Canadian Citizenship

At Clarke Immigration Law, we are thrilled to report that Tetyana Vavriychuk became a Canadian Citizen today! The entire office took time off to attend the ceremony and share this once-in-a-lifetime experience. The ceremony was done by Franco-Manitoban with roots in the Metis community. She gave an emotional presentation that focuses on the diversity of the Canadian population.Citizenship

Along with all the other eighty-one (81) individuals who became Canadian citizens, Tetyana was presented with a pass from the Institute for Canadian Citizenship (ICC). Full disclosure, Alastair used to be a volunteer with the ICC and he passed our Cultural Passes to new Canadians when he practiced in Toronto.

NOTE: The photo above includes staff of Clarke Immigration Law, family & friends of Tetyana as well as officials from the Citizenship Ceremony. Thank you!

Warning Chinese Nationals

Over the past 6 months, we have seen an increase in the numbers of Chinese citizens who have been victims of fraud and abuse. These are individuals who have submitted applications to the Canadian Embassy in Beijing and/or Hong Kong. In particular, there are a number of immigration consultants and shady firms that are taking advantage of Chinese citizens. We have seen many individuals and families pay fees +$10,000.00 and their applications have been mishandled.

NOTE: If you are aware of any individuals or families that are using Chinese consultants and/or firms and they are not receiving sounds legal advice, please contact our office immediately.

Currently, there are numerous ongoing investigations into large Chinese immigration firms, including criminal convictions. These unscrupulous individuals are taking advantage of the ignorance of their clients. They make false promises and, ultimately, we believe that many people are suffering.

As reported by CBC News, more than 1,200 clients have been negatively affected by NEW CAN CONSULTANTS and WELLONG INTERNATIONAL INVESTMENT CO. This has led to an RCMP investigation in what has become the biggest immigration fraud in Canadian history.

According to CBC NEWS:

Wang pleaded guilty to offences under the Immigration and Refugee Protection Act in July 2015 after the Canada Border Services Agency (CBSA) raided his offices in Richmond and Vancouver and found fraudulent Chinese entry and exit passport stamps and dozens of passports.

He was caught holding a client’s passport with cut-and-paste alterations when he was arrested in October 2014, according to the civil action.

Wang was sentenced to almost seven years in prison but was released on parole after serving less than two years of his sentence.

In addition, the report includes details on how others may be affected:

Wang had 14 employees but some of them were part of a complex scheme that pretended clients were employees to meet immigration residency requirements in Canada while they lived in China.

“Mr. Wang did not report any of the income he earned from his fraudulent immigration consulting services to the Canada Revenue Agency.”

Based on our review of the situation and our meetings with Chinese clients in Winnipeg, we strongly urge all individuals to carefully choose their representatives.

Slaw: On the Importance of Language

The post on the use of “irregular” versus “illegal” was originally published on slaw.ca:

If you are on this site, I can assume with reasonable confidence that you are already a wordsmith. I have always had an affinity for the label “wordsmith”, possibly because I am reminded of “blacksmith” and it conjures skills of which I have none. I do, perhaps, have some skills related to language, although I suppose this is also debatable. Notwithstanding, even from my humble position, I am both angered and ashamed by the comments of Ontario Minister of Social Services Lisa MacLeod and her dim view of the importance of language. In particular, her comments related to the Safe Third Country Agreement and the language used to describe those individuals who cross the border into Canada from the United States.

Language is important. The terms we use to describe how these individuals and families have crossed into Canada must be correct. And yes, there are correct terms to use and there are incorrect terms. In particular when we are dealing with a point of settled law within the Canadian immigration system. In my view, an elected official has the duty to learn and employ those correct terms so that she can understand the issues to deal with them.

In her words, as reported by CTV News:

“I just feel that it became more of a matter of rhetoric and who’s Canadian, who’s not; irregular, illegal,” MacLeod told reporters at a press conference in Ottawa. “The words around that became far more important than actually fixing the problem.”

