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Success: Warning Letter

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Everyone makes mistakes. In some cases, we deal with situations where our client has made a serious mistake or many mistakes. In other cases, our client has made a minor mistake. In these types of situations, depending on the mistake and the consequences, it may go to an IRCC Officer or a CBSA Officer to review. These Officers have broad discretionary powers to take various types of action against the individual. In some cases, the entire family may be punished. In other cases, the individual may simply get a warning.

Today, we will share a case that involved a mistake by our client that occurred many years ago. She used a shady agent to apply for a Study Permit to Canada based on fraudulent financial documents. The shady agent did not tell her that he added these fraudulent documents to her application. She had no idea. She never got a copy of the package. She didn’t ask questions. She trusted the agent. And she got her Study Permit.

Based on the work of the shady agent, our client got the Study Permit and came to Canada. She finished her studies and she got her PGWP. She was successful with her studies and her career. She got married and had children. She was granted PR status. Everything was going smoothly and, even after many years, she had no idea that the actions of that shady agent may come back to bite.

CBSA caught the shady agent and reviewed all his past applications – going back years. They launched an investigation into many applications and contacted our client regarding her past Study Permit. During an interview with a CBSA Officer in July 2023, our client was served with an A44 Report based on allegations of misrepresentation. The Officer explained Section 40(1)(a) (Misrepretation) of IRPA:

Misrepresentation

40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation

    • (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

As you can read from the above, Section 40(1)(a) (Misrepretation) of IRPA is extremely broad and it may include any mistakes made by a shady agent. The potential punishment for a person who has violated A40 of IRPA:

(2) The following provisions govern subsection (1):

  • (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced

This means that our client was at risk of losing her PR status, being removed from Canada, being banned from Canada for 5 years and being separated from her family in Winnipeg. Very serious consequences.

She immediately came to CIL for help. Over a 3 month period, we were in contact with the CBSA Officer. We reviewed her documents. We researched the shady agent. We prepared her defence, with reference to relevant caselaw from Federal Court.

In the end, our client got a “warning letter”. You can see a redacted version of this document. This was the best possible result. Our client’s PR status is no longer at risk. She clearly regrets using a shady agent to do her Study Permit. She now knows that was a big mistake. The Officer accepted her explanation and he accepted that her regret is genuine. The agent has been punished.

I wish I could tell you that these cases are rare. They are not. I cannot even count the number of A44 Reports that we have dealt with over the years. Individuals may get a A44 Report for any of the IRPA sections for inadmissibility. Typically, we look at sections 33 through 43 of IRPA in these types of cases. The most common sections that we deal with are misrepresentation (A40), medical inadmissibility (A38), and criminal inadmissibility (A36). 

In every case, we want to give our client the best chance at a warning letter. If the Officer is not satisfied, then the case is referred to the tribunal for an Admissibility Hearing. They can then give testimony and call witnesses. This can take a lot of work and it can be costly – both in terms of money and stress. In certain cases, the individual may appeal to the IAD for an appeal. Finally, if the IAD is not available for an appeal, we may have to go to Federal Court to fight for our clients. 

CIL has handled all the situations noted above, many times. If you are dealing with this type of situation, give us a call and we will do our best to guide you through the process. 

MB Legal Aid

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CIL WILL NOT ACCEPT MORE LEGAL AID – UNTIL THINGS CHANGE

We regret to announce that CIL has made the difficult decision to not accept any more legal aid certificates for the foreseeable future. We do not take this action lightly. We know that many clients will be disappointed. Clients regularly come to us as they have heard we are the best. They have been told to come seek our help. Communities rely on our services. Unfortunately, Legal Aid Manitoba (LAM) has failed to provide sufficient compensation for this work, despite increasing fees for other areas of law. This is simply not fair so we have been compelled to make this difficult decision.

WHY ARE WE SUSPENDING LEGAL AID?

In Oct 2022, the Government of Manitoba increased LAM tariffs for Criminal Law matters. They increased tariffs for Family Law matters. Increase for Immigration? No. Increase for Refugees? ZERO. Clearly, LAM considered the tariffs and decided they were too low. They decided to increase the moneys paid for many legal matters and made the decision not to increase tariffs for immigration and refugee matters. Is this fair?

