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Jun 29, 2016

Canadian Immigration Law Blog

Five Tips to Paper Trail Like a Canadian Immigration Lawyer!

I have been very busy. Still there are no excuses I realize I owe about a billion posts for my one month hiatus. This represents the beginning of my seeking for forgiveness from my faithful readers/followers.

Introduction

I wanted to put out a post today that will help self-represented litigants dealing with immigration. I have several of these types of clients who a post like this is directed at. Good/working class command of the English language, a basic understanding of the immigration system, and possibly without funds to hire a lawyer to larger engagement unless a problem occurs.

However, this is also a group that may be very prone of falling into traps or being the victim of administrative mistake. I really like this quote by Prothonotary Kevin R. Aalton in John v. Canada (MCI) 2016 FC 572. The underlying decision was a successful extension request for time to file an applicant’s record.

Like with any job, there are obviously some tricks to the trade that I can’t share. These are best strategies for which we provide a value add as legal professionals and by which we carve our living. However, in my mind, a well-functioning immigration system is not one where 90% or even 60% of applicants should have to speak to a lawyer. This is a system-made for the layperson and I want to give some advice (non-legal/substantive) that can help you organize your immigration file.

Below are five “layperson” tips for papering (or digital papering) an immigration file.

Why is papering important?

In too many consultations, I run into individuals who don’t keep accurate records of their immigration file. After a negative decision, they merely hold a one page-standard form letter from Immigration, Refugee and Citizenship Canada (“IRCC”) that frankly doesn’t provide even the starting point for what has happened. Many individuals do not keep copy of submitted forms, others lose correspondence, and I find few take proper screenshots of electronic applications.

In the event of refusal or a request for further information, these paper trails are critical in defending one’s position. For example if a document is lost or claimed to be not received by IRCC, if you have no proof that you sent it you will have a difficult time seeking reconsideration or judicial review of a negative decision. For an example of this in IRCC policy see OB 265-A here.

More specifically, on the issue of police certificates and Express Entry, showing you have met the document requirements when a police certificate has been applied for but not received is a crucial step. Individuals who cannot provide this proof are subject to their application being refused for incompleteness – which is equivalent to a Monopoly “Go Back to Start. Do Not Pass Go.” See below:

These are just two small examples of what I would say is currently the biggest non-legal barrier to successful immigration.

The ultimate consequence of not papering is when you do seek legal advice, the lawyer/consultant will have to start at square one with your file. This involves obtaining an Access to Information request (“ATIP”) which itself will take at least 30 days and often more to obtain. During this period you may lose out on important deadlines – to respond to information, file an appeal, or file a judicial review as your case may be.

Where a file has a long history, getting those documents may be further delayed by ATIP officers asking for an extension of time to deliver your documents.

During this gap, there is very little to do but wait and see if no accurate records are kept.

Papering Tips

TIP ONE – Screenshot everything – use Print to PDF where ever possible

One of the challenges with many immigration applications and processes moving digitally now is that there is no longer a physical paper trail but a series of screened pages that may not reappear again.

A good practice is to print everything to PDF. Often times you may be tempted to a simple screenshot:

However, something like this short excerpt from a policy guide may be useful now, but perhaps by the time a decision is made on your application the website no longer exists or the policy has changed.

Printing to pdf ensures that you get this critical portion showing when you accessed the document:

This also is especially relevant when submitting online applications. For example, several online applications currently do not charge individuals correct fees and require an additional receipt upload or that have document checklists where you need submit 20 plus documents.

Printouts showing what you have uploaded are very important and can often time be trigger points for self-identifying mistakes and deficiencies.

TIP TWO – Document Your Third-Party Document Requests

Canadian immigration is becoming increasingly dependent on third parties, often times putting your future in Canada at the hands of a third party state police office or educational credential assessment companies. Mistakes can happen there and it is good practice to keep accurate records of all requests tied to your immigration record. For example, you may need to request a name change to an educational credential assessment or police certificate or even follow-up with a doctor to fix an upfront proof of medical certificate. All of these would not be possible without keeping accurate records of third party documents.

This is also particularly important when dealing with Visa Application Centres or Provincial Nomination Programs which often have a line, but not necessary the most perfect line, of communication with IRCC. You want to have paper trails of communication in the event of any discrepancies or gap where information provided by one party can supplement information needed by another.

TIP THREE – Number/Folder Your Documents

When creating your paper folders/online folders it is important to properly number and folder your documents so you do not accidentally get duplicates. This is particularly important in the Express Entry process where you will have screenshots that you will need to take at the profile creation stage and later the permanent residence stage, each of which consists of hundreds of pages of information.

Doing so also makes it more intuitive for an Officer trying to review your file. I have mentioned this before, but I personally believe to submit a complex file without a specific document checklist (not just the one provided with the application forms) is a disaster waiting to happen.

