Archive for category: Study Permit

You are here: / Study Permit

CityNews: Agents Convicted in USA

/in , , , , , , /by

Alastair Clarke and the team at CIL have helped many victims over the years. These victims are often misguided by their immigration consultants or agents and it can result in an investigation. Victims almost never pay the ultimate price of losing their lives after following bad advice from an immigration consultant or agent. Today, we are sharing a story where a family of 4 – mother, father and two (2) young children – paid that ultimate price and they lost their lives crossing from Canada into the USA on foot. WARNING: this story may be traumatic or triggering for some readers.

CityNews, as well as many other news agencies, have been covering this tragic story over the past 2 years. As reported, the mother or father from India applied to come to Canada on a Study Permit and the application was approved. They were granted the right to come and study in Canada by the Visa Office. In 2022, the family entered Canada and travelled from Ontario to Manitoba. Presumably, they were granted a Permit to study at a DLI in Ontario and it is possible that the DLI was one of the “puppy mills” described by the Minister. After entering Ontario, this family were in contact with their agent who instructed them to travel to Manitoba and then walk across the border to the USA on foot through farmland. They never made it to their destination. They were found frozen to death in a blizzard in 2022. As reported by CityNews:

Harshkumar Ramanlal Patel and Steve Shand are accused of being part of an operation that brought people from India to Canada then across the border from Manitoba to Minnesota.

One of the trips they are accused of taking part in saw a family from India — a couple and their two young children — die in a blizzard in January 2022, when the wind chill was below -35.

Alastair Clarke has been interviewed many times by various news outlets related to immigration stories. Unfortunately, there are many victims of these schemes. In most cases, the victims do not perish from the journey. In this case, a survivor from the trek testified against Harshkumar Ramanlal Patel and Steve Shand in the criminal court in the USA. That testimony was key to these convictions.

As reported, there are criminal investigations ongoing in India. RCMP has also announced that they have an investigation open; however, no one has been charged or convicted in Canada.

Victims of Immigration Agents & “Bad Actors”

Minister Miller has repeatedly called out “bad actors” in the system. These are individuals who are taking advantage of the most vulnerable people. CIL has helped hundreds, possibly thousands, of victims of bad immigration agents. As we reported here in SEPT 2024:

Mr. Alozie is part of a group of criminals who have created victims in the immigration system. Also in 2020, Mr Zhihao Jia was also criminally charged for unlawfully representing people applying for immigration, misrepresenting facts on immigration applications, and communicating false or misleading information with the intent of inducing immigration to Canada. This is an offence under IRPA.

Jiatoo Immigration Consulting has closed and many Chinese families are facing investigations by CBSA. They are also at risk of losing their status and being removed from Canada. Thankfully, we have helped both Nigerian clients who made the mistake of hiring a shady agent as well as Chinese clients who made the same mistake. None of our clients have lost their status.

We were able to help many Nigerian victims and Chinese victims who were abused by these immigration agents.

CILA Recommendations

The Canadian Immigration Lawyers Association has responded to many of these concerns in a letter dated 20 NOV 2024. Full disclosure: Alastair Clarke has personal connections with BJ Caruso, one of the writers of this letter and he has personal connections with many members of the Executive at CILA. They recommend the following 7 points:

  1. Launch an “Expert Task Force to Combat Ghost Consultants” with a mandate to provide you with recommendations for improvement by 2025.
  2. Require applicants who do not file a Use of a Representative Form to complete a Letter of Attestation confirming they did not receive assistance for their application from a third party in exchange for compensation.
  3. Introduce a reform that consultants operating outside Canada are no longer authorized to represent clients.
  4. Ensure the CICC has the means to thoroughly audit each one of its members. If they do not, enforce regulatory change to limit their mandate and the number of consultants.
  5. Ensure that the CICC mandate its licensees to assist in maintaining the honour and integrity of the immigration system, and to expose dishonest conduct by any other licensee, unlicensed consultant, or any other parties, and being forthcoming with clients and adjudicators about such conduct.
  6. Consider introducing a whistleblower reporting system similar to what exists in criminal law wherein victims of immigration consultants can become cooperative witnesses.
  7. Ensure IRCC has enough capacity to apply the new AMPs and that they only apply to immigration consultants to avoid jurisdictional conflict with law societies, preserve the independence of the bar, and avoid duplication of regulation of lawyers.