Mr Clarke has spoken to the management at LAM and they have repeatedly promised to make things fair. We have been patient for more than 1 year. They have failed to act on their promises. Inflation has been increasing our costs of doing business. Workers are getting 9.5% wage increases. 

Based on the MB Legal Aid website, the maximum fees for a refugee hearing (from start to finish) is CAD $1,315. That is the maximum. It is extremely low. If a lawyer has a complex case, they can request a “discretionary increase”. That request goes to a committee and they review the work. How many requests for a “discretionary increase” (DI) are approved? At CIL, we have submitted many DI requests over the years and they have ALL been denied by LAM. This means that CIL is paid at a low rate for some work, and not paid at all for any additional work that may be required.

The only conclusion is that the current model is not sustainable. If we continue to accept LAM clients at unfair rates, we are supporting and condoning an unfair system.

BACKGROUND

We love helping our clients. Families. Workers. Students. Business Owners. Corporations. Refugees. We serve all our clients equally, regardless of their background. Access to justice is one of our motivating principles. We know that legal fees can be expensive so we offer payment plans. We also know that, in some cases, even our payment plans are outside the means of certain clients. Every year, we spend many hours doing pro bono work for clients and we regularly offer additional services at no additional charges. Unlike the vast majority of law firms, we publish our fees online for anyone, in any country, to review so they can make an informed decision. We have published detailed explanations regarding our one-time Administrative Fee and we have been regularly audited by the Law Society. We love the fact that we have helped so many clients win at the RPD, win at the IAD, win at Federal Court, and we have helped so many clients come to Canada as students or workers or as separated family members.

CIL is a business. We have to keep the lights on. We have to pay our bills. We have to pay salaries and bonuses to Team Members. We do not receive any grants or funding from either the provincial government or the federal government. We rely on fees paid for our work – 100%.

In Manitoba, there are 2 potential sources of fees: 1. Clients; or 2. Legal Aid Manitoba. Most law firms in Manitoba do not accept legal aid certificates. When Alastair Clarke founded CIL many years ago, a senior lawyer said:

“My best advice is to not accept legal aid. If you do, you will not be able to feed your family.”

Mr Clarke did not take that advice. CIL has accepted legal aid certificates every year and we are actively involved with the legal aid community. Mr Clarke has also been volunteering for many years at the Legal Help Centre to provide free legal advice on immigration matters.

After many years of practice, it is clear that refugees are good for Manitoba. They pay taxes. They perform valuable work during a labour shortage. Based on research from the University of Manitoba, they are a net positive for our economy, notwithstanding the fact that helping refugees is the right thing to do.

CARL WILL NOT HELP

In 2022, Mr Clarke had a meeting with lawyers in Ontario and other provinces to discuss legal aid. The meeting was organized by the Canadian Association of Refugee Lawyers (CARL). We talked about calling on the Federal Government to establish a nationwide plan and, in the end, we could not agree on a unified message. Why? One of the reasons is that Legal Aid Ontario pays lawyers much more than other provinces. In addition, unlike Manitoba, the Ontario government has recognized the importance of refugee protection so their fees increased in 2023 and they will increase again in 2024 and again in 2025. 

The refugee lawyers in Ontario do not want to risk those tariffs coming down to match the tariffs paid by Legal Aid Manitoba. This makes sense. I certainly would not want to negatively impact my colleagues in Ontario based on the lack of fairness in Manitoba.

WHAT ARE FAIR RATES?

This is a tough question. Mr Clarke regularly lets his staff know that we are in the business of saving lives. There is no price tag on that service. The average doctor in Manitoba is paid $310k for their work. Is that a fair comparison? No, not really. We want to be fair. We want to be just. We currently charge a minimum of $3,500 to assist with a refugee claim from start to finish. These procedures generally take 12 to 18 months and we work with the claimant, supporters, witnesses and members of the community to prepare the case. We need to spend enough time on each and every file to make sure our clients have the best chance at success.

Clearly, the LAM tariff of CAD $1,315 is not fair.

