TRUE LIES IN IMMIGRATION: HOW TO AVOID BEING CALLED OUT ON A MISREPRESENTATION & BANNED FOR LIFE FROM CANADA

TRUE LIES IN IMMIGRATION: HOW TO AVOID BEING CALLED OUT ON A MISREPRESENTATION & BANNED FOR LIFE FROM CANADA

It’s a quirk of immigration law that you can be completely honest, and yet be found to be lying. Immigration, Refugees & Citizenship Canada (IRCC) and the Canada Border Services Agency (CBSA) are increasingly expanding their pre-arrival questioning of people coming to Canada to visit, study, work or permanently immigrate through requirements for Electronic Travel Authorizations (ETAs) for visa-exempt nationals, expanding the scope of questions on all their permanent or temporary residence forms (especially “criminality” and “medical” questions), and comparing every word and number you’ve input on past IRCC/CBSA forms to what you’ve recorded on new forms. Is it any wonder more and more people are getting flagged for true lies? 

So you said you lived at 123 Oak Street from May 2000 to October 2001 on your most recent work permit application? But on an application six years ago you said it was 132 Oak Street from October 2000 to November 2001? You could face being banned from Canada for life (or more commonly for 5 years) on a misrepresentation just out of that discrepancy! Seriously. 

Which of us remembers precisely where we lived (or worked) between which months for years back, especially if you've move a lot? Well the IRCC/CBSA expects that of you.

As a personal test, I pulled some of my past curriculum vitae from the darkest recesses of computer hard drives and USB flash drives. And guess what? My job titles weren’t consistent among the CVs. My locations of work or residences weren’t consistent. Even my provinces lived in were a bit off on timing.

I was solid on education details, since I guess those were sufficient life events for me to get programs, institutions and places down right time after time. But when it came to less important life details, before setting up my own law firm I lived and worked in a lot of places, so what i’d think of as minor inconsistencies crept in. Fortunately I’m a Canadian citizen, and no one was scrutinizing and comparing all those CVs of years gone by to call me out as a liar. 

IRCC/CBSA are expanding their data gathering practices for those seeking to come to Canada, then using minor discrepancies from past applications or existing intelligence databases effectively as lie detector tests against applicants. The consequences of a minor information detail slip can be so dramatic! 

So what should you do?

Save Copies of Past Worldwide Immigration Applications & Results

Save all copies of immigration applications you make anywhere in the world, throughout your entire lifetime. You’re at high risk of what you say in those applications later coming back to haunt you if you change your story by even the most minor detail.

While inconsistent past Canadian applications are at greatest risk of being called out by IRCC/CBSA, the US and Canada share lots of data and could compare the information you provided on an old US application with the information you’re now providing on a Canadian application. There’s even potential for comparison to immigration information provided to other countries, though it will likely be limited to Canada’s closest allies.

Saving the results of past immigration applications is just as important as saving copies of the applications themselves. I frequently see people forget about a past refusal in another country. Perhaps you applied to come to the United States, were refused, fixed the issue, reapplied, and were granted entry. It would be easy for that refusal to slip your mind since the end result was positive. But I’m seeing potential clients getting called out on that very issue. Canada is very interested in knowing about past immigration refusals, and the underlying reasons, regardless of where they happened.

Every Word and Number Count

Be very careful about every word and number written into an immigration application. They all matter. Don’t guess about past life details, rather seek out confirming documents for residence, study and work history, even when it’s a pain to do so. If you’re really not sure about a detail, include a cover letter in your immigration application explaining the uncertainty.

The cover letter is the secret weapon to immigration success that most self-reps don’t know about since nowhere in IRCC materials are you urged to include one (instead a checklist is required). Many don’t know you can stick a detailed cover letter in front of any immigration or citizenship application, explaining particular challenges you are facing in providing precise and detailed information. A cover letter gives you more credibility, and minimizes the risk IRCC/CBSA will jump to unfounded conclusions based on your answers.

Give Liberal Interpretation to Wording of all Immigration Questions

I continually have potential clients approach me saying things like “well, I answered no, because a lawyer in my own country told me that an expungement meant that offence never even happened.” Except, the law that you’re being judged by is the law of Canada, not the law where the offence happened. And “expungement” is a concept unknown to Canadian law.

So if you’re asked a question like “have you ever committed, been arrested for, charged with or convicted of any criminal offence in any country or territory,” think about how honest it is going to look if you later claim that while technically you were arrested, you were charged, and you were convicted, but you answered “NO” because you thought that was the “true” answer. Better to accidentally answer “YES” if the answer really is “NO” (which the IRCC/CBSA can determine based on its own analysis - though you really should have your own lawyer provide input on the point so that your circumstances are viewed as favourably as possible).

But there are limits to liberal interpretation. You don’t need to disclose non-criminal offences. But the standard for criminal classification is Canadian law, not the law of where you reside. You definitely may need advice from a Canadian lawyer to resolve questions like an impaired driving conviction in your own country is only a highway traffic offence, which as a class aren’t criminal, but could it be criminal in Canada (it is)?

Fess Up to Inconsistencies

Unlike the Canada Revenue Agency at tax time where lots of Canadian may get a bit creative on their tax return answers because the risk of a full blown audit for most is relatively low and the consequences of minor discrepancies are just interest and moderate financial penalties, in immigration and citizenship essentially everyone gets picked for an audit. So if you’ve got some past inconsistencies in applications that need to be ironed out in a new application, do it up front in your cover letter. Don’t try to hide them. In immigration and citizenship (perhaps as in much of life), the “lie” is often far worse than the underlying details.

Don’t Try to Fix a Misrep Mess Yourself

The consequences for non-citizens of Canada of having been found to have made a misrepresentation on an immigration or citizenship application are so dire - usually at least a five year ban, and sometimes a lifetime ban requiring a Ministerial Authorization to Return - that it’s something you should never try to fix yourself. You might not always need a lawyer to make a simple immigration application, but you definitely need one if get called out on a misrep. Then it’s time to immediately go into damage control mode; you’ll be best served with a professional on your side for that. 

Gordon S. Campbell is a Canadian immigration & citizenship lawyer who helps foreign nationals and permanent residents overcome or minimize the consequences of allegations of misrepresentation. He previously served as a Federal Crown Prosecutor for immigration matters, and has litigated public law cases up to the level of the Supreme Court of Canada.

5 Things Americans Don’t Know About Immigration Spousal Sponsorship to Canada But Need to Know Before Applying

5 Things Americans Don’t Know About Immigration Spousal Sponsorship to Canada But Need to Know Before Applying

1. You Never Know How Long Your Sponsorship Application Might Take to Be Approved

I’ve seen some spousal sponsorship applications from Americans approved in just four months, while others take over two years. Sometimes this is just variable administrative backlog. Other times it’s because of some peculiar quirk in the application that requires greater government scrutiny. Don’t plan your future personal and professional lives as a couple around some magic guessed at date that Permanent Resident (PR) status in Canada will be granted.

I’ve seen couples plan their finances or children or educations around a magic date that they believe the American will become a Canadian PR, so that they can both work, study and live indefinitely in Canada, with public health care and all the other benefits that come along with being Canadian, only to have those plans dashed because of processing delays. Couples need a backup plan when arranging immigration. What if a PR is never granted? Will you still be a couple?

I’ve seen totally legitimate spousal relationships be questioned by Immigration, Refugees and Citizenship Canada (IRCC), leading to 10 year litigation battles to get the relationship recognized. Some of these battles do ultimately succeed. But they take time. Don’t put your life as a couple permanently on hold, betting on a particular immigration outcome of what is a discretionary process by government. 

An immigration lawyer can advise you if it will be quicker to apply for sponsorship from inside Canada, than through the United States, though IRCC’s increasing electronic moving around of workload among its officers regardless of where they are posted in the world is eroding the great difference that used to exist in processing times depending on point of application. The key to a speedy approval is to get your application as perfect as possible the first time around, so that the whole thing doesn’t get sent back as incomplete requiring going to the back of the line. 

2. Common Law Sponsorship Applications Are Always Challenging & Don’t Even Attempt a Conjugal Relationship Application

My experience with common law spousal sponsorships is that they often can lead to double the approval time as compared to married couples. The legitimacy of your relationship is much more likely to be questioned. You’re much more likely to be called to an interview. This is true even if you already have multiple children together. 

It seems to be a frustrating quirk of traditional society that a single piece of paper signifying a lawful marriage is much better proof to IRCC of a solid relationship than are children and perhaps years of co-habitation. But that’s just the way it is. 

I don’t run marriage prep courses (I was forced to take one prior to my own marriage, but at 25 years and counting maybe it did so some good), and definitely don’t offer relationship counselling. However as an immigration lawyer I always tell my couple clients who want to be a couple together forever in Canada: get married! If you’ve got some huge moral opposition to marriage, fair enough, stick with the common law route. But from most of my unmarried couple clients I don’t get much push back. For them marriage just hasn’t been a priority, but they aren’t anti-marriage. Which I why I explain marriage may be the quickest way for them to be together in Canada. 

Because a common law spousal sponsorship application requires 12 months of continuous co-habitation, you’re open to challenge by the iRCC on any break in that co-habitation, even if you’ve got a good reason for the break. With marriage, you don’t have to have even lived for a day together. Arranged marriages where the couple has spent very little time together are just fine. The key is the marriage.