The debate between irregular entry vs illegal entry is not new. I have published posts and given many interviews on CTV, CBC and other media outlets on issues related to the irregular crossings into Manitoba.

Typically, before I discuss the issues with reporters, we have a conversation to ensure that we are using the correct, legal terminology. Occasionally, the reporter will slip in an incorrect term and I find myself in an internal debate whether to interrupt and correct or to let it slide and try to inject the correct term in my answer so that acute listeners will catch the error.

I want to be clear on this point: refugee claimants entering Canada are not entering “illegally”. In an op-ed published in the Toronto Star by Osgoode Hall law students Jesse Beatson and Kylie Sier (who, no doubt, received good legal experience at PCLS):

“Irregular” is used by the Immigration and Refugee Board of Canada to describe border crossings “between ports of entry.” This is not about people trying to sneak across the border undetected, but about the right to seek asylum from persecution. The Universal Declaration of Human Rights protects this right. Importantly, the 1951 Refugee Convention and the 1967 Protocol, to which Canada is a signatory and which are incorporated into Canadian law, both recognize that refugee claimants should not be penalized for irregular entry to seek refuge.

They go on to explain:

Applying the term “illegal border crossing” to refugees is based on a misconception. Irregular entry is not an offence in the Criminal Code, and should not be labelled as such. The language of illegality also tends to violate the presumption of innocence. This is a principle that should inform ethical journalism.

In my view, it is even more important that our elected representatives use the correct terms and they understand the power & importance of language. If she is so keen on “fixing the problem”, perhaps she should realize that using incorrect language is part of the problem.

CBC National News: Loopholes

Alastair was recently interviewed by CBC The National news on the topic of loopholes in the immigration system. There have recently been reports of individuals who are crossing at the Ports of Entry into Canada using a loophole in the law that was not widely known. These individuals are helping family members enter Canada through the loophole.

For the full interview, click here to watch this clip from CBC News.

From an immigration perspective, this so-called loophole is not new. It has always been in the law; however, based on the chaos and anti-immigrant sentiment in the United States, the loophole was rarely used by immigrants and refugee claimants who were in Canada. Prior to the current situation in the United States where many people from around the world recognize the pro-immigrant culture of Canada, they realize how Canada is much different from the United States.

We expect that the numbers of individuals and families who are crossing the border into Canada to increase as long as the US Government continues its rhetoric that shows discrimination and anti-immigrant sentiment.

In the meantime, we will continue to fight for our clients and make sure that everyone has their rights protected.

We continue to implore the government to suspend or repeal the Safe Third Country Agreement (STCA). We have been calling for change for almost 2 years when it became clear that the Agreement, and the loopholes within it, are causing unnecessary danger and risk to people simply seeking safety.

CTV News: Detention of Children

Alastair Clarke was interviewed by CTV News on the recent issues of detention of children in the United States and its impact on individuals in Canada. Detention of children is, prima facie, horrendous and we thank CTV and the media for highlighting this issue. Based on recent events and the surrender of the Trump administration to reason, it seems that the advocacy was successful.

At this point, the detention of children is only one point in a series of issues that cast doubt on whether the United States continues to adhere to the assumptions that underline the Safe Third Country Agreement (STCA). As before, we implore the Canadian government to review the STCA and suspend the Agreement until the conditions in the United States are corrected.

Here is an excerpt from CTV News:

Alastair Clarke said one of the children recently held in detention in the U.S. is now in Winnipeg with her father, but Clarke said the girl’s mother has been separated from them and is now in hiding in their home country.

“These cases are heartbreaking,” said Clarke. “I recently had a two-year-old girl in my own office, screaming for her mother and the United States deported her mother back to Ghana.”

“She’s been separated, she doesn’t understand what’s going on,” said Clarke referring to the two-year-old girl. “So now her father, he is basically acting as a single father with her in Canada, is trying to number one: make his case for refugee status, number two: take care of this young child and number three: he is separated from the mother of the child. They’re not legally married which was part of the problem.”

