Bill C-97 – Changes to IRPA

CONCERNS REGARDING PROPOSED CHANGES IN BILL C-97

Dear Sir or Madam:

On behalf of residents and organizations in Manitoba who deal directly with immigrants and refugees, we have serious concerns regarding the amendments proposed in Bill C-97. The focus of the comments below relate to the changes to the Immigration and Refugee Protection Act (hereinafter IRPA) specifically. On a procedural note, however, we have serious concerns with the way that the Liberal Government is pushing for significant changes to Canadian laws without proper parliamentary debate.

Genuine Refugees in Manitoba

The vast majority of refugee claimants in Manitoba enter our jurisdiction after they have started an asylum claim in the United States. These claimants are from many countries, including Somalia, Djibouti, Nigeria, Venezuela, the Democratic Republic of Congo. Based on our collective experience, most of these claimants are, in fact, successful with their claims at the Immigration and Refugee Board (hereinafter “IRB”) and they are found to be genuine refugees. The highly skilled adjudicators at the IRB consider the claims based on sections 96 and 97 of IRPA. In addition, they assess the credibility of the claimants and they consider evidence from the United States and any other country where they have sought protection.

The proposed changes to Section 101.1 of IRPA will significant affect many claimants in Manitoba. Claimants who have made a claim for refugee protection in the United States and any of the Five Eyes countries will not be eligible to have their refugee claims heard at the IRB. Instead, Bill C-97 proposes that these individuals will have a risk assessment done as part of a Pre-Removal Risk Assessment (PRRA).

We have concerns that the proposed changes will affect genuine refugees who are seeking the protection of Canada, in accordance with Canadian laws and our international obligations.

The Proposed Changes May be Unconstitutional

We have concerns that banning refugee claimants from the tribunal and, instead, having their risk assessment done by a PRRA Officer is unconstitutional and a breach of Charter Rights. As noted by the Supreme Court of Canada in the Singh decision, the previous system that involved public servants making refugee decisions was unconstitutional; hence, the creation of the IRB.

We have concerns that many claimants in Manitoba will be in long-term limbo. Foreign nationals who are coming from so-called “moratorium countries” may be banned from filing a PRRA application. If they are banned from both the tribunal as well as the PRRA application, they will be living in Manitoba in limbo. They cannot be removed to their home countries and they cannot easily regularize their status. These individuals may be forced to make applications based on humanitarian and compassionate circumstances per Section 25 of IRPA. Currently, the processing time for that application is 30 months and these people will be long-term limbo during this time.

Potential Impact on Mental Health

We have concerns that the mental health of refugee claimants is not being sufficiently considered. All of us seek to provide the necessary support for individuals in Manitoba who are coming from countries where they may have experienced trauma, torture or persecution. The IRB has robust measures, including Chairperson’s Guidelines and the Adjudicators receive significant training on dealing with vulnerable persons and individuals who have faced trauma.

We have concerns that the proposed changes to not adequately consider the potential negative impact on the mental health who are coming to Canada seeking protection.

Positive Change

We live in a parliamentary democracy, based on debate and discussion. We have concerns that Bill C-97 has been tabled without due process. We would support changes to IRPA that adequately consider the circumstances of the individuals and the families that we assist on a daily basis.

As Manitobans, we are proud of Canada’s humanitarian tradition and we work hard to build our communities based on diversity and multiculturalism. The refugee determination system in Canada must also reflect our values to properly consider each claim and assess the merits of refugee claimants according to our Charter of Rights and Freedoms.

Thank you for your time and consideration,

Alastair Clarke – Clarke Immigration Law

Abdikheir Ahmed – Immigration Partnership Winnipeg

Lisa Forbes – Amnesty International Canada

Louise Simbadumwe – Amnesty International Canada

Dorota Blumczynska – Immigrant and Refugee Community of Manitoba (IRCOM)

Dr. Shauna Labman – Assistant Professor of Law, University of Manitoba

Ghezae Hagos – Manitoba Interfaith Immigration Council

Bequie Lake – Manitoba Association of Newcomer Serving Organizations

Carol Reimer (IRCOM)

Yahya Samatar – Former Refugee

Razak Iyal – Former Refugee

 