Some of my clients have seen the Conjugal Relationship spousal sponsorship category listed online, and believe it to be a cure all to their lack of marriage, and lack of co-habitation. It isn’t, and is almost guaranteed to fail. I’ve not yet dug into its policy origins, but suspect the conjugal relationship category exists at least in part as a hold over from when same sex couples could not get married prior to immigration, and weren’t able to qualify as common law for whatever reason (perhaps because one couldn’t get a visa for Canada). In theory some of these Conjugal Relationship applications might be granted, but personally I’ve never seen one succeed. My solution remains: get married. 

3. A Single Criminal Conviction Can Render You Criminally Inadmissible for a Sponsorship Application

It doesn’t matter how far it might be in your past. Or how minor it might have seemed at the time. If you’ve got a criminal conviction anywhere in the United States (or anywhere else), Canada might find you to be criminally inadmissible, which can wreck your prospects for spousal sponsorship. 

Very, very, very important is to not accidentally lie on your sponsorship application about past convictions, because then you can be hit with the double whammy of criminal inadmissibility and a misrepresentation finding. It doesn’t matter if you have a pardon, or expungement, or whatever term they use where the conviction happened. Canada’s questions on sponsorship applications now ask if you’ve ever been arrested or ever been charged; you aren’t just asked about convictions. 

Criminal rehabilitation may be possible for you depending on when the conviction happened and its equivalent severity under Canadian law (not under the US Federal or state law contravened). You will need to plan that out how to address admissibility problems long before you submit your spousal sponsorship application.

Be proactive, not reactive, as it can take a lot of time to track down all the state and federal documents you might need from the US to seek rehabilitation in Canada, including digging into some very old dusty courthouse files. The best proactive approach is to produce every last detail of court records, not just a computer printout of the conviction.

4. Work Permits Can Be Very Hard To Obtain Until Almost the End of the Spousal Sponsorship Process 

While you’ll see there’s talk on the IRCC’s website about an open work permit being available to the sponsored spouse after approval in principle of the spousal sponsorship application, sometimes this approval in principle comes only a month or two at most before final approval when you’d get a work permit anyway. So don’t think that it could take only a few months to be working in Canada after you’ve submitted your initial application.

As the sponsored American spouse, you need to either plan to stay working in the United States while the sponsorship application is underway should you need that income to support yourself (and perhaps your Canadian spouse), or figure out how to forego any income in Canada if here on visitor status and waiting out the approval process perhaps for quite a long time, or get a work permit in Canada that is available to foreign workers, perhaps through a NAFTA visa if you are in a high skilled profession since Americans and Mexicans remains in a favoured position to work in Canada over most other nationalities because of the North American Free Trade Agreement. 

I’ve seen couples bet their lives on both of them being able to quickly work at any job in Canada, perhaps because the Canadian is pregnant and needs the financial and moral support of the American in Canada, or because they both really want to live in the same place but each is only qualified to work in their home country and they can’t afford to support themselves as a couple without a double income. You may need to make a choice between only one of you working for a year or two, or living apart for the same period of time (and don’t try a common law application if you’re doing that) while approval in principle of the sponsorship application and an open work permit is achieved. 

5. It’s Safest During the Sponsorship Process to Never Leave Canada

It doesn’t matter that Americans have always had favoured status in entering Canada. A single Border Service Officer (BSO) has the right to refuse you entry to Canada if you’re not already a permanent resident or citizen. Entry is a privilege. Not a right. Even if you’ve got paperwork authorizing entry, a BSO can cancel it. Just like that.

So say you’ve been in Canada for months living with your beloved, and decide just to pop back across the US border for the day to pick up a few groceries - especially those yummy American breakfast cereals you miss and have been scouring Canadian grocery stores for in vain. Imagine the shock when you get back to the Canadian border and they tell you you aren’t welcome!

You plead with them. You cry a bit. All you’ve got with you is your wallet, a somewhat worn sweater, and a borrowed vehicle. Your whole life is in Canada now. 

Well, you might get stuck waiting out the next year in the US while your spousal sponsorship application works its way through the system. Seriously.

This trap is especially likely if you’ve been crossing and recrossing the border too many times in recent months. The CBSA start to not like letting Americans in as normal visitors after too many crossings, even if you prove it’s just to visit your one and only. They start to demand proof of your financial support. Dig into whether you’ve got anything in your background they don’t like. They might even accuse you of illegal work in Canada. The sorts of things non-Americans need to put up with all the time when they apply to visas to come to Canada. 

So don’t get caught out. If you’re an American with a Canadian spouse, and want to wait out the spousal sponsorship process - however long it may take - in that mythical land of the Great White North, don’t leave Canada for any destination unless you absolutely have to. And if you do leave, don’t bet on being let back in. 

Yes, it’s likely you’ll probably be okay upon your return to Canada. But I’ve had multiple clients stuck in exactly this kind of excluded limbo situation after merely a day’s shopping trip to those southern malls that really are oh so much better than the retail experiences of Canada. After a big fight, we’re often able to get them back into Canada. But why risk it. There’s always amazon.ca, after all. 

Gordon S. Campbell is a Canadian immigration lawyer who helps Americans immigrate to Canada as permanent residents as well as for work and study purposes. He especially works with Americans to overcome criminal or medical inadmissibility issues for entry to Canada. 

What Every Permanent Resident of Canada Needs to Know About Canada's New Impaired Driving Laws & How PR Status Can Be Lost

What Every Permanent Resident of Canada Needs to Know About Canada's New Impaired Driving Laws & How PR Status Can Be Lost

There are likely well over a million permanent residents in Canada. All of them now face potential deportation from Canada upon conviction for a single offence for which they almost certainly won’t go to jail after Parliament bumped the maximum punishment for impaired driving from five to ten years. Parliament never intended this result. But sometimes the law is all about unintended consequences. Here’s what you need to know about the risks of this legal change and how to manage them if you have PR or other non-citizen status in Canada.

Parliament’s Legislative Intent for Impaired Driving

For a first offence of impaired driving, Parliament intended a combination of deterrence, denunciation and rehabilitation measures that it hoped would reduce impaired driving by imposing mandatory minimum fines which ensured those convicted received a criminal record and at least a one year driving prohibition. And provinces have been permitted to soften the blow a bit to promote rehabilitation through offenders getting licences back earlier upon taking courses and installing interlock devices on vehicles.

Parliament’s goals have been met, as rates of impaired driving across Canada have been dropping over a multi-decade period.

We could debate the morals of banning large numbers of people from Canada for impaired driving if that had been Parliament’s intent. But it wasn’t. It was only after marihuana law reform had solidified in its final draft stages that it became apparent what the impaired driving reforms would do to non-citizens. And so far the government hasn’t moved to fix the situation, because as we all know government can move very slowly.

When the maximum penalty for impaired driving was five years imprisonment, I’d never heard of anyone receiving anything close to that unless it was in combination with other much more serious offences - like manslaughter - which had their own much higher penalties. Everyone convicted for the first time of impaired driving, and nothing else, receives a fine (at least in all the jurisdictions I’ve practiced in). The only question is how much. On subsequent offences, mandatory minimum jail sentences start to kick in. But we’re talking days and months. Not years. So booting the top sentence from 5 years to 10 years arguably did nothing other than potentially harm permanent residents.

Impaired Penalties Have Changed Little Over Time

Canada’s drinking and driving laws since their first enactment in 1921 have changed a lot less than many people think. Initially the mandatory minimum penalty was seven days imprisonment on a first offence, 30 days imprisonment for a second offence, and 90 days for a third offence, which is extremely similar to the current setup other than the first offence having being dropped to a fine as minimum punishment, and the third offence being bumped up to a 120 days.

There have been lots of technical tweaks to drinking and driving laws since 1921, particularly to accommodate the introduction of the breathalyzer which first showed up earlier than most people would assume in 1954. But the fundamental core outcomes of deterrence, denunciation and rehabilitation have not changed. Until now, when it effectively became an anti-immigrant offence.

Impaired Driving is the Second Most Common Criminal Offence in Canada

Charges of impaired driving constitute over 10 % of all criminal court dockets, making it the second most common offence in Canada after theft. There are over 70,000 charges of impaired driving annually in Canada (using 2016 figures). 

But unlike theft where an offender can receive a “discharge” which means there is a finding of guilt, but no “conviction,” impaired driving has a mandatory minimum fine attached to it guaranteeing a criminal record. A discharge isn’t a possible outcome. So the consequences for permanent residents (and others) may be dire.

The Huge Immigration Impact of Impaired Driving Amendments

A Government of Canada press release from 22 October 2018 perhaps best sums up the serious consequences of the impaired driving offence changes for PRs (and other non-Citizens):

If you commit an impaired driving or a cannabis-related crime, you could face a fine, criminal charges or jail. However, we may also find you inadmissible to Canada for serious criminality. It doesn’t matter if the crime happened inside or outside Canada. This means:

  • permanent residents may lose their status and have to leave the country

  • temporary residents (including visitors, international students and foreign workers) may not be able to enter or stay in Canada

  • refugee claimants may not be eligible to have their claim referred for a refugee hearing

Appeal rights for permanent residents and foreign nationals, including sponsored members of the family class, could also be affected.

https://www.canada.ca/en/immigration-refugees-citizenship/news/notices/impaired-driving-cannabis-penalties-affect-immigration-status.html

This is all very, very bad.

