Success: Residency Appeal

We love ending the year with positive results. We also love helping clients with IAD appeals. With much work, we were able to achieve these positive results so that our client could get back to her job at the United Nations. She has been doing amazing work with her project and it was a privilege to help this family through this difficult appeal. 2020 has been a difficult year, objectively speaking. It is nice to end the year with an approval from this Residency Appeal to the IRB-IAD.

IAD Approval

In this case, our client received bad legal advice from an immigration consultant in Toronto. Unfortunately, she relied on this bad advice and it led to significant problems. We submitted multiple packages of documents in support of this appeal and this was a team effort at Clarke Immigration Law.

We still have a couple more weeks before 2021. We will continue to work hard everyday and hopefully we can get more positive results before the end of the year. We reported another Residency appeal success at the beginning of 2020. We love celebrating and we love helping our clients.

As an aside, Alastair cannot even remember how many IAD appeals he has won over the past 13 years. For the first IAD appeal, he was a Student-at-Law (Articling student) and he was given an “unwinnable” case. At the time, the partner of the firm gave him the file “for experience” as he was just starting his legal career. In fact, he was the first Articling student to handle an IAD appeal. Indeed, it was good experience and he was able to use a technical legal argument to win the day. The IAD appeal was heard on 3 OCT 2007 and we received the positive decision in early 2008. After that decision, IRCC (then CIC) changed the law and closed that legal loophole.

To date, we would estimate that we have won more than 50 appeals to the IAD. Unfortunately, the vast majority of these appeals are private decisions and they are not publicly reported. We have included a redacted copy of the recent Residency appeal decision with personal information redacted to protect our client’s identity.

Clarke Immigration Law specializes in hearings and appeals. If you have a complex Residency Appeal and you would like assistance with your IAD appeal, please contact our office. 

 

 

Remedies for Visitor Visa Refusals

The Temporary Resident Visa application (a.k.a. Visitor Visa) system is broken. This is not a controversial statement. Currently, the Standing Committee on Citizenship and Immigration is in the midst of reviewing the system and, in particular, section 179 of the Immigration and Refugee Protection Regulations (IRPR). I gave testimony and they have heard from many experts. Officers often abuse their discretionary powers per R179 which may cause extreme hardship for applicants and their families. Over the past few years, Canada has developed a reputation of being extremely difficult for visitors, even for individuals who want to reunite with Canadian family members or fiancees. During this pandemic, many families have been separated and many efforts to be reunited have been thwarted by Visa Officers who quote R179 as the basis of their refusal.

In particular, the CIMM is looking at:

application backlogs and processing times for the different streams of family reunification and the barriers preventing the timely reunification of loved ones, such as denials of temporary resident visas because of section 179(b) of the Immigration and Refugee Protection Regulations and the ongoing closures of Visa Application Centers;

We are currently waiting for a draft report from the CIMM, including recommendations for IRCC and CBSA, based on their study of the impact of COVID-19 on the immigration system. The report may lead to significant changes.

The Extent of the Problem

There is little doubt that Canada has become a top destination for skilled immigrants. To an extent, Trump’s ascent to power and his racist and discriminatory policies have buoyed Canada’s stature in the world. In my own practice, I have been retained by many clients over the past 4 years who initially intended to settle in the USA; however, they changed their minds and they focused their energy on coming to Canada. I have published on this topic here and here. I was invited to the EB-5 Conference in Las Vegas largely based on the fact many wealthy immigrants have become interested in Canada.

For individuals from non-visa-exempt countries, the first step is the TRV application. In the hierarchy of applications to Immigration, Refugees and Citizenship Canada (IRCC), the TRV application is at the bottom. It is simply an application to visit. It does not confer authority to work or to pursue a university degree. It is issued for a short period, only for the purpose of the visit.

Anecdotally, I regularly meet with individuals who are able to obtain Visitor Visas to the USA, the Schengen Visa for the EU, and/or visas to multiple Asian countries; however, they come to me with refusal letters from Canadian Visa Officers and frustration with our system. This has led to a situation where refugee claimants know they can easily obtain Visitor Visas from the USA and then travel by land to a Canadian Port of Entry (POE). Assuming they fall under an exception to the Safe Third Country Agreement (STCA), they can make their claim at the POE. If not, they may traipse across remote farmland, put themselves and their families at risk to the elements, and make an irregular entry. Of course, COVID-19 restrictions have essentially closed the border to refugees from the USA and the STCA has been held to be in breach of the Charter.

