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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Recent Blog Posts

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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Canadian Film or Video Production Tax Credit and Canadian Immigration (Part 2)

Introduction

In this section, I will look at the Canadian Film and Video Production Tax Credit’s (CPTC) provisions around Key Creative Personnel and why, consequentially, Telefilm Treaty Co-Production Agreements are desirable from an immigration perspective.

Telefilm Treaty Co-Production Agreements

The first stage in determining whether the Key Creative Personnel are met is to determine what type of production is in question. the CPTC Guideline sets out two different types, Live Action Productions and Animation Productions, each with their own set of scoring rules.

For a Live Action Production the following positions are considered for a maximum of 10 points. To qualify, one of two of the director positions and one of two of the lead performer positions must be filled by a Canadian.

  • Director – 2 points

  • Screenwriter (see s.4.06) – 2 points

  • Lead performer for whose services the highest remuneration was payable (see s.4.05) – 1 point

  • Lead performer for whose services the second highest remuneration was payable – 1 point

  • Director of photography – 1 point

  • Art director – 1 point

  • Music composer (see s.4.07) – 1 point

  • Picture editor – 1 points

For a Animation Production the points are as follows:

  • Director – 1 point

  • Screenwriter and storyboard supervisor (see s.4.06) – 1 point

  • Lead voice for which the highest or second highest remuneration was payable (see s.4.05) – 1 point

  • Design supervisor (art director) – 1 point

  • Camera operator (in Canada) – 1 point

  • Music composer (see s.4.07) – 1 point

  • Picture editor – 1 point

  • The following points will be allotted if the work is performed solely in Canada.

  • Layout and background – 1 point

  • Key animation (must be in Canada) – 1 point

  • Assistant animation and in-betweening – 1 point

With respect to Animation Productions, there are some additional requirements. Either the director or the screenwriter and supervisor must be Canadian. Either the highest or second-highest remunerated lead voice must be Canadian, and all key animation must be done in Canada.

There are also several general rules that apply to all types of Key Creative Personnel. Among the general rules are several important for immigration purposes. No points are to be awarded for Canadians who share key personnel roles for other non-Canadians. Also, the camera operator role for Animated Productions must conduct his work in Canada. Also, scoring on a collection of films or a series of films must be done individually and the production company should make a separate list of individuals who worked on each production.

Why are Telefilm Treaty Co-Productions So Valuable from an Immigration Perspective?

Canada has currently 55 Co-Production Agreements and Memorandum of Understandings with several countries. The full list can be found here.

The benefit of a Treaty Co-Production Agreement is that pursuant to the CPTC Program Eligibility Requirements, these films operate under the specific Treaty Co-Production Agreement rather than the CPTC Guidelines with respect to the Key Creative Personnel and Producer-Related Personnel. The CPTC Guidelines regarding the Key Creative Personnel point system and the rules surrounding production-related personnel need not apply.

The language in these agreements is generally much more favourable than the CPTC Guidelines. For example, in the 2014 Audiovisual Co-Production Agreement Between the Government of Canada and the Government of the Republic of India ( the “India Agreement), Articles 3 and 5 provide that producers and participants can be a national of one of the parties and that through mutual consent in writing by administrative authorities, can also include third countries.

The India Agreement also provides in Article 6 that the Parties shall facilitate temporary entry and residence in the respective territories for creative and technical personnel and performers.

Importantly, one of the countries that does not have a Treaty Co-Production Agreement with Canada is the United States. One of the areas I will be researching into in the future (possibly through ATI requests) is how American film productions, through filming in Canada, partnering with local production companies, and utilizing Canadian actors in key lead roles have been able to take advantage of the CPTC tax credit.

Hope you enjoyed the post 🙂

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New Express Entry Italian Page, Immigration Resources, and the Importance of Optics

On June 12, 2015, Canada’s National Defence Minister Julio Fantino on behalf of Canada’s immigration minister, Chris Alexander announced the creation of a new Italian-language resource to help promote Italian immigration to Canada via Canada’s online processing system for economic immigration, Express Entry. The news release can be found here.