Presentation on Labour and Immigration

At the request of instructor Bill Mathieson in the School of Business, Alastair gave a presentation at BCIT in Vancouver on the intersection between labour laws and immigration. In particular, the presentation focused on Charter rights and laws in Canada that intersect these different areas of law. Labour laws in Canada are complex and these laws have an impact on workers, businesses, employers and individuals. Each one of these categories may be subject to different laws and regulations.

labour

In particular, employers in Canada need to be aware of compliance issues and adhering to Charter rights. This was a presentation that was done spontaneously at the request of Bill and it was a pleasure to meet these students. The BCIT students were actively engaged with the topic and they are clearly well informed with some of the legal issues that they may face when they become HR Managers or other professionals in Human Resources.

If you or your company is seeking legal advice on the intersection between labour laws and immigration laws, please contact Clarke Immigration Law directly for assistance. 

Bill Mathieson is a senior lecturer with deep roots in Vancouver. He is one of Canada’s top labour negotiators and he has provided instruction to students at BCIT as well as SFU – School of Business.

Apologies and Action

Today the Prime Minister of Canada is scheduled to apologize on behalf of Canada for turning away the MS St. Louis and its 907 Jewish passengers in 1939. At the time, these Jews were fleeing persecution and the imminent threat of the Nazis and the anti-Semitic violence. At the time, our then Prime Minister MacKenzie King did not allow the 907 Jews to dock in Halifax and they were turned away.

As reported by Global News:

In the years leading up to and including the Second World War, the Canadian government heeded anti-Semitic sentiment by severely restricting Jewish immigration. From 1933 to 1945, only about 5,000 Jewish refugees were accepted due to what Trudeau called “our discriminatory ‘none is too many’ immigration policy” in place at the time.

The Jewish refugees on the ship were forced to return to Europe, where 254 of those aboard eventually died in the slaughter that became the Holocaust.

Now, about 79 years later, Trudeau will stand in the House of Commons and apologize to those refugees.

On behalf of all Canadians, PM Trudeau is apologizing to try to make things right. In an analysis by Prof Howard-Hassmann, she acknowledged that some apologies include compensation while others may be done for political reasons. For this apology, it does not appear that the Government of Canada will be offering any compensation.

Timing is Everything

On its face, Trudeau’s apology and acknowledging that what happened was wrong and it should never have happened is a step in the right direction. On the other hand, Trudeau is not making any policy changes, legal changes or any other concrete action.

In this case, however, timing is key. This apology is in the context of the shooting at the synagogue in Pittsburgh. It seems that Trudeau’s apology was scheduled before the attack but the recent circumstances highlight the importance of recognizing current anti-Semitic sentiment.

As noted by Global:

The latest figures on hate crimes from Statistics Canada show the Jewish population was the most frequent target of religiously motivated hate crimes in 2016.

Anti-Semitic incidents increased 24 per cent that year. B’nai Brith Canada said 2017 saw another increase.

The timing of this apology confirms that hate crimes against Jews was an issue in 1939 and it remains an issue in 2018.

 

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!

Strangers in New Homelands Conference – 3 Nov 2017

Please note that Alastair Clarke will be on a panel at the Strangers in New Homelands Conference at CanadInns Polo Park in Winnipeg. He will be discussing Immigration Policies, Practices, and Canada’s Refugee Determination Process with his panelists, the Western Region Assistant Deputy Chairperson of the RPD (Vancouver) Karin Michnick and Dr. Shauna Labman, Assistant Professor in the Faculty of Law and the University of Manitoba.

Some of the issues the panel will cover include:

  • current procedures of claiming refugee status in Canada
  • the Safe Third Country Agreement (STCA)
  • issues at the tribunal (IRB-RPD)
  • rights of appeal after a negative decision by an RPD Member
  • Overseas Protection
  • Private Sponsorships and refugees
  • Government Assisted Refugees
  • Secondary migration of resettled refugees

Questions are welcome and encouraged.

The program for the conference is 62 pages and we have included an excerpt below with details of the panel on Friday, November 3rd. If you would like a program (11MB), please contact that office. 

