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In both advocacy and community, I have been hearing a lot about ‘lived experiences.’ While generally a positive term about showing up with authenticity and reflecting only on what you know and have been through, the term can be over-used, and done so in a harmful way for more powerful voices to speak their lived experiences (or a collective experience) over anothers. Whether you want to call this ‘Oppression Olympics’ or the role the oppressed (in one category – let’s say race) can be very much an oppressor in another (let’s say economic status), conversations often escalate into two separate narratives holding very little space for one another.
I am going to advocate for a new term – ‘heard experiences.’ In my work as a storyteller of immigration stories, I hear a lot of stories. Indeed, part of the role of a lawyer unfortunately is having to translate these stories into the colonial language of immigration laws. Indeed, we often times have to guide our clients into re-framing their stories so they meet very specific tests (be it the Ribic test, or the test for Rehabilitation). Indeed, heard experiences in many legal settings can be classified as ‘hearsay’ and immediately discounted for evidentary and probativ value.
What I am trying to do more of, and encourage others to do as well, is to also de-center our own stories or perhaps rather than use another’s stories as a bridge to one’s one, utilize the act of hearing and holding space to reflect on how to better centre the story that is being told and that you have the privilege of listening to.
Remember, even hearing stories of one’s trauma, hardship, struggles is a privilege. You are given access to someone’s inner secrets, perhaps some that those closest to them do not know. The first step of that should be to reflect and speak your own experiences to try and form an artificial bond. That very mindset of trying to think of how to tie in your own lived experience into someone else’s who may not have given neither the consent to, nor told enough to allow you to do so, can negate or reduce what they seek. We have all been in circles where everyone is asked to share an example of a story, and rather than listening to another’s.
That is why I think the practices of witnessing, which many Indigenous communities practice, is and can be so powerful. If you attend an event with this format, you recognize that the response from the witness is to demonstrate that they have heard the speaker and what they have learned, rather than to immediately input themselves as the focal point.
Implementing Heard Experiences into My Legal Practice
How do I plan to integrate heard experiences into my legal practice? First – by not rushing into consultations and meetings telling clients what they should do before hearing them out. Giving them time to share their story at the outset and expand on any written materials they provided in advance needs to be a starting point. I can acknowledge that especially where we see cases of the same nature repeated, we tend to start cookie cutting and templating processes. This is effective only to a certain extent but does not create the strong client bonds you need to sway a case.
Second, is to ask for clear consent when sharing stories, even where they stories may be themselves anonymous or seem reduceable and redactable. Not only is this a confidentiality obligation, but it is also good to reflect to the storyteller of the bigger impact their story may hold and ask if they wish to share it with a bigger audience.
Third, is to spend much more time journaling privately these experiences. Rather than to make point form notes and connect it to my own past practice or some legal test, start carving lines between what a client has said, what they have presented, who they are, to form a web. Utilize these stories to compare against dominant narratives, but more importantly to contrast. Document where dominant narratives fall short and question the sources. Again (with consent) seek to inspire storytelling through different mediums to try and counterbalance generalized lived experiences, and to encourage acceptance of these. Acknowledge and hold the conflict (and perhaps even disagreement) these may have to your own perspectives but not to automatically and immediately discount them.
I look forward to hearing from more new clients, giving them spaces to share their lived experiences without the judgment or reduction that I, as a listener, too often apply.
Three Challenges I Can Already Foresee: Canada’s Temporary Public Policy for International Graduates
On 14 April 2021, the Minister released a Temporary Public Policy (“TPP”) for international graduates, including the creation of a 40,000 cap for those with a recent Canadian post-secondary credential issued since January 2017 (See: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/public-policies/trpr-international-graduates.html).
While this move is rightfully being lauded as part of a larger set of Temporary Public Policies that open the door that Express Entry has lately kept shut and the target shortfalls of COVID-19 have exacerbated, I have my concerns.
