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Counsel’s Increased Liability under the new Citizenship Act/Regulations
Many of you have may have noticed that I have been quite active in writing about the recently in-force Strengthening Canadian Citizenship Act [“SCCA”] and how it may affect Applicants. Earlier this week, I wrote this piece for New Canadian Media where I looked at good, bad, and ugly provisions of the SCCA and ultimately concluded that it’s contradictory effect on immigration policy may be more harmful than the provisions themselves.
I’ve also been looking at how the SCCA may affect the work of Counsel (which I will use interchangeably with the term Authorized Representatives) for Citizenship Applicants. In my forthcoming article in the Citizenship and Immigration Law Bulletin for Thomson-Reuters, I present a case that Counsel may be drawn into greater responsibility for tax law issues now that Social Insurance Number-sharing provisions have been introduced into the Citizenship Regulations.
In this piece, I want to look briefly at another issue which may affect Authorized Representatives as a result of the changes to the Citizenship Act and Regulations, the issue of ethical and professional liability and regulations that now allow for disclosure of wrongdoings from CIC to the regulatory body.
The Changes
As a result of amendments via the SCCA, The Citizenship Act now provides that it is illegal for an individual who is not designated as an authorized representative. to represent a Citizenship Applicant for consideration, whether this advice is direct or indirect.
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The above-language used in the SCCA suggested that further regulations governing the conduct of authorized representatives would be introduced.
The new Citizenship Regulations now in-force (supplementing the corresponding SCCA changes to the Citizenship Act) provide those further details.
Among the Citizenship Regulations introduced are those which clarify that ICCRC-designated Immigration Consultants can advise on Citizenship for consideration. Also, there is clarification that any application where an Authorized Representative listed is not in fact authorized will result in applications being returned, unprocessed.
REPRESENTATIVES AND ADVISORS
Purposes of subsection 21.1(5) of Act
19. For the purposes of subsection 21.1(5) of the Act, the ICCRC is designated as a body whose members in good standing may represent or advise a person for consideration — or offer to do so — in connection with a proceeding or application under the Act.
Person not authorized under subsections 21.1 (2) to (4) of Act
20. If an applicant is represented or advised for consideration in connection with a proceeding or application under the Act by a person who is not referred to in subsections 21.1 (2) to (4) of the Act the application will be returned to the applicant because it is not accepted into processing.
The new Citizenship Regulations also create that vehicle by which CIC can privately disclose to professional regulatory bodies such as the Immigration Consultants of Canada Regulatory Council (ICCRC) and provincial law societies, conduct which may raise ethical and professional concerns [emphasis added] (see full language of regulations: here).
DISCLOSURE OF INFORMATION
26.1 If the Minister determines that the conduct of a person referred to in any of paragraphs 21.1(2)(a) to (c) of the Act in connection with a proceeding — other than a proceeding before a superior court — or application under the Act is likely to constitute a breach of the person’s professional or ethical obligations, the Minister may disclose the following information about that person to a body that is responsible for governing or investigating that conduct or to a person who is responsible for investigating that conduct:
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(a) their name, postal address, telephone number, fax number and email address;
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(b) the name of the professional body of which they are a member and their membership identification number;
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(c) any information relating to that conduct, but — in the case of any information that could identify any other person — only to the extent necessary for the complete disclosure of that conduct.
Increased Risks
I believe this later provision may pose some risk to authorized representatives who advise on Citizenship.
For example, the ICCRC Code of Professional Conduct (here) contains several provisions regarding competency and quality of service. I don’t see anything preventing Citizenship and Immigration Canada (CIC) from disclosing to ICCRC poorly or incompetently filed applications or where a representative has failed to meet deadlines or Citizenship Act requirements. This could ultimately be used against the Authorized Representative, either if the regulatory body or an upset client decides to raise a complaint against the Authorized Representative.
What makes this challenging is that CIC ultimately stand on opposite sides of the coin when it comes to assessing an application. I’ve read of numerous occasions in case law where counsel for the Applicant takes a perfectly legal, but highly risky approach, on a file and CIC has taken a position against the strategy or approach is abusive or frivolous. The line between […]
Excerpt from My Law School Personal Statement Back in 2010/11
A lot of individuals and friends of mine have now completed their LSATs and are in that second part of the battle, putting together a law school application.
I thought it would be useful to put to and excerpt of what I wrote back in the day. I’m lucky and fortunate to be able to live out the words I wrote below:
On a sweltering summer day in 2007, I was assigned to be the clinic assistant for a low income African immigrant named Naomi. She had spent the past six months suffering from severe back pain and was unable to work as a result of the Plaintiff’s reckless driving. At the time of the accident, the plaintiff had been apologetic, leading Naomi to feel compassionate and not pursue further action. A recent immigrant from Africa, she was also unaware of her legal recourse.