In addition to the above, we have data from the Globe and Mail that TRV refusals had been on the rise. In 2012, refusal rates for non-student TRVs was 18%. In 2017, the number of refusals rose to 33%. For applicants from some countries in Africa or the Middle East, the rate of refusal has been reported to be 75%.

Remedy #1 – Reapply

For an individual who has been refused, there is no easy remedy. Shady agents will simply reapply and cross their fingers for a different result. I have seen immigration files where the agent has applied 3 or 4 times for the same client, leading to 3 or 4 refusals. Needless to say, each refusal puts the applicant in a worse situation.

Smart lawyers will only reapply if they can show a significant change in circumstances. At times, that includes a complaint to ICCRC based on bad advice from unscrupulous agents. Other times, that includes a significantly different application. For example, a couple came to me after 2 refusals and we submitted a new application for the wife only. It would certainly be nice for the couple to come to Canada together; however, this couple decided the husband would stay behind to help allay the Officer’s concerns. It was granted.

Remedy #2 – Appeal

By law, an applicant can file an Application for Leave and Judicial Review (ALJR) within 60 days of a decision made outside of Canada. This is a lengthy and expensive process. As my former colleague and friend Chantal Desloges testified to the CIMM, it is relatively easy for lawyers to appeal the decisions of Officers. The refusals are often void of a reasonable basis and the applicants receive a boilerplate letter without any details of the decision.

If an applicant opts to submit an ALJR, the Federal Court of Canada will provide reasons per Rule 9. At that point, the applicant will have 30 days to provide their Record, including their legal arguments, and the Department of Justice (DOJ) then has 30 days to serve and file the Respondent’s Record. In clear cases, will settle the case and they will agree the application warrants special relief. Incidentally, I received an Offer letter from the DOJ today on an ALJR which is very positive news for our clients.

If successful, the application is sent back to the Visa Office to be decided by a different Officer. Yes, you read that correctly. After many months of litigation, a “win” on appeal simply means the application returns to the same Visa Office, back into the queue.

In one egregious example, I assisted a lovely teacher who submitted an application to come from India to Canada and it was refused. Her first lawyer submitted the ALJR and “won”, sending the application back. The Visa Office refused a second time and her second lawyer submitted another ALJR and “won”. Then the Visa Office refused a third time (under different grounds) and I met the client for a third ALJR. At this point, she had been trying to seek entry to Canada for 3 years, plagued by a messy immigration history.

Not many clients have the financial means or patience to pursue an appeal to Federal Court. Making matters worse, Officers know this. I managed to speak with one Officer on a TRV application that had been in process for more than 1 year and I was preparing a Mandamus Application. The Officer simply stated that if I want a quick decision, it is easy for them to refuse.

Remedy #3 – Reconsideration

As I stated during my testimony to the CIMM, the Request for Reconsideration remedy is “broken”. Unless a representative can show a clear mistake made by the Officer, the chances of the request making any difference are slim to none.

The Request for Reconsideration may be useful in 2 specific circumstances: 1. When a shady immigration consultant has submitted bad work. It is then possible for the representative to submit a complaint and a request for reconsideration with good evidence. 2. When a client is past the deadline to file an appeal to Federal Court and that is the best path for the applicant. The Request for Reconsideration may be denied; however, that new decision may lead to the ALJR and all the background evidence may be included.

As far as I can tell, there is no black letter law foundation to a Request for Reconsideration. This is a remedy based in common law that does not put any binding requirement on the Visa Office. I have spoken with other immigration lawyers in Canada and the vast majority of these requests are denied.

In the context of a humanitarian and compassionate (H&C) decision, Federal Court Justice Southcott, citing Kurukkal, reiterated the problems with this remedy:

[T]he decision-maker failed to recognize the existence of any discretion. Therein lay the error. The immigration officer was not barred from reconsidering the decision on the basis of functus officio and was free to exercise discretion to reconsider, or refuse to reconsider, the respondent’s request.