Here is a description of the Strangers in New Homelandsconference by the Conference Chair, Dr. Michael Baffoe:

We are delighted to welcome you all to the special tenth anniversary edition, of our annual conference, Strangers in New Homelands: Deconstructing and Reconstructing of ‘Home’ Among Immigrants and Refugees in the Diaspora.

This annual gathering of researchers, academics, and practitioners in the migration field, an idea mooted by Conference Chair Michael Baffoe (University of Manitoba), Dr. Lewis Asimeng-Boahene (Penn State University-Harrisburg) and Dr. Buster Ogbuagu (University of St. Francis, Joliet, IL) began modestly in 2008. The dream of growing that initial idea into a larger annual event bringing together critical stakeholders in the field of migration has really borne fruits and brought us to where we are today…ten years later. We are proud and satisfied for mooting this idea and, with the help of many of the people gathered here, especially members of the Conference Committee, for making this event a success.

This year’s conference is being held at a very critical time in world migration history. World migration is now a reality. The world has been witnessing unprecedented displacement and movements of people from their homes into other countries, especially to Europe seeking safety as well as better life conditions. The images of these mass movements are sometimes nerve-wrecking and difficult to watch. This is a new form of diasporic movement in which desperate people are challenging the existing national borders of nation states.

These challenges have brought out the best and worse in some of the nation states: some have received and welcomed these desperate people with open arms while others have shut their borders with barbed wires leaving the desperate people to their fate. Erecting barbed wires and pushing desperate people into the cold will not stop people from moving to seek new homelands. Driven by push-pull factors, the concept of geography of opportunity has taught us that erecting barbed wires or “beautiful walls” made of concrete or steel, would not solve the problem. It is therefore pertinent to find innovative ways for meeting these new challenges. As Karen Armstrong succinctly puts it, “our differences define us, but our common humanity can redeem us”. The societies into which the migrants seek to settle, and the migrants need each other for their mutual benefits. The diversity that migrants bring should therefore be seen as assets, which can enrich the host societies as well.

The exchanges of ideas and discussions that will take place at this conference will be essential for those who design and implement immigration and refugee policies and settlement, as well as those who provide services to, and work with, immigrant and refugee groups. These exchanges are more crucial than ever and we should continue to engage in these discussions as well as engage policy makers and governments to embrace the reality of world migration and the challenges and opportunities that the phenomenon offers.

For those of you who were here in previous years, we welcome you back to this tenth anniversary edition of this annual gathering. For those of you participating for the first time, we welcome you to this conference, and to the Province of Manitoba. We hope to see you all again at subsequent conferences until we solve, or at least attenuate, the lingering issues and challenges that confront migrants around the world every day.

Strangers in New Homelands Program (excerpt):
Strangers in New Homelands

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:

MPNP

MPNP

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.

Sierra Leone Mudslides

With sadness, we will be attending a fundraiser for the missing people in Freetown, Sierra Leone. We have clients who are residing in Sierra Leone and they have been directly affected by the catastrophe that is ongoing. If you wish to join, the Canada Sierra Leone Friendship Society has invited us to their event:

  • West End Commons
  • Friday, August 25th ,  2017
  • 6:00PM start

A silver donation will be collected at the door for those affected by the mudslides in Sierra Leone. The Friendship Society is asking for emergency humanitarian assistance to help in the wake of this tragic occurrence.

UNHCR EVENT: Representing at IRB (Tribunal)

Please be advised that Alastair Clarke will be presenting on a panel of experts in immigration and refugee law this week. See information below. This is an event sponsored by UNHCR and in conjunction with the IRB – RPD. The goal of the event is to provide counsel and other representatives with assistance and best practices on the procedures at the tribunal. This is not open to the public. If you are interested in attending, you must contact Azedeh in advance and submit a request. Space is limited.

We welcome member of the public for this event; however, keep in mind that it is designed for representatives and the assumption is that the audience will be dealing with refugee claimants from different countries and from various circumstances. We will not be addressing questions about specific or particular cases. All the information will be of a general nature only.

This event is based on the current situation in Winnipeg. There are too few competent lawyers who are taking on refugee claimants. Due to the influx of claimants into Manitoba, the tribunal is under a heavy caseload and there are concerns about inexperienced counsel who lack the experience to provide proper assistance to the people they want to help.

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 Slaw.ca