A Canadian law firm in Ontario charges CAD $11,250.00 for a refugee claim and hearing (minimum). I am not including a link to that law firm as I do not want to give them any web traffic. In my view, charging CAD $11,250.00 for a refugee claim is outrageous and not fair to the claimant.

 

Most people would agree the above rates are too high. Charging CAD $11,250.00 is not defensable, although I did not contact that law firm to see what justification, if any, they have for such high fees.

Our fees start at CAD $3,500 and most of our refugee claimants on private retainers pay that amount. We have not raised our fees for refugee claims since 2015. In 2020, we did a review of our fees and we noticed that law firms in Canada were raising their fees. We made the decision not to raise ours because of clients were suffering. 

 

Canadian Lawyer Magazine published the 2020 Legal Fees Survey online. Legal fees in 2021 went up. Here are the numbers for 2021. Average fees for a refugee claim in Ontario in 2021 was $5,000, for example. Based on our research, they did not publish fees for 2022 or 2023.

Based on the above, we know that we could charge more than $3,500 per claim. I know that our services are among the best in Canada. Since David Matas decided to limit his practice, Alastair Clarke is arguably the most experienced refugee lawyer in Manitoba. He was contracted by Kinbrace in BC as the Canadian expert in refugee law to oversee and draft the guide from refugee claimants across Canada. In 2023, he accepted a position as an IRB Representative for the Canadian Bar Association (CBA). Currently, he has more than 50 hearings scheduled at the RPD and he is booked until Spring 2024. Do we want to raise our fees? No.

$1,315? $3,500? $5,000? $5,750? $11,250? What is fair?

Based on 15 years of practice, I believe $3,500 CAD is fair for a refugee lawyer to charge to represent a refugee claimant at the RPD. To be frank, this should be the minimum for this type of work. I can understand how refugee lawyers in Ontario charge $5,000 and how the average fees across Western Canada is $5,750.

Alastair Clarke recently spoke with a junior immigration lawyer who is starting out. She asked about different areas of practice and LAM. Mr Clarke described the work involved and let her know that LAM pays $1,315 for this work. Her reply:

That’s it? Are you joking? How could I feed my kids? No, that can’t be right.

She is correct. It is not right. It is not fair.

THE LAST STRAW

As you have read from the above, this has been an issue that has been burning for a long time. What prompted this decision? I can share this story. In NOV 2023, we accepted a LAM to accept a family from Turkey. They have truly suffered, although this is not straightforward situation as they are relying on “generalized risk”, which is difficult in the context of a A96/ A97 determination. Regardless, we accepted the LAM file. Then we learned that the sister of the principal claimant is a physician in Manitoba. She is getting paid CAD +$300,000.00 by the Government of Manitoba to provide health care to residents in Manitoba. Could she support her brother and his family? Yes. Is she? No. She helped them apply to LAM.  It could be said that she expects to get paid CAD +$300,000.00 by the Government of Manitoba to save lives but she does not want to pay anything for us to save her brother’s life. That was the last straw.

HOW CAN YOU HELP?

We are calling on the Government of Manitoba to match the tariffs paid by the Government of Ontario for refugee services. That is all. A refugee lawyer in Kenora, ON should be paid the same as a refugee lawyer in Winnipeg. If that happens, we will accept more work from LAM

WHAT HAPPENS IF LAM FAILS TO ACT?

We will continue to represent refugee claimants on private contracts. Our fees are published online. Based on the above, I hope you agree that our fees are fair. Our clients are on payment plans. We do our best to be as flexible as possible. If you need help, we would love to work with you.

Success: Admissibility Hearing @ Immigration Division

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Clients come to CIL for all types of situations. We help clients apply for Passports. We help them apply for Police Clearance Certificates and Work Permit. We handle many applications for temporary status. Typically, those files are, relatively straightforward and the work is predictable. Then, there are complex, messy cases that take turn after turn. This was one of the latter cases.