To be clear, CIL agrees with the recommendations above. In particular, point #6 needs to be prioritized. On the US side, it seems the victim who crossed with the family in 2022 was able to testify against the criminal immigration agents. I imagine that this testimy was key to the above convictions. In my view, Canada needs to immediately pass legislation to support whistleblowers who can help weed out the “bad actors” in the system.

Success: Study Permit (PAL) – 19 days

/in , , /by

Over the past 8 months, IRCC has increased the number of Study Permit refusals. We have published posts on the new restrictions that have been added to cut the number of international students in Canada. IRCC Minister Marc Miller has announced that he wants to significantly reduce the number of private colleges and “puppy mills” across the country. Financial requirements have also increased. Thankfully, despite these new roadblocks, we are still able to get positive decisions for our clients – quickly! Our client’s application was processed by the Visa Office in Nigeria and approved after only 19 days.

Congratulations to our client for her positive result – after only 19 days. From our team at CIL, it is our privilege for us to guide our clients to successful result. In this case, Kristina poured hours and hours into the file to prepare and submit a beautiful package.

Our client is, of course, thrilled to come and study in Canada. Previously, she hired an agent and her Study Permit application was refused. We had to address the Officer’s concerns, obtain a new PAL from the Province of Manitoba, and provide a strong Study Plan. Our plan worked.

This is the feedback from our client’s sponsor:

Indeed it is a good day. Well done to you, Alastair and your team. [She] is relieved, she can now continue her dream of a Canadian education.

We know that getting a Study Permit in 2024 will be difficult. The OICs that led to easy decisions have all expired. We speak with potential clients every day who need professional help. We cannot help everyone. Our time is limited. For those who can afford our services, we give them the best chance as a positive result.

Politics and Immigration

/in , , /by

Recently, the Liberal Party of Canada lost the Toronto byelection in St. Paul’s. This community was one of the Liberals’ strongest ridings. Even before the election, the Conservative party’s representative was not confident they could take this riding from the Liberals. During the 2011 federal election when the Liberal party lost 43 ridings and its power was drastically reduced, they won the Toronto-St. Paul’s riding. I am not surprised to see calls to replace PM Trudeau. 

Under the division of powers, immigration is squarely in control of the federal government. The governing party may wield this power to make significant changes. When the Conservatives were in power, a few of the changes:

  • The Parent/ Grandparent sponsorship application was frozen;
  • The definition of Dependent Child was drastically limited;
  • Permanent Residents with minor criminal issues lost their rights of appeal;
  • A 1 year ban was imposed on humanitarian applications;
  • A 2-tier Citizenship structure was created;
  • Additional language requirements were implemented; and,
  • Many other changes to reduce immigration.

Under the Conservatives, one of the most drastic changes was the office culture at CIC (as it was then called). When I would speak with immigration officers, they had to be extremely careful not to disclose any information that was not approved. They insisted on being “anonymous”, even with minor comments. It is hard to describe the huge difference between the culture of CIC under the Conservatives and the culture of IRCC under the Liberals.

Shifting Political Tides

It seems clear that political tides are shifting back to the Conservatives. Voters have long forgotten how the Conservatives ruled. Personally, I have never seen such a high level of disdain and anger against any Prime Minister.  Trudeau does not seem to understand the national political sentiment and the rising popularity of his opponents.

Over the past 8 months, IRCC Minister Miller has made many efforts to show the government is responding to voters’ concerns. I published my thoughts on the changes to international students and the Study Permit system here. He has also attempted to create programs to help Palestinians that have, in general, failed. In my view, his efforts will be futile. The policies and compromises that have been made have already caused irreparable damage to the Liberals’ reputation.

Success: Manitoba PAL

/in , , /by

If you have been following immigration news in Canada, Minister Miller has been making many changes. Alastair Clarke published a detailed post on Slaw that outlines many of those changes. We may repost that article on this space in the future. Here is an excerpt from that article:

Over the past few months, IRCC has been slowly announcing changes to address the issues above:

I remember the press conference when Minister Miller compared Canadian colleges to “puppy mills that are just churning out diplomas.” His frustration was palpable and it is clear that he is focused on improving this situation.

As noted above, the new PAL requirement were put in place and we have been working with clients to obtain PAL letters for our clients.

As you can see, our client received a Letter of Acceptance ( LOA) from Brandon University and we have been supporting our client to meet her education goals.

These new requirements are part of a new system. We are seeing high levels of stress and anxiety, as well as significant misinformation and disinformation. Shady agents and consultants are taking advantage of the high level of stress. CIL has met with many clients who are getting wrong (outof-date) information and they are upset.