Indeed, Officers have the discretion to reconsider, or not. In the context of a TRV refusal, there is no legal obligation on the part of the Officer. In fact, this remedy is not even mentioned in IRCC’s Functional Guidance on Temporary Residents.

Remedy #4 – Members of Parliament

In the past, MPs have had more power to overturn bad decisions by Officers. I have spoken with MPs from back in the day who have been able to reverse bad decisions with a simple phone call. Alas, for better or worse, those days are in the past. My conversations with workers at MP Offices in Ontario and Manitoba are highlighted with frustration. While they are able to access officials at IRCC and highlight egregious errors, they are also expending huge amounts of time and resources. Keep in mind that MPs have an obligation to represent all their constituents.

Conclusion

I applaud CIMM to take up this cause. As I mentioned above, TRV applicants are at the bottom of the ladder of applicants to IRCC and they are all citizens of countries who require visas to enter Canada. We are not talking about applicants under the skilled worker category or overseas refugee claimants. Generally speaking, TRV applications are for tourists from particular countries. To be frank, it can be very difficult to visit Canada.

I have outlined some of the many issues with the system. I have not broached inconsistent decision making or lack of predictability. My Queen’s Law professor would also mention the discrimination within the system as a whole. I remember when I assisted an Iranian couple who sought to invite 16 members of the family for their wedding – 8 family members from the bride’s side and 8 from the groom’s. We submitted nearly identical TRV applications to the Visa Office. 10 were approved and 6 were refused. The couple was actually very happy with this result; however, I will say that I was quite frustrated. For example, an aunt was approved while her husband was refused. The notes from GCMS were scant. The couple simply accepted the results and celebrated their wedding with those who could attend.

The point is the R179 procedures are broken and I urge CIMM to consider the ample expert testimony. They heard from witnesses who certainly have more expertise than my own.

Proposed Remedy #1: Amend R179

In my view, we need to amend R179 and lower the legal requirements for a TRV. The law could explicitly require Officers to outline their reasons for the refusal. Currently, the law requires “an examination”; however, it is not clear what this entails. In many cases, for example, it not clear whether the Officer even skimmed the documents submitted. I will leave the details of the proposal to the experts in statutory interpretation and legislative drafting.

One potential amendment may be to allow monetary bonds for TRV applicants. These “cash bonds” have recently been adopted by the USA for certain countries per their Visa Bond Pilot Program. I have mixed opinions on this suggestion and I fear that it would impose serious limitations for low income applicants.

Proposed Remedy #2: Detailed Refusal Letters

IRCC Officers provide only generic refusal letters for TRV applicants, often with boxes that are checked with their concerns. The decision letters rarely include any particulars and applicants cannot know the details for the refusal. To get the actual notes, which are often scant, the applicant must make an application for their GCMS notes. This is time consuming and onerous. In my view, if Officers are required to justify their reasons and submit those reasons to each applicant, they may put more effort into each decision and, as the Officer above noted, it would not be so “easy” to refuse.

Proposed Remedy #3: IRCC Ombudsperson/ Ombudsman

The term “ombudsman” comes from the Old Norse word, roughly meaning “representative”. Its etymology is gender neutral but it may be modernized to “ombudsperson”.

Typical duties of an ombudsman include investigating complaints and making efforts to resolve those complaints, often systemic recommendations.

In my view, an Immigration Ombudsperson’s Office, with clear roles and responsibilities is necessary and long overdue. The Canadian immigration system is simply too important and our economy is too dependent on maintaining a strong stream of immigrants. As far as I am aware, there is no reason not to implement this suggestion. This office has the potential to alleviate some of the work done by MPs, in a centralized office that can take a systemic approach.

This proposed remedy has been supported by many witnesses to the CIMM including here and here.

Proposed Remedy #4: Lift Visa Restrictions

As of today, Canadians can travel to 183 countries without a visa. By contrast, citizens from only 58 countries can enter Canada without a visa. In my view, this list should be greatly expanded. Off the top of my head, I would add Argentina, Kazakhstan, Thailand, Fiji, Seychelles and a few others. Currently, citizens from more than 148 countries require a TRV to enter Canada.

Mexico is a complex situation and is the obvious barrier to this proposal. In 2016, the Trudeau government lifted the visa requirements for Mexican citizens. Since then, Canada has received a surge of Mexican refugee claimants and the Mexican ambassador has urged Canada not to re-impose visa restrictions.