Why Impaired Driving Amendments Raise Fairness Concerns For Immigrants

The cutoff for immigration “serious criminality” is a maximum available punishment of 10 years or more, so suddenly all non-citizens can be caught in a trap set by this second most common offence in Canada. Now you might be saying, “hey, it can’t happen to me!” Or, “yeah, they deserve it!” But there are lots of permanent residents who may be convicted of very serious offences for which they do significant jail time - say 2 years imprisonment for $2 million in income tax evasion - who won’t have any risk of deportation because the maximum penalty for tax evasion is five years imprisonment under the Income Tax Act.

So you could get deported for a $1500 fine offence, but don’t get deported after two years imprisonment. Make sense? Well, unfortunately that’s just the way it is now. So what to be done?

Top 4 Tips for an Impaired Driving Immigration Defence Plan

So if you’re a permanent resident (or have other Canadian immigration status short of citizenship) who is facing an impaired driving charge, or have a family member or friend in that situation, what should be done? As a lawyer practicing both immigration and criminal defence law, my suggestions are:

  1. NEVER PLEAD GUILTY to impaired driving if you’re not a citizen and need to retain your right to be in Canada. Fighting it out to trial means you have a chance of acquittal - even if a small chance - and the penalty you receive after trial on a first offence is usually almost identical to the penalty you would have received on a plea. They’ll usually both be fines.

    Just the fine after trial will be a bit higher (as in hundreds of dollars higher, not thousands). An early plea might get you your licence back a bit sooner if you complete a provincial course and install an ignition interlock device on your vehicle, but that’s irrelevant if you’ve been deported back to your country of origin. 

  2. HIRE A CRIMINAL DEFENCE LAWYER. Hiring a lawyer to professionally defend you for an offence like this won’t bankrupt you . This will likely only be about a one day trial. So total work by a lawyer might be about three days. Maybe four. This won’t be a multi-week fraud or murder trial that would test the financial resources of even the wealthiest accused.

    Virtually all criminal defence lawyers offer block flat fees, so you’ll know up front what the defence will cost. Absolutely don’t try to run a trial yourself. Winning a DUI trial is hard enough even for experienced lawyers. 

  3. IF YOU’RE CONVICTED, HIRE AN IMMIGRATION LAWYER. If you can afford it, hire an immigration lawyer prior to conviction to collaborate with you criminal lawyer. While not everyone who is convicted of an offence for which immigration criminal inadmissibility can be triggered will receive a letter from the CBSA/IRCC, you’ve got to prepare in advance for this outcome since you might not have long to respond when you do get a letter. You might have immigration law arguments available to you to fight back against removal from Canada.

  4. HAVE A BACKUP PLAN. It’s possible that despite all your efforts, you might still lose your permanent residency or other status in Canada after an impaired conviction. But this doesn’t mean that all your future involvement with Canada is hopeless. You may still have options of seeking special permission to return to Canada in the interim (especially if you can demonstrate compelling grounds), and of applying for criminal rehabilitation in 5 years. 

Gordon S. Campbell practices immigration law throughout Canada and criminal defence law throughout Ontario. He’s served as legal counsel to the CBSA, IRCC, Justice Canada, and is author of The Investigator’s Legal Handbook series of books. Learn more at compleximmigration.ca and defenceeast.com.

How to Make a Successful Refugee Claim in Canada: Top 5 Things You Need to Know

How to Make a Successful Refugee Claim in Canada: Top 5 Things You Need to Know

I’m thankful this holiday season that Canada has among the highest refugee claim acceptance rates in the world, at a bit over 50% (looking at multi-year averages). Now don’t get too smug fellow Canadians, we’ve got an extremely low percentage of refugees to population ratio because we’re so difficult to get to (Lebanon currently has the highest ratio in the world). But for those who do manage to get here, and make claims, and run refugee hearings, the odds are (slightly) in their favour of being believed and accepted. 

By comparison, the United States historically has a bit over a 30% claim acceptance rate. And Japan’s refugee acceptance rate is a stunning 0.1% (20 people accepted out of 20,000 claims in 2017). 

While a majority of states have signed onto the 1951 United Nations Convention on the Status Refugees, the authorities in each country who process refugee claims clearly have dramatically differing views on who qualifies as having “a well-founded fear of being persecuted by reasons of race, religion, nationality, membership of a particular social group or political opinion ... and ... unable ... to avail himself of the protection” of his or her home country, which is the definition of a refugee set out in Article 1 of the Convention. 

So if you or someone you know is thinking of making a refugee claim in Canada, or is part way through the process of having a claim considered, here are five of my top tips for success as a lawyer who represents claimants before the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) in Ottawa, Montreal and Toronto. 

1. You Can Only Make a Direct Refugee Claim From Inside Canada

I’m often contacted through the Internet by people wanting to assist others who are overseas in making refugee claims in Canada. Unfortunately there’s nothing I can do until those people are physically inside Canada. 

If you’re outside Canada, you can work with the United Nations High Commissioner for Refugees (UNHCR), establish your credentials as a refugee, and ask that you be considered for resettlement in Canada. But you can’t directly make a Canadian refugee claim from overseas. So you can’t show up at a Canadian embassy. And you can’t mail in forms from abroad. 

Being physically inside Canada in order to make a direct refugee claim is just the way the system works. 

Though for some of those overseas who are effectively refugees, they might have other Canadian immigration options that can be dealt with from abroad. Temporary residence in Canada as workers or students. Or perhaps even permanent residence through one of the many programs the Government of Canada and its provinces run. Being a refugee doesn’t preclude you from other application options. But having education (preferably to the level of a Masters degree) or experience in an in-demand occupation, good English or French skills (and ideally knowledge of both), and being of a younger age may all be necessary to qualify. 

2. You Need to Demonstrate Objective Fear of Persecution in the Future if You Were to Return

This means you can’t just show fear in the past. You need to present evidence of how things are now, and how they will be if you return. So you may need to reach out to those still in your country to origin to gather evidence on current conditions. Or at least provide compelling third party documents to support the basis for your fear for the future.

And the persecution must be personal to you, not just a generalized risk. So you need to present concrete examples of personal events and threats which happened, and possibly continue to happen from a distance. Don’t be general. Get very specific. 

3. You Need to Offer Lots of Detail in you BOC

The Basis of Claim (BOC) document that every refugee claimant is required to complete at the time a claim is submitted to the Government of Canada is THE key document to the entire refugee claim process. It should not be treated as a brief introduction to the claim, with more detail to be offered later in subsequent documents and oral testimony at a refugee hearing. 

The IRB will want to know why you are now offering all sorts of details and examples at your refugee hearing, if you didn’t mention them in your BOC. Even though the honest answer might be that you were only provided with a few days to complete the BOC, and you’ve now had lots more time since then to think of additional information, the IRB may doubt the credibility of the new information. So try to ensure it all (or at least most of it) shows up in the original BOC. Lots of time needs to be spent preparing the document.

You can attach lots of extra pages to a BOC. You aren’t limited to the space provided in the forms. 

4. You Need to Support Your Claim with any and all Documents

Even though you know you’re telling the truth. And others believe you. That doesn’t mean the IRB is going to believe you. 

The IRB is used to hearing people lie. All the time. Again and again. And there is no magic technology that helps Board members distinguish between the liars and the truth tellers. In fact, trying to tell who is and isn’t lying solely from physical presentation is a sure fire way to be culturally biased, since every culture has its own unique ways of story telling and presenting information to officials. In some cultures eye contact might be acceptable; in others it won’t be. 

Thus the best way to be believed is to present documents which independently and objectively prove your case. You should present documents that are personal to you, and also documents that generally address the issue in question in your home country. So if the question is persecution due to gender and forced marriage, do you have emails/Facebook messages/text messages or letters concerning marriage arrangements? Do you have documents concerning the laws or practices in your country concerning those issues? 

Testimony from third parties can also be of help here, and often takes the form of written sworn affidavits, which can be sworn in your home country. 

All documents need to be officially translated into English or French in order for the IRB Board members to read them. But if you have last minute documents in your own language, and have requested an interpreter, some Board members may permit the interpreter to read short passages of the documents to confirm their content. 

While people fleeing their home with only the clothing on their backs might not flee with any documents, you need to make extensive efforts after your arrival in Canada to obtain whatever documents you can. For example, a huge issue at IRB hearings is proof of country of origin, and demands that a document be produced to show where you were born. While this might practically be very difficult to obtain, you should still consider if there is any kind of documentation - including testimony from community members - which might help establish your origins. 

5. You Need to be Prepared to Defend Your Story at Your Refugee Hearing Before the RPD of the IRB

Your refugee hearing before the Refugee Protection Division of the IRB is like a mini-trial before a judge in a court of law. Most hearings last between two and three hours. You should be prepared with good answers to lots of questions posed by the Board members deciding your case.

The refugee hearing is quite minimalist compared to a normal court trial. There is only one official present - the Board member - who presses the record button on the audio recorder, brings in his or her own documents, and asks all the questions. There usually isn’t a representative from the Minister there to ask questions - any submissions are made in advance by the Minister in writing. Your lawyer is also permitted to ask questions, but only after the Board is finished its questioning.

