Delays, Excuses and Backlogs

IRCC processing times, which are published and updated online here, can be very frustrating for applicants and representatives. As I testified to the Parliamentary committee in NOV 2020, I have been urging the Canadian government to further digitize the system to improve efficiency and to shorten processing times. Government departments, alas, are very slow to adapt. After a year, we have seen some minor improvements to the system and we acknowledge that many IRCC Officers have been focused on helping applicants from Afghanistan and other countries who require urgent attention. That said, it is very frustrating that we are constantly dealing with IRCC delays, excuses and backlogs. As often reported in the news, IRCC delays may cause serious problems for the applicants. 

How to Avoid Delaysdelays, excuses and backlogs

We often get clients who come to us when they are frustrated and they have exhausted all logical routes to expedite their applications. During consultations, clients almost always want to know how long an application will take and they want to know what they can do to speed it up.

Our first piece of advice: make sure the application is complete and it is done properly.

To do that, we recommend that you hire a representative. Collectively, the staff at CIL has more than 40 years of experience putting applications together and dealing with every type of situation. We understand the purpose and language of the IRCC forms, which may not be clear. Too often, we have seen applicants go sideways because an applicant did not answer the forms correctly. I will add that many applicants have good intentions and they make mistakes even when they are trying their best to follow the IRCC guide.

The second piece of advice: IRCC Officers are people too.

It is very easy to think of IRCC as a monolithic department of cogs and wheels. That is simply not the case. IRCC is one of the largest departments within the federal government, with many different offices. Each Case Processing Centre has its own office culture. Each Visa Office has its own idiosyncrasies. And each Officer is empowered with discretionary power to handle their applications as they see fit, within reason. I have seen messages to Officers that are rude, unprofessional and insulting. Do you think this helped? No, of course not. It is more likely the application of a belligerent applicant will receive additional scrutiny. Be respectful. Be professional. Despite IRCC delays, the Officer who may be working diligently on the other end will appreciate it.

Third piece of advice: work within the system.

I am hesitant with this advice. The Canadian immigration system is arbitrary and often unfair. At times, it seems like the best course of action is to try to break the system and, at times, it seems like the system is not working. That said, we advise to try to work within the system as much as possible. The system itself is vast and complex. Sometimes a client will complain and express their frustration/ disappointment before they have exhausted all options within the system.

When All Else Fails – Mandamus

In cases where an application has been in process for much longer than average processing times and all (reasonable) efforts have failed, we file Mandumas Applications to Federal Court. This is considered to be an “extraordinary” remedy and it should be employed as a last resort (read: last, last, last resort) when the IRCC delays are unbearable. Mandamus applications are expensive and they do not guarantee a positive result. If allowed, the Court will simply make an Order to IRCC to make a decision – positive or negative.

In a recent 2020 decision, Justice St Louis outlined the relevant legal test:

1) There must be a public legal duty to act.

2) The duty must be owed to the applicant.

3) There is a clear right to the performance of that duty, in particular:

  1. a) the applicant has satisfied all conditions precedent giving rise to the duty;
  2. b) there was:

(i) a prior demand for performance of the duty;

(ii) a reasonable time to comply with the demand unless refused outright; and

(iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay.

4) where the duty is discretionary, the discretion is fettered and spent.

5) No other adequate remedy is available to the applicant.

6) The order sought will be of some practical value or effect.

7) There is no equitable bar to the relief sought.

8) On a “balance of convenience”, an order in the nature of mandamus should issue.

As with all matters before Federal Court, the job of the lawyers at the Department of Justice (DOJ) is to act in the best interests of the Government of Canada. Most of the time, this means the DOJ lawyer will defend the Officer, even to the point of defending IRCC delays.

In the case cited above, the Mandamus Application was dismissed. This means that all the time and effort on the part of the lawyer was wasted. It also means that all the $$$$ spent by the client was for naught.

The last point regarding Mandamus Applications is that the IRCC application may be decided at any time. There is no way to predict exactly when the IRCC Officer will make a decision.

Every Case is Different

It may be trite but it is important to underline that every case, every application is different. In the background, the IRCC Officer may be doing an investigation, completely unbeknownst by the applicant.