In this piece, I will go over three challenges I can already foresee with Canada’s Temporary Public Policy for International Graduates and what I would do to address it if I were the Government. In some cases, it will be too late likely but I’ll provide my hindsight perspective:
1.The Speed Based System Will Inevitably Lead to Crashes
Whether it be the system crashing or an Applicant’s application crashing due to the system forcing too much speed, I suspect something will crash on May 6th. While I have heard many numbers thrown around, from 500k vying for 40k spots, we know for a fact that very few former study permit holders ultimately obtain permanent residency in Canada. While this number was at one time in the mid 90’s and early 2000’s at a higher percentage, for the last few years it has been single digits. Even Express Entry, ostensibly made to support international graduates, do not meet the needs of most international graduates. Taking into account the number of international graduates who are working in retail, as servers, and customer services representatives – this is a large group who will be interested in applying on May 6th. While some will have access to the other TPP, not all well (many times due to the lack of one-year of work experience) and perhaps significant self employment experience.
Unlike traditional programs that require perhaps first a registration of intent and then a submission process, this appears to be set to do the entire process of eligibility and application all at once. like a full-day exam, this has the potential to be a few hours of absolute stress and anxiety. The reality is many will be on the outside looking in. Certainly, preparing and predicting for what can go wrong will go along way.
Still, I don’t see a way that demand for this program does not at the least slow down or crash the server, and at the very worst lead to many unable to access the forms, validate, submit, sign, and do all the logistics that permanent residence applications require. It seems almost counter intuitive that a process professionals charge and properly take weeks and in some cases months for is being jammed into several hours. Mistakes will be made. The call centre lines will be jammed up with those stuck, and at the end of it 40,000 names will be in the queue but not necessary become permanent residents.
As someone who co-spearheaded the parent and grandparent litigation in 2019, this has all the markings of that process repeated – perhaps without the Charter breach if a suitable process is created for persons with disabilities. Yet, so many were caught on issues outside of their control on the technology side. All it takes is one bad form for the system to derail or one server issue. I am hoping it does not happen but I am not holding my breath.
I am also not going to be registering anyone, directly or indirectly. Not only has IRCC indicated that this is the way the portal will be made (shutting out authorized reps), but the reality is one cannot do competent accurate work on a speed basis, let alone without access to the actual forms being held by both applicant and representative. Furthermore, representatives will be at a conflict of interest trying to register multiple clients.
When we do permanent resident applications for clients, we specifically (and often advise) for patience. That doing a good job requires time, review, double checking, and perhaps legal submissions to clarify inconsistencies. None of these appear to be either promoted or supported in a ‘typing race’ type process.
Possible Solution (although it is likely too late): While everyone hates the random draw, perhaps in a circumstance like this with demand sure to exceed space it is a fairer way to give everyone ample time to be eligible and put in an interest of the program. The other option is to push the start date a bit (to a date that clearly gives applicants (and third parties) at least a little more time to get their materials ready. Another option is to stager the intake so rather than one shot at 40,000, it could be 10,000 spots over four months allowing those who perhaps are not fully complete with their documents a bit of time to participate. My third suggestion is a vaccine approach. Are there certain graduates you want (STEMs? those who hold graduate degrees first before degree-holders and then diplomas?) – it would be entirely justifiable to start with a group first and then expand the pie until the spots are filled and thereby also controlling the flow. Yet, as I write above, it is likely too late to rethink it.
2. The Requirement for Employment Only at the Time Application Received is Both Bizarre and Ripe for Misuse
One of the requirements of the international graduates TPP is that an eligible applicant must hold employment at the time of the receipt of their application for permanent residency under the policy.
While I have a bone to pick with the self-employment bar as well (frankly an area the Government would be best to better resource with PR program and/or encourage the Provinces to step in), it seems rather arbitrary that an employee has to be working as an employee on the particular day their application is submitted, not any day before, not any day after. Indeed, this type of requirement does open the possibility of abuse: employment for a short-term period just to gain eligibility. As an aside, I had a consultation client ask today if I could hire them as an employee for my Law Firm so they could be eligible for this – to which I answered, no.