Be prepared for extensive questioning by the Board member. Be prepared to be challenged on your story. Be prepared for minute contradictions between your BOC and your story at the hearing to be pointed out to you, and explanations demanded. Questioning is one of the only ways a Board member can attempt to sort out truth from lies. And through questioning a Board member may even help you in articulating a well-founded fear of persecution. But don’t depend on the Board member to ask your the right questions. Be prepared in advance with lots of detail in your story. 

The most common mistake I see claimants make at refugee hearings when relating their stories is not giving details. Or getting stuck in vague generalizations. 

The Board need to hear the names, the dates, the places, and the minutiae of every experience, conversation and event that is relevant to your claim, It’s only by providing those details that your story will sound truthful. Take your time. There’s no rush. The Board really wants to know all the details. The more detail, the better to establishing your claim as a refugee in Canada.

Gordon Scott Campbell is an immigration, citizenship and refugee lawyer practicing throughout Canada, who has previously served as legal counsel to the IRCC and CBSA and argued public law cases as high as the Supreme Court of Canada. Learn more at compleximmigration.ca.

THE SECRET OF HOW TO SAVE LOTS OF MONEY ON IMMIGRATING TO CANADA

THE SECRET OF HOW TO SAVE LOTS OF MONEY ON IMMIGRATING TO CANADA

How much does immigrating to Canada cost, either temporarily or on a permanent basis? It certainly isn’t cheap. Government fees are infinitesimal compared to all the other costs. 

But the hidden cost most people don’t count on is the price of failure. Of having planned and rearranged your life solely towards that immigration goal, only to have the goal destroyed not just for a month or a year, but possibly for a lifetime because of the way the Government of Canada interpreted your immigration application and supporting documents. 

These destroyed dreams are by no means rare. We receive calls and emails every day from clients throughout Canada and around the world who are distraught over receiving rejections from Immigration, Refugees and Citizenship Canada due to a host of reasons ranging from the wrong type of application, using the wrong forms, missing documents, or worst of all being accused of lying in the application or being inadmissible to Canada, and consequentially facing a potential lifetime ban from the country. Even when these problems are fixable, they can be very expensive to fix - especially if court action is needed. 

But there’s a special secret to saving lots of money on immigrating to Canada. Like lots of the best secrets, it’s sitting out there right in the open for all to see. But people don’t recognize it. It works like Doctor Who’s Tardis is supposed to work (if it wasn’t broken), blending into the background. 

I didn’t used to know the secret myself. I practiced law for years without ever seeing it. Or hearing about it. It’s only in the last few years, when I’ve started to help more and more immigrants, that the secret has smacked me on the side of the head. And what is it, you ask? 

"HIRE AN IMMIGRATION LAWYER. And be careful about who you hire.”

WHY IS IT STILL A SECRET?

Believe it or not, revealing the “secret" isn’t some self-promoting money grab on my part. Or the part of the other immigration lawyers I know. I find for the most part they’re a pretty self-effacing collegial bunch. It's an area of law that people enter because they want to help others (like criminal law), not because they want to get rich. 

So why then am I sharing the secret with you? Because of the misery I see people suffer on a daily basis because they didn’t know about “the secret” (to be clear, we’re not talking about the bestselling The Secret book, which at 30 million copies sold clearly is no longer anyone’s secret).

These miserable people I encounter weren’t at all trying to be cheap. They’re people who if their water pipes broke in their basement they’d immediately call a plumbing professional to fix them. But they honestly believed - a belief that may be encouraged by the government - that they didn’t need a lawyer for temporary or permanent immigration to Canada.

In figuring out what they needed to do to immigrate, they saw there were a few online forms. There was an instruction guide. Maybe they even paid someone in their community a few hundreds dollars to help fill out the forms. Perhaps even the same person they pay to help with their taxes. 

And the results? Catastrophic!

SO HOW BAD CAN IT GET?

A wife or husband banned for life from Canada because of what is claimed to be a “misrepresentation” due to one box rather than another being checked on one of many forms of a spousal sponsorship application. A student whose longterm study plans are destroyed because the proposed educational program on the study permit application is determined to be “inappropriate.” A software engineer whose dreams of working in Canada are dashed because the wrong National Occupational Classification (NOC) code was used on his work permit application. 

WHY DOES SPENDING LEAD TO SAVING?

And so what’s this all got to do about saving money? The secret is that an immigration lawyer’s fees represent at most a few percent of your annual expenses or earnings in Canada, or the cost of your permanent relocation here, and the services they provide could save you many, many times the amount of money you are spending on legal fees. Don’t believe me? Let’s do the math.

THE SECRET MATH OF STUDY PERMITS WITH IMMIGRATION LAWYERS 

So what’s the math like for adding an immigration lawyer’s fees into the overall mix of international post-secondary education annual costs in Canada? Let’s use the figures for some real schools from the costs posted on their websites (end 2018).

For the University of Toronto (where I went): $68,911 annual undergraduate cost including tuition, residence (at Trinity College, where I went), meals, texbooks and incidentals. 

Or let’s take a community college, like George Brown College (where my wife studied after she graduated at U of T): approximately $26,000 annual costs, including $13,520 base tuition fee for diploma (non-degree) programs. 

Or, let’s go outside of Ontario to a Quebec school, like the McGill Faculty of Law (where I also went): $42,325.66 annual tuition - not including accommodation, food or other expenses - we’ll conservatively call that another $1500/month for 8 months (Montreal certainly remains cheaper to live in than Toronto), so $57,325.66 total

Thus ranging from a low of $26,000 per academic year for community college programs, to a high of almost $70,000 for top university degree programs, these are big numbers for what international students are expected to be spending in Canada every year.

And by comparison, the cost of an immigration lawyer to secure a study permit? About $2,500 plus disbursements. Or about 10 % of the community college annual cost, and under 5% of the university annual costs. Over a four year program basis, this would amount to a cost increase of only 1% to 2.5% of overall education costs. 


THE SECRET MATH OF WORK PERMITS WITH IMMIGRATION LAWYERS

So what about working in Canada? How do immigration lawyer fess figure as a percentage of total annual salary to be earned? Let’s take two examples. 

Software engineers make an average of $90,000 a year in Canada. Farm managers make an average of $48,000 per year. Work permits for foreigners are typically available for a year, and can often be renewed for another one to two years, depending on the program being applied under. So the Software engineer permit could be worth $270,000 and the farm manager permit $144,000. 

The cost of an immigration lawyer helping with the work permit: again about $2500, or in other words under 3% of the software engineer annual salary, and a bit over 5% of the annual salary for the farm manager. 

Other types of employment-related immigration legal services can cost more, like Labour Market Impact Assessments or Intra-Company Transfers, but these are paid by employers in order to create positions for foreign workers in Canada. And even those higher costs could be considered a pittance compared to a business lost productivity and profits due to not being able to find Canadian workers. 

THE SECRET MATH OF PERMANENT RESIDENCY WITH IMMIGRATION LAWYERS

Permanent residency math can be a bit trickier. Here you are both spending and making money on the Canadian dream. But you if just look at it from the spending perspective of selling all of your possessions, travelling with your family perhaps half-way round the world, needing to reacquire all the possessions you just sold - like home, car, personal items - and generally spending considerable time and resources becoming established in Canada.

It’s hard to know with precision how much that permanent relocation is going to cost, but it would seem at least $60,000 is a fair estimate when you consider potential costs of selling a home, selling vehicles with depreciation (because it isn’t worth importing them due to safety regulations), selling and buying new furniture or hiring a sea container to ship personal goods, flight costs for the entire family, and educational and job search transitional costs.

Really, you could spend a whole lot more, but I base this low end estimate in part on the very unscientific data of how much it cost my family to simply move from Halifax to Vancouver (a distance of 6050 kilometres, in case you were wondering), once all costs had been taken into account. And that was within the same country!

Here permanent residency immigration legal services cost a bit more than temporary study or work permits, because a lot more effort is required, often over a one to two year period. But your costs still might only be in the $5500 plus disbursements range. Thus the lawyer cost adds less than 10% to the total permanent residency costs. 

IMMIGRATION LEGAL SERVICES BY THE FINAL NUMBERS

Now you might be thinking, how do these immigration lawyers actually “save” me money? If I just do the immigration application myself, or pay someone a few hundred dollars to do it for me, and I fail, I won’t be out all that money on fees and tuition. Or on moving. I’ll just stay put. 

But the cases I personally see every day have involved a huge opportunity cost when failures happen. People who have invested lots back home in education or work or family plans with the goal of coming to Canada, only to see all of that washed away, often for very minor, stupid reasons. 

It’s true immigration lawyers can’t guarantee results. In fact, you should run the other way from anyone who does offer a guarantee; that’s a sign they don’t know what they are talking about. But immigration lawyers can maximize prospects for success. In some ways, they’re like an insurance policy. Something you hope you don’t really need, but which will help you out if things go wrong - like if the Government of Canada comes back questioning the information you provided, and demanding you respond within seven days!

So do the math for yourself. Is that insurance worth an increase of between 1% to 10% in your costs?  It doesn’t need to be a secret anymore.

Gordon S. Campbell is an immigration and citizenship lawyer practicing throughout Canada who has served as legal counsel to the IRCC and CBSA, and argued public law cases as high of the Supreme Court of Canada. 