I cannot tell you how many times we have heard something along these lines: “my friend has exactly the same case and his application was approved a long time ago! Can you help?”

If we are then retained to help, we can then try to figure out what is going on. It is often very clear after our review that the application had issues and, in fact, it was very unlikely the friend’s case was “exactly the same”.

Things May be Improving

I think it is very clear the Canadian immigration system is slow. There are many things that can be done to increase efficiencies and I know IRCC is working hard to improve the system.

We did a Canadian citizenship application for 2 minor applicants (which were approved). Average processing times for the application are 12 months and we got approvals after only 6 months. So our client was very happy with our service. However, she then applied for UK citizenship for the 2 minor applicants (their father is British) and the applications were processed in a few weeks. She was able to scan and send the documents to the UK Officer by email. Imagine that!

To end, we want to congratulate the new Minister of IRCC, the Honorable Sean Fraser. Hopefully, he will continue to build efficiencies in the system to make it better and easier to reunite families in Canada.

Justice Avvy Go

Congratulations to Avvy Go for her recent appointment to the Federal Court of Canada! Justice Go was a mentor and senior lawyer when we were lawyers in the legal aid clinic system in Ontario. For years, Avvy (now Justice Go) has been a beacon of hope and energy for her clients and causes. She has been a tireless advocate, fighting for her low-income clients who often had no way to pay for her services. We need more advocates with Avvy’s spirit and I hope her voice is heard at the Federal Court.

I do not believe that I have ever publicly applauded the appointment of a justice of a tribunal member. Over the years, I have seen friends, colleagues and former professors appointed to the Bench or to administrative tribunals. Personally, I served on a provincial tribunal from 2013 to 2016 and, as the decision-maker, it is a tough job. If there is anyone up for the task, Justice Go has the dedication and resolve to make sound decisions. Avvy Go

I cannot understate the importance of Avvy being appointed to the Federal Court. She has been pushing for positive change for years. For years, she was a bencher at the Law Society of Ontario – often the only voice for clinics. In 2014, she was appointed to the Order of Ontario and she has been active in too many projects for positive change to name in this space. Off the top of my head, the 2018 Racial Justice Report Card for Ontario highlighted many issues that we continue to deal with. Here is a quote from Avvy:

“Peoples of colour and Indigenous peoples now make up about 1/3 of the Ontario population, and yet we are still being marginalized and treated as fringe groups.  We issue this Report Card to remind our political leaders and the mainstream media that our votes count and our issues matter,” said Avvy Go, Clinic Director, Chinese and Southeast Asian Legal Clinic and a steering committee member of COP-COC.

As an aside, Justice Go worked with Shalini Konanur on the above report. Another amazing, passionate advocate.

As she correctly noted, Avvy has worked with minorities and folks who have been marginalized. She has been a voice for many clients who could not find anyone to fight for their rights. She has helped bring to light elder issues, helping non-English speakers, immigrants who are the victims of financial scams, and so many others. Avvy’s work did not stop at the clinic. She has been actively involved as a volunteer with many groups and I remember getting updates from her on the work at LSUC during all hours. Hopefully she has found a good work-life balance.

In addition, I would like to congratulate (belatedly) Bernadette Clement on her appointment to the Senate. I did not work with her and I do not believe we met in person but she was also active in the legal aid clinic system in Cornwall at the same time I was working in Toronto. (Avvy actually let me know of this appointment.)

I look forward to appearing before Justice Go at the Federal Court and I also look forward to reading her decisions.

Federal Court Success re MPNP and Misrepresentation

Congratulations to our client Ievgen Agapi, a truck driver from Ukraine, and all the supporting people who assisted with this case. Justice Ahmed of the Federal Court of Canada agreed with our arguments that the Visa Officer in Kiev failed to consider whether the alleged misrepresentation was honestly and reasonably made. Click here to read the full decision.

This is a significant decision in the jurisprudence of misrepresentation, as well as the processing of MPNP applications.