The “zero-tolerance policy” has been condemned worldwide and on Wednesday U.S. president Donald Trump signed an executive order to keep migrant families together.

Under the policy, asylum seekers who illegally cross into the U.S. are charged with federal crimes and then separated from their children who are held in detention centres.

However, Clarke doesn’t see the policy, which has dominated headlines, causing a spike in the nu

mber of asylum cases in Manitoba or Canada.

To watch the segment, click on this link. Thank you to Josh and his cameraman who came to our office for the piece. Keep up the good work!

CBC: Future of STCA

Alastair Clarke was recently interviewed on CBC The House podcast on the future of the Safe Third Country Agreement (STCA). Currently, this Agreement has been at issue based on the numbers of refugee claimants who have been coming north from the United States. Many of these people have been crossing “irregularly” around the Ports of Entry into Canada to access the inland refugee determination process, thus getting around the Safe Third Country Agreement (STCA).

As reported by the CBC:

Last year, more than 20,000 asylum seekers crossed illegally into Canada. The trend seems to be continuing this year, with about 5,000 crossing so far.

The government has been hard-pressed to find a working approach to this steady stream of migrants. Some of the ideas being floated include designating the entire Canada-U.S. border an official crossing, deploying more resources to popular spots for illegal crossings and addressing issues with the Safe Third Country Agreement (STCA).

[…]

Part of the issue with the agreement in its current form is that it was drafted at a time when both countries shared a similar view on refugees, said Alastair Clarke, a Winnipeg-based immigration lawyer.

But now Canada is “very distinct from the United States,” he told The House.

The model needs to be revised to account for changes in the politics of both countries, he said.

To read the full article, please click here. You can also access the podcast from the CBC website.

Note that Alastair has been calling for the Safe Third Country Agreement (STCA) to be repealed or suspended since Jan 2017 and he has published on this topic. The Toronto Star reported on this issue in Feb 2017. He also presented on this topic (STCA) at the Canadian Bar Association national immigration law conference in Toronto.

Major Changes to Medical Procedures

We recently had a conference call with IRCC regarding the major changes in policy to the treatment of cases with medical issues. These cases involve family members with health problems that may cause “excessive demand” on Canadian resources. Our office has been assisting many families with many cases of medical inadmissibility. The Warkentin case, filed with Federal Court, was key to having the policies changed.

It has been a pleasure to work with the Warkentin family and the community. We are thrilled and honored that our hard work has paid off. This has been a national effort and I applaud our colleagues in Toronto, in particular Adrienne Smith and all her hard work.

The changes have been reported on the IRCC website included a few details on the changes to how they process allegations of medical inadmissibility. The two (2) major changes listed are:

The new policy on medical inadmissibility strikes a balance between protecting publicly funded health and social services and updating the policy to bring it in line with current views on the inclusion of persons with disabilities. The changes include:

  • increasing the cost threshold for medical inadmissibility to 3 times the previous level, and

  • amending the definition of social services by removing references to special education, social and vocational rehabilitation services and personal support services.

This case has also been reported in the Winnipeg Free Press in an article by Carol Sanders. Here is an excerpt that that article:

On Monday, Immigration, Refugees and Citizenship Minister Ahmed Hussen announced changes to the medical inadmissibility provision of the Immigration and Refugee Protection Act so that Canada’s immigration policies “better align with Canadian values and reflect the importance that the government places on the inclusion of persons with disabilities.”

“This is really good news,” Winnipeg lawyer Alastair Clarke said after a conference call with Jon Warkentin and federal immigration officials Monday.

“We’re changing the law,” he said of those who spoke out against the 40-year-old immigration policy.

“If it did, then that’s great,” said Jon Warkentin by phone from the family’s home 320 kilometres northwest of Winnipeg in Waterhen. “That’s what we were hoping for, for some changes there. If our family was part of that, then that’s great.”