We do our best to make sure all our clients have accurate, up-to-date information. This ensures they have the best chance to achieve their immigration goals.

Decrease in Study Permits

As reported, Manitoba’s international student population will decrease. IRCC has cut the number of Study Permits from 10,155 in 2023 to only 9,140 in 2024:

Federal Immigration Minister Marc Miller announced Friday the number of international study permits each province will get in 2024 as Canada moves forward with a national cap of international students announced in late January.

Immigration, Refugees and Citizenship Canada said in a release it’s expecting to approve 291,914 permits nationwide — 28 per cent fewer than the 404,668 issued in 2023. Manitoba is projected to see numbers drop from 10,155 last year to 9,140.

The cuts to Manitoba are far less than the cuts to Ontario and BC.

Get a Good Representative

During this time of uncertainty, our biggest piece of advice: find a good representative. You need to find someone who is focused on keeping up to date with the latest changes to the Canadian immigration system. Facebook groups and social media sites may provide misleading, unprofessional information. We have seen those situations many times.

Please contact our office to book a consultation. 

 

Success: Warning Letter

/in , , , , , , , , /by

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. 

Success: PGWP & Restoration

/in , , , /by

We love helping international students. They make so many sacrifices, both emotional and financial, to come to Canada to study. They pay more tuition than other students. They may suffer difficulties from being far from family. It can be quite difficult for them to settle into a new place and there are inherent stresses on this experience. Then, when these students finally graduate, they apply for a Post Graduate Work Permit. Most applicants try to do it themselves. The IRCC guide stresses how they do not need a lawyer or an agent. And, unfortunately, this can lead to a refusal. They may be asked to leave Canada “immediately” or “forthwith”. They do not know what to do so they come to us for help.

We have been able to help many international students get back on track to PR status. This is one of those cases. We have published other cases on our website as well. You can imagine that we do not publish every decision or every client’s story. We have too many files and we are simply too busy to do that. I wanted to share this story.

2016 – Client came to Canada to study

2020 – Client had difficulties with her studies and she took a semester off

2022 – Client had academic issues and she was a part-time student

2023 – Client consulted the Course Counselor at the University of Manitoba who advised that her academic issues would not impact her immigration

2023 – Client applied for PGWP – refused

2023 – Client retained CIL to do PGWP and Restoration

2023 – CIL submitted applications on her behalf – approved

 

The key to getting the above approval was all the work that was done to explain her circumstances. Staff at CIL spend hours (and hours and hours) to make sure all the language in the applications addresses all the potential issues.

For these applications, the IRCC generally does not give the applicant a chance to address issues. They simply make a decision based on the documents in the package. If the applicant fails to address a potential issue (even if they do not even know about the issue), the IRCC Officer may determine that the student is trying to hide or mislead.

In many cases, the international students are simply trying to do their best. They have been told the PGWP is “easy”. We have heard from many students that they thought, “I thought I could just do it myself”.

Of course, so much of the above does not make sense. International students may spend +$30,000.00 CAD on all the tuition and living expenses in Canada. Despite that investment, they take the risk to do one of the most important applications without a professional. We do not speak to the many international students who get successful results on their own, of course. For those students, we wish them all the best.

For international students who need help, we would like the chance to get you back on track to PR status.

 

Success: Urgent Study Permit Approved

/in , , , /by

Making the decision to leave your home country to pursue an educational or vocational training program can be an equally terrifying and exciting time in one’s life. In the case below, the Applicant was looking to come to Canada to study Welding in a program that would be superior to any other program available to him in his home country.

With the help of Clarke Immigration Law, the Student was able to showcase a detailed study plan, in addition to demonstrating his ability to cover financial obligations such as tuition and living expenses. Since the applicant had an acceptance letter and a deadline of July 2023, CIL filed the application on an urgent basis. The application process is outlined below.  

  1. February 2023 – Client retained CIL to handle Study Permit application. 
  2. February 2023 to March 2023  – CIL staff worked with Applicant todevelop the package, including supporting documents and drafting the Study Plan (key part of the application!)  
  3. April 2023 – CIL submitted Study Permit application to IRCC via Portal.  
  4. In mid-April, IRCC portal updated to indicate application is in process.  
  5. May 2023 – Applicant receives approval from IRCC!  

It has been a pleasure to work with this individual and we will continue to work with this student to support him with his immigration matters. 