In the words of Justice Ahmed:

14]  The Applicant points out that section 40 of the IRPA does not apply to misrepresentations made honestly by an applicant who reasonably believes they did not withhold material information (Medel v Canada (Minister of Employment and Immigration)[1990] 2 FC 345Baro v Canada (Citizenship and Immigration)2007 FC 1299 (CanLII) at para 15, and Goudarzi v Canada (Citizenship and Immigration)2012 FC 425 (CanLII) at para 33). The Applicant submits that his response to the procedural fairness letter provided evidence that this exception applies to his alleged misrepresentation; he explained that the knowledge of the potential fraud was beyond his control and in his view he reasonably and honestly believed that he was not misrepresenting any material facts. Despite his response to the procedural fairness letter, the Applicant submits the Manager failed to consider whether any alleged misrepresentation was honestly and reasonably made.

[15]  The Respondent submits that the Applicant is merely “blaming” a third party for his misrepresentation and argues that efforts to get the original results were not before the decision-maker. The Respondent acknowledges that there is a “narrow exception” for innocent misrepresentation, but reiterates that it only applies in exceptional and narrow circumstance. The Respondent cites a line of jurisprudence for the proposition that misrepresentation made by a non-party to an application, without the applicant’s knowledge, does not save an application from an inadmissibility finding under section 40 of the IRPA. The Respondent also takes the position that the Applicant’s response to the procedural fairness letter did not meet the high standard to warrant such an exception.

[16]  I agree with the Applicant that the Manager failed to consider whether the Applicant honestly and reasonably believed he was not withholding material information.


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.

MCJA Conference: Guest Speaker on Criminal Justice

On 9 November 2017, Alastair will be a Guest Speaker at the annual Manitoba Criminal Justice Association conference. Here is a description of the Association and its importance in criminal justice:

criminal justice

The Manitoba Criminal Justice Association (MCJA) is a provincial affiliate of the Canadian Criminal Justice Association (CCJA) and has been actively engaged in promoting crime prevention initiatives in Manitoba for over 40 years. It is an independent, community-based organization, governed by a Board of Directors which is comprised of citizens interested in achieving the objectives of the Association. The Manitoba Criminal Justice Association exists to promote rational, informed, and responsible debate in order to contribute to the development of a more humane, equitable, and effective justice system.

Alastair will be speaking on criminal justice issues and the rights of refugees. He regularly represents refugees at the IRB, Refugee Protection Division. He also represents clients at all levels of tribunal, as well as Federal Court on appeals. He also assists clients who have criminality issues who face Section 44 Reports from CBSA and foreign nationals who have criminal convictions and need a TRP to enter Canada. His talk will cover:

The talk is part of a larger series that includes many perspectives and we welcome any questions at the end of the presentation. Please note that Alastair cannot give any legal advice on any individual matters at the conference.

MCJA is currently still accepting new registrations which can be done through their website here.

Participants at the conference will have access to all materials provided by MCJA. The purpose of the workshop is to foster coordination between agencies and to make sure that refugees are provided with sound advice and resources to potentially establish themselves in Canada.

SCC Decision: Conditional Sentences

Today, the Supreme Court rendered an important decision on the rights of permanent residents with criminality issues. The Tran decision from Federal Court of Appeal was overturned and the highest court in Canada has held that “conditional” sentences from criminal court are not considered “imprisonment”. This has a huge impact on minor convictions where the Sentencing Judge have a conditional sentence to the offender. Those Permanent Residents were subject to harsh treatment by CBSA and, in turn, the tribunal and they faced deportation.

Here is a key section from the decision by Justice Côté, paragraphs 32 to 34:

If s. 36(1)(a) is interpreted such that a conditional sentence is a “term of imprisonment”, absurd consequences will follow. As previously mentioned, conditional sentences are “for less serious and non-dangerous offenders” (Proulx, at para. 21). Thus, more serious crimes may be punished by jail sentences that are shorter than conditional sentences imposed for less serious crimes ― shorter because they are served in jail rather than in the community. It would be an absurd outcome if, for example, “less serious and non-dangerous offenders” sentenced to seven-month conditional sentences were deported, while more serious offenders receiving six-month jail terms were permitted to remain in Canada. Public safety, as an objective of the IRPA  (s. 3(1) (h)), is not enhanced by deporting less culpable offenders while allowing more culpable persons to remain in Canada.