The Warkentin family have been pillars of the community in western Manitoba. Our goal is to help all families achieve their goals – for their benefit as well as the benefit to Canada. In our practice, we often see that the contributions of the families with medical inadmissibility issues are overlooked. We firmly believe that our clients are truly beneficial to Canadian society and they represent the future of our country.

Have you or any friends or family been accused of medical inadmissibility?

Currently, the law is in a state of flux. The IRCC policy changes have been announced; however, all the cases in the inventory within the government may be reassessed.

The relevant section of the law in IRPA sets out the section:

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

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

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

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

Any applicants who may fall under the above section of Canadian immigration law may have their applications reconsidered under the new procedures. We highly recommend that any applications with medical issues be reexamined by a professional, certified immigration lawyer to make sure the cases are handled properly. Feel free to contact our office directly with any questions or concerns.

Health Care for Int’l Students

The Manitoba government recently announced that they are planning to repeal Health Care benefits for international students. Here at Clarke Immigration Law, we fundamentally disagree with this decision and urge Premier Pallister and his cabinet to reconsider this decision.

International Students Benefit Everyone

Our former Minister of Immigration and former profession at the University of Manitoba, John McCallum gave the keynote speech at the national CBA conference for immigration lawyers across Canada in 2016. During that speech, he highlighted the importance of supporting international students. These are highly skilled individuals who have been vetted by our learning institutions and they pay more in tuition for the privilege of studying in Canadian schools. These students, some of the brightest minds in the world, then seek to establish themselves and, possibly, their families in Canada.

Health Care

The Canadian health care system is arguably the best in the world. Doctors, nurses, nurse practitioners, health care aides and many other professionals ensure that we receive the best services available. US media just had a field day when Canadian doctors protested that they are being paid too much. Presumably, this would be very unlikely south of the border.

International students are savvy. They look at schools in Manitoba and compare them with schools elsewhere. One of the benefits of coming to our province is the health care benefits. To attract these students, we need to ensure that they know they will be taken care of during their studies.

Long Term Policies

I fundamentally believe that maintaining health care benefits for international students is in the long-term interest of Manitoba. These students spend their summers working and their winters studying. They become settled in the province and they become connected to their communities. With the time that they spend developing their relationships, both personal and professional, they deepen their ties to this province. Keeping talent is in the best interest for the future.

Small Savings for Big Sacrifice

Let’s be honest. Cutting health care for international students is going to save very little on the bottom line. For the most part, these are young individuals with minor health issues. They have already been vetted before coming to Canada. This type of cost-cutting shows a short term perspective. The sacrifice to the province will be significant if international students decide to go elsewhere with their tuition dollars.

We urge the Manitoba government to reconsider this decision. This change in policy is not in the best interests of Manitoba.

 

Permanent Residence By Phone

Effective 1 DEC 2017, IRCC announced a pilot project that allows some applicants for Permanent Resident status to complete their application by phone. Thus far, the pilot project has only been available for Canada Experience Class applicants. That said, IRCC has been open to applicants who are in rural areas. As noted by IRCC:

The benefit of this pilot project is that clients who are already in Canada do not have to travel to an IRCC office or leave and re-enter Canada in order to be confirmed as a PR, potentially saving clients both time and money.

This program for Permanent Residence by phone may benefit many individuals who do not have easy access to Winnipeg or other urban centres.

Telephone Landing

permanent residence by phone

This program is suitable for PR applicants who do not have access to IRCC Offices. Normally, an Officer would confer the PR status face-to-face after the applicants have been approved. The “telephone landing” gives the applicants the ease and convenience of getting the last step done without having to fly or drive long distances to the nearest IRCC Office.

Permanent Residence By Phone

Currently, we are working to assist the Warkentin family who reside in Waterhen, Manitoba and they may be able to use the pilot program. Their home in Waterhen is +3 hours drive to the nearest IRCC Office.