In 2012, Canada imposed visa restrictions on St. Lucia, St. Vincent and the Grenadines, Namibia, Botswana and Swaziland. Then Minister Kenney justified his decision by citing “unreliable travel documents” and potential criminality issues. He stated, “criminals from these countries can legally change their names and acquire new passports.” To be clear, there is no factual basis for his statement, as far as I am aware. In my view, the visa restrictions imposed on these countries should be lifted.

Closing Remarks

During this pandemic, we have the opportunity to step back and look at the big picture. The current immigration laws under IRPA and IRPR have been in place since 2001 and the system needs to be modernized. I urge the CIMM to consider broad systemic remedies.

Please note: this article has been cross-posted at Slaw.ca.

WFP: Pandemic & Immigration

During this pandemic, CLARKE IMMIGRATION LAW is open and we are working remotely while keeping staff at the office. Please refer to our post on COVID19 which has regular updates. This pandemic has caused significant frustration and anxiety among our clients, including businesses that are negatively affected, families, workers and refugee claimants. Alastair Clarke gave an interview to the Winnipeg Free Press to answer some questions related to this ongoing pandemic and its impact on Canadian immigration law.

We have included a limited selection from the interview below. Please click here to read the full article.

Free Press: Are you concerned about how coronavirus response and the economic impact of the pandemic will influence people’s ability to land in Canada and to process applications on the permanent residency and citizenship track?

Clarke: Absolutely… we’re dealing with emergencies on a daily basis. Clients are concerned about their work permits, international students are worried about their status if they’ve been granted study permits, but they’re now not able to come for whatever reason. We have clients who have requirements to get biometrics (fingerprints and photo), but they’re not able to get the biometrics because the offices are closed.

This pandemic has affected the entire system. Not to mention the (Immigration and Refugee Board of Canada) tribunal is virtually closed, 90 per cent of our hearings have been postponed.

We expect there are going to be delays in processing times. We expect this is going to impact many applications. Canada, as everyone knows, is dependent on immigration and our economy is tied very closely with immigration.Pandemic

FP: What if someone had been on track to apply for a permanent residency permit and just got laid off? Are they still going to be eligible to remain in Canada? Would they be eligible for the emergency employment benefit?

AC: Every case is different. So, we’re dealing with these questions on a case-by-case basis.

I had one trucker who called me and he has a permanent residency application in process and his employer has supported his application. But the routes he has are all to the United States, and this client doesn’t feel comfortable going to the United States anymore. He’s asked his employer for domestic routes, but they don’t have any. So now he’s asking whether or not he can quit — and that would be a huge risk; he puts his visa application at risk.

I will say, generally speaking, Immigration, Refugees and Citizenship Canada, I’m on the phone with officers almost daily and they have been incredibly open about what they’re dealing with. The officers are incredibly sympathetic; they understand how these applicants are being affected.

Please go to the Winnipeg Free Press article to read the interview in full. This pandemic and the impact of COVID19 is causing unprecedented changes to the economy and to society on a global scale.

Finally, I want to applaud the Government of Manitoba for their hard work. Currently, there are ~250 infections in the entire province and only a few deaths. We have less than 1% of the cases in Canada and Manitoba is very safe. I feel extremely safe and secure in Manitoba and we have the benefit of an extremely reliable health care system.

We want to thank all the health care workers who work tirelessly to treat those affected by this pandemic. We each need to do our part to mitigate the risk and flatten the curve. We are very fortunate to live in Manitoba and we benefit from good governance and strong leadership.

Success: Sponsorship Appeal

In late 2018, we were contacted by a Pakistani family regarding a Spousal Sponsorship application that was refused. We had 6 months to prepare the Spousal Sponsorship appeal at the Immigration Appeal Division (IAD) of the tribunal. Challenges we had to overcome: two (2) previous sponsorship refusals, one (1) previous IAD sponsorship appeal refusal, divorce, family issues, mental health issues, mistakes made by the Pakistani official and mistakes on the original application. Positives: our clients are a loving couple who found each other despite significant hardship and obstacles. On many levels, this couple is a good match and they have the support of their family in Canada as well as family members in Pakistan.