Especially during COVID when individuals, many of whom sacrificed and were employed in the past year, but perhaps less than a year or not in categories eligible under the essential occupation TPP, are possibly now on leave – it does not quite make sense that employment occurs in such a small vacuum. How does IRCC later assess it when someone who obtained employment for a two week period in order to submit the application, then quits to resume their self-employment (for example). It seems very arbitrary to require employment in this nature. One could (and presumably should) sign up for a temporary agency just to meet these requirements, and while good for the economy during these difficult times certainly inexplicable from a rational perspective why one would need to do this to meet an immigration program requirement. These are the same types of decisions that many fraud/arranged employment/inadmissibility cases are built under.
Possible Solution (although it is likely too late): Rather than require employment on that one particular day, require employment (or ongoing efforts to regain employment) until an eligibility decision is made. Perhaps consider extending exceptions to those who are on short-term leave but were otherwise employed. IRCC should clarify (well in advance) what type of employment letter would be needed to meet this requirement.
3. Refusals Will Happen in Droves + Possibly Misrepresentation Risk Increases
Applicants will be refused in droves over issues with documentation. Even in the current iteration, it is unclear what words such as ‘attestation‘ mean in terms of proof of completion of studies or whether someone’s proof of completion of studies or unofficial transcript will be good enough appear up in the air. On strict reading, it is very likely that a simple confirmation of employment and pending final transcript will be good enough to get in the door of eligibility.
One might ask why refusal and not return of incomplete application?
Because this program falls under a temporary public policy, Regulation 10 IRPR does not apply and therefore there are two options. The first, is a tightened eligibility screen, where Applicants must enter documentation to show they are indeed eligible. By controlling the content of this screen, it may limit the number of individuals who are able to access the permanent residence portion (for example if they do not have a final language test result). However, given the process is again speed based, Applicants presumably need to have all their materials ready to go/or else
Putting out information early (or even delaying the start date a little bit) doesn’t hurt to make sure everyone has the same ground rules would be advisable. Furthermore, those who may need to make applications due to disability (which presumably will be by paper), should understand what type of medical evidence they will need and to ensure that they have enough time to obtain it.
Also – what will happen if an individual manages to answer in a way to get them past the proverbial first screen, but then when submitting the actual application, things auto-populate (perhaps even incorrectly) and or things will need to be corrected? The benefits of the Express Entry ITA system is it does allow for both amendments before an invitation, as well as ways to update corrections. Many times, as counsel, these were the types of issues we were engage on.
I do suspect that what Applicant’s rush to submit may itself create problems. Failures to disclose memberships, previous refusals, arrests, or even clarify overlaps and gaps. These were the usual things we would advise clients to hold up and wait for, but now are things that an Applicant may be better off submitting first and explaining later. How does this then play into inadmissibility, misrepresentation, and other complications that can arise?
There are also possibly unique opportunities. I do have a gut sense that automated decision-makers are somewhere involved in the process, but if there are no R.10’s (IRPR) are applicants going to rush to bolster their files after (presumably also when they realized they submitted incomplete information). This information, if […]
Setting the Scene: Where We Are At and Where We Are Going
I have been struggling with this post – to capture the experiences of the many prospective clients/international student applicants who have entered our door of late asking about their study permits, more specifically why they have been refused, delayed, or found inadmissible for misrepresentation.
Remedies are both a huge time commitment and often times a big corresponding financial commitment. In thinking about how I could input myself into the process (in a helpful way) I thought about writing a post where I take those experiences of all the international students who come see me to try and remedy their refusals and summarize it into five (likely oversimplified, but deeply important) points. These points are important both for international students to protect themselves (be it emotionally, financially (from those all-too-eager to exploit), or even just to help plan their futures during tumultuous times.
