Slide Welcome to Vancouver’s Immigration Blog Practicing exclusively in the field of Canadian Immigration Law, I started Vancouver Immigration Law Blog to provide community resources and community support to those navigating Canada’s complicated immigration system. I am the Principal/Owner of Heron Law Offices, a boutique immigration and refugee law firm based in Vancouver and Burnaby, British Columbia. LEARN MORE Slide Visit My Firm Website - Heron Law Offices LEARN MORE Slide Follow Our Advocacy, Research, and Education Activities at Arenous Foundation LEARN MORE

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Questions from a Pre-Law Student (Part 1)

A week and a half ago I was approached by a Pre-Law Student with some questions about whether to go to law school or grad school and related issues.

I thought I’d post my answers that I gave her.

  1. Why did you pursue law school?

I wanted to pursue law school since I was a kid, but I was probably jaded by the “arguments” and “big bucks” as per my grade 7 yearbook.

Truthfully, it was during undergraduate when I started volunteering with Access Justice (now Access Pro Bono), and realized how much the law impacted individuals day-to-day lives. I also started getting heavily involved in community advocacy efforts in my history and international relation studies. I realized that one of my major challenges was that it was difficult to speak up as just an “undergraduate student.”

I guess I wanted people to take me a little more seriously.

 

  1. Should I work for a few years before pursuing law school or go straight into it?

It depends. Do you have something specific you want to go into? I think if you have a legitimate position that you can go into (either a high-level government job/internship or one with a great company) you should jump in. You could possibly make some money and help pay for law school. You may also put yourself in a good position to come out of law school and combine your experience. For you in particular, if you found a very good gig in marketing and became a marketing professional for a couple years, arguably you could go to law school and be very good at areas around legal marketing. I’ve seen a few people very successful at this particular in the entertainment industry where they became entertainment lawyers.

  1. Should I take an LSAT prep course or self study?

It depends on how fast you are getting it. I would start by getting some books or materials off a colleague and reading them. If you feel like its intuitive you can start doing practice exams on your own.

I took two courses, both very expensive, and only the second one was very helpful. For me, the battle was more mental and the second course (and the instructor) was really helpful. He doesn’t teach anymore. Needless to say I didn’t do so well on the LSAT, writing three times (cancelling twice) and only obtaining 66th percentile.

  1. What do you think about an international law degree obtained abroad?

I would obtain one in Canada if you foresee your future here (that is unless you go to a top Ivey league U.S. J.D program). I think that due to the lack of legal jobs in Canada, more pressure is being placed on the system to provide less opportunity to foreign-trained lawyers and more to domestic students. However, if you foresee yourself living and working in another city abroad, go do law school there (near there) for sure.

Finally, I think all law schools in Canada are good. Don’t feel pressured to think only the top schools are the best. Also, for someone more holistic and well-rounded like yourself you may do better at a school that focuses more on well-rounded areas and recruits those type of students.

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Judicial Review and Immigration Appeals: Why I Love This Area of the Law

As Canadian Immigration laws in Canada get tighter and tighter, it appears that judicial review (JRs) and immigration appeals work gets more and more important in the overall process of assisting an individual is coming to or staying in Canada.

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I’d like to provide my own quick summary of the processes and my own experiences in this piece. I will not delve very deep into the legal or procedural requirements in this post, it is more to summarize the process and highlight aspects I find interesting. As always, none of the below should be construed as legal advice.  

Who can do JRs and Immigration Appeals?

Right off the bat, there are a few things you should know about Judicial Review. Aside from the individual themselves, only a lawyer called to a provincial bar in Canada can represent an applicant in this process.

Immigration Appeals  can be done by both lawyers and consultants.

What are JRs and Immigration Appeals?

Judicial Review

Judicial Review is an administrative law process where Applicants can ask the Federal Court of Canada (and in some jurisdictions  other Courts) to review the decision of a tribunal or government-authorized decision maker’s decision (i.e visa officer, minster’s delegate, etc) on the grounds that it was either (1) unreasonable or (2) was incorrect and breached the Applicant’s procedural fairness.

Where reasonableness is the standard of review, the Federal Court is expected to show deference to the Administrative Tribunal or decision-maker. Where correctness is the standard of review, there is no deference and Federal Court can replace the decision of the Administrative Tribunal or decision-maker.