Sponsorship appeal

This photo is used with permission and it does not depict our clients.

This was not an easy win. We prepared multiple disclosure packages that included hundreds of pages of evidence. We practiced testimony with family members in Canada and in Asia. In our conference room, we had many meetings to review questions and answers. For these cases, it is so important to prepare, prepare, prepare!!

As an aside, it is important to point out that these clients had previously retained another law firm for a previous IAD sponsorship appeal and they lost. When they came to us, they had already spent more than $20,000.00 CAD on legal fees. They would have saved a lot of $$$$ if they had come to us first. I will not say that the previous immigration lawyer lacks competence. I respect her work and I believe that she tried her best. For whatever reason, it simply wasn’t good enough. I will also refrain from naming the previous law firm but I can let you know they have a Google rating of only 3.0 and a poor reputation in the legal community.

In 2016, we published tips for winning a Spousal Sponsorship appeal. Alastair handled his first Spousal Sponsorship appeal back in 2007 (with the support of his Toronto law firm, he won) and he has won every IAD appeal over the past 12 years. Many victories. Many happy families reunited.

In this case, the Pakistani applicant has arrived and she is now a Permanent Resident of Canada. She is settling into her life in Winnipeg, with the unwavering support of her husband and their family. We wish their marriage all the best!

COVID19 – UPDATE 7/APR/2020

UPDATE: 7/APRIL/2020

Please note that we will not be providing additional updates to this page. There have been many changes to laws, regulations and policies due to COVID19. We have been in contact with lawyers from across Canada to stay up to date with changes and amendments.

If you have any specific questions on how the changes may impact your application or your situation, please book a consultation with a lawyer.

UPDATE: 24/MARCH/2020

OK – to mitigate the spread of COVID19, the Ontario government declared that all non-essential services must close starting tomorrow and we expect Manitoba will follow suit soon. The numbers of infected continue to rise and the governments are doing everything in their power.

LAWYERS ARE “ESSENTIAL” SERVICE

The list is out. Lawyers and law firms are considered an essential service. We will continue to monitor the situation. Again, most staff at Clarke Law are working remotely. We only have 2 staff in the office to keep things up and running; however, we are not holding in-person meetings in the office. Feel free to drop off documents and we have been getting daily packages.

NOTE: Immigration consultants are not on the list. As per usual, please contact an appropriate expert for assistance.

LEADING BY EXAMPLE

I have to commend our valiant leader PM Trudeau who is working from home in isolation. He is managing his busy household, with 3 young children, by himself while leading our country through very difficult times.

We watch his daily briefings and he remains poised. Lead by example. Well done Sir!

BORDERLINES PODCAST

My colleagues in Vancouver have published an episode on The Canadian Immigration Consequences of COVID19. This does not seem to appear on their website (yet) so I would encourage you to find it in your podcast app.

In particular, it is nice to hear some optimism from Deanna!

START IN-CANADA REFUGEE CLAIM BY EMAIL

As the IRCC Offices across Canada have closed due to COVID19, refugee claims in Canada are being submitted by email: IRCC.RefugeeClaim-Demandedasile.IRCC@cic.gc.ca

We have been in regular contact with the IRB-RPD (Western Region) and we have been advised that all hearings have been postponed until 1 MAY 2020.

UPDATE: 23/MARCH2020

We had a busy weekend. The land border with the USA closed at midnight on Friday due to COVID19, causing a lot of confusion. I am not sure how “Tutor” became part of the definition of “immediate family member”.

COVID19

COVID19

IN-PERSON MEETINGS CANCELLED

In our office, most of our staff are working from home. We will continue to work on files and submit applications to maintain high standards. At the same time, we must do our part to fight this COVID19 virus from spreading. We encourage all our clients to contact us by telephone – 2045996966 or by email info@apply2manitoba.ca

MANITOBA STATE OF EMERGENCY

The provincial government has declared a State of Emergency to manage the spread of COVID19. These are extreme measures for extreme times. We are all taking these measures very seriously and we fully support any and all measures to protect the health and safety of residents.

This means that groups over 50 people are banned. Gyms are closed. Most retail will close. See the government website for details. We are taking this day by day.