We all know the starting point: Canada has become an increasingly attractive study destination especially compared to other countries. While international tuition is still what I personally believe to be dangerously high, it is comparatively cheaper to study in Canada than many other Five Eyes countries. Our immigration options for international students also provide much more flexibility around work while studies, post-graduate work permits, and work permits for accompanying dependents.
We also know that COVID, as my colleague Lou Janssen Dangzalan uncovered through a recent ATIP request, has had a major detrimental effect on study permit applicants.
This has impacted overall refusal rates:
We can objectively say that COVID or not, it is becoming more difficult to apply for a study permit. https://t.co/LdEKtQQIM9
— Lou Janssen Dangzalan (@ljansdan) March 4, 2021
If we look at the two largest international student generating countries – India and China, we see the impact in terms of the change in approval rates:
Study Permit Approval Rate: India 🇮🇳
*up to Nov. 2020
— Lou Janssen Dangzalan (@ljansdan) March 3, 2021
The stark numbers of how many less study permits were issued in 2020 (granted the data is not entirely complete) cannot be ignored:
ATIP Disclosure on Study Permits
(data up to November 2020)
No. of study permits issued since 2016 -> Nov 2020:
— Lou Janssen Dangzalan (@ljansdan) March 3, 2021
For the time being, new restrictive and frankly, confusing, policies such as IRCC’s rule on accompanying dependents of international students (for example discrepancy between: https://www.canada.ca/en/immigration-refugees-citizenship/services/coronavirus-covid19/students.html#family or https://www.canada.ca/en/immigration-refugees-citizenship/services/coronavirus-covid19/students.html#family) along with the new quarantine rules are a signal the Government wants to get through the vaccine phase before admitting too many more international travellers (including international students).
This is my theory about where post-COVID recovery will ultimately go:
Once COVID is under control, gates will open. Is a strong enough system + facilitative pathway to PR in place to deal w/ expected/needed demand?
— Will Tao|陶维 (@TheWillTruth) March 3, 2021
With this in mind, we have a timeframe of a few months for most international students to consider carefully their next move. Perhaps, for some, it may even be re-evaluating. I would not throw caution into the wind. Whether you are the paying parent of an international student who insists they ‘got this’ or if you are the international student, wondering what your agent (who is very likely being paid more by your school than by you) doing.
Without further ado, here are the five things I wish international student knew before applying for a study permit in Canada.
Thing 1: Be Very Intentional and Careful About the School/Programs/Immigration Advisors You Choose
Not all schools are treated by Canadian immigration (“IRCC”) the same. There are schools with excellent reputations, many of them being public/higher-level institutions. There are others that have not-so-good reputations – perhaps being smaller private colleges that often take students with lower academic accomplishments. These lists are also not static. Many schools on both sides of the aisle have taken steps and/or hits. Do some research on the reputation of the school.
Be also intentional about where you study. A Visa Officer may have questions already about where you are coming from (see Thing 3 below) and wonder why you are going to a particular Province and that particular school.
As an Applicant you need to be able to make a business case for this: that likely should go beyond the access to permanent residence pathways. As I discussed in this post, dual intention has been utilized as a buzzword but it packs a complex case for meeting the R.216 IRPR requirements to demonstrate you can leave Canada at the end of your authorized stay.
If you are a student from a refusal-producing country (i.e. the statistics, which are accessible if you look hard enough, demonstrate most applicants are being refused), I would suggest it becomes more important to demonstrate that your studies are bona fide. If you receive scholarships or are entering a level of education that is considered a major upgrade to your education, these are factors that can assist towards maximizing your chances of success. I use the word chance very specifically.
There are no guarantees anymore in the area of international student immigration law/policy.
Be also very aware an intentional about the systems operating around you.
These systems include your family members (what your parents want for you, siblings, other family in Canada).