Warning: Agent in India Causes Deportation Order

/in , , /by

Yet another victim of an immigration scam. Yet another case of an Indian applicant who paid significant money for a Study Permit, only to face a Deportation Order. Yet another international student who is desperately trying to stay in Canada and IRCC is not sympathetic to her situation. I wish I could say this was an isolated case. It is not. These scams are common. Too common. The Government of Canada has released public warnings for years (and years) and CBC News even sent reporters to India to investigate the reasons these applicants continue to fall prey to these scams.

This most recent case involved an international student in Edmonton, Ms. Karamjeet Kaur. As reported:

Even though Karamjeet Kaur, 25, proved not to know the letter was fraudulent, the Immigration and Refugee Board of Canada has ruled that she be deported by May 29.

That decision will likely have implications for possibly hundreds of other international students in Canada who reportedly received similar fake admission letters from the same education agent in India — a situation that shows lack of accountability by border and immigration authorities, according to lawyers and activists who spoke with The Canadian Press.

Kaur, whose poor, rural Indian family spent their life savings so she could be the first among them to study and work abroad, now works as a supervisor for a company in Edmonton. She’s married to a Canadian citizen, frequently volunteers, has a work permit valid until November and was on the path to becoming a permanent resident.

From a legal standpoint, it is not clear how she “proved” that she did not know the letter was fraudulent. That is not something that can be proven. Perhaps in the future, we may have technology that may scan our brains to determine when and how we “know” things. As far as I know, that technology does not exist.

Misrepresentation, which is defined by A40 of IRPA, states:

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;

    • (b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;

    • (c) on a final determination to vacate a decision to allow their claim for refugee protection or application for protection; or

    • (d) on ceasing to be a citizen under

      • (i) paragraph 10(1)(a) of the Citizenship Act, as it read immediately before the coming into force of section 8 of the Strengthening Canadian Citizenship Act, in the circumstances set out in subsection 10(2) of the Citizenship Act, as it read immediately before that coming into force,

      • (ii) subsection 10(1) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act, or

      • (iii) subsection 10.1(3) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act.

  • Application

    (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; and

    • (b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility.

The key words are highlighted above in bold.

Basically, ignorance is not an excuse. Blaming your agent is not an excuse. Blaming a shady consultant is not an excuse. Not understanding the law is not an excuse.

As stated by CBSA, this is a big problem and this is not an isolated case. As stated:

Canada Border Services Agency (CBSA) confirmed in an email to The Canadian Press that “there are a number of active Immigration and Refugee Protection Act (IRPA) investigations into cases of misrepresentation, including those related to study permits.”

This point is highlighted by another CBC News article from last week: Dozens of students who could be kicked out of Canada say they were duped by immigration agents in India. As reported:

Singh said he didn’t do anything wrong and was unaware that his immigration agent in India used those papers for his student visa application.

“I didn’t know that a fake document was used in my student visa application,” Singh told The Fifth Estate in an interview. “It wasn’t until after I received that notice from the [Canada Border Services Agency] that I found the letter was fraudulent.”

Indeed, here at CIL, we have met with many clients who have faced similar circumstances. Notably, we were successful at Federal Court with a Ukrainian client who also faced deportation when an agent provided a fake IELTS result and he submitted the document to IRCC. As noted by Justice Ahmed in Agapi v. Canada (Citizenship and Immigration) 2018 FC 923:

I agree with the Applicant that the Manager failed to consider whether the Applicant honestly and reasonably believed he was not withholding material information. The Applicant’s response to the procedural fairness letter explains, in detail, the reasons for which he could not provide an original copy. For example, it explains that he relied upon the results as presented, because the procedure was consistent for those outside Kiev. It explains that he was not suspicious of the copy he obtained, because he had no need for originals. Finally, it explains that he took measures to obtain explanations from the language school. Yet the Global Case Management System notes are brief and only state that PA was given an opportunity to respond to our concerns via [a procedural fairness letter], but the information PA provided failed to alleviate my concerns.  None of the Applicant’s evidence is addressed in the reasons.

[…]

As such, the Manager’s decision is unreasonable.

We were able to win this case, despite the strict laws. We were able to successfully argue the “honestly and reasonably” exception to A40 of IRPA to get a positive result.

Our client, Mr Agapi, is still in Canada and he was not deported.

Hopefully Ms Kaur is able find a good lawyer who can help her stay in Canada.

Success: SP appeal

/in , , , /by

Every year, many international students submit applications to come to Canada to study. For +16 years, we have been helping students from around the world navigate the system. It is not controversial to note students from certain countries have an easier path. Today, we received a final decision on a Study Permit saga for a client from Bangladesh. This was another challenging case expertly handled by the team at CIL. After working with the family for more than 2 years, our client is (finally!) coming to start his studies in Canada. Congratulations!