Hearing her story, both on the phone and in person I was reminded of my own father, who arrived in Canada at 26, a doctor from Shanghai, similarly compassionate, but unaware of the struggle for recognition he would face. Walking an exhausted Naomi to the lawyer’s downtown firm, I was reminded me of my own mother, struggling to bring the weekly vegetables up the hill. Without the vegetables, there would be no dinner for the wealthy diplomats who offered my family free rent in exchange for three cooked meals a day.
Perceiving me to be a paralegal, Naomi praised me for my earlier efforts and asked me countless questions in hopes of gaining my advice. As much as I wanted to provide my own advice, I knew that my volunteer position required me to be merely a listener and a recorder of relevant detail. Inside, however, I knew that I had to continue my commitment to studying immigration. I also decided that day that I would become a lawyer, to help those like Naomi and my parents.
As a side note, it is imprudent to send the same personal statement to every single law school in the country. Consider it the same as if you were to send the same cover letter to every single employer in the country just because they offer the same position.
Guest Post: “Marouf” by Abigail Cheung
I’m proud to feature today the guest post of a friend of mine and soon-to-be lawyer extraordinaire, Ms. Abigail Cheung. Abigail has a long-standing interest in immigration law, and I am sure will continue to be very active both from a legal and policy perspective for years to come. Currently, Abigail is a Summer Articled Student at one of Canada’s top law firms based out of it’s Vancouver office.
In this piece, Abigail talks about her work in U.S. Immigration Law and at an Immigration Law Clinic while she was an undergraduate student at Yale University.
Kabul does not have mailing addresses the way other cities do. So imagine my surprise when I received a response to a letter I’d sent to the address “opposite the Dutch Embassy, Kabul,” a week after mailing it from the US to Afghanistan. Even more incredible than the package’s arrival were its contents: three intifadas handwritten by members of the Taliban. I know these things because, in my third year of university, I met Marouf.
Although I had taken a course on US Immigration Law before participating in a clinic called Immigration Legal Services at Yale Law School, no amount of training could have prepared my partner or me for the man we would come to know intimately over the next four months. The first time we interviewed Marouf, Scarlet and I were nervous, but Marouf was positively skittish. It quickly became apparent that the questions we had prepared weren’t altogether appropriate. Before us was a man who told us he had been kidnapped and tortured and had left everyone and everything he knew behind because people had threatened to kill him. And here we were, wanting to know details like how long Marouf had lived in a refugee camp, and whether or not he had a graduation certificate from the school he’d attended there to prove that.
Sometimes, Marouf would get frustrated. Why were we asking prying questions about his family members’ lives? Why were we asking him to delve into memories he had tried to forget? Sometimes, we would get frustrated. Marouf told us his story one way; the next time we met, his story, or its chronology, had changed. Was it possible, we wondered, for someone to forget how many times his kidnapper had beaten him? Could one fail to remember the contents of a personalized death threat?
For months, we worked feverishly. We made timelines and checklists. We found translators who helped us maneuver between Farsi and Dari. We perused country of origin information, sought out expert testimony and outlined the basis for Marouf’s claim. Four months later, we had a comprehensive story.
Over the course of our interviews, I noticed changes in Marouf. Scarlet and I worked on building trust with Marouf until he was willing to volunteer information without prompting. Initially afraid of the dark, Marouf eventually overcame his fear and even drove to one of our interviews at night. Gradually, Marouf opened up and excitedly told us about his brothers, sister and nephew.
Marouf also changed me. When you realize that failing to complete your homework to the highest standards could result in your client’s deportation and potential death, you develop a new type of work ethic. When someone calls you on a Friday night to ask you if committing suicide might protect his family members from danger, you gain a new level of compassion. When someone explains what it’s like to have handwritten death threats posted on his family home’s door on three separate occasions, war takes on new meaning.
Marouf attended his immigration hearing in December 2010. One month later, Marouf was granted asylum.
After meeting Marouf, it was hard not to think about war and migration in human terms. The summer after I met Marouf, I met a Rwandan who ran a computer shop in South Tel Aviv. A long, framed photo of men dressed in traditional costume and their cattle hung over the store’s entrance. After he caught me looking at it, Sentwali invited me to sit down. He explained that it was his only picture of him in his hometown, which had since been razed to the ground. Two years ago, I met an Eritrean woman in Hong Kong. During one of our interviews, she rolled up her sleeves to show me scars she had had gotten from having been tied to a tree and left under the baking sun for hours—punishment for being a Copt in a country that didn’t recognize the religious sect.