They include the Designated Learning Institutions (“DLIs”) which have a mandate to protect their own interests. If they refer you to someone (as institutions do to me) it is very fair to ask them why this individual. Be due diligent. This definitely includes agents who say they can do your immigration work for 100 or 200 dollars without disclosing that they are neither authorized immigration representatives (and therefore ask you to sign your own forms) or that they are making a 1/3rd of your tuition back as their finders/placement fee.
This extends to banks/creditors who might be financing your studies for their various reasons but perhaps willing to bend rules and documentation to assist you. Don’t underestimate immigration’s own access to finding out whether a document provided is genuine or not. Same goes with language tests, that are increasingly under scrutiny for fraud prevention.
If you are applying, as most are, from outside Canada know too that immigration fraud unfortunately does exist and if there are red flags (agents who claim they have connections or apparently bizarre correspondence between them and the visa office) take action. Many applicants can save their own situation by seeking a withdrawal (either with or without new counsel) and/or an opportunity to correct the record before it is discovered. Check and ask to see every document that leaves your hands, including making sure that they are submitted in the form you want them to be submitted.
Be very intentional, careful, alert, and aware to the profit industry that is international education and your own role in the system. The more control and guidance you have over your own situation, the better you will be able to rationalize the outcome and prepare for your experiences in Canada.
Thing 2: Get to Know Your School Registrar and International Student Advisors Really Well
Get to know the school registrar.
You may need to defer studies depending on processing times and your own ability to obtain documentation. You may need to ask for refunds or for further letters. Make sure you have direct contact with the registrar and do not over rely on an agent or third-party who may not have your best interests in mind.
Get to know the RISIAs and RCICs who often work for the schools.
RISIAs stand for Regulated International Student Immigration Advisors and RCICs are Regulated Canadian Immigration Consultants. These individuals are often employed by Universities and Colleges to assist with international students. A flag for you may be how few resources the school may have for international students. Schools that have more international student support, more resources, tend to be better positioned both in terms of achieving student approvals but also to help once you are here. This is of underestimated importance. When you become an international student, you must navigate leaves, full-time student status, and post-graduate work permit eligibility, events and occurrences that are very crucial to your success and eventual pathway to permanent residence.
Each DLI (and often each departments) has their own policies surrounding how much they can help out, particularly for applicants who are overseas. I tend to find that students who receive scholarships or are attending specialized programs do get specialized treatment. Some DLIs even assign certain staff to focus just on these programs. This may be crucial, especially in light of a first stage refusal that requires reconsideration or a re-application, with school support. Good DLI RISIAs and RCICs have single-handedly been able to make an impact for students, by providing additional letters of support, explanation, or even a referral to a Member of Parliament that can change one’s prospects.
The better the relationship you can build with them and start fostering early on, the better it is. Again, do not rely on your agent or educational consultant, who has a very different end goal and outcome from being that liaison (getting paid off your end enrollment, with payouts depending on the school you attend and their agreement with them).
Thing 3: There Are Constraints on Approving Your Application That Are Outside Your Control and Highly Irrational
How the Federal Court of Appeal, Federal Court, and We as Young Racialized Advocates See Vavilov’s Application in Immigration Cases, One Year Later, March 2021
Last month I had the privilege of presenting to the CBA National Administrative Law Section’s, Vavilov, One Year Later panel (see: https://www.cbapd.org/details_en.aspx?id=na_NA21LAW04A)
I was definitely in the presence of some big hitters, from the moderator Pam Hrick (https://www.linkedin.com/in/pamhrick/?originalSubdomain=ca) to advocate extraordinaire Audrey Boctor (https://imk.ca/en/team/audrey-boctor/) to one of the legends of Canadian administrative law David Jones, QC (http://sagecounsel.com/team-members/david-phillip-jones/).
It was a fascinating discussion, for me highlighting in even more of a clearer light, the ways immigration law almost operates in it’s own bubble when it comes to administrative law, tribunal decisions, and the application of Vavilov.
Still Figuring It Out: How the Federal Court of Appeal, Federal Court, and We as Young Racialized Advocates See Vavilov’s Application in Immigration Cases, One Year Later, March 2021
Please feel free to read here or click the downloads below for direct download of our paper.