Here is a summary of our client’s immigration history:

  • 2021 – client submitted Study Permit on his own
  • 2021 – IRCC refused the application
  • 2022 – client retained CIL to prepare and submit 2nd application (SP #2)
  • 2022 – Team at CIL worked with client to submit application to Visa Office in Singapore
  • 2022 – IRCC refused SP #2 application
  • 2022 – client retained CIL for Federal Court appeal re the decision to refuse SP #2
  • 2022 – Team at CIL prepared ALJR and negotiated with DOJ
  • 2022 – ALJR Settled based on Applicant’s Record
  • 2023 – SP #2 referred back to Visa Office in Singapore
  • 2023 – SP #2 approved!

This was a long process that required significant work. It has been a pleasure to work with this family and we will continue to work with this student to support him with his immigration matters.

It is not a secret that Visa Offices abroad have a different agenda from policies in Ottawa. While politicians in Ottawa publicly recruit international students are encourage them to apply for PR status, Visa Officers refuse Study Permit applications if the Officer believes the student has the intention to stay in Canada. This is a known contradiction. Frustration among students is well documented.

Another Federal Court victory for the Team at CIL. 

 

Immigration Litigation: Current Issues, Part 1

/in , , /by

There is a small army of immigration lawyers who battle in the Federal Court of Canada. Most practitioners have the sense to dedicate themselves to the solicitor side of this practice. In Part 1, I will focus on issues with the current system based on my experiences with the Court over the past 10+ years. I will be posting subsequent parts based on recent (creative) approaches that address, or get around, some of the issues below. This is not a review of substantive law or decisions from the Court. This critique is focused on the system as a whole.

TL;DR

  • There is a gross imbalance between the resources of private counsel and those of the DOJ;
  • The system is designed to weed out low-income litigants;
  • Federal Court Rules are designed to impede access to justice;
  • Immigration matters are subject to additional, unfair procedures that are not applied to any other matters at the Court;
  • The DOJ has the power to “settle” matters before they get to Court, limiting public scrutiny of errors made by Officers and potential precedents; and,
  • The remedies at the Court are limited causing the potential for a revolving door of decisions from the government to the Court and back to the government, ultimately ending when the client gets a positive result or runs out of funding.

During the summer of 2005, I first whetted my appetite for immigration litigation. I was a summer student at the Centre for Spanish Speaking Peoples legal aid clinic. The Legal Director had agreed to assist a client with an Application for Leave and Judicial Review (ALJR) to Federal Court. I did my best to assist but mainly I just tried to stay out of her way. I knew almost nothing about judicial reviews at that time. I remember the long hours she would spend in her office doing research and drafting legal submissions. I remember the stress and frustration. I remember the general feeling of helplessness in the clinic.

As the case proceeded, I recall the Legal Director was often frazzled as she navigated the strict Rules of the Court (more on this later) and strict FC deadlines. The entire clinic mobilized to assist this client (a single mother from Mexico) in the name of Justice. I do not even remember if we won. Perhaps the Court rendered their decision after I was comfortably back in law school. My takeaway from that experience was the monumental amount of work involved and the gross imbalance between our resources and those of the Department of Justice.

I did not know, at that time, this experience with immigration litigation is not unusual. Even experienced counsel deal with high levels of stress and frustration navigating Federal Court procedures. It is not an understatement that the cards are stacked in favour of the government – in immigration matters as well as other areas of law. In our field, however, I would argue the Court system is even more stacked against practitioners. For immigration litigation, there are so many ways the case can be refused while so few ways to actually get justice for our clients – often refugee claimants or individuals with little to no financial means. In addition, the typical best-case decision from the Court is an order that the matter is sent back to be decided by a different Officer.

My immigration litigation frustration continued as an articling student. A notable case: an Indian teacher had retained the firm to judicially review a refusal of her federal skilled worker (FSW) application. This was her 3rd ALJR. Yes, you read that correctly. She had applied, been refused, gone to FC, “won” at FC, the matter was returned to the Visa Officer, refused again, gone to FC (again), “won” (again) at FC, returned to Visa Office (again), refused for a 3rd time, and retained the firm yet again. Clearly, her family had deep pockets. In retrospect, I cannot imagine the significant sacrifices made by this teacher and her family to have the patience and resolve to jump through all the aforementioned immigration hoops. I suppose they believed it was worth the financial and emotional costs.