I think that recognition by the Federal Government of the imbalance of immigration from certain parts of the world is a good thing. More Italian immigrants to Canada, where many of our top politicians, athletes, and businesspeople have Italian roots is also a fundamentally good thing.

I also think providing resources in languages outside of Canada’s two national languages is fundamental and crucial to attracting top-class immigrants. Before an applicant goes off to taking language exams in one of the two languages, they often times (and many years prior to actually landing in Canada) have to decide to begin the very process of pursuing permanent residence. Without access to resources in the native language of Applicants, it is ripe for individuals who purport to know what they are doing (ghost consultants and the like) to provide immigration services. Many of these services are substandard and ultimately illegally performed.

My major qualm with the Federal Government’s launch of an Express Entry Italian page is that I believe it is not good optics to have resources available in one language and not other languages. With something like the Express Entry Italian page I understand that it is not as simple as creating a page and paying interpreters to translate the resource into many languages. There are discussions that need to be had with consulates, even with domestic governments who do (particularly in the case of China, the country I am now in) the type of web resources available on sensitive issues such as immigration.

However, to provide a page in Italian that is not correspondingly available in Arabic, in Farsi, in Hindu, or in Mandarin suggests Canada is aiming its resources at immigrants from select countries rather than the most economically and socially desirable immigrants from around the world. Optically, I hope many more third-language resources are made available to explain an Express Entry system that frankly is counterintuitive and confusing for many overseas applicants.

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A Day One Problem: Post-Graduate Work Permit to Permanent Resident

In December 2014, my colleague Steve Meurrens predicted that the introduction of Express Entry would have a devastating effect on the ability of international students to obtain Permanent Resident status in Canada (see: http://canadianimmigrant.ca/slider/are-options-for-international-students-to-immigrate-permanently-narrowing).

It seems like Steve’s epiphanies have come true. Just this past month I have received no less than 5 inquiries from individuals on the last year of Post-Graduate Work Permits (PGWP) asking about how they can obtain Permanent Resident status.

The challenges are quite clear. Time spent working on PGWPs, while earning some Canadian experience points, do not earn any extra points that appear necessary to obtain an Invitation to Apply. Individuals with PGWPs will have to not only meet the requirements of the Canadian Experience Class or Federal Skilled Worker Programs (at least 1 year of NOC 0, A, B experience), but also likely need either a Provincial Nomination or a Labour Market Impact Assessment.

The Labour Market Impact Assessment, which used to allow for advertising breaks for Employers hiring PGWP holders, now requires a $1000 application fee in addition to the 1 in 4 likelihood of a compliance review. Such burdens are heavy for Canadian employers to bare, particularly when the international graduate is likely entering only a mid-level NOC B position. Furthermore, the advertising exemptions have been removed and Canadian Employers must demonstrate that the PGWP holder is more suitable than Canadian candidates who have many more years of relevant experience and often times higher educational credentials. It is also hard, to make a business case, to pay someone with little experience a prevailing wage that reflects a skilled labour market generally with more experience and demanding hire wages.

One of the biggest problems facing PGWP holders is actually on the front end. Many recent graduates are unable to obtain positions right out of university that are NOC 0, A, B. Many start in NOC C, D positions (often unaware) that there is a requirement to obtain a promotion in order to qualify for Express Entry. Couple this with the fact that options for Entry-Level/Semi-Skilled (EE/SS) workers to obtain Permanent Residence (at least in B.C.) is limited to the currently-closed B.C. Provincial Nomination Program for EE/SS workers.