Use (1), (2), (3) and (a), (b), (c) where appropriate and save a lot of headache from forgetting to upload or include required documents.

TIP FOUR – Don’t Mix Your Drafts With Your Final Copies

In the immigration process, there are inevitably times documents need to go through revisions. Perhaps you need to ask your boss to write you a reference letter but that reference letter needs to be edited. Perhaps, you are working with a family member abroad who is working on a portion of an explanation letter for a family sponsorship.

There are many ways to try and ensure drafts and final copies don’t mix. Some lawyers do a v1, v2, v3, final approach. Others I have seen keep a draft document folder that holds all unused copies. Regardless, nothing is worse than submitting a document that accidentally contains comments or is missing important information because it is a previous version. I recommend individuals to always submit PDFs as final copies and always label final copies as such.

TIP FIVE – Courier/Track Everything Coming in and Out and Make Sure Right Process is Chosen

One of the musts I have come to realize is that documents need to be tracked upon exiting your hands and entering your hands. I strongly recommend self-reps to invest in a date stamp to properly make sure all official documents are dated. This is important especially if a document is snail-mailed by IRCC and is received by you several weeks after the date. In the event, your own deadline is coming up you may need to show proof that are still within the time frame to respond or initiate further action or request an extension as required.

Second, I would suggest that when mailing immigration documentation (unless tactically otherwise), this mail should be tracked. Immigration applications contain several pieces of private information and particularly for overseas offices or domestic offices where there are many branches, it is easy to misdirect a piece of correspondence.

Also, it is important to follow IRCC’s instructions and read them carefully when choosing what medium to response. For example, often times a response can only be sent by one medium only as indicated in a letter (i.e. return email). Other times there is no requirement, so it may be in the interest of an applicant to send it via two mediums to ensure a document is received and tracked. Finally, there may be times where there are no channels and other channels (case-specific enquiry, case review, MPs office, etc.) need to be contacted in lieu.

Conclusion

Papering (or digital archiving) in Canadian immigration is increasing in importance. I have not even begin to touch on the other implications (for example Employer Compliance) which will be subject to future posts.

Please contact me at will.tao@larlee.com if you ever have issues with papering/records. I have a good track record with reconsideration requests and I hope to help you moving forward!

Mar 20, 2016

Not-So Hidden Prejudice: Visa-Office Specific Document Requirements and Chinese Applicants

Canada’s historic mistreatment of Chinese migrants through immigration policy and law, though under-appreciated, cannot be understated.

It began with the introduction of the Chinese Head Tax in 1885. This led to the Government to carve out the Chinese Exclusion Act of 1923. It was not until 1967, that race and ethnic origin were removed as a valid consideration of inadmissibility in 1967. However, even after this date – spouses of Chinese applicants faced greater scrutiny and heavier requirements.

One would assume that in 2016, any government-endorsed effort (asides from the visa requirements that a nation is legally able to set out), that treats individuals of one nationality different than individuas of another may evoke some concern.

I have ALWAYS denied that institutional-supported discrimination exists in Canadian immigration. Have I seen one off cases? I have certainly read my fair share of visa officer decision and member decisions that could have been much more culturally sensitive. In many of these cases, competent counsel took their cases to appeal and judicial review and won on those grounds. Rare wrongs that mostly were righted at the end of the day.

Even, in the face of the May 2015 debacle where “uneducated” Chinese students in relationships with Canadian sponsors were revealed as a triggering characteristic for bad-faith/marriages of convenience, I somewhat accepted the then government’s response/defense. If there was a heavy incident of fraud among Chinese applicants, having an internal guide to try and shutdown the fraud can be somewhat justifiable in the circumstances.

As well-documented, the current Liberal government is focused on “sunny ways.” Many of us can feel the many rays of light that this has brought – be it through increasing family class sponsorship numbers or ending several court interventions relating to immigrant rights.

However, there are still some dark undertones in the system, recently updated and reviewed, that in my opinion still exist.

Specifically, I think these elements project Chinese applicants in a negative light, reinforce negative stereotypes, and ultimately should be amended or eliminated in an effort to re-enforce the government’s commitments to the Charter and equality.

Example 1: Visa Office Requirements China v. Western Europe

As a bit of a juxtaposition, I want to put up the Visa Office specific checklists for two visa posts – the London Visa Office and Beijing, Shanghai, Hong Kong China (Chinese) offices for study permit applicants. These form the basis of supplemental documentation required by the Visa Office to make a decision on a particular application.

Here is the one for London Visa Office:

In the event the picture is too small, the additional documents are made up of only a ‘proof of employment or current studies’, ‘evidence of previous studies and travel’, and proof of income. For purpose of study, only a CV and any additional documents showing why you want to study is required.

Let’s move now to the Chinese Offices

The preamble…..

Before we begin, a preamble. Unlike for London, for China we see immediately that Immigration is concerned about complete, truthful and accurate materials and failure to do so could lead to fraud.

