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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):

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:

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.
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;
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.
Missing postal codes or North American addresses – be complete, and don’t be sloppy in putting incomplete information
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.
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.
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;
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.

Aug 25, 2017

An Update When You Owe An Update – Summer 2017

VIB Readers:

Without sounding like a broken record, the past few months have been busy with so much happening that unfortunately writing has taken an unfortunate backseat. You will not hear excuses from me – I need to write more and I know it.

On the positive front, it has also been a very reflective time for me. I’ve spent more time reading what others have to stay – following journalists and being a witness to the recent events of Charlottesville and later Vancouver. I’ve spent time reading journal articles and gather resources on issues that I am very passionate about. While they may not be directly relevant to projects now, they help form my framework/lens that I can view this world through.

I believe I am uniquely positioned this year – through my dual roles of being the Chair of the City of Vancouver’s Cultural Communities Advisory Committee and as well as a Committee member of the Canadian Bar Association’s Equality & Diversity Committee to do some meaningful policy work in addition to my immigration work. Both of these organizations will be releasing statements and reports shortly, and in fact the CCAC statement is coming out in the next few days on our call to action for the City’s cultural communities. This advocacy work where I am able to take the individual advocacy I do for my clients and project it on a larger scale has been very meaningful.

My immigration practice is also moving along. As with any young practitioner, I try and balance client representation, with running a business, and with investing in continuous education to ensure my client’s needs are best serviced. The legal landscape is changing in immigration, particularly corporate immigration. I’ve had several meetings with senior mentors and practitioners about the role accounting firms, technology, and project management will have on the way work is performed and the needs clients will have.

At the same time as all these are happening, I am seeing my own work permit/corporation immigration practice pick up. Many of these business contacting me are start-up or small businesses with immigrant workers. Many of these companies are without designated HR departments. Even within these corporate clients I’m starting to see a discrepancy in the accessibility and knowledge of immigration procedures. I suspect that while the cheeseburger delivery of immigration will inevitably start, there will still be enough companies that want custom orders and are willing to engage someone willing to provide more personalized services. Boutiques and sole practitioners who may increasing feel crowded out will have to find ways to adapt to the changing market.

On the immigration litigation/personal and family immigration side, I’ve been able to achieve several recent successful outcomes.

I was able to secure a restoration and new study permit for a student who was caught in a bit of an administrative nightmare with both IRCC and a former counsel . While 90 days passed from when the refusal was apparently issued, we found enough evidence (through ATIPs and other research) to go an argument that he was still eligible for restoration. He now has his status back.

I was also able to restore a second graduate, who initially was refused a PGWP for attending a private school that was not eligible under the program, and secure him a two year (longer than he would have received) C-14 Film/Television work permit. It was incredible to be able to delve into this relatively new permit and put together the required pieces and understand a bit more of what a growing number of Vancouver’s film and television people do.

On the spousal sponsorship side, I was able to secure a rehabilitation and approval putting to end a previous self-rep’s multiple year fight with immigration (which even went up to the ministerial level) . For a second client, I was able to succeed on a ADR showing the relationship was genuine and not for immigration purposes after spending several painstaking hours gather positive evidence, affidavits, and clarifications that were either missed or incorrectly interpreted at the spousal interview. Mistakes happen in immigration – with both practitioners and as well government not being immune to making them.

On a more challenging side, I’m handling a string of refusals of my own applications (study permits) from Sri Lanka. This has been a humbling experience. Prior to these refusals I had a Mayweather record in study permits. However, it has re-enforced my belief that often times as practitioners rather than pushing volume and efficiency (particular for individuals and families who may not have the same economic argument that corporate clients do), we need to push quality. Researching and understanding the uniqueness and the discretion of the individuals that will decide your case – from your own client to the decision-makers – is absolutely crucial. I’ve told all the clients that I will ensure to follow-up and do everything I can to assist them – including choosing no categories of application. Something I myself admire, and I wish there were more of an immigration, is honesty – accepting and acknowledging imperfection beyond just that of the system. Seeing what is happening globally on the immigration front, and even with our own challenges, we know we’re working within a very controversial and discretion-based system. Not everyone is always going to be happy. Going to work everyday won’t always be easy, neither will be sleeping at night for all those involved.

Where does that leave me and VIB for early Fall. I’ve promised a few more articles with, we’re working on a couple presentations, and I am continuing to spend my spare time researching intricacies of the law. I also want to add a few more fun and inclusive elements to my blog – to start writing about race, equality/equity/diversity, and my favourite topic outside immigration – food.

