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The Time the Korean Church Congregation Came Out to Our Immigration Appeal

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Having not blogged on here for awhile (admittedly struggling with writer’s block/half-written blogs – the usual) I wanted to take a short trip down memory lane through one of my more memorable cases.

I was representing an older Korean Appellant. He had gone through some traumatic injuries and as a result spent too much time with a family member in the United States (as a Green Card holder) and thereby breaching the residency obligation. It was not an insignificant breach.

The case started off with strong documentary evidence. This was pre-amendments to the IAD Rules, which now make it even more crucial to ensure front-end evidence is provide and letters. We made a very strong paper-based case which supported what occurred at the hearing.

Remember, this was back when there were in-person hearings. It seems like a lifetime ago, but up on the 16th floor of 300 West Georgia there are several hearing rooms. Ironically, we were assigned the smallest one, I believe just a handful of no more than eight seats in the witness booth.

The case already had several witnesses. The Appellant had several children, his spouse, and even a best friend were willing to testify.

One of my strategies, which I think is not only effective but also very necessary is to ensure the Appellant has enough to present their case. Back then, in many residency appeals they would schedule cases only for 2 hours. This was in large part due to backlogs, but also an assumption that removal order (residency obligation cases) were easier – required less witnesses, were less complex. This matter, contrary to that presumption, was quite complex with many layers, a long history, a vulnerable person, and a narrative that needed time to tell through multiple witnesses.

However, at this hearing, we also had another advantage – the entire Korean church congregation that the Appellant belonged to. The family had put the word out and even unexpected to me, twenty ajumas and ajusshi’s showed up at the hearing.

As the Member was about to set preliminary matters, he looked up and saw them all from a semi-circle form around my client like a choir around a conductor. He saw that there were members of the congregation would could not even fit in the room and the door was half propped open.

He respectfully gave everyone a chance to state their name, addressed everyone and thanked them for coming out. He ultimately suggested that they could go home as there was simply not enough space. After the room cleared out, he took at the voluminous disclosure, turned to the Minister, and in essence suggested that this appeared to be a very strong case on paper and whether the Minister still wanted to proceed.

The Minister was not ready to consent yet. We proceeded through direct examination and a cross-examination of the Appellant before we were able to reach a consent. Following this, I shared a lovely lunch with the family in Chinatown, nearby.

It was – to date – probably my most memorable IAD experience. It also goes to show, something I often mentor young lawyers and practitioners on – is the importance of the factual, and beyond that the visceral argument. There is a role in compassion and humanity, even amidst the growing boilerplate application of laws and principles.

I wanted to share this story. Perhaps more to re-inspire myself more than anything else.

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Complex Immigration Scheme or Applicant in Impossible Position ?

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Complex Immigration Scheme

Particularly in cases where a bad faith relationship pursuant to r.4 of the聽Immigration and Refugee Protection Regulations is being alleged, Minister’s counsel may begin on a process of what I call “scheme formulating.” A process by which they will theorize the primary purpose of immigration as an elaborate scheme.

First of all let me say flat out, I hate fake relationship schemes. As an immigration lawyer and someone who wishes to lawfully sponsor my genuine spouse down the road, nothing sickens me more than a fake sponsorship scheme. There are tons of companies out there that for a few hundred bucks can cook up a way to get someone into Canada – fake refugee claim, fake sponsorship. These individuals are the reason scrutiny is that much heavier on genuine applicants.

Because of the knowledge of these schemes, inevitably some individuals with genuine sponsorships have their relationship labelled schemes. 聽Particularly at the Immigration Appeal Division (“IAD”), the schemes end up making up a large part of the written decision.

Placing the Applicant in an Impossible Situation

How is an application put in an impossible situation?

InSandhu v. Canada (Minister of Citizenship and Immigration) 2014 FC 1061聽Justice Montigny sets out as follows (emphasis added):

[29]聽聽 聽聽 聽聽 聽 It appears from a careful reading of the decision that the Board member was prone to speculation and disregarded significant portions of the evidence. For example, the Board member found that because the Applicant鈥檚 husband knew details about her life, including her address, that he 鈥渆ither memorized or read out the address of the applicant with its postal code in order to try to show he is knowledgeable鈥 about her. Not only is this mere speculation, but it also puts the Applicant in an impossible situation: as was the case in Paulino v Canada (Minister of Citizenship and Immigration), 2010聽FC 542 (CanLII), 鈥淸a] detail 鈥 that might support the genuineness of the relationship is turned around to support a negative finding because it is likely integral to a complex scheme of fabrication鈥 (at para 58).

In聽Sandhu,聽the IAD decision both the stated knowledge of the Applicant about the Sponsor as well as an Affidavit from the Applicant nothing that an “uncle” was a family friend (the Board Member concluded was her ex-husband) were disregarded.