Citizenship Law in Canada: (Almost) Everything You Need to Know in 500 Words

Citizenship Law in Canada: (Almost) Everything You Need to Know in 500 Words

Since my (almost) everything you need to know about Canadian immigration law in 500 words post was so popular, I thought I'd follow it up with a companion citizenship law post.

Don't make the mistake of thinking just because the Citizenship Act is so much slimmer than the Immigration and Refugee Protection Act, that citizenship law in Canada is somehow simpler than immigration law. If anything, citizenship is more complex and more is at stake because you may need to dig through a patchwork of shifting repealed or amended legislation dating back to 1947, and people may be very well established in Canada by the time they run into citizenship problems. 

But there are a few core principles one can pull from the historic fog which can be a great aid in figuring out any citizenship conundrum. Here's my take on Canadian citizenship law in 500 words.

1. IF YOU WERE BORN IN CANADA YOU’VE GOT IT MADE

Canada confers citizenship merely by being born in Canada. Birthright citizenship is being eroded elsewhere, like in Ireland which changed its laws in 2005 to require a "genuine link to Ireland."

Birthright citizenship can't be revoked, so you're good for life so long as you don't explicitly renounce by sending in paperwork to the Government of Canada. Merely taking an oath of other citizenship to a country that doesn't recognize dual citizens will not void your Canadian citizenship. 

2. DESCENDANTS OF CANADIANS MAY ALSO BE CANADIAN

Canada also recognizes citizenship for children of Canadians who are born outside Canada, though year of birth is as important as place of birth, as at various times foreign births needed to be registered with a Canadian consulate (which almost no one did), or children needed to claim citizenship by 28 years of age (which most didn't realize was required). Since 2009 (based on birth date) there is an absolute prohibition on second generation citizenship (children born outside Canada of children born outside Canada) acquiring citizenship by descent, with very limited exceptions. 

Previously, second (or subsequent) generation citizenship was possible, but any ancestor claimed through must at least have been a "British Subject" in 1947 (the year the first Canadian Citizenship Act came into force). So don’t think that because your great-great-great-great grandmother was born in Winnipeg, and moved to Mississippi when she was two years old, that you’re a Canadian.

3. PERMANENT RESIDENTS MUST DEVELOP CITIZENSHIP STRATEGIES UPON RECEIVING PR

Because Canada is increasingly challenging PR card holder over their right to citizenship or even to maintain their PR, PRs need to develop a citizenship (and PR maintenance) plan as soon as they land that meticulously tracks their days in Canada through documentary proof, like passport stamps, airline ticket, and credit card receipts. To either gain citizenship or maintain a PR there are usually two core requirements: 

a. a minimum period of residency in Canada (currently 3 years out of last 5 years for citizenship, and 2 out of 5 years for PR);

b. not becoming inadmissible (usually through criminality). 

Citizenship will usually have a third core component:

c. minimum language and knowledge skills (subject to testing).

4. CITIZENSHIP CAN BE REVOKED FOR MISREPRESENTATION

Even after you obtain citizenship, the government is now going after an increasing number of people to revoke citizenship based on “misrepresentations” on citizenship applications. Coming clean before being flagged should be considered. With some luck, a voluntary disclosure might earn humanitarian and compassionate points sufficient to stay in Canada.

5. APPEAL ROUTES EXIST FOR CITIZENSHIP

A denial of citizenship is usually appealed to the Citizenship Commission. If you lose there or don't have an appeal route there (just because the government makes a decision against you, doesn’t mean you get an automatic right of appeal), seeking leave to bring a judicial review to the Federal Court may be your only option. Be aware JRs can have very short leave filing limitation periods.

Immigration Law in Canada: (Almost) Everything You Need to Know in 500 Words

Immigration Law in Canada: (Almost) Everything You Need to Know in 500 Words

Lawyers like words. And have a reputation for being wordy. My published law books are about 250,000 words each! But I believe it’s possible to condense an area of law down to 500 words for (almost) everything you need to know. That’s no more than a short magazine article. Here’s my top 500 words on immigration law in Canada. 

1. KNOW YOUR STATUS

There are four immigration classes of people in Canada: Citizens, Permanent Residents, Temporary Residents, and those with No Status. It’s possible to slide up and down through the classes, sort of like social mobility, by applying for different status and meeting technical requirements. The higher your class, the harder it is to slide down. The lower your class, the harder it is to pull yourself up. 

2. GUARD YOUR STATUS

It’s very important to do whatever the law requires you to do to retain your immigration status, because you’re at huge risk of being kicked out of Canada if you lose all status. If you’ve got 182 days in Canada as a Visitor, make sure you renew before 183 days. If your study permit doesn’t let you work, make sure you don’t do anything that might be construed as work - even volunteering. 

3. AVOID MISREPRESENTATIONS

Making a “misrepresentation" to the Government of Canada is probably the biggest common immigration sin, leading to the most dire consequences. It’s far better to come clean over past immigration indiscretions - overstaying a visitor visa, illegally working, being convicted of a criminal offence - than lying about them when asked on a form or by an officer. It may be possible to absolve yourself of many types of indiscretions if you ask really nicely and get lucky. But actual misrepresentations are rarely forgiven, and could get your citizenship revoked. A misrepresentation can even be accidental. 

4. AVOID APPLICATION ERRORS

The government focusses on the most minor of inconsistencies, discrepancies and errors in immigration applications. Photo size off by a millimetre: rejection! Documents professionally translated but not accompanied by precisely the right certification affidavit: rejection! Listed all your nine brothers and sisters, but left off a step-brother because you don’t know where he lives and you ran out of space on the form: rejection and possible allegations of misrepresentation!

5. PROCESSING TIMES VARY GREATLY

How greatly? Try from one day to five years! Processing speed depends on where you apply, when you apply, what you apply for and who is applying. So before applying, consider all those factors to determine your fastest route. And if the process seems to be taking a ridiculously long time, consider a government nudge, and in the worst cases consider a Federal Court mandamus judicial review application to expedite things. 

6. FIND OUT WHY YOU FAILED

An Access to Information Act or Privacy Act request could obtain internal government notes better explaining why your application was rejected, so that you can fix the issues on a resubmission. 

7. CHALLENGE WACKY DECISIONS

Sometimes government decisions are just wacky. You don’t need to put up with them. But get a lawyer to challenge them. Don’t try to do it yourself or you could dig yourself into an even bigger hole. Decisions might be challengeable at the Immigration and Refugee Board or before the Federal Court, in part on grounds of violation of procedural fairness and natural justice. 

And if you don't think that's 500 words on the nose, you can take it up with wordcounter.net

Gordon S. Campbell is an immigration and citizenship lawyer practicing throughout Canada who has served as legal counsel to the IRCC and CBSA, and argued public law cases as high of the Supreme Court of Canada. 

THE IMMIGRATION & CITIZENSHIP LAW REPORT CBA 2018 CONFERENCE ISSUE

THE IMMIGRATION & CITIZENSHIP LAW REPORT CBA 2018 CONFERENCE ISSUE

THE CANADIAN BAR ASSOCIATION IMMIGRATION LAW 2018 CONFERENCE ISSUE

Selected analysis of IRB & Federal Court jurisprudence, legislation & IRCC policy. Edited by Gordon S. Campbell, Barrister; compleximmigration.ca. 

This month we delve into the unwritten insider tips that you only hear at live conference immigration law panels. I’ve attended a lot of panels in different area of law over the years, and some have been real yawners. But the CBA National Immigration Law Section's annual conference is the best place in the world to find out the real scoop on what goes on behind the closed doors of the Canadian immigration and citizenship application review world. Only at these conferences will senior government mangers from the CBSA, IRCC, and IRB as well as immigration lawyers from private practice and the Department of Justice give you the real goods. The following are summary highlights of selected panel comments from the conference that may be useful in day to day practice.

DEALING WITH PORT OF ENTRY ISSUES (ACCORDING TO THE CBSA)

There is no right to counsel at a Port of Entry if a person is only being examined for the purposes of determining their admissibility to Canada, but there will be a right to counsel if that person is "detained." 

An "enforcement flag" within CBSA's data systems will usually result in the referral of a person to secondary examination upon every entry into Canada. Border Services Officers have discretion to modify enforcement flags upon request, though they might choose to not exercise that discretion.

Information on immigration documents issued by the CBSA that does not match the personal information in the entry passport of a person constitutes an error that must be fixed. Errors can be (1) fixed immediately if a person is still at the port of entry, (2) fixed inland or at another port of entry, but only if that office has the required secure paper to reissue the document, (3) fixed by completing a Request to Amend Record of Landings, Confirmation of Permanent Residence or Valid Temporary Residence Documents and sending it to the CBSA Operations Support Centre in Ottawa.

Flagpoling (leaving & immediately reentering Canada) to fix immigration issues can be very risky, as (1) it will kill implied status to work or study while the IRCC processes an inside Canada extension application, (2) reentry may be refused, (3) even if readmitted, it might be without a work or study permit and possibly with a removal order condition attached. 

Everything possible should be done to support the legitimate appearance of documents in a client’s possession, as there are no official CBSA standards on what are legitimate and what are fraudulent foreign travel documents. The CBSA might even just use Google to check document legitimacy, so having corroborating documents, having official document certification, and having affidavits in support of authenticity should all be considered if coming from a region with a reputation for document fraud. It only takes one CBSA officer to doubt document authenticity for entry to Canada to be refused.

