WFP: Audit of Deportation Orders

The widely reported report by the Canadian Auditor General describes the significant backlog and delays in the removal process for individuals who have enforceable removal orders, including deportation orders. These removals are carried out by CBSA Officers and we have many clients who are affected by these orders. We are in contact, almost daily, with CBSA Officers on behalf of our clients to ensure our clients fully cooperate with law enforcement and Canadian regulations. At the same time, we advise our clients on their legal rights.Deportation

The report focuses on failed refugee claimants who have deportation orders. Let me make a brief comment on this group. It is important to note that even when the refugee claimant’s risk may not rise to the level of risk per sections 96 or 97 of IRPA, they may still face significant risk or hardship and/or persecution. The fact is that the legal bar to refugee