Our client came to us more than one (1) year ago, after his Post Graduation Work Permit (PGWP) was refused. As you may have read from our Google Reviews, we have been successful with many international students who have had their PGWP refused and we were able to get them back on track to PR status. At the beginning, we thought that was one of those cases. We did the PGWP and Restoration application. Soon thereafter, CBSA got involved and the situation became serious. CBSA made the determination that our client was inadmissible based on A38 – Medical Inadmissibility:

  • 38 (1) A foreign national is inadmissible on health grounds if their health condition

    • (a) is likely to be a danger to public health;

    • (b) is likely to be a danger to public safety; or

    • (c) might reasonably be expected to cause excessive demand on health or social services.

In legal terms, we call the above test the “excessive demand” test. At that time, we got the disclosure package from CBSA and we knew this was going to be a tough case.

At the same time, our client let us know that he got married to a Canadian citizen. They had been living together and they seemed to have a genuine relationship but they were reluctant to get legally married with everything going on. They decided to make their commitment to each other, to try to ensure that our client would not be removed/ deported from Canada.

We then assisted them with an SCLPC Class application and submitted the package to IRCC. As per above, CBSA has already referred our client to the IRB based on A38 – Medical Inadmissibility. So our job was to give the IRCC Officer as much time as possible to make a decision on the SCLPC Class application. We needed to ensure our client was not removed from Canada. SUCCESS! We got a positive decision from the Immigration Division!

We have provided a rough timeline of events below. I want to give credit to Naomi for spending hours (upon hours, upon hours) on this file, making sure the client and his family understood every step.

Date Action

 
1 SEP 2022 Client met Alastair for consultation regarding PGWP refusal

 
8 SEP 2022 Client retained our services for PGWP and Restoration

 
12 OCT 2022 Our office submitted application for PGWP and Restoration

 
2 NOV 2022 Client met Alastair for consultation regarding Admissibility Hearing and Spousal application

 
21 NOV 2022 Client retained our services for Spousal application

 
6 DEC 2022 Client retained our services to post-pone and represent Admissibility hearing scheduled for 19 DEC 2022

 
7 DEC 2022 Our office submitted a request to the ID to post-pone client’s admissibility hearing

 
7 DEC 2022 The ID responded with alternative Hearing dates and we re-scheduled for 8 FEB 2023 @ 11:00 am CST

 
23 JAN 2023 Submitted SCLPC application

 
8 FEB 2023 Admissibility postponed to 25 APR 2023 @ 10:30 AM due to not having enough time for witnesses

 
21 FEB 2023 IRCC provided temporary application number for SCLPC application

 
1 MAR 2023 IRCC sent Medical Examination instructions

 
28 MAR 2023 IRCC sent a letter confirming Sponsor meets the eligibility requirements as a Sponsor

 
5 APR 2023 IRCC sent a letter about reassessing clients eligibility requirements

 
12 APR 2023 Our office submitted a webform to IRCC to put PR application on hold

 
14 APRIL 2023 IRCC sent a letter confirming PGWP and restoration application was transferred to IRCC office in Edmonton

 
25 APR 2023 Admissibility hearing postponed due to member availability

 
13 JUN 2023 ID reached out to our office to re-scheduled Admissibility Hearing for 11 SEP 2023 @ 10:30 CDT

 
29 JUN 2023 IRCC sent a letter confirming client meets eligibility requirements as a Principal Applicant but still needs to pass the medical, security and background checks to become a PR

 
6 JUL 2023 IRCC sent a letter to confirm his PR application is being transferred to the IRCC office in Etobicoke for further assessment

 
8 AUG 2023 IRCC refused clients PGWP and Restoration application

 
9 AUG 2023 Client retained us to submit a Spousal Open Work Permit based on SCLPC application in process

 
10 AUG 2023 Our office submitted Spousal Open Work Permit via the Representative Portal

 
11 SEP 2023 Date of Admissibility Hearing

 

Our office and the ID did not know if client is a member of the Family class and resumption of Admissibility Hearing was scheduled for 2 NOV 2023

 
20 SEP 2023 Our office submitted a webform requesting if client has been determined to be a member of the Family Class

 
3 OCT 2023 Our office sent an email to CBSA requesting if they know if client has been determined to be a member of the Family Class
5 OCT 2023 CBSA provided GCMS notes and let us know that he sent 2 emails to IRCC

 
5 OCT 2023 Our office provided a copy of the SCLPC and OWP application to the ID and CBSA for their consideration by email and portal