YOUR MP HAS A DIRECT BACKDOOR TO IMMIGRATION STATUS UPDATES

Did you know that the majority of citizen demands for help from local Member of Parliament constituency offices involve immigration and citizenship issues? The demands are so numerous that the IRCC has set up a special backdoor telephone and email contact line for those MPs. Sort of like a Canadian Express Ultra Platinum Immigration Card. 

You and I submit questions to IRCC through normal channels, and maybe it takes weeks or months to hear back, if we can get the information at all. The MPs submit questions, and they get answers the same day! They don’t have direct access to IRCC computer systems, but they get concierge service from IRCC helpers who will dig around electronic files and make internal enquiries to figure out where things stand. 

As an immigration lawyer or consultant, you can’t directly access this MP highway to IRCC information riches. But your clients can. So have them make an appointment with the constituency assistant. Give them something in writing for what questions you want answered. And prepare to be amazed. 

GLOBAL CASE MANAGEMENT SYSTEM (GCMS) HAS ALL THE NOTES YOU NEED

Although governments are never too quick off the mark in developing modern nimble electronic information management systems, most departments eventually get around to doing something, and then connecting it to the Internet. IRCC now has a GCMS system that replaced (or at least supplements) several older non-online systems. But the only way for lawyers, consultants and immigrants to access its contents seems to be through Access to Information and Privacy Act (ATIP) requests. 

In fact, the immigration process seems to be one constant ATIP poke according to some practitioners. One can make an Access to Information request for $5 and a Privacy Act request for free. Privacy Act gets you your own information, Access to Information gets you other government information. The problem with both requests is that they can take a long time for a response, and lead to extensive redacted information so that you then need to appeal, which in turn might go nowhere.

But refusal letters you might receive from IRCC could be so cryptic and brief that it is impossible to figure out what went wrong. And if you don’t know what went wrong, then it will be impossible to fix it in a new submission. Thus access to information and privacy requests are the only option to compel government disclosure of details, with Federal Court judicial review being a last resort if information requests and appeals are unsatisfactory. 

CBSA officers are directed to make GCMS notes that are (1) case relevant, (2) complete, (3) factual and (4) detailed enough so a reader can conclude what transpired during an interaction with a client, what directives were provided to a client, and what are the next steps. However, while previous non-online systems depended on narrative notes to describe steps and interactions, GCMS depends more on attached documents to be self-explanatory as to steps, with narrative notes to be kept to a minimum. 

In addition to the IRCC's GCMS system, the Integrated Customs Enforcement System (ICES) is where you will find records of seizures, other enforcement actions, lookouts, intelligence and investigation cases, and information from external sources relating to enforcement. Though because of exemptions, externally accessing that information may be challenging. 

IMMIGRATION APPEAL DIVISION MOVING TO SKYPE MODEL

When government departments get desperate, it's impressive what they can accomplish. My experience of two decades in government was that it was staffed by smart, hard working people who were sometimes held back from implementing innovative ideas that could result in great efficiencies, because of bureaucratic red tape and inertia. But when government Ministers wade in at the highest levels with orders to make things happen, red tape can get cast aside. 

Thus the IAD of the IRB is casting aside that darling of the 1980s the fax machine, in favour of email hearing scheduling. It’s also going to run hearings by Skype (or other video app) rather than in person, with telephone as a backup, so that witnesses don’t need to travel long distances within Canada, or face the impossibility of travelling from abroad. Indeed, IAD total inventory case backlogs are falling as overall IAD applications rise, so something is being accomplished.  

THE IMMIGRATION & CITIZENSHIP LAW REPORT LITIGATION ISSUE

THE IMMIGRATION & CITIZENSHIP LAW REPORT LITIGATION ISSUE

THE IRB & FC PRACTICE ISSUE

Selected analysis of IRB & Federal Court jurisprudence, legislation & IRCC policy. Edited by Gordon Scott Campbell, Barrister; compleximmigration.ca. 

NEW & NOTABLE RUNWAY

Minister's Request for Postponement of Hearing Denied - Federal Court Upholds IAD Refusal - Burden on Minister to Prove Management Allocation of Resources Reasonable

Where a spousal sponsorship refusal had resulted in an almost five year process after the date of marriage to get before the IAD of the IRB, the IAD refused the Minister's request for a postponement, finding the Minister "must show that not only did it claim not to have available resources or hearing officers, but also that is had no reasonable alternative other than postponement."

Canada (Citizenship and Immigration) v. Chung, 2018 FC 238

Not All Hearsay Admissible in Citizenship or Immigration Proceedings - CAIPS Notes Inadmissible Without Affidavit For Statements

The court noted that one must "distinguish[...] notes assessing a written application from notes recording statements at an interview ... an oral interview constitutes an investigation, and the resulting notes describe evidence from the interview without any collateral guarantee of authenticity ... a declarant may be motivated to record details from the interview in a manner that supports his or her own conclusions."

Canada (Citizenship and Immigration) v. Vujicic, 2018 FC 116

Federal Court Has Authority to Issue Directed Verdicts of Citizenship - Citizenship By Descent Not Question of Ministerial Discretion But Rather Right

"The language at s. 3 of the [Citizenship] Act is declaratory: once the requirements ... are met, the person is a citizen, irrespective of Ministerial action. Thus, if the Applicant's grandfather was employed 'in or with' the federal public administration - which is not a question of discretion, but rather one of fact - then the Applicant is a citizen. As such, the issuance of a directed verdict in the case at bar does not impinge on Ministerial discretion."

Fisher-Tennant v. Canada (Citizenship and Immigration), 2018 FC 151

STAT & POLICY INTERP COLUMN

As many may already be aware, challenging immigration decisions is more about "judicial review" (JR) than "appeal." There are a few rights of appeal provided for in the Immigration and Refugee Protection Act, but often you're stuck with no option but to seek "leave" (permission) to bring a JR application to the Federal court. 

Life is much more simple with appeals. You can always argue error of law, sometimes error of mixed fact and law, and occasionally even error of fact. With JRs, the courts have fallen into an abyss of disagreement over "standard of review" and whether that standard is "reasonableness" or "correctness." The Supreme Court of Canada's decision of Dunsmuir v. New Brunswick, 2008 SCC 9 is largely responsible for the mess. It's now been cited (according to CanLII) by 14,337 other cases!

If you don't see much of a difference between "reasonableness" and "correctness," you're not alone. I've been trying to reconcile the two terms for years, including why there is even a distinction, and I just don't get it. Even the Chung case (2018 FC 238) already cited in this report found: "As with many judicial reviews, the shifting sands of standard of review almost overcome the real issues in dispute." 

So no need to obsess over your burden to meet in challenging an immigration decision, rather just focus on getting the forum to challenge it in correct: submissions directly to the Minister, process within the Immigration and Refugee Board, or JR to Federal Court will always be the main options. 

RETRO CASE CORNER

Potential Foreign Hardship Can Be Considered For Any Removal Order, Not Just Refugee Matters

"The I.A.D. is entitled to consider potential foreign hardship when exercising its discretionary jurisdiction ... the onus is on the individual facing removal to establish exceptional reasons as to why they should be allowed to remain in Canada."

Chieu v. Canada (Minister of Citizenship and Immigration, 2002 SCC 3

The Immigration & Citizenship Law Report First Issue

THE FIRST ISSUE

Selected analysis of IRB & Federal Court jurisprudence, legislation and IRCC policy. Edited by Gordon Scott Campbell, Barrister, compleximmigration.ca. 

STAT & POLICY INTERP COLUMN

Although sound principles of statutory interpretation may be more about common sense than anything else, it took a prof at the University of Ottawa named Elmer Driedger to pin statutory interpretation concepts down in the English language Canadian common law world. The Supreme Court of Canada has since adopted his principles repeatedly, like in my case of R. v. Ulybel Enterprises Ltd, 2001 SCC 56: "today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament." 

Though his seminal book under the assumed authorship of Professor Ruth Sullivan is now in its 6th edition having been renamed Sullivan on the Construction of Statutes(LexisNexis, 2014), really Driedger's 1983 2nd edition of Construction of Statutes is the classic because it’s so slender and to the point. It remains the one I always cite.

RETRO CASE CORNER

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 is the seminal case to cite whenever you're sure the government is not being fair, but you're unsure of which rules or principles to point to as supporting your fairness breach arguments. It codifies procedural fairness principles. It talks about the weight to place on policy rather than law. It’s cited as leading authority by all manner of non-immigration judicial review cases.

Key is: "underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker" (para. 22).

NEW & NOTABLE RUNWAY


Spousal Sponsorship Refusal - Was Marriage Entered Into Primarily for Purpose of Acquiring Status - IAD Applies Predominant Purpose Test in Allowing Appeal

“Although the relationship may have been initiated primarily for the purpose of Dien acquiring status in Canada; nevertheless, in the opinion of the tribunal, by the time of the marriage, acquiring status in Canada, was no longer the dominant driving force of the relationship.”

Tran v. Canada, 2017 CanLII 87447 (CA IRB)

Are Gladue Principles Applicable to Immigration Removals where Indigenous Child Involved - FCA Overturns FC in Allowing JR

Although decided back in 2017, this case is of sufficient importance to still highlight. The Federal Court of Appeal overturned the judgment of the Federal Court which had dismissed the application for judicial review to defer deportation of a Guyanese permanent resident pending a Humanitarian and Compassionate application determination, on the basis that he had sole custody of a 9 year old Indigenous child.