UPDATE: 20/MARCH/2020

ASYLUM SEEKERS FROM USA

The Canadian government has further restricted border entries. Asylum seekers (refugee claimants) who seek to enter Canada at Ports of Entry will be refused entry. Asylum seekers (refugee claimants) who attempt irregular crossings into Canada will be returned to the US as part of an “exceptional measure” to protect residents in Canada.

During a news briefing, Minister Blair has acknowledged exceptions, including unaccompanied minors, to filing a refugee claim at the border. Claims at the US-Canada border have decreased by half from ~40 daily to ~20 daily. They will be returned to the USA and the Minister has advised that they will not be detained.

QUARANTINE ACT LEGISLATION

Emergency legislation through the Quarantine Act limits entry to Canada, including “immediate family members” as defined by the new Order. This provides clarity on the previous announcements that will limit access to Canadian soil.

Individuals crossing from the US may be required to spend a period of 14 days in the US due to COVID19 before they will be allowed to enter Canada.

FASTER PROCESSING TIMES

Minister Freeland has indicated that IRCC may be processing applications faster than usual. She has indicated that we need to recognize the need for “speed over attention”. She has emphasized the importance of processing files quickly. We are waiting for confirmation and details from Minister Mendicino’s office.

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UPDATE 19/MARCH/2020

US VISA OFFICES – CUTTING SERVICES

The US Government has announced that Visa Offices around the world will be cutting services and canceling appointments. This is an unprecedented decision that will impact thousands of applications.

We believe the Canadian government may issue a similar order to Canadian Visa Offices. If you are in process of submitting an application, we encourage you to submit ASAP while the Visa Offices are still open.

CANADA/USA BORDER RESTRICTIONS

Through a mutual agreement, the Canadian and US government have agreed to limit travel across the land border to essential travel only. This is an attempt to limit tourism and cross-border shopping. There are exemptions for trade and/or trucking. Governments are working hard due to the numbers of COVID19 infections.

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UPDATE 18/MARCH/2020

Please note that we have been dealing with the pandemic and monitoring the developments closely. We are trying to reply to all concerns in a systemic and orderly manner.

IRB – HEARINGS POSTPONED

Please note that most hearings at the tribunal have been postponed. This included refugee claims, admissibility hearings, and appeals. If you have a hearing that has been scheduled, we will provide updates from the IRB. Currently, the IRB front offce is closed to the public and they have released this message, published in 16/MARCH/2020. IRB Members are working on current cases and we received a positive decision today.

ENTERING CANADA

Please note that the Government of Canada has temporarily restricted entry to Canada. Previously, only Canadian citizens, PRs and a few exemptions have been permitted entry. Today, there may be additional restrictions. The situation has been changing daily, based on the risk assessment. If you or your loved ones are seeking entry to Canada, please review the changes that are published on news outlets, including CBC News.

REMOVALS AND DEPORTATIONS

CBSA has currently suspended all removals from Canada, including Departure Orders, Exclusion Orders and Deportation Orders; however, there are exceptions.

APPOINTMENTS WITH IRCC

IRCC has suspended in person meetings with Officers. Currently, they have announced that meetings may resume on 13/APRIL/2020; however, that may change depending on the pandemic.

Successful applications who are scheduled to land and become Permanent Residents, need to contact IRCC if they are unable to travel. This includes COPR and PRV cases.

BIOMETRICS

All biometrics appointments inside Canada have been cancelled until further notice. IRCC has granted an automatic extension of 90 days.

For biometrics appointments outside Canada, please contact the appropriate VAC or ASC.

CITIZENSHIP APPLICATIONS

Please note that CPC Sydney has temporarily closed and the office is not accepting packages. We will be submitting documentation as soon as they resume operations.

CROSSING THE BORDER & POEs

Please keep in mind that CBSA Officers at the border are on the front line. They have put in place measures to keep the Officers safe and, at the same time, follow instructions from Ottawa. We have been advised by other law firms in Canada that POEs may refuse to process applications that are not urgent.

PR APPLICATIONS

Applications for Permanent Residence and many other applications are being accepted. IRCC is encouraging all applicants to submit online, if possible.

