Canada for six months (upon entry) whereas the maximum length of stay of short term business visitors under CETA is 90 days in any six-month period (3 months).

Where possible – check to see if the activity you wish to perform already falls under the exemption for work without a work permit under R. 186 and R.187 IRPR  before requesting entry as a CETA business visitor. While the agreement and IRCC’s instructions state they will look at both, this may not be readily apparent to the POE Officer assessing your application.

Second, it may be useful not to forget the existence of LMIA-Exemptions available through Working Holiday programs and other venues in additional to CETA. For example, one of the things I’m curious to see is how a CETA interacts with those who wish to claim permanent residency when their permits may limit their employment (i.e. after a 12 month period runs out on a contract service provider’s Canadian work permit).

Working Holiday programs themselves may provider younger Europeans a more consistent  and flexibile way to get Canadian work experience than something like the graduate trainee ICT which is not extendable. Of course, as they are draw based, it may lead to the pursuit of more multi-path planning of immigration options.

CETA will be fun. It’s a Cadillac of an agreement (and I’m just talking about the mobility provisions) so it will be interesting to see how things go from here.

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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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