The process of filing a JR is key. I will differ to the Federal Court of Canada to explain this process step-by-step (including important statutory timeline issues): http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/ApplicationIMM 

From my experience a lot of practitioners who aren’t as successful at obtaining leave for judicial review fail to put in the early effort into putting together a strong Applicant’s Record, including effective affidavits laying out the facts and a detailed memorandum of argument laying out the standard of review and legal arguments for why that the decision failed to meet that standard (be it reasonableness or correctness). One of the common flaws, as a Federal Court judge once expressed in a speech she gave, is a lack of facts to establish the factual basis and too much irrelevant case law to try and argue a point. When you start throwing in a dozen cases (without citing specific factual differences), you have a bunch of authority with no factual or casual link to your own case at bar.

Judicial review is not, and I repeat is NOT, an opportunity to argue that the decision maker’s decision was wrong and that the decision maker should have done X or Y instead. As long the decisionmaker’s decision was within the ‘range of possible outcomes’ the Federal Court will not interfere with the decisionmaker’s decision. Even insufficient reasons in a decision is no longer automatic grounds for a decision to be unreasonable.

Also remember that affidavits that are filed cannot include information that was not before the tribunal or panel making the decision, subject to some carved out exceptions. For a good case on exceptions check out:  Association of Universities and Colleges of Canada and the University of Manitoba and the Canadian Copyright Licensing Agency 2012 FCA 22 at para 20  (http://canlii.ca/t/fpszj)

After filing your Applicant’s Record containing your affidavits and memorandums, Minister’s Counsel (represented by the Department of Justice) will assign a counsel to your case. Minister’s Counsel can do one of three things after receiving instructions from their client : (1)They may choose to consent if the decision is prima facie in error or procedurally unfair; (2)They may also choose to file a memorandum in response opposing your application for leave and stating that there is no arguable case at leave; or (3) they make take no position.

Taking no position does not necessarily mean you have won the case. It can be a positive thing – meaning they think you have an arguable case, but it is just as likely that they may wish to respond further after leave or that they require memorandums or further client instructions in order to adequately respond. Ps. I am purposely not going into the Stay process (a blog post in itself)

If Minister’s counsel does respond, you will likely need to make a further reply, in which you clarify your grounds and emphasize why you still have an arguable case at leave.

The decision then goes to a Federal Court judge who decides whether or not to grant leave. Even though the threshold is quite low, Leave is granted in only approximately 30%-38% of all cases by latest estimate.

If leave is granted, there is another round of affidavits and memorandums, with the Applicant being asked to file first. There is no final reply if Minister’s Counsel does file a Final Memorandum as at the oral hearing (statutorily scheduled no later than 90 days after the Minister’s) you will both have the opportunity to respond.

The Oral Hearing involves Counsel for the Applicant presenting their case first, discussing the unreasonable and procedurally unfair elements of a decision. Minister’s Counsel then makes submissions, followed by a brief opportunity for Applicant’s counsel to reply. In the case of a Federal Court Judge who is more passive, this may all go very much according to script. However, I’ve seen other Federal Court judges who very much want to engage on the issues and ask both Counsel questions to challenge their respective positions.

Most decisions, that are not among the rare decided by oral order from the bench, are released by the Federal Court judge. This process can take several weeks to months.

Immigration Appeals Division

Usually, Applicants hear about their right to appeal in the refusal letter triggering the 30-day appeal window. Once an appeal is applied for a hearing date is usually set.  One of the ongoing challenges right now is that it takes quite a bit of time to schedule a hearing, a problem that appears particularly bad in Toronto.

For a client this delay may not be so bad. More time, in the case of a residency appeal, criminality, and even spousals is more time arguably to show that requirements are now being met and conduct has now improved.

The most important part of an Immigration Appeals Division (“IAD”) case is that it is a hearing de novo. The member or panel that decides your case can take into account new evidence. However, there is a caveat in that this new evidence still has to go to the reasonableness of the correctness of the decisionmaker’s decision at the time it was made.  From what I have seen, recent circumstances and improvements in situation DO play a big factor into decisions, often times in the equitable jurisdiction (Humanitarian and Compassionate Grounds) that the Member can consider.

During the Immigration Appeals process, there are several opportunities for the Appellant (Applicant or Sponsor, in spousal appeals) to make disclosure to Minister’s counsel (and vice vers). These disclosures can contain letters of support, photographs, and other evidence that supports the case.  I have also seen counsel use the opportunity to provide written submissions as to the merits of the case.

Rule 20 of the IAD Rules also provides for the potential of seeking Alternative Dispute Resolution. The IAD may seek ADR in specific cases, while in other cases it may be negotiated with CBSA during the period leading up to the appeal. At an ADR, a Hearings Officer may question the Appellant and may offer to consent to the appeal. If consent is not reached, a full hearing will follow.