FEDERAL COURT – APPLICATIONS FOR JUDICIAL REVIEW

The Court has issued a Notice regarding deadlines and ALJR. This information is effective 17/MARCH/2020

MIGRANT WORKERS & FARMING

We have been monitoring the situation. IRCC is acutely aware of the needs of the farming and agricultural sector. Current border restrictions may impact many workers who have travel plans. At this point, we encourage all temporary workers to monitor the situation closely.

LEGAL AID MANITOBA

LAM has announced that it will accept application online and their office is currently closed.

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13/MARCH/2020

We want to thank all our clients and partners for continued patience, cooperation and understanding during this COVID29 pandemic. We have taken unprecedented actions to keep our staff safe and healthy. These precautions have been put in place to ensure that we can continue to work and serve our clients. We will continue to do the work that we love; however, we also need to stay safe & healthy.

If you have come to the office recently, you have noticed the new signage. We announced the ban on shaking hands at the beginning of 2020 and we have put in place additional measures to limit personal contact and adhere to social distancing. In addition, starting on March 11th, we have put in place additional cleaning and other procedures to protect the office from viruses. We have added purification systems and many other measures for protection.

We have also put in place additional procedures so that staff can work remotely from home, if necessary. We are monitoring ourselves regularly to make sure we are safe and healthy. We are taking the COVID19 pandemic seriously and we want to make sure that we follow all precautions so that we are not infected and that we do not infect anyone who comes to our office.

Please take all measures to stay healthy.

Success: Refugee Appeal

refugee appeal

This photo is used with permission.

In early 2018, a Somali man came to us in distress and he asked us to help with a refugee appeal. His claim for refugee status was refused by the Refugee Protection Division (RPD). He was represented by a lawyer who was going through mental health issues and, unfortunately, that lawyer did not prepare a strong case. We agreed to assist with this individual with a refugee appeal to the Refugee Appeal Division (RAD) based on the fact that significant evidence had not been considered and his particular circumstances.

We worked with the Somali community in Manitoba and our client’s network of supporters. We were able to prepare significant new evidence. For some reason, the previous lawyer did not prepare a strong case even though the documents were available. Based on the evidence, we put together a strong package on behalf of our client.

After ten (10) months, the RAD granted our appeal and overturned the RPD refusal. The RAD Member agreed with our significant legal arguments and agreed with our submissions that the new evidence may have had a significant impact on the refugee claim. To ensure full disclosure, we were fortunate to have a sympathetic RAD Member decide this refugee appeal. In this case, the client opted not to file a complaint against his former lawyer.

A refugee appeal is challenging and most appeals are dismissed. In 2019, only 12% of RAD appeals in the IRB Western Region were allowed. Building on our success with other appeals, we are thrilled with this decision and we strongly agree with the RAD. Our client’s previous lawyer did a terrible job and, thankfully, we have been able to fix this mess.

NOTE: Clarke Immigration Law accepts Legal Aid Certificates for RPD hearings only. Based on the amount of work involved with refugee appeals and the low rate of approval, we only accept refugee appeals on private retainer agreements and our fees are published online. Typically, our clients pay $500 monthly based on our flexible payment plans.

 

Success: Residency Obligation Appeal

All PRs in Canada should be aware of the 730 day rule re: Residency Obligation. In this case, our clients landed in 2014 while the Principal Applicant was completing his PhD program. They spent 2 weeks in Manitoba and then he returned to finish his degree. He intended to spend only one (1) year outside Canada, complete his studies, and then come back. But his university offered a three (3) year research contract that he could not refuse. He tried to enter Canada in 2018 and the CBSA Officer conducted the examination. As he failed the 730 day rule, he and his family were at risk of losing their Permanent Resident status. They called us and we filed the Residency Obligation appeal to the IAD.Residency Obligations

In the five (5) years prior to examination, these clients were in Canada for only 14 days. This IAD appeal was a challenge. Thankfully, we were able to successfully postpone the IAD hearing date twice and give the family additional time to establish themselves in Manitoba.

We prepared +300 pages of supporting documentation, meticulously drafting each documentation for relevancy and strength. We spent hours to prepare the family and their witnesses to practice (practice and more practice) their testimony.

We won the appeal, of course. Alastair still has a perfect record at the IAD. This was a challenging appeal. With only 14 days in Canada during the requisite period, this family was not even close to meeting the 730 day rule. Thankfully, our legal arguments and preparation won the day. In my view, Canada also gained a prominent academic who is doing significant research. This was a win-win-win!