The FCA held: "enforcement officers may look at the short-term interests of the children whose parent(s) are being removed from Canada, but cannot engage in a full-blow H & C analysis of such children's long-term best interests ... aboriginal children are doubtless among the most vulnerable in Canada ...  this description [of the enforcement officer] belittles the profound nature of the degree of connection to culture, heritage and territory that is likely important and desirable for an indigenous person to maintain. Thus, the Enforcement Officer's treatment of these issues was insensitive, which Baker instructs is the antithesis of the requisite analysis of the best interests of the child" (at paras. 61, 86, 91).

Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130

How Can Americans Immigrate to Canada? Top 5 Tips to Enjoying More Maple Syrup & Moose Burgers than You Thought Possible (Tofu Substitutes Shaped Like Beavers Also Available)

Comment

How Can Americans Immigrate to Canada? Top 5 Tips to Enjoying More Maple Syrup & Moose Burgers than You Thought Possible (Tofu Substitutes Shaped Like Beavers Also Available)

Canada is now taking in more permanent residents per capita than any other country on earth. And those numbers continue to climb year over year. But somewhat ironically, it can now be a lot trickier to qualify for the permanent residency golden ring up front than it used to be. Citizens of the United States of America have several advantages in their quest to move to Canada, starting with being visa exempt to visit Canada, and possibly having NAFTA work permits available (at least until someone rips up NAFTA). 

Here are my top five tips as a Canadian immigration lawyer to maximize your chances as an American (or other national) of qualifying to settle in Canada permanently. 

1. Get a Job in Canada

Canada increasingly awards permanent residency qualifying points to those who already have work experience in Canada. I know it might seem a bit of the chicken versus egg problem of you wanting permanent residency so you can get a job in Canada because most jobs are not available to foreign nationals, but if you work at it you'll find there are lots loopholes available (albeit some very complicated ones) to come to Canada to work as a foreigner.

High skilled occupations - especially in the IT sector - may be able to get work permits. Francophones working outside Quebec may find permits. There are sometimes permits available to those who are self-employed. Sometimes getting a job that qualifies through what's known as a provincial nominee program (PNP) which is an immigration program administered by a Canadian province rather than the Federal Government (though you eventually need to apply to the Feds) may also be a viable path to permanent residency. 

Yes, finding an available job without already having permanent residency is a hassle. No one said immigration was easy. But if your plan is to uproot your life, and move yourself, your family, your career, your future to another place, then all those logistics are going to take lots of planning. As in years of planning. Hopefully you’ll find it’s worth it. My parents went through that hassle when they immigrated to Canada, and I thank them every day for having done so. 

Starting with an immigration lawyer might be your best bet as an American wanting to work in Canada as a path to permanent residency, since an immigration lawyer can explain all the options to you (and there are lots of them). You might also need to work with a recruiter, or even start with a recruiter, depending on your profession.

2. Study in Canada

Always thinking about doing that Masters or PHD degree, but never got around to it? Canada has lots of outstanding internationally ranked post-secondary schools at bargain prices, relatively speaking. The fact of you having a Canadian degree will generate major points in your favour towards Canadian permanent residency, as will the fact that you have an advanced graduate qualification. It's not a guaranteed in - you'll also need other factors in your favour - but it's a major plus. 

But even coming to school in Canada as a foreigner isn’t as simple as just submitting a school application and showing up. You’ll need a study permit issued by the Government of Canada, and those permits can be a hassle to get when Immigration, Refugees & Citizenship Canada (IRCC) starts challenging whether you have enough money to support yourself while studying in Canada. You’ll probably be allowed some limited part time employment, but it won’t cover most of your expenses. You might even get hassled by IRCC over the legitimacy of the program you're enrolled in. 

Again, my advice if you’re serious about studying here is to start with an immigration lawyer after you’ve identified some schools of interest. No, the process definitely shouldn’t be such a hassle that you need a lawyer. It’s in fact somewhat shocking that you do. But we constantly see people who have spent years planning and saving to study in Canada, and who are accepted by a great school, only to have their dreams destroyed or delayed because two months prior to starting their program the IRCC refuses their study permit for one reason or another. 

3. Start a Business in Canada

Although the immigrant passive "investor" programs are mostly dead in Canada (outside Quebec), there remain several viable active immigrant “entrepreneur” programs runs by provinces as provincial nominee programs. You’ll need some cash and some business experience to qualify, and to actually move to the province which accepts you even if your long term goal is to live elsewhere in Canada. And you’ll definitely need an immigration lawyer for these programs, as they're much more complicated in their applications than a normal work or study permit. But they remain very viable alternative immigration paths for Americans (and others) who might not meet the criteria for other paths to Canadian permanent residency. 

4. Hit the Express Entry High Score

Canada truly high grades its immigrants, largely based on its assessment on who will succeed the best once settled here, and who will contribute the most to Canada. Under the Federal Government's premiere permanent residency immigration program that's currently called "Express Entry," Canada thinks you’re slowly dying after 29 years of age (when you get the most points for age) and are totally dead after 44 (when age-based points disappear completely).

You can still immigrate at an older age, but the more boxes you can’t check (29 or under, PHD, fluent in French AND English), the harder time you’re going to have making the cutoff score. As an American who has lived all your life in Florida, you’re competing against Americans (and others) who have spent years working or studying in Canada. So you need an edge. You might in fact have that edge, but you need to work every angle, and be prepared for alternatives to the Federal Express Entry program where I often find our clients have trouble meeting the required cut off score the first time around, but there are lots of alternatives paths to permanent residency. 

If you're thinking Express Entry, your own Internet research is probably the best starting point. You might be able to figure out an approximation of your likely Express Entry points without anyone’s help. You might find you’re extremely close, or you might not even be in the game. But once you’ve done that initial research, you should think about seeking out professional help. 

The irony is that prior to my becoming an immigration and citizenship lawyer, I was convinced that this wasn’t a “real law” area; that this was something anyone could do by themselves. Criminal charges?  Family law problems? I’d always urge people to run out to find a lawyer. But immigration? The only reason I now know different is that I see up close the thousands of disastrous cases per year where people have done their best to do everything right, indeed sometimes they have submitted a "perfect" immigration application that should definitely be accepted, but isn’t for some unfair reason.

So immigration lawyers don't just perfect applications (because you actually might be able to do that yourself), rather they also worked to fix unjustified rejections through dealing with Canadian governments, and also steer clients to immigration paths with the lowest risk of rejection, because they leave less discretion in the hands of government officials. 

5. Check if You Might Already be a Canadian Citizen. 

Don’t get your hopes up. I’m frequently contacted by Americans hoping that their link to their Canadian great-great grandmothers will get them in the door. It won’t.

But if you’re family is originally from Canada, it’s worth checking out if you might already be a citizen since I believe the vast majority of those not living in Canada who might be able to claim Canadian birthright citizenship tend to be Americans. 

 

Gordon S. Campbell is a Canadian immigration & citizenship lawyer who previously served as counsel to the IRCC and Canada Border Services Agency. Learn more at compleximmigration. ca

Comment

How to Challenge Negative Immigration Decisions in the Federal Court: Top 7 Things You Need to Know as an Immigrant, Consultant or Lawyer

Most of the Canadian immigration legal world ticks away, with nary a thought of going to court. That’s the way it should be. If every government application wound up before a court ... Yes, I know, not a pretty notion. 

But the problem with that reality is that when legal issues do need to go to court, it can be hard to spring into action. It can be difficult to decide if court is the best or even a possible option. It can be challenging to decide what grounds to plead before a court. And it can be especially tricky to find counsel to take on, put together, and file your case before the expiry of the deadline. This is especially so with immigration matters.

As an immigration lawyer who goes to court a lot, here are a few of my top tips on what Immigrants (and the consultants and lawyers who help them) need to know about the Federal Court process of reviewing immigration decisions. 

1. JUDICIAL REVIEW IS ONLY AVAILABLE IF YOU'VE EXHAUSTED ALL RIGHTS OF APPEAL

I used to be plenty confused in law school over the difference between a "judicial review" and an "appeal." They both seek the same thing: the overturning of a lower court or official decision. So why the different names?

I eventually learned it's because appeal rights are fundamentally based on statute. Meaning, if Parliament has written somewhere that your client can appeal an adverse decision of a particular type to some higher body, then that's the way to go. But if you can't find a right of appeal anywhere in the legislation, you might be stuck with a decision you can't live with. Enter the concept of judicial review.

Judicial review is fundamentally concerned with natural justice and procedural fairness, based on the principle that even if you can't appeal, if you're suffering a true injustice some Superior Court in Canada should be able to help you out. In the case of immigration, that's the Federal Court.

The formal concept of judicial review is just a codification of the Royal prerogative writ extraordinary remedies of certiorari (which quashes a lower decision), mandamus (which forces a lower official to do something), prohibition (which stops a lower official from doing something), plus the less commonly cited habeas corpus and quo warranto writs, all of which are mentioned at s. 18 of the Federal Courts Act as being incorporated into judicial review.

Lawyers and non-lawyers alike can get tripped up by attempting to bring premature judicial review applications when there are outstanding rights of appeal that must be utilized first. You must carefully assess - preferably in conjunction with legal counsel- whether a JR is available as a measure of last resort.