 
19 OCT 2023 Our webform that was submitted on 20 SEP 2023 was added to the file

 
19 OCT 2023 Clients received a cold call from IRCC – Interview regarding genuine marriage

 
26 OCT 2023 Received VERY GOOD NEWS! IRCC Officer provided confirmation that client is a member of the Family Class

 

Success: IAD appeal

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Parents are so important to many families in Canada. Our clients pay their taxes, they work hard to make Canada a better place and they would like to be here with their parents. Unfortunately, it can be difficult to sponsor parents to come to Canada. Many of these applications are refused for many reasons, including the minimum necessary income requirement, medical requirements, or other elements to this application. Thankfully, we have won many, many cases at the IAD. We love appeals.

Visa Officers around the world scrutinize these applications. They may refuse an application based on minor mistakes. Many sponsors try to do the applications by themselves and they may get refusals. The IRCC refusal can be stressful for the family. They have already waited for a long time and the decision can be a shock.

In this case, our client has been trying to sponsor his parents. He has been working 3 jobs to bring up his income. As you may be aware, Visa Officers are focused on line 150 from the CRA Notices of Assessment. Every year, the MNI calculation changes, depending on the macroeconomic situation of residents in Canada. Our client’s application was refused and he came to us for help.

We were retained to help. We reviewed the application and GCMS notes. We redid many key parts of the application. We negotiated with Minister’s Counsel who defended the Officer’s decision. In the end, our appeal was allowed.

As you can see from the decision, the IAD was able to make its decision “IN CHAMBERS”. This means that we did not have an IAD hearing for this case. We were able to get a positive decision for our clients without oral evidence.

Our fees are based on the work involved, so our client’s fees for this case were very low. We did not charge for the testimony preparation or for the oral hearing. This makes sense, of course, but there are many lawyers out there who will charge exorbitant fees that are not based on the work they have actually done.

Success: IAD Appeal

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I could have opted for many titles to this post. I could have written, “Success: Study Permit” or “Success: Spousal Sponsorship” or “Success: LMIA” or “Success: PGWP”. All these titles would have been accurate and worthy of publishing. We have previously posted past successful decisions of these types. We have been extremely busy at CIL and we have had many positive decisions to end 2022. As you may know, the team at CIL are the best immigration professionals in Manitoba (possibly Canada) and we have been busy trying to help our clients.

We may provide details on the positive LMIA application at a later date. We may also provide details on the Study Permit. That client had previous refusals and she is a mature student who is not a typical Study Permit applicant; however, our package addressed the issues and followed the CIL principles to success.

The basic facts of the IAD appeal:

  • Sponsor was convicted in Canada in 2018.
  • Sponsor submitted Spousal Sponsorship application for his wife in 2019.
  • Visa Officer expressed concerns re R133 in a PFL in 2019.
  • Sponsor retained CIL to reply to PFL and, if refused, appeal to IAD.
  • As expected, PR application was refused and we submitted Notice of Appeal.
  • CIL prepared and submitted +400 pages of evidence to the IAD.
  • Minister’s Counsel objected to our arguments and defended Visa Officer’s refusal.
  • On 14 SEPT 2022, CIL called 6 witnesses and provided extensive legal submissions.
  • In a decision dated 11 DEC 2022, IAD Member Daniel Tucci agreed with our arguments and granted the appeal.

Our clients are extremely happy, of course. We have many reasons to celebrate. I have often opined that Canadian citizens with criminal convictions should be allowed to sponsor their family members if they have properly served their time in prison. Criminal proceedings should remain in the criminal courts. Immigration proceedings are separate and apart. If the Sentencing Judge (on the criminal side) believed the sentence was not sufficiently punitive, that judge had the power to amend the sentence. Once that sentence has been ordered, however, the individual should not face additional repercussions. They should not be separated from family members. They need to be able to move on and learn from their past mistake(s).

I have to be honest. I was quite worried that IAD Member Tucci was going to refuse our appeal. Minister’s Counsel was extremely unsympathetic to our client’s situation. In past IAD appeals, Minister’s Counsel has been more agreeable to our legal arguments and the family’s circumstances. During the hearing Member Tucci asked many questions of the Sponsor, the Applicant and all the witnesses. He was actively engaged in the proceedings. Based on his questions, it was not clear whether he was sympathetic to the separation of this family.