The Importance of Employer Communication Re: PGWP Status

One of the challenges is that many employees are hesitant to get into the conversation with their employers about their immigration status for fear of job security and other issues. However, this conversation needs to happen and ideally happen at the front end. Unless, it is in an Applicant’s plan to return to their home country following work on a PGWP, continue further studies, or pursue another guaranteed NOC 0, A,B vacancy within two years, not discussing immigration status with an employer can be disastrous. Currently, Canada’s economic immigration programs are all employer driven. If you are to obtain permanent residence in the future an Employer needs to be there to support you – write you a confirmation of employment, make recruitment efforts, provide your paystubs and their own tax/corporate information. Most importantly, they have to put their neck on the line in representations to Citizenship and Immigration Canada (CIC) and Employment and Social Development Canada (ESDC).

Your pathway to permanent residence starts on Day 1. Your employment contract or at the very least, your unofficial understanding with the employer needs to involve your ability to be promoted to a NOC 0, A, B position so you can get at least 1 year of skilled-work experience.

You can check the skill level of your position using the NOC matrix available online. Note that the BC PNP uses the 2011 NOC Matrix (here), which ESDC uses the 2006 NOC Matrix (here) Make sure, however, to obtain proper advice as to the wording of your job duties. Several positions, particularly those designated by Canadian employers who are unfamiliar with the NOC or your requirements to have skilled employment, may inadvertently hire you to a purported “skilled position,” while giving you job duties more akin to a lower-skilled worker.  For example, one may assume that an administrative assistant (http://www5.hrsdc.gc.ca/NOC/English/NOC/2011/Profile.aspx?val=1&val1=1241) and an office support worker (http://www5.hrsdc.gc.ca/NOC/English/NOC/2011/ProfileQuickSearch.aspx?val=1&val1=1411)  would both be considered under the same NOC Code given the similar nature of their duties, but an administrative assistant is a NOC B position (thus qualifying for Express Entry) while an Office Support Worker isn’t (NOC C low skilled position).

It is furthermore important to broach your Canadian employer because of the number of hybrid positions that are subject to classification under lower NOCs by ESDC. A great example of this is in the banking industry where a Customer Service Representative is a NOC C position (http://www23.statcan.gc.ca/imdb/p3VD.pl?Function=getVD&TVD=122372&CVD=122376&CPV=6551&CST=01012011&CLV=4&MLV=4) but a Financial Service Representation is a NOC B position (http://www5.hrsdc.gc.ca/NOC/English/NOC/2011/Profile.aspx?val=6&val1=6235).

There is arguably a ton of overlap between the two positions and a ton of Customer Service Representatives I know who are gaining in seniority begin to take on some of the responsibilities of Financial Service Representatives. Complicating things, I know some banks call their Customer Service Representatives, Financial Service Representatives.

Another complicated matter are individuals who take on hybrid Account Manager (NOC B) and CSR (NOC C) roles. For immigration purposes, these type of positions will be under heavy scrutiny.

Know your Provincial Nomination Programs

Until the non-Express Entry British Columbia – International Graduates Program is announced in the beginning of July, the Express Entry version is a very good option for applicants (http://www.welcomebc.ca/Immigrate/About-the-BC-PNP/Express-Entry-British-Columbia/Express-Entry-British-Columbia-International-Gradu.aspx). Again, one of the challenges is the Applicant has to meet the basic requirements for one of three economic programs – which will require one year of NOC 0, A, B, either prior to coming to Canada and while holding a PGWP. As the International Graduates program requires you to apply within two years of completing your education program, this essentially gives you a two year window to get the requisite experience (assuming you don’t have it).

The International Graduates program is nice because there is no need for previous experience. The Applicant must only demonstrate that they have the means to support yourself and your dependents. For the Skilled Worker program, there is the requirement of several years of work experience, which is usually assumed to be two or more, creating a major time crunch for transitioning from a PGWP.

Regardless, it is important to keep up with the rapidly changing PNP program offerings. For example, on July 1st the BC PNP is reopening several programs, which I forsee may create more options for graduates of particular programs in professions that B.C. views in high demand (possibly LNG, Tech, and Medical fields).

I hope this article provided some insight into the challenges. As always contact me if you have any questions!

 

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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

Best New Canadian Law Blog 2015

Best Lawyers Listed 2019-2021