Unlike other Federal Court matters, immigration cases must be successful at two (2) stages as there are different rules designed only for immigration matters. Let me repeat that. Every other case that proceeds through the Court only needs to be approved by one (1) judge. Immigration cases must first be approved by one (1) judge (the Leave stage) and then, if that judge grants leave, then the case can proceed to a 2nd judge for the final decision. I was describing this system to a criminal defence lawyer and she replied, “why don’t you just appeal the decision of the first judge?” No, not possible. The system does not allow appeals of the Leave decision and that decision is simply a couple lines from a Judge with no reasons. I know. How is this not a gross violation of procedural fairness?

It gets worse. In many types of litigation (I have been told), counsel may receive multiple packages of disclosure and the procedures of due diligence may involve a back and forth between the sides. In immigration, not so. In cases where the Officer has not provided reasons, the Court will provide Rule 9 disclosure. This disclosure may be redacted, it may omit parts of the government’s file and it may not include significant documents from the Officer. Once Rule 9 has been received, however, counsel has a very short time to produce and perfect the Record. In certain situations, counsel may examine the Officer or request more time to obtain additional disclosure. These situations, however, are quite rare and in the vast majority of cases, counsel must produce their Record based on the Rule 9 disclosure, in whatever form it is disclosed.

I believe we are all well acquainted with the imbalance between criminal defence lawyers and the Crown. Anyone who has seen Law & Order may have an understanding of the discrepancy between the resources of the police & prosecutors compared with defence counsel. Principles of Disclosure from the Public Prosecution Service of Canada outline various procedures and, of course, immigration is not mentioned. In immigration litigation, I would argue that discrepancy is even more imbalanced. Yes, even worse. Two examples: 1. From my understanding, criminal defence lawyers have robust rules of evidence that give them significant access (relative to immigration) to the Crown’s file. In immigration, not so. 2. Defence lawyers may easily (ok – I have no idea if it is “easy”) question the arresting police officer and they may scrutinize their actions prior to arrest in detail. In immigration, not so. In fact, Visa Officers are strongly protected by the system. The DOJ may go to great efforts to limit access to Officers and to limit scrutiny of their decisions, no matter how egregious.

As noted above, most immigration and refugee lawyers do not go to Court. When I started my own firm, this was a decision we had to make. Financially, it does not make sense. I remember at the end of our first judicial review, I did a calculation on my hourly wage. It was slightly above minimum wage. Side note: as a sole practitioner, I did almost all the admin work myself. Since then, when I am considering a new FC matter, I have learned to accept that I will sacrifice at least one night’s sleep and one weekend. That is now simply in the back of my mind while I am drafting the contract for this grueling work. The strict Rules of the Court limit access to justice and make it extremely difficult for Applicants.

At this point, I hope you get some sense of the systemic frustration among immigration litigators. When I started thinking about this article, I was dealing with a Study Permit refusal that was made with the assistance of “Chinook 3+”. This is a huge issue and I would encourage you to listen to Will’s podcast for more details on how this system is affecting immigration applications. In our case, the only information we have on the involvement of Chinook in the Officer’s decision is one line from the disclosure package. Thus far, the Court has avoided cases involving Chinook or AI systems used by the government in rendering their decisions. I agree with many of the points made by Prof Gideon Christian at the University of Calgary in his article on Slaw. He correctly noted that Ocran received significant attention from litigation practitioners and the decision is frustratingly silent on this issue. Justice Little issued a narrow decision focused on the financial requirements by study permit applicants only (avoiding commentary on Chinook). I also know we will continue to push for clarity on the boundaries of AI in immigration decision-making.

Recently, the DOJ settled our ALJR on our Study Permit refusal related to Chinook. Our case will not make it to oral arguments and the decision will not be published. This is a good result for our client and the arguments in our 303 page Record clearly resonated at the DOJ; however, it means the possibility of a useful judgment from the Court on this issue has been lost.

In Part 2, I will look at a different approach and offer suggestions on how the system may be improved. There are many potential amendments and/or approaches that could benefit individuals and litigants. Spoiler Alert: as far as I am aware, nothing on the horizon addresses the issues above.

Postscript: Apologies if the above is too much of a rant or polemical. I may be harbouring years of stress that spilled on the page. We are currently in the midst of another ALJR and I am training a new assistant on FC Rules. It took her 4 tries to properly draft a Solicitor’s Certificate of Service and our current level of frustration with the Court is high. This article has been cross-posted on Slaw.