Immigration Appeals involve the direct examination and cross examination of key witnesses to the situation being challenged on appeal, followed by legal submissions (if necessary). The opposing counsel will likely be a Hearings Officer representing either CIC or the Minister of Public Safety and Emergency Preparedness. Hearings Officers vary from the very understanding to the very critical, and the position they take (and possible willingness to consent) is very crucial to the final outcome of the case.

If Judicial Reviews are all about Standard of Review, Immigration Appeals are all about the facts. Counsel will need to work with Applicants to ensure all the relevant facts are brought to the table, particularly those that contradict what the decisionmaker found. It is also key that all witnesses are credible and on the same page factually. Assessing an individual’s credibility is ultimately a guessing game, but many of the factual inconsistencies that go to a negative credibility finding are more readily apparent. Needless to say Immigration Appeals take a lot of preparation and require a good, honest client-counsel rapport.

Distinction between JR and Immigration Appeals

There is a distinction between Judicial Review and Immigration Appeals. There are cases where you have the right to appeal to the Immigration Appeals Division (where in almost all circumstances you must exhaust the appeal before exercising your right to judicial review), cases where you do not have the right to appeal to the Immigration Appeals Division and therefore can only try to judicial review the decision.

5.2. Distinction between an appeal and judicial review

The IRPA [Immigration and Refugee Protection Act] provides two levels of review of decisions made under the Act: review by way of statutory appeal to the IAD and review by the Federal Court.

Pursuant to section A63 (as limited by section A64) sponsors, visa holders, permanent residents and protected persons have a right to appeal adverse decisions to the IAD.

……

In all other cases, where no statutory right of appeal exists or those rights have been exhausted, there is a right to seek judicial review of any decision made pursuant to the IRPA by filing an application for leave and judicial review to the Federal Court pursuant to A72(1).

Section 64 of IRPA sets out there is no appeal for inadmissibility in security, serious criminality (more than 6 months imprisonment), and misrepresentation cases.

What happens if you win?

There is also a difference in both forums if you win. Generally speaking, when you win at the Immigration Appeal Division the Member will make some sort of order: “the Applicant has not lost their permanent resident status” or […]

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Medical Inadmissibility Appeals and the Application of De Novo Evidence 

26-05-2015 medical_coverage

I am working on an Immigration Appeal Division (“IAD”) case involving the sponsorship of a family member who was found medically inadmissible. An interesting legal issue came up, which I found has not been widely discussed in immigration law texts, but may be very useful for practitioners and applicants alike: what happens if the Applicant’s condition or drug prices have changed since the initial negative decision and you are now at the IAD?

Facts

The loose factual situation is that since the negative medical inadmissibility report was issued several years ago, there have been several developments which (arguably) may not leave the individual medically inadmissible today. For example, as of June 2014, the minimum cost threshold (beyond which medical inadmissibility for excessive demand on health and social services would kick in) increased from $4,057 to $6,387 per month. This is a very substantial amount.

In our situation and in my estimate, the Applicant, according to today’s figures and our estimates of today’s prescription drug prices, may indeed fit under the new threshold and possibly the threshold from two years ago too.

Issue

Asides from the issue of challenging the reasonableness or correctness of the Visa Officer’s decision, can we introduce this new De Novo evidence as evidence of non-inadmissibility? In other words, can the IAD consider this evidence as a legal argument that the Applicant is no longer medically inadmissible?

Analysis provided by Vazirizadeh

The short answer appears to be no. The relevant case law authority for this is Vazirizadeh v. Canada (Minister of Citizenship and Immigration) 2009 FC 807. In Varzirizadeh, the Applicant had knee surgery following a medical inadmissibility finding based on osteoperosis. It was determined following the inadmissibility finding that one of her knees no longer required surgery. The IAD refused the Applicant’s appeal based on humanitarian and compassionate considerations, and the Applicant brought an Application for Leave and Judicial Review to the Federal Court now also challenging the legal validity of the decision.

The Applicant argued that as the IAD hearing was de novo, it should have considered the appellant’s changed medical status, whereas the Respondent Minister argued that the IAD considered both pre-surgery and post-surgery circumstances, and determined the medical inadmissibility had not changed (para 18). The Respondent also argued that de novo evidence could only reverse a medical inadmissibility finding if the evidence demonstrated that either the visa officer’s decision was incorrect at the time or breached the Applicant’s procedural fairness (at para 19).