In more than 15 years of IAD appeals, I have still not yet lost an appeal. I know that I will eventually lose an appeal. I do not know whether this refusal will be in 2023, 2024 or 2030. We will continue to fight for our clients.

The IAD has just announced changes to the IAD Rules. We are currently reviewing the changes and we may be reporting our thoughts in this space.

Refugee Lab: 2021 Refusal Rates

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Professor Rehaag and his team at the Refugee Law Laboratory have published the refusal and approval rates from the IRB, based on decisions in 2021. This research and data is a huge benefit for both individual refugee claimants and representatives. This data represents decisions across Canada and it breaks down decisions by individual RPD Members (judges) as well as by countries of origin. We have used this data for years to gauge how adjudicators compare and to see how approval rates may change from year to year and from country to country.

The Refugee Law Laboratory is a huge project. I had dinner with Sean Rehaag when he came to Winnipeg to discuss his research. As an aside, he is a great guy and he is extremely passionate about transparency and consistency in the legal system.

Prof Rehaag notes:

As usual, there is lots of variation in recognition rates. At the RPD, the recognition rate range is from 0% (D Mungovan) to 100% (K. Bugby, D. Coyne & H Savageincluding). And at the RAD, the appeal allowal rate range is from 1.1% (L. Mokhtar) to 71.7% (J. Corry).

To be clear, a 0% recognition rate at the RPD means the decision maker refused every case heard by that person. Every refugee claimant who appeared before RPD Member Mungavan was denied. We do not want to single out any particular adjudicator; however, this data paints a compelling picture and raises serious questions. RPD Member Mungavan heard more than 30 refugee claims from countries including Iran, Nigeria and Colombia. He refused every claim.

In contrast, the refugee claimants who were lucky (and, I hesitate to use “luck” as it relates to such a serious matter; however, in this case, the selection of the RPB Member with the claimant is pure luck, as far as I am aware) may have had their claims decided by a different RPD and they would have had a much better chance as a positive decision. Based on the data, that is a fact.

In the future, Prof Rehaag and his team will be making this information easily searchable and available:

Also, I am excited to report that my Refugee Law Lab will soon be launching a web portal to share this sort of data in a more accessible format with better visualizations – and the portal will have constantly updated Federal Court data as well. If you’d like to see what the RPD portion of the portal currently looks like (and if you have any feedback for us), you can check out a video here: https://www.youtube.com/watch?v=xNF4Sv8qlzw

As you can see from above, this future project/ portal is designed for the public, not only lawyers and trained legal professionals. The YouTube video provides a guide to how we will be able to find decisions from different countries of origin and from different RPD Members.

We look forward to using the web portal at the Refugee Law Lab as soon as it becomes available.

Success: Tribunal appeal

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Tribunal appeals are entirely dependent on the facts and the decison under review. We have handled appeals where the Officer or Decision-Maker has clearly made a mistake in law and/or fact. In some cases, we need to fix a mistake made by the tribunal. These cases still require significant work to lay out all the issues in a clear and concise manner for the appeal to succeed; however, these have a good chance at success. Other cases are more complex and when we submit our package for the appeal, we cross our fingers and hope that our arguments are strong enough for a positive decision. This case fell in the latter category and we are very pleased to report our tribunal appeal was granted.tribunal appeal

Tribunal Appeal to the RAD

The RAD deals with decisions made by the RPD. In this case, we represented this family at the RPD and their claim for protection was refused. Based on the documentation and testimony at the tribunal, this was a complex case; however, in my view, they met the definition per section 96 or 97 of IRPA. The RPD Member disagreed and refused their claim.

We submitted significant legal arguments to the RAD and we were successful upon appeal. In the decision, the RAD Member Jennifer Moore clearly agreed with our arguments:

[15] The Appellants argue that the RPD misinterpreted the evidence about adoption in Igbo culture, and that it failed to sufficiently consider the actual risk faced by the Appellants based on their particular circumstances. I agree and find that the suggestion made by the RPD, that the Appellants could simply adopt a child from one of their siblings to be confusing and is not supported by any of the evidence. Even if a sibling was prepared to supply a child, the Appellants provided evidence that adopted children are not considered the same as biological children in Igbo culture.