I have no qualms about this particular warning. I think the integrity of our system needs to be protected above all else.

However, I do not think it makes sense to include this only on the Chinese form and not the form for other countries. Perhaps, China statistically has higher incidents of fraud than other countries. This is certainly something that needs to be addressed – and must be through greater regulation of those who are providing immigration advice. However, to slap a misrepresentation warning on one group because of a perceived reputation of that group is the definition, in my mind of, the word ‘prejudice.’ Imagine, if the goverment’s checklist warned all Middle Eastern study permit applicants that it was against the rules of immigration to be a member of a terrorist organization. The effect is the same here.

After this preamble, in my opinion more questionable content:

For an applicant apply through the London Visa Office, there is no requirement for the disclosure of information relating to the applicant’s mother and father. As this application does not age discriminate, even a 30-year old applicant must provide information about his/her father and mother in order to meet this requirement.

From my perspective, this is a view of an Asian ‘student’ as being an individual low on self-reliance and self-independence – inexplicably tied to their family rather than to self. Again, I have no qualms with requiring each family member to fill out a form – but should this not be a global requirement for visa offices?

Next, a study plan. Note that is much more detailed than the one for London. Finally, you have a list of notarized documents, for college, senior high school, and including all transcripts. From a cost perspective, notarized documents with certified translations can run up to 400-600 RMB (equivalent to CDN 100-150) per document. Easily making the immigration process an additionally CDN $1000 more expensive.

For applicants who have not already visited Canada or the United States on a valid visa, the document requirements are even higher.

We see again, a concern with not only the Applicant’s employment put the employment of the parents and any financial support. The details required to be divulged are quite detailed.

In fact, the checklist gets detailed to the point of requiring that if an applicant’s parents must provide details about their business registration.

In my opinion, if you make this a requirement for one, it should be for all. Furthermore, I would suggest that the students that you genuinely want in Canada are those who may not be able to shell out CDN $1000 for transcripts, whose parents aren’t necessarily bankrolling their education or running businesses, and who wish to study here on their own merit. None of this is contemplated, within the supplementary form. This creates several challenges, particularly where you have a potential student applicant who may not be under the care, auspice, or even favour of their parents in trying to pursue Canadian education.

Example 2: Warning Message – Application to Sponsor a Family Member Outside Canada (China v. Western Europe)

Beyond the study permit context, there is also a similar type message for Canadian/PR spouses sponsoring their loved ones from abroad.

Here is the beginning of the guide to Western Europe:

Here is the beginning of the guide to China:

Other than the fact that the 2-years for misrep should actually say 5-years (as of the January 2016 date that it was last update), I have serious concerns with the implication of warning one group but not another.

As this is a guide for both sponsors and applicants, as a future sponsor of an applicant from China, I feel like I am beginning purposely pointed out as a potential for fraud simply based on the nationality of my future spouse.

To compare, I did a spot check on other guides. This same warning does not exist for India, Japan, or even Africa. However, it does exist for the Middle East and Central Asia applicants:

Indeed, it you want to read into a little more the box is even bolder in font for Middle East and Central Asia warning of misrepresentations. Accident or not, it is clear and obvious that the visa office requirements, and by extension the Canadian immigration system, is not treating all applicants similarly.

More Evidence – More Problems

Perhaps a defense that may be raised to the hierarchy of ‘distrust’ argument, is that India’s guide does not discuss fraud, even with it’s pre-existing reputation. If it is indeed, right now, the decision of individual visa offices to choose the content on their office-specific forms, I would argue that more harmonization is desperately needed.

In my opinion, a fair and just immigration system treats applicants and potential applicants as fairly and equally as possible without pre-conceived notions as to who they may be and what they may do, without evidence.

Warning an applicant from a particular country or region without warning another is a preconceived notion.

The fact is these requirements, directly affect results as well. I have seen more than one refusal decision where an female applicant from China was called “young” and “mobile”, leading to the conclusion she would not leave after the end of her intended stay – a requirement for temporary residents.

Furthermore, the documents themselves pose major privacy and even evidentiary issues. The more evidence an applicant provides in an immigration context, inevitably the more scrutiny they will face in so-doing. From an applicant’s perspective, the more they are being scrutinized, the more they will think that there is a distrust of them.

Additionally, the document quality standards in most countries pale in comparison to the Canadian standards. In many countries and particular poorer/less affluent regions, translations into English/French are not accurate and prohibitively expensive.

Fraud needs to be combatted, but at the same time it needs to be done in a way that equal, just, fair, and upholds the value of our Charter […]

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Five Tips to Paper Trail Like a Canadian Immigration Lawyer!

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canadian immigration

Blog Posts

Five Tips to Paper Trail Like a Canadian Immigration Lawyer!

Not-So Hidden Prejudice: Visa-Office Specific Document Requirements and Chinese Applicants

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Recent Posts

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About Me

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