Professionally, I have spoken to several senior mentors who believe I should take my immigration litigation (and perhaps even future litigation outside of strictly immigration) by the horns. I hope to better understand what my colleague refugee lawyers do and engage in some of the technical aspects of our law – particularly where there is room to challenge interpretation. Now that my wife’s own immigration has been settled, I’ve had my few weeks of soul searching, it is time to press ahead.

I’m grateful to those who have taken time out to guide me, to share that meaningful cup of Joe, to debate me, and who have welcomed me into their homes and lives either as a friend or an advocate.

Exciting times ahead!

Jan 25, 2017

Cultural Exploration: From the Eyes of a Student

Hi there!

My name is Katherine Akladios and I am a fourth year Religious Studies student at the University of British Columbia. I had the pleasure of meeting Will Tao at a Pre-Law career event last year. Will spoke candidly about his experience as an immigration lawyer, as he elaborated on his work and his experiences as an immigrant. Our discussion at the event prompted my interest in the field and to further understand the experiences of immigrants in Vancouver.

As a first generation immigrant, I have been brought up in the intersection of multiple cultures: Portuguese, Egyptian, and Canadian. I believe my ethnicity has allowed me to engage in differing cultures, but has also allowed me to develop an appreciation for the variety of cultures within Vancouver. Through this blog I hope to highlight the contributions of the immigrant community in Vancouver. Our city is a mosaic of cultures and our diversity should be celebrated! I look forward to creating a platform for which this is showcased.

Sep 13, 2016

Finally Back Online! – Piece on Use of Ethnic Instant Messaging

As I write new content and catch up on my forced hiatus (I was locked out of my own blog), I’d like to share a piece I wrote for FACLBC’s Mentorship Blog relating to the use of instant messaging, particularly cultural isntant messaging apps. This has become an important issue in my practice and I’m still grappling with how to best ensure effective service to client’s while keeping my practice management sharp.

Please enjoy the piece below and I promise, new (immigration) content, very shortly!

WeChat, We Kaokao, We Line: How Instant Messaging Applications Are Changing the Practice of Law

September 1, 2016

Will Tao

I have discussed in another post how I view technology as a double-edged sword, one that gives a young, tech-savvy practitioner a distinct advantage and added value but also poses a unique risk for inadequate practice management and professional ethics skills. In that article, I discussed several examples such as Skype and other project management software and how I have been incorporating their use into my immigration law practice.

In this article, I want to discuss another growing trend and an increasingly frequent discussion topic among young practitioners that raises questions of efficiency, ethics, and ultimately what the ideal solicitor-client relationship looks like in the modern age.

I am talking about the instant messaging app. As one articling student put it to me recently in a conversation over a casual drink:

“These apps are so powerful. Clients communicate with us in real-time and expect real-time responses. They instruct us via voice message, they provide us with documents via photo share. I am not even that good at Chinese! It is really changing up the way I view my role as a lawyer and my role within my law firm.”

Email Communication – The Consequential Case for Instant Messaging

In the North American practice of law, email communication is considered among the most secure and trusted mediums. It is certainly the most common medium, one many of us junior to mid-level practitioners have grown up with since grade school. Documents are shared readily over email; long chains are started with the ability to cc or bcc additional individuals as needed. Utilizing email management software like Microsoft Outlook, we carefully categorize these emails into subfolders and take notes to files to ensure a proper paper trail is kept.

I find personally that the use of apps like WhatsApp or the even more archaic text message in my practice is rare. Some law firms offer their employees, specific firm phones but often cell phone numbers are to be given out only in emergency situations or used for inter-office communication. The separation of work and personal, business and pleasure is quite pronounced in the North American business environment considered both better for work product and also for professional ethics.

However, what is often missed in the predominant narrative of email use is that email particularly in some Asian markets may not be used to the same extent as it is in North America.

There are several issues – access being one of the main ones. Several email services, in particular 163.com or the recent qq.com (which just shut off its global services) have internet access issues. Due to global transmission issues, emails are often sent but not received (or vice versa), a risk that can have disastrous impacts on several areas of law where seeking client response is critical before actions are taken.

Secondly, unlike in Canada where there is a reasonable expectation of privacy which applies to an employee’s workplace and email accounts (see R v. Cole, 2012 SCC 53), the reasonable expectation of privacy is not written into Chinese law. Further, several Chinese employers have contracts with their employees to allow for email monitoring. Emailing on certain topics, such as an individual’s outside business interests or plan to move to Canada, could jeopardize the individual’s immediate well-being.

Thirdly, email literacy – how to write one with proper salutations, requests, and conclusions – is not generally well-known among the populous. Particularly among those individuals from second and third-tier Chinese cities who have relied on factory/mining profits, educational levels are not high and instant messaging is the preferred means of communication.