Some Thank You’s
This research/review would not have been possible without the support of the following individuals. I wanted to give them shoutouts because they are building incredible legal careers and I am so grateful for the time they took to help draft key sections of the paper.
Articled student at Moore, Edgar, Lyster and future superstar human rights lawyer. She has this amazing feminist, human, touch to her work and she gets all the credit for the section we wrote on applying an intersectional lens and seeing what has been left out of the Canadian administrative law conversation.
I met Afifa when she was in her early years at UVic Law and I have been so impressed. She’s been active in FACL BC, vocal about racism in our profession, and just someone I would want in my corner.
Learn more about here: https://www.mooreedgarlyster.com/afifa-hashimi
I met him first when he was in the LLM program, but really got to know him at Edelmann and Co. Law Offices (my former employer). Yussif, when he finishes articling, will literally be a fifth-year level call as a first-year Canadian lawyer. He worked for several years in Brazil as a lawyer and has a very good handle on administrative law. He wrote this incredible statutory interpretation argument for me in another matter we did together. Probably one of the best legal researchers I have met.
Check him out on Twitter:
Thanks to Professor Jamie Chai Yun Liew for her paper that inspired ours (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3522597). I did not get a chance on a tight timeline to share my paper with her but I certainly want to follow-up on our areas of research interest and overlap.
Finally, thanks to Heron Law Offices (my firm!) case manager, Edris Arib for his support in putting this together in final form.
Get Busy Writing (and Possibly Speaking More)
After a month of trying to set up my new practice (including hiring a new lawyer – more on that later!) I finally am in the place to start writing more.
In the last month we did several talks:
- FACL Ottawa;
- CBIE (part 1) on Accompanying Family Members;
- Vavilov – One Year Later
This next few months will bring much more of the same:
- CBIE (part 2);
- Mark Holthe’s Canadian Immigration Institution’s video podcast;
- Presentation to IRCC Policy folks on Transitions (reconsiderations + restorations + the unseen impacts)
- CBA National Immigration Law Conference (perhaps this is too early an announcement – apologies if it is!)
I may also be starting my own podcast soon with a friend and colleague that I am ecstatic to update everyone on. I won’t speak on this one too soon, but I an excited! ILOAC of course 😉
However, I have not forgotten that this space and Vancouver Immigration Blog needs more TLC. It is my first project, the one that gave wings to everything else. I am pledging to do at least one written blog a week at least until May (when big family changes come in place!).
Thanks again for all of your patience. Big things to come in the next few months!
My Value Proposition
My Canadian immigration/refugee legal practice is based on trust, honesty, hard-work, and communication. I don’t work for you. I work with you.
You know your story best, I help frame it and deal with the deeper workings of the system that you may not understand. I hope to educate you as we work together and empower you.
I aim for that moment in every matter, big or small, when a client tells me that I have become like family to them. This is why I do what I do.
I am a social justice advocate and a BIPOC. I stand with brothers and sisters in the LGBTQ2+ and Indigenous communities. I don’t discriminate based on the income-level of my clients – and open my doors to all. I understand the positions of relative privilege I come from and wish to never impose them on you. At the same time, I also come from vulnerability and can relate to your vulnerable experiences.
I am a fierce proponent of diversity and equality. I want to challenge the racist/prejudiced institutions that still underlie our Canadian democracy and still simmer in deep-ceded mistrusts between cultural communities. I want to shatter those barriers for the next generation – our kids.
I come from humble roots, the product of immigrant parents with an immigrant spouse. I know that my birth in this country does not entitle me to anything here. I am a settler on First Nations land. Reconciliation is not something we can stick on our chests but something we need to open our hearts to. It involves acknowledging wrongdoing for the past but an optimistic hope for the future.
I love my job! I get to help people for a living through some of their most difficult and life-altering times. I am grateful for my work and for my every client.