On a sad note, Alastair spoke with unrepresented appellants at the IAD who decided to try to fight for themselves. Alas, they lost their appeal and they made an appointment at Clarke Immigration Law to discuss their limited options. Please note that appealing an IAD Residency Obligation decision to Federal Court is extremely challenging. I would highly recommend that anyone subject to an IAD appeal find a good lawyer as soon as possible!

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

 

News: Separating Children

As reported, US authorities have been separating children from their parents as they enter the United States. Separating children is unjust and deplorable. The situation and the photos that have been coming out about this situation show the inhumanity and lack of protection for refugees, asylum seekers and immigrants in the United States. This is an example, among many, that the United States is not a safe place for immigrants and the short-sighted policies from the President’s office to the state level to the local level.

Here at Clarke Immigration Law, we meet clients on a daily basis with stories of the injustice and discrimination that they face in the United States. Canada is not perfect but we do our best to help everyone who comes through our door.

Recently, we met with a father who is taking care of his young daughter by himself as the mother was deported by US authorities. This has been reported by the Winnipeg Free Press. This case is heart-breaking. The refugee claimant needs to be focusing on building his case for the Refugee Protection Division; instead, he has been figuring out how to care for his young daughter and worry about the mother who is currently in hiding.

For more details on this case and how separating children may have an impact, check out the WFP article. Here is an excerpt:

“If I go back, I’m in trouble,” he said in his Twi language. Ben and Blessing and her mother, Rose, flew from Ghana to Ecuador last year and made their way by land to Mexico. When the family crossed at Tijuana into the U.S. to make a refugee claim, the men were separated from the women and taken to separate detention facilities. Ben had been carrying Blessing, and the father and daughter were sent to an Immigration and Customs Enforcement (ICE) lockup for men in California, he said. Rose, he discovered, was deported back to Ghana.

[…]

The danger he faced going back to Ghana, he said, was worse than their separation from Rose. He became Blessing’s main caregiver — a non-traditional role for men in Ghana, he said, and one that’s been a challenge. They headed for Canada, and on Jan. 20, they crossed the border into Quebec to ask for refugee protection. Ben said he heard good things about Winnipeg and he and Blessing boarded a bus heading west. He got social assistance and legal aid. His lawyer said no date has been set for their Immigration and Refugee Board hearing, but he hopes it’s soon.

“I have serious concerns about the father, the child and the mother,” immigration lawyer Alastair Clarke said.

“In my personal experience with the father and child, they have genuine fear of returning to their home country. He has limited support and extremely limited language skills. He is working hard to request the necessary documents for his case, but he clearly needs to focus on taking care of his daughter,” Clarke said. “I also have significant concerns about the health of the mother. Separating a mother from her young child is a tragedy.”

If you can assist Ben & Blessing or if you know of similar cases, please contact our office immediately. 

 

Tribunal Advocacy Training

For the 2nd time, Alastair will be providing a training session to lawyers, representatives and advocates on advocating on behalf of clients at the tribunal. In particular, we will cover best practices when dealing with cases at the Immigration and Refugee Board (IRB) – Western Region. This tribunal advocacy training session is being coordinated by the IRB and space is limited.

Details:

  • DATE: 12 June 2018
  • TIME: 11:30AM
  • ADDRESS: Legal Aid Manitoba Building, 4th floor

The deadline to RSVP is on 5 JUNE 2018 and space is limited. At the last training session, the room was completely packed and we had a good discussion. Since that time, there have been significant changes at the IRB, in particular how RPD hearings are scheduled and conducted. Two keys points that we will discuss:

  • Making an application to the RPD for Late Disclosure of Evidence
  • Making an application for submitting more than 100 pages of country condition evidence

The tribunal has been making changes to deal with the increasing numbers of refugee claimants in the Western Region. As advocates, we have a duty to best represent our clients and ensure they have the best chance of success with their applications. This tribunal advocacy training will include a section on Q & A with an experienced RPD Member.

Please note that this tribunal advocacy session is not a regular training session. This is the 2nd session in Winnipeg and the purpose is to increase the level of advocacy among representatives. The session is strictly confidential and all participants are encouraged to express any questions or concerns with the policies and procedures at the IRB.