Several years after first meeting Marouf, I am no longer satisfied with listening to immigrants’ stories; I’m determined to change them. A few months ago, I attended a rally in downtown Toronto where participants spoke out against the governments changes to live-in caregivers’ pathway to permanent residency. My hope is that by speaking up, we can make sure immigrants’ stories are not just stories on a page.
Cultural Challenges at the IAD
Two weeks ago, I attended a very interesting workshop held at the Law Courts Centre discussing the issue of how issues around ethnic diversity and race may affect the overall judgment of a legal decision-maker. Given that the speakers were a current judge and a former judge (now lawyer), I expected a very cautious discussion. I was surprised to find that both admitted there were significant cultural competency challenges facing decision-makers, particularly around such things as cultural traditions (re: marriages and families) as well as the importance of effective interpretation/intepreters.
The Use of Interpreters
I recently had the privilege of sitting in on an Immigration Appeal Division (IAD) spousal appeal where I witnessed interpreting challenges in practice. The interpreter admitted at the forefront that there were dialect issues and in general was having difficulty keeping up with the fast pace of the witness (who was testifying by phone). The decision-maker was noticeably irritated by the witnesses inability to be concise and cooperate with the interpreter. Cantonese for many who do not speak it comes off very fast and harsh (even to someone who speaks mandarin like myself). The Member at the hearing was noticeably unamused by the tone of the witness.
At the workshop, the judges both recommended that if the witness is able to speak English they should use that as the language of testimony. I completely agree. The individual used (particularly in immigration hearings) is not a professional certified interpreter. Furthermore, many terms and human emotions simply do not pass through interpretation. I believe that the credibility of the witness is is inevitably weakened and definitely not aided.
Mental Illness
Another cultural challenge that I have seen in several IAD cases (a few that have led to Judicial Reviews) is the issue of mental illness and disability. In the West, we have a very advanced view of mental illness and disability compared to many countries of the world. While undoubtedly stigma and prejudice still exist, parents generally know from an early age from their family doctors and educators what the child suffers from and what type of treatment options are available.
In much of the world this is not true. Mental illness is not well-studied nor understood and it is often not an issue that families enjoy discussing at the dinner table. Rather than relating to the specific name of the disease, the Chinese name for many of these illnesses is simply the blanket term “mental illness” or “personality illness.”
Consequentially, I have seen quite a few cases where family members and spouses were unaware of the diagnosis of the mentally-ill/disabled individual and only able to describe several of the key effects (i.e lower IQ, trouble functioning in public, etc.). These factors were later turned around and used as signs that the underlying relationship (in the immigration context) was non-genuine and therefore excluded the family relationship and rejected the appeal.
I think decision-makers, particularly at the IAD stage need to be very aware of the different cultural stigmas around mental health and how lack of knowledge of diseases may not necessarily be a sign of a non-credible witness or a non-genuine relationship.
The ‘I Love You’ Factor
Another issue that I have seen arise in the IAD is in the assessment of the types of actions which demonstrate love.
Perhaps to the archaic nature of case law in the area, the genuineness of a relationships is still defined in large part on things such as telephone records and love letters. Importantly, the relationships must be centred around love and the need for proof of the “I love you’s.”
In the modern day however, this evidence of genuineness may not always be true. Several couples use Whatsapp, Skype, or some cultural chat software (QQ, Kakao Talk, WeChat) to communicate. Many of these platforms do not allow for message histories to be effectively kept and furthermore some of the sending of media images back and forth and video chats, and conversations in foreign languages, are not readily transcrible. In one IAD refusal decision I read, the sending of media back and forth between a couple was described as “illogical.” The individual Member had likely never used Whatsapp before.
A second challenge that bogs many foreign couples (particularly older ones), I find, is the actual use of the words “I love you” in various contexts. Even in my own parent’s generation, the words I love you are rarely ever said or heard around the house. If asked why they are together or attracted to each other, I am sure my parents would come up with issues related around responsibility, similar view on household chores/economics, etc.
I think it is important to be sensitive to the way love is expressed in different cultures and not draw negative inferences based on different understandings.
Just a few thoughts on this Sunny Sunday in Chongqing, China.
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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
2023 Clawbies Canadian Law Blog Awards Hall of Fame Inductee
Best Canadian Law Blog and Commentary 2021
Canadian Bar Association Founders' Award 2020
Best Canadian Law Blog and Commentary 2019