In聽Paulino v. Canada,聽cited in the聽Sandhu decision, provisions were made by the Applicant to support the Appellant’s son. The IAD member found that these provisions were part of a scheme. 聽At the Federal Court, Justice Russell, in allowing the judicial review, wrote (emphasis added):

[57]聽聽 聽聽 聽聽 聽 For example, in paragraph 32 of the Decision, the Officer refers to different information which the couple gave 鈥渁bout the cause of the dissolution of the Appellant鈥檚 first marriage.鈥 The Applicant has referred to a mental disorder and Mimi had referred to jealousy over the material possessions of neighbours and frequent arguments. There is nothing inherently incompatible about these explanations. Someone with a mental disorder can be jealous and initiate arguments. The Officer then goes on to speculate about the Applicant鈥檚 relationship with his ex-wife and mentions that he has made provisions for Mimi鈥檚 son. All of this is then subsumed by a general finding that whatever the couple says is all part of a general scheme of fabrication:

There is evidence that he has made provisions even now for the Applicant鈥檚 son. However, this is likely integral to the complex scheme the Appellant鈥檚 (sic) has fabricated; if he is to be believed, the full extent of which was not known to the Applicant. The panel finds that the couple鈥檚 shared knowledge, especially in the personal aspect of their lives, are not reflective of what one reasonably expects to be shared by a couple in a genuine relationship, who avers to be head-over-heel (sic) in love with one another.

[58]聽聽 聽聽 聽聽 聽 Based on the Officer鈥檚 approach, it is clear that the couple cannot win. A detail (here the provision that the Applicant has made for Mimi鈥檚 son) that might support the genuineness of the relationship is turned around to support a negative finding because it is likely integral to a complex scheme of fabrication. All of their supporting documentation, and even positive factors, are left out of account because they are, according to the Officer, part of a general scheme of fabrication. The Officer says that 鈥渢heir answer about their mutual feelings for one other and their plans are vague: nothing is specific.鈥 Yet there was considerable documentary evidence before the Officer, some of it pre-dating the visitor visa application, that spontaneously reveals the couple鈥檚 mutual regard and love for each other. All of this evidence is discounted.

The following are several possible examples I have seen in addition to the two above cases:

  • Appellant opens a joint bank account for Applicant (Canadian spouse) –聽Shows financial interdependence, but can be construed as a credibility concern because shows financial scheme -;
  • Appellant provides financial support to Applicant (Canadian Spouse) – Sign of financial interdependence, but can be construed of evidence of ‘buying way into Canada’.
  • Appellant has a child with Applicant (Canadian spouse) – Shows purpose of relationship and love, but can be construed as “tool” for immigration;
  • Appellant states that they have no immigration purpose to be with Applicant (Canadian spouse) but lack of immigration purpose taken as negative credibility finding because “no other reason appears to exists” – Appellant being honest about purpose should be a positive factor, but honesty treated as dishonesty and grounds for negative credibility finding;

Some of these situations have not yet ruled on by the Courts but I strongly believe they fit the mold (assuming the finding contributed to the the unreasonableness of the overall decision and tainted the overall reasoning).

Challenges with the Argument

I think there are certain issues that will challenge the ability to rely on this decision as a blanket. First and foremost, the “reasonableness standard” still provides that the tribunal-member has discretionary jurisdiction to decide questions of fact. Decisions also generally will not be overturned on one or two unreasonable factual aspects if the decision as a whole is still reasonable. I believe that the difficulty will be in Counsel showing that the one interpretation of a positive primary purpose element as a negative primary purpose element had the effect of leading to the discounting of additional evidence which led to the negative finding.

Conclusion

Every negative credibility finding and negative primary purpose element should be carefully viewed in context. Is that element strictly a negative factor? Can it possibly be a possible factor construed to place the Applicant in a positive situation? It may be a difficult argument to establish (given only a few judicial precedents), but it is one that becomes increasingly important as marriages, relationships, and the ‘bad faith’ scrutiny gets stricter and more complex.

As a post-script, we used this argument in the above example involving bank accounts in recent Judicial Review and were successful. The decision was a brief one and it was only one of many factors the Judge considered, but we arguably ‘won’ on this issue. It has some legs for sure.

 

 

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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 聽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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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.聽As always, none of the below should be construed as legal advice. 聽

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 聽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 聽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):聽http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/ApplicationIMM聽

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聽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聽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: 聽Association of Universities and Colleges of Canada and the University of Manitoba and the聽Canadian Copyright Licensing Agency 2012 FCA 22 at para 20 聽(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.聽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聽respond.

The Oral Hearing involves Counsel for the Applicant聽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. 聽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.聽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. 聽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. 聽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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About Us
Will Tao is an Award-Winning Canadian Immigration and Refugee Lawyer, Writer, and Policy Advisor based in Vancouver. Vancouver Immigration Blog is a public legal resource and social commentary.

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