   It would also be absurd for offenders to seek prison sentences instead of conditional sentences so that they can remain in Canada, as Mr. Tran has done in this case. Conditional sentences are designed as an alternative to incarceration in order to encourage rehabilitation, reduce the rate of incarceration, and improve the effectiveness of sentencing (Proulx, at para. 20). These objectives would be sabotaged if individuals who are subject to conditional sentences sought to replace them with prison terms, thinking the latter to be their only path for a future in the Canadian communities from which incarceration would remove them.

For these reasons, the phrase “term of imprisonment” in s. 36(1) (a) of the IRPA  cannot, by either standard of review, be understood to include conditional sentences.

As noted above, the Tran decision from the FCA has caused harsh, even “absurd” consequences for our clients. We strongly agree with Justice Côté’s decision and this has had an immediate impact on one of our clients.

12 Month Conditional Sentence

Our client was given a 12 Month Conditional Sentence in Feb 2017 and his matter was referred to the Immigration and Refugee Board of Canada, Immigration Division. Based on the SCC Tran decision, he now has a good chance of staying in Canada with his Canadian children. His conditional sentence will now not be counted as “imprisonment” and, therefore, the SCC decision will have a strong positive impact on his case.

Congratulations to Peter and all the lawyers who worked on the Tran decision!

WFP: American family gets another chance to stay in Canada

Clarke immigration law has been representing the American family with their application for Permanent Resident Status in Canada through the MPNP-Business program. The media has been extremely supportive and this American family has received significant support from their rural community in Manitoba and across Canada.

The Winnipeg Free Press published an article with an update yesterday. Here is an excerpt:



The Warkentin family, faced with a looming deportation deadline, learned this week Immigration, Refugees and Citizenship Canada is allowing them to renew their application for permanent residency.

“Canada is letting us reopen our file and we have 60 days to resubmit more information and show our worthiness,” Jon Warkentin said over the phone from the family-owned Harvest Lodge outfitting business on the Waterhen River.

The Warkentins came to Canada from Colorado in 2013 to operate the outfitting business. They applied for permanent residency, intending to put down roots in the village of Waterhen, about 320 kilometres northwest of Winnipeg.

A year after they arrived, the family was given a bleak diagnosis: the youngest of Jon and wife Karissa’s four children, then-three-year-old daughter Karalynn, had epilepsy and global-developmental delay.

The diagnosis threw a bureaucratic wrench into the family’s dreams of staying in Canada.

Ottawa denied their application this spring on the grounds Karalynn might cause “excessive demand” on health or social services in this country. As a result, the entire family faced being the imminent prospect of being forced out of the country when their current work permit expired Nov. 24.

This summer, they hired Winnipeg lawyer Alastair Clarke to explore their options.

Clarke worked through the bureaucracy, trying to convince federal officials to give the family a second shot. At the same time, he filed a motion in to have a federal judge look at the case.

It was the bureaucracy that came through first, Warkentin said, adding the family now has the choice of withdrawing the court action. The second chance offered this week gives the Warkentins what they wanted from a judge, without the need for time in court.

“The permanent residency is back in process, and they qualify for an extension to their work permit,” Clarke said.

Click here to read the full story by Alexandra Paul.

We will continue to support this American family with their goals of coming to Canada. This family came to invest in Manitoba as business leaders. They have invested more than $600,000.00 in Canada and, we believe, they will be contributing to Canada for decades in the future.

Global News: Immigration Canada reopens application

We want to thank Global News for highlighting our cases. The media attention and support from the community has been helpful to bring light to these important issues. We use all the tools available to us to make sure our clients get positive results.

Here is an excerpt from the article posted on Global News:

The decision to reopen the family’s case comes after more than a month of back and forth between the Department of Justice, which represents Immigration Canada in legal matters, and the family’s lawyer, Alastair Clarke.

Clarke said the decision by Immigration Canada to overturn its earlier ruling – which would have seen the Warkentins and their four children sent back to the United States once their temporary working visas expire in November – is a direct result of public pressure and attention placed upon the government following Global News’ in-depth look into the family’s situation.