2. THE FEDERAL COURT IMMIGRATION JR DEADLINE IS CRAZY SHORT

How’s 15 days from the date of the challenged decision for short! And you might have already lost half of that with mailing delays from the IRCC or IRB.

It’s no secret this brevity was an intentional political move to make it very difficult for those with legitimate immigration problems to seek court relief. Don’t blame the Federal Court - it didn’t draft the Immigration and Refugee Protection Act - blame the politicians. Though the normal judicial review limitation period of 30 days in the Federal Courts Act to seek JR for other kinds of cases isn’t much better. The only way to tackle a 15 day deadline is to be ready to go BEFORE you get a negative decision. Start sketching out the Notice of Application for judicial review, figure out the likely grounds, find a lawyer. Just in case.

And don't count on the longer 60 day deadline for immigration judicial review "in the case of a matter arising outside Canada" being applicable. Do you really want to bet your future on arguing the difference between "the case of a matter arising in Canada" (15 days) and "the case of a matter arising outside Canada" (60 days)? If you are now in Canada, or were in Canada, or something was done or not done in Canada, the 15 day deadline might apply, even if an application was filed outside Canada. Sure, it also might not apply, but gambling the entire success of the case on how the Federal Court defines where the matter arose is foolish if you can possibly meet the 15 day limit. Of course if you've already missed it you might need to argue that only the 60 day period applies.

Be aware that it's possible to petition the court in extenuating circumstances for an extension to the 15 day (or 60 day) JR limitation period, but you need a very good reason to have missed the deadline, you can't have missed it by much, and you'll need very strong grounds for review which engage the sympathy of the Court.

3. THE ODDS OF SUCCEEDING ON AN IMMIGRATION JR ARE REASONABLE

As of 2016 the government stats (http://cas-cdc-www02.cas-satj.gc.ca/portal/page/portal/fc_cf_en/Statistics/statistics_dec16) say 5313 immigration cases were commenced before the Federal Court (3538 of which didn’t involve refugee applications). That’s more than the entire rest of the Federal Court’s workload combined.

By comparison, there were only 338 intellectual property cases and 121 admiralty cases, both traditional mainstays of the Court. And you can add to the immigration numbers another 454 citizenship cases, which by themselves almost outclass the IP and admiralty cases. It's rarely talked about, but the popularity of migration to Canada has turned the Federal Court largely into an immigration and citizenship court. 

Of those 5313 immigration cases, the Federal Court granted leave to proceed with a judicial review in 1258 cases, a rate of 24%. That rate of success is almost identical to the typical 25% rate of success for civil appeals in other courts, like those before the Tax Court of Canada or the Court of Appeal for Ontario.

If you consider that many of those 5313 may have been self-represented without lawyers, some were hopeless cases, and some were abandoned, the true rate of success where a plausible argument for review existed and a lawyer was involved could in fact be far better than 25%. Those are actually quite good odds.

Although it's true that immigration JRs supposedly involve a two stage process, where even if you’re granted leave to proceed with a JR you might still lose the JR argument on the merits, in reality you’ve likely got a far better than 50-50 shot if you get leave because increasingly the Minister simply consents to immigration JRs that get leave, prior to the Court hearing the JR, perhaps in order to avoid a bad precedent, or at least to avoid wasting lawyer and court resources.

Why not consent to good arguments before leave is granted? Having worked for years in the Department of Justice, I can tell you that I found in many parts of government the most popular decision is no decision at all (because you're apt to take flak for sticking your neck out). Thus the "let the Court decide" attitude may be the politically safest course of inaction, where DOJ requires direct instructions from the IRCC who is Justice's "client" in order to consent, and it proves very difficult to obtain such instructions.

4. JRs CAN BE HARDER TO SUCCEED ON THAN APPEALS

Notwithstanding the encouraging rates of leave being granted by the Federal Court for immigration JRs, and Ministerial consent after leave, you need to know that the burden an applicant faces on a JR can be harder to meet that that faced by an appellant in a traditional appeal. With an appeal, you usually only need to show an error of law, or mixed fact and law, that could have affected the result in the case. With a JR, there's a constant tension in the jurisprudence between whether the standard of review is “reasonableness” or “correctness.” I’ve never understood the debate, and I’m a constitutional lawyer who spends a lot of time thinking about such things. In theory the standard leads to results like: “they got it wrong below, it was incorrect, but it was still reasonable, so I’m not going to do anything about it.” Make any sense to you? 

There are lots of academic papers out there on this reasonableness-correctness distinction. Though the debate is perhaps best summed up by a concise Tweet I recently saw one lawyer (Jason Morris) Tweet in response to a BadLegalLLP Twitter remark: “Correctness is what we call the standard of review when a) the lower court messed something up, and b) we are not okay with letting it slide this time.” 

As someone seeking judicial review, you need to know that the more errors you can identify in the lower adverse decision to be challenged, the more serious those errors are, and the greater the impact of the errors on the rights of the applicant, the better the chances of success on a JR. Since JRs rely on legal precedent, you should also keep your eye out for useful legal precedents on CanLII within the Federal Court (www.canlii.org/en/ca/fct) and IRB (www.canlii.org/en/ca/irb) body of jurisprudence, where individuals with similar facts were successful. 

5. ONLY LAWYERS WELCOME 

Only lawyers can represent people before the Federal Court. Why? This is simply one of those just the way it is legal monopoly kind of things, that also applies in all other Superior Courts in Canada. 

Litigants can represent themselves without any lawyer involvement, but I don’t recommend it. A Federal Court JR is legally very technical, and very unlike the small claims courts of Canada which encourage self-reps, or even family courts which tolerate them. Certainly at the IRB there are lots of self-reps, some of whom might succeed because it's an in-person process focussed much more on the facts than the law. At the Federal Court it’s all about the law.

6. JR GEOGRAPHY DOESN’T MATTER

You can file an immigration application for leave to bring a JR at any Federal Court Registry found throughout Canada, regardless of where the applicant resides or the Ministerial or IRCC decision was made. Since all Federal Court judges are required to live in Ottawa, you might get a faster hearing date by filing there. Plus that is where the Court’s principal Registry is located, although electronic filing makes the actual location of the Registry somewhat irrelevant. Since JRs are largely paper processes not requiring live witnesses (unlike IRB hearings), you should probably just pick a lawyer you are comfortable with, and let that lawyer pick the place of the JR. 

7. FLAT BLOCK FEES POSSIBLE BUT NOT ALL JR FEES CREATED EQUALLY

Unlike civil trial slug fests involving solely private litigants in other Superior Courts dealing with family or commercial disputes where unpredictable hourly legal fees are the norm, for Federal Court judicial reviews some lawyers (including me) can offer all-inclusive block flat fees because the amount of work and the likely government response can be somewhat anticipated in advance. This introduces a degree of predictability and affordability in legal fees that can be wholly absent from other types of litigation.

However, you need to be aware that not all Federal Court immigration judicial review legal fees are created equally. I've been litigating cases for 23 years, and done hundreds of trials and appeals, including appeals at the Supreme Court of Canada. All judicial reviews or appeals consume a lot of lawyer time to do a good job and obtain an optimal outcome.

For non-immigration JRs before the Federal Court and provincial Superior Courts, I find most lawyers of similar experience and skills charge roughly similar fees for such JR work, perhaps within a range of about 1/3 higher or lower depending on who you call. This relative similarity of fees makes sense, since ultimately even block flat fees are based on time required to be spent on a case. If lawyer hourly rates are somewhat similar, then their block fees should also be similar. 

If you figure that a Federal Court JR for immigration or any other kind of matter requires a day in court to argue, plus several full or part days to prepare a detailed application record, draft a persuasive factum of written legal argument, research the authorities to prepare a compelling casebook, negotiate with Department of Justice counsel, and coordinate with the Court Registry, you can see that a properly prepared JR is really a lot more work than pretty much any kind of non-litigious immigration application like a spousal sponsorship or Express Entry. Additionally, more lawyer time as compared to law clerk time is usually required to be devoted to an immigration JR than is the case for non-litigious immigration applications.

Plus a Federal Court immigration JR requires even more work than a normal JR, because you’re fighting two battles: the first for the Court to grant leave to bring the JR, the second to argue the merits of the JR itself. Although the first stage is entirely a paper process, so there won’t be any day in court, there will still be lots of prep that can only partly be recycled later for the JR itself if leave is granted. 

However, having researched the issue I’ve noted a strange trend where relatively similar fees are charged by immigration lawyers - myself included - for immigration application paper processes like spousal sponsorships or Express Entry, but ridiculously low fees are sometimes charged for immigration JRs. All JR work is time based, so I can only conclude that very minimal time is being spent on their preparation. Much like the car that seems to be too good a deal to be true, beware Federal Court JR fees that are possibly even lower than an immigration paper application's fees, and question what those super low fees really get you. You may need to decide: do I prefer to save a few dollars, or do I prefer to stay in Canada. 

 

Gordon S. Campbell is an immigration lawyer who represents clients throughout Canada before the IRB, Federal Court, Federal Court of Appeal and Supreme Court of Canada. He previously served as counsel to the IRCC, CBSA and with the Federal Prosecution Service. Lean more at www.compleximmigration.ca.