Fourth, instant messaging also allows for the transmission of larger documents and photos that can be used in lieu of documents that generally require a fax machine or scanner. Users more easily and more frequently check instant messaging as compared to their emails.

Finally, and most importantly, I find that individuals/clients prefer using instant messaging because it enables them to communicate quickly and urgently, almost as if having a conversation with a friend. They can harness closer and more personal relationships than the delayed back-and-forth offered by emails. Business connections can be referred between instant messaging parties and introduced, leading to individuals becoming “friends” first, a prerequisite to the start of communication.

WeChat, Kaokao, Line

Three of the apps that I have used to communicate with clients, particularly of Asian background, are WeChat, Kaokao Talk, and Line. WeChat is most popular among my Chinese clients, Kakao Talk among my Korean clients, and Line among Japanese and Taiwanese clients.

Each of these instant messaging applications have their own specific pros and cons. On WeChat, the application I utilize most frequently, a user can leave voice messages, engage in video chats (similar to Skype), and create “moments” – highlights of life events or professional accomplishments. Groups can also be created to link various individuals on projects or to advertise certain products and services.

WeChat is also quite intrusive in that adding an individual as a friend generally provides them with 24/7 access to communication. While there are ways to limit your “moments” such that clients cannot look into your private life, your profile information reveals other types of personal information, such as your location and phone number. This raises a number of interesting questions:

Is access to a lawyer’s private life something that can be marketed as an asset to the lawyer-client relationship?
Is exposing this information to a potential client opening up vulnerabilities down the road?
At what stage is it appropriate to add a potential/retained client to instant messaging software?

Another challenge posed by these applications more specific to the practice of law is preservation of a paper trail. It is difficult to use a smart phone to keep notes to file. Further, WeChat conversations, voice messages, and video records can be erased accidentally or even by common technological malfunctions such as a software crash or a phone reboot.

Still, as a young practitioner searching to provide an addition level of client service, the use of instant messaging has allowed me to communicate with clients abroad, on their time, and provide real-time communication to ensure I am able to better meet their requirements and gain their trust.

Law Society of British Columbia Rules of Professional Conduct, and the Use of Instant Messaging

There are no specific law society rules of professional conduct on the acceptable modes of communication, but there are several rules that may be relevant to instant messaging communication:

Rule 3.5 Preservation of clients’ property at 3.5-2 requires lawyers to “care for a client’s property as a careful and prudent owner would when dealing with like property.”

Several instant messaging applications make it very easy to send personal information back and forth but not so easy to keep these documents secure on a mobile device. Particularly with cloud technology, it is easy for a private document to accidentally be shared, unaware to the user. Managing digital files via these applications is much more difficult to achieve compared to the secure private servers used by law firms.

Rule 7.2 on Communications raises interesting questions and likely creates rules that are directly challenged by instant messaging applications.

The Rules of Professional Conduct state:

7.2-3 A lawyer must not use any device to record a conversation between the lawyer and a client or another lawyer, even if lawful, without first informing the other person of the intention to do so.

Annotations

COMMUNICATIONS

7.2-4 A lawyer must not, in the course of a professional practice, send correspondence or otherwise communicate to a client, another lawyer or any other person in a manner that is abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer.

The very nature of these communications, in particular voice messaging, are often short and automatically recorded. This makes them arguably inconsistent with usual modes of professional communication. Yet, in the context of the end user involved, the type of “professional communication” that lawyers engage in may not be understood by individuals who have difficulty understanding even elementary English.

Privacy Issues

There are also underlying privacy issues relating to the use of mobile messaging applications. A Chinese corporation named Tencent developed WeChat, meaning the application is subject to the Great Firewall, along with possible censoring and monitoring. As China has not yet adopted western legal principles such as solicitor-client privilege, it is entirely possible for a voice messages or instructions provided via WeChat to be viewed by third-party government officials. Indeed, there are several well-known cases in China where it is suspected that WeChat voice messages were part of the evidence gathered by national security investigators in China.

With all of these applications, it is not quite clear where the cloud servers are stored, the level of privacy and privilege extended […]

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The Little Things that Send Back Spousals – Advice Blog

Form and content of application

Required information

An Update When You Owe An Update – Summer 2017

Cultural Exploration: From the Eyes of a Student

Finally Back Online! – Piece on Use of Ethnic Instant Messaging

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Uncategorized

Blog Posts

The Little Things that Send Back Spousals – Advice Blog

Form and content of application

Required information

An Update When You Owe An Update – Summer 2017

Cultural Exploration: From the Eyes of a Student

Finally Back Online! – Piece on Use of Ethnic Instant Messaging

About Us

Recent Posts

Categories

Tags

Let’s Get in Touch

About Me

Contact