The decision by the RAD is extremely detailed and analyses the country condition evidence as well as the documents and testimony for this particular case.

Alastair Clarke has appeared before the tribunal hundreds of times over the past 13 years. He has also given numerous training sessions for lawyers and advocates. Of note, the IRB has made requests for Mr. Clarke to give advice to lawyers in Manitoba to raise the level of representation in our province. He has also presented alongside representatives from UNHCR to give training to lawyers. Tribunal appeal work is not easy; however, positive results are extremely rewarding.

When we told our clients of the RAD decision, they screamed with joy. We are happy to help.

 

Fix Tribunal Mistakes

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Normally, we are focused on getting positive results. That is where we spend most of our time & energy. Today, for example, we had a client approved under the MPNP program and he received a Nomination Certificate. Even during a pandemic, we are able to celebrate victories and we get results for all our hard work. In other cases, however, we get a positive result and there is a mistake made by the Officer or the Tribunal.

Tribunal mistakes are not common. This was the case in March 2021. We got a positive decision from the IRB for our clients and they were on their way to getting Permanent Resident (PR) status. The problem was that the tribunal misspelled our client’s name. This can lead to serious problems in the future.

Tribunal Mistake

For immigration, the importance of detail cannot be overstated. Everyday, we focus on making sure all the documents and evidence are 100% true and consistent. To be clear, it is not good enough if the information is only 99% accurate. We hold ourselves to the highest standard to ensure that our clients do not have future issues, based on our work.

For this case, we contacted the Tribunal and explained the mistake. The RPD Member reviewed the situation and issued an Amended Decision with the accurate information. Now our clients can apply for PR status and they know that their information in the government’s records are correct.

Tribunal mistakes can be fixed. I want to be clear that the IRB rarely makes mistakes. There are many layers of professionals at the tribunal who vet and review documents before they are issued. In this case, the RPD Member’s decision was sent to the Case Management Officer who had to sign off on the decision before it was issued. Personally, I have given presentations with IRB staff to make sure the public and other lawyers are aware of how the tribunal operates.

You cannot see our client’s information as we need to redact all their personal information to protect their confidentiality. I can say that the tribunal mistake was minor and it was corrected.

We did this extra work for our clients at no additional charge. We strive to provide the best service, for reasonable fees. This family can apply for PR status and Canada is a better place.

Success: Sponsorship Appeal

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After more than 1 year of work, we were successful with the Sponsorship appeal at the IRB-IAD. This was a complex case with many issues. The Sponsor is significantly older than the Applicant. The Visa Officer had many concerns regarding whether the marriage was genuine and refused their Spousal Sponsorship application. While maintaining our client’s confidentiality, here are some of the basic facts:

Sponsorship Appeal

  • In the past, the Applicant was also refused multiple Temporary Resident Visa (TRV) applications to Canada.
  • The Applicant proposed after meeting the Sponsor twice
  • The Officer had concerns over a “language barrier”
  • The Officer had concerns the Applicant proposed for “money”

There were a few other issues that I will not disclose to protect my client’s privacy.

I want to thank all the people who made this positive decision possible. We spent many (many!) hours with the Sponsor and the Applicant, going over all the concerns identified in GCMS and addressing each point. We also worked with six (6) witnesses, from each side of this application to prepare their testimony and to make sure all the testimony would be consistent at the hearing. In this case, we prepared our witnesses for more than 10 hours of testimony. The IAD ended up hearing more than 5 hours of testimony before Minister’s Counsel consented to the appeal.

IAD appeals are hearings de novo. That means that Member Tucci was able to consider all the legal elements of this application based on all the events prior to 22 MARCH 2021. This is a huge advantage to Appellants who are not limited to the period of time prior to the Officer’s decision.

I have to admit, I lost sleep over this appeal. In 13 years, I have never lost an IAD appeal. Back in 2007/2008, when I was an articling student, the Bay Street firm gave me an IAD appeal for “experience”. I was supposed to lose. It was supposed to be for litigation experience. Instead, I won the Sponsorship Appeal and I have still never lost an appeal. 

