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.