Justice Frenette, citing the still oft-cited decision of the Federal Court of Appeal in Mohamed v. Canada (Minister of Employment and Immigration),  68 N.R. [1986] 3 FC 90, adopted the Respondent’s position concluding that “subsequent improvement in the medical condition was only relevant to whether special relief should be granted on appeal” (at para 20).

Therefore, it appears that arguments relating to change in medical condition or drug costs will not assist in challenging the legal validity of the Officer’s decision.

But, it is still useful in an appeal?

Application in a Recent IAD Case based on Special Relief – Boukrab

Boukrab v. Canada (Minister of Citizenship and Immigration) [2015] IADD No. 25 is an interesting case of a self-represented litigant who was found medically inadmissible by a visa officer as a result of rheumatoid polyarthritis (para 4).

The visa officer’s medical report itself [it was in French, so pardon my limited French translational abilities] found that the Applicant’s condition would likely continue to deteriorate and listed several drugs that he would require under Ontario’s medical insurance program.

In an effort to likely bolster the medical report, the Minister’s Delegate in hearing disclosure provided a Globe and Mail article which showed that injections or infusions for treating the condition would cost upwards of $20,000.

The Applicant’s arguments regarding the ability to “pay for his mother’s drugs,” were not accepted by the IAD which argued that as the government was statutorily obligated to pay, any undertaking to the contrary by the Applicant would be irrelevant.

However, the Applicant won the appeal on the basis of an updated letter from a rheumatologist dated August 29, 2014 indicating the condition was now stable and that the over-the-counter medication she took cost only $47.25 a month, an amount well below the threshold.

The Member upheld the medical inadmissibility finding but granted special relief (Humanitarian and Compassionate considerations). The Member was similarly impressed by the family’s attention to detail in establishing housing and transfer payments that were to be made.

Practical Tip: Estimating Drug Costs

Drug costs and equivalent treatment can sometimes be difficult to establish, particularly when the Applicant is located overseas and being treated by an overseas doctor. Many medications cost different amounts in different jurisdictions, sold under different labels and may have generic equivalents.

A good tip for Applicants or Counsel is to contact local support/non-profit groups relating to the condition that renders the Applicant inadmissible. These organizations, particularly local chapters, may have updated reports and studies which provide more accurate estimates of medical and social service costs.

It is important to recognize, particularly for negative decisions rendered abroad at foreign visa offices by foreign doctors/officers, is that the cost estimates are often done abroad and based on reports and surveys which possibly are less reliable (and possibly less individualized, local) than the ones you may have at your fingertips.

I also have this handy tool, provided to me by the kind folks at one of the organizations mentioned above, which may assist you in assessing the pre-subsidy prescription medication costs.

As stated on the website by the Pacific Blue Cross: “The Pharmacy Compass is an online tool developed by Pacific Blue Cross that may help you save money by comparing the average price for prescription drugs at different pharmacy locations across British Columbia based on claims submitted to Pacific Blue Cross over the past three months.” http://www.pharmacycompass.ca/FAQ

Once you have a cost estimated for the medication, it will be useful to do two steps. First, compare this amount to the cost threshold. In an ideal world, the cost is under $6,387 a month you may be in good shape. If the amount is slightly over, it may be worth investigating into the province’s subsidy scheme and determining the percentage paid by the government annually (reimbursed to the beneficiary). Here, your individual who is wealthy, but can’t use that wealth to demonstrate that they can pay for the costs out of their own pocket may be able to demonstrate that it affects the subsidized amount. Again, this analysis will have to be done on a province-specific basis and may not ultimately yield positive results. However, as summarized very well by one of my favourite Canadian immigration lawyers, Mario D. Bellissimo in  Chapter 11 – page 31 of Canadian Citizenship and Immigration Inadmissibility Law (2014) “The end result: excessive demands in one province may not be excessive demands in another province.”

Conclusion

Medical inadmissibility is a fascinating area of immigration law, one that is constantly changing based on changes to our health system and our knowledge of scientific treatments.

From what I have seen of it so far, it is often one of the most controversial. Medical inadmissibility cases often make it to the front page of the media, for the devastating affect it has in separating families.

I think it is an area where more case law will emerge, as applicants and counsel are better prepared to challenge the legal validity and put forth strong humanitarian and compassionate grounds for how they are not excessive burdens on the Canadian health system.

Let’s see what happens. Excited to see what happens to our case!

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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.

Awards & Recognition

Canadian Bar Association Founders' Award 2020

Best Canadian Law Blog and Commentary 2019

Best New Canadian Law Blog 2015

Best Lawyers Listed 2019-2021