These appeals are very challenging. In general, Visa Officers do not make these decisions without a thorough examination & investigation. The Sponsor and the Applicant must satisfy the tribunal that all the issues have been addressed. This requires hours and hours of work.

For anyone reading who may be thinking of starting a Sponsorship Appeal to the IAD, my best advice: PREPARE, PREPARE, PREPARE.

In this case, we arranged many hearing preparation sessions with the Sponsor, the Applicant and the witnesses, both those witnesses inside of Canada and abroad. Testimony does not come naturally and it is very important to focus on the questions. Cross-examinations can be rough.

Here is a guide that we use to prepare our clients for their testimony. This is an EXAMPLE only:

Q. WHAT DO YOU THINK ABOUT THIS MARRIAGE?
 
BAD ANSWER:
 
They have a perfect marriage. He is a wonderful guy.
 
GOOD ANSWER:
 
I have known this couple for 5 years. I was a little cautious when I met her because I did not want him to get hurt. He has been hurt in the past and I did not want that to happen again. I have seen them together many times, at restaurants and movies. They have talked about how they want 12 children together and they want to raise them according to Jewish custom. She converted to Judaism so their children would be Jewish.
 
GREAT ANSWER:
 
I met him when we worked at AT&T back in 2010. He dated our coworker Diana but it didn’t work out because she cheated on him. I helped him through some difficult times. He met Alexandra at Palomino Club in 2014. I was there when they met and I have tried to support him as a friend. When I saw him with Alexandra, it was clear they had strong chemistry. They talked for hours every day. It turns out they both share a passion for learning new languages. They both speak 4 languages and they sometimes write love letters in Esperanto. In 2016, he told me that he was going to propose and I helped him pick out the perfect ring. We had the jeweller inscribe Esperanto on the inside of her ring. I was at their gorgeous fall wedding on September 17, 2017 with more than 200 guests. It was a joyous celebration and I loved every minute. He has said that he wants to move to Manitoba because they want to be close with her family. I met her sisters Jackie and Diane at the wedding and they have fully embraced him as part of their family. I have seen their ups and downs over the past 5 years and I fully support this marriage.

We hope the information above is helpful for you. This is not legal advice. Appeals are difficult and we would strongly recommend that you find a lawyer whom you trust.

Success: Residency Appeal

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We love ending the year with positive results. We also love helping clients with IAD appeals. With much work, we were able to achieve these positive results so that our client could get back to her job at the United Nations. She has been doing amazing work with her project and it was a privilege to help this family through this difficult appeal. 2020 has been a difficult year, objectively speaking. It is nice to end the year with an approval from this Residency Appeal to the IRB-IAD.

IAD Approval

In this case, our client received bad legal advice from an immigration consultant in Toronto. Unfortunately, she relied on this bad advice and it led to significant problems. We submitted multiple packages of documents in support of this appeal and this was a team effort at Clarke Immigration Law.

We still have a couple more weeks before 2021. We will continue to work hard everyday and hopefully we can get more positive results before the end of the year. We reported another Residency appeal success at the beginning of 2020. We love celebrating and we love helping our clients.

As an aside, Alastair cannot even remember how many IAD appeals he has won over the past 13 years. For the first IAD appeal, he was a Student-at-Law (Articling student) and he was given an “unwinnable” case. At the time, the partner of the firm gave him the file “for experience” as he was just starting his legal career. In fact, he was the first Articling student to handle an IAD appeal. Indeed, it was good experience and he was able to use a technical legal argument to win the day. The IAD appeal was heard on 3 OCT 2007 and we received the positive decision in early 2008. After that decision, IRCC (then CIC) changed the law and closed that legal loophole.

To date, we would estimate that we have won more than 50 appeals to the IAD. Unfortunately, the vast majority of these appeals are private decisions and they are not publicly reported. We have included a redacted copy of the recent Residency appeal decision with personal information redacted to protect our client’s identity.

Clarke Immigration Law specializes in hearings and appeals. If you have a complex Residency Appeal and you would like assistance with your IAD appeal, please contact our office.