“We received notification today from [Immigration Canada] that they have reversed their decision and reopened the Warkentin application,” said Clarke, who argued the government overlooked important information and relied on unfounded medical diagnoses when initially denying the family’s application. “We have been working on this file for a long time and thank you to Global News for all the coverage in addition to all the public support.”

For the full article, please visit the Global News website. For this case, we have also been working with the MP’s office as well as MPNP. We will continue to work on this file to make sure that Jon and Karissa’s status in Canada is secure. We believe that this result was achieved through our litigation strategy to make sure that we use all our resources to ensure that IRCC Officers fully consider all the circumstances of the case. In cases where the IRCC Officer has not fully considered all the information, we want to work with Officers and Managers to make sure they understand all the important aspects of the application.

We will be continuing to work on medical inadmissibility files and helping to assist families in Manitoba. If you or your loved ones need legal assistance, please contact our office.

Canada 150 and the Meaning of Citizenship

Last week, I attended a ceremony for 80 new citizens as a guest of Friends of Filipino Immigrants in Manitoba. The room was packed with folks from 18 different countries all coming together to celebrate becoming Canadian. The atmosphere was festive, bordering on jubilant. A choir of children started the national anthem and we all joined in. Some sang in English and others in French. And the Citizenship Judge, Dwight MacAulay, reminded us of some of the key events over the past 150 years that have built this country before he bestowed the prize that each of them had been waiting to receive: Canadian citizenship.Canadian Citizenship

As an immigration lawyer, I toil away trying to fix all the problems that come across my desk but I realized during the ceremony that it is also important to step back sometimes and remember the prize: Canadian Citizenship. It is so easy to take it for granted.

In the wake of everything going on south of the border, or across the oceans, I truly believe that we should be celebrating more of what we have accomplished in Canada. We have our problems here, of course. We are not immune from hate speech, racism and ignorance. But I also believe that we have achieved significant milestones in terms of cultural awareness and celebrating our differences. It may be trite to say but our diversity is our strength.

With each family filing up to greet the Citizenship Judge, I could not help but wonder how they came to Canada and all the possible strife they may have had to overcome to get to that moment. How many of them arrived as refugees? How many had to fight for refugee status? How many were sponsored by a family member? How many came as international students and figured out how to stay? There are so many potential paths and yet they all lead to one potential prize.

My mum said to us growing up, “never miss an opportunity to celebrate.” Our day to day work is focused so much on resolving issues, mitigating risk and finding solutions to problems (some of them created by our clients while others are based on jaw-dropping miscarriages of justice), we can easily lose sight of the importance of celebration and reminding ourselves of everything we have to be thankful for.

As noted by Dwight MacAulay, who gave a speech from the heart, the 80 new Canadians immediately made Canada a better place to live. Each immigrant brings skills, knowledge, and life experience to share. I was reminded of the Syrian refugees out east who rebooted their chocolate business, my Burundi client who is starting his IT company and my American clients with their hunting lodge in rural Manitoba. Not to mention my client who came as a refugee and now works for Air Canada (and is one of their best employees, IMHO) or the Chinese clients who bought a dairy farm. So many success stories. Our diversity is truly amazing.

OK – back to work. I need to help some more folks get closer to their prize. In the meantime, if you, dear reader, are Canadian, I hope you have spent a moment to be thankful for the prize you have before you have to get back to trying to solve the wrongs in the world.

*Republished from

Free Presentation: Law in the Library – Transcona

Please note that Alastair Clarke will be giving a free presentation on citizenship law and other changes to immigration law at Transcona Library as part of the Law in the Library Series presented by the Community Legal Education Association.

Here is a description of the program:

Are you new to Canada? Are you looking for help in some legal aspects of immigration? Join us for a free program to help provide you with legal information that you may need. Our guest lawyer Alastair Clarke will cover issues like immigration options, sponsorship, citizenship applications, bringing family members to Manitoba, MPNP and other options. Please bring questions for the lawyer to answer!

For more information, contact the library directly at 204-986-3954.