The Winnipeg Free Press reported on this story last week. As noted by Carol Saunders in an excerpt below:

“Under normal procedures for landed permanent residents, they come to Winnipeg to meet with an officer,” said Clarke. “They will be asked questions to confirm there have been no significant changes in their situation, then permanent residence status will be conferred,” he said. “That’s the final step.”

The pilot project would allow some — who’ve already filled out reams of paperwork, met all the requirements and been approved to stay in Canada — to finalize the process by phone. Once a permanent residence application has been approved, the applicants will be sent an email from an address ending in “@cic.gc.ca” or a message through their IRCC online accounts inviting them to be confirmed as a permanent resident by telephone, the federal department said in an online notice.

After applicants complete their telephone interview, they will then have their confirmation of permanent resident status either mailed to them or uploaded in their IRCC online account, it said.

The immigration department says that applicants cannot request to be included in the pilot project but Clarke said his office plans to contact IRCC about the Warkentins “and suggest that they are ideal candidates.”

If you believe that you or your family should be conferred permanent residence by phone, please contact our office and we can arrange a consultation to determine whether you are also good candidates.

Former Immigration Officer: “Gave Bad Advice for Money”

As reported in the Windsor Star, former Immigration Officer Flavio Angelo Andreatta used a store as a “front” and provided bad immigration advice to clients. He was an unlicensed representative who should have known better and he has been sentenced in criminal court.

Here is an excerpt from the Windsor Star article:

Andreatta, a retired Canadian immigration officer grandfathered into the Canada Border Services Agency, would instruct clients to make cheques out to the cultural charity, headquartered at his Kingsville home. He would then make withdrawals from the society’s bank account, a fact that caused the group’s treasurer and former bookkeeper to resign in 2011.

Andreatta, who turns 68 next week, pleaded guilty in Superior Court Wednesday to contravening Canada’s Immigration and Refugee Protection Act by providing immigration advice for a fee. Only lawyers or people vetted by a sanctioned body can charge for that work.

As punishment, Andreatta will spend the next year on house arrest, followed by two years on probation.

Court heard Andreatta collected more than $25,000 for his services between June 2011 and December 2014.

Having the money flow through the Italian Genealogy and Heraldry Society was the “subterfuge” Andreatta used, federal prosecutor Paul Bailey told the court.

Having been an immigration officer in the past, Andreatta “certainly was in a position to know better,” Bailey said.

“He gave some bad advice for money.”

Authorities first learned of Andreatta’s activities in May 2012 when a woman who was an Italian national was denied a visitor’s visa. She had been working at the Caboto Club on a work permit that was about to expire. She was later deemed inadmissible to Canada because she had continued to work past the expiry date.

Clearly, this former Officer set up the charity with the purpose of deceiving the government and breaking the law. In my view, house arrest is too lenient on this gentlemen, no matter his health “ailments”, his background and his years of service. As stated in the article, “Only lawyers or people vetted by a sanctioned body can charge for that work.” Those described in the second part are sanctioned by ICCRC and they are subject to discipline by their professional organization. In my view, there are benefits to the system in the United States where they do not allow immigration consultants to represent clients.

Note that the decision by Superior Court Justice Kirk Munroe does not preclude the Law Society of Ontario from imposing additional punishment to the immigration officer and ordering separate fines for providing legal services in Ontario without a licence.

Law Society Act, R.S.O. 1990, Chapter L.8. Section 26.2 of the Law Society Act states as follows:

Non-licensee practising law or providing legal services

26.1 (1) Subject to subsection (5), no person, other than a licensee whose licence is not suspended, shall practise law in Ontario or provide legal services in Ontario.  2006, c. 21, Sched. C, s. 22.

26.2 (1) Every person who contravenes section 26.1 is guilty of an offence and on conviction is liable to a fine of,

(a) not more than $25,000 for a first offence; and

(b) not more than $50,000 for each subsequent offence.  2006, c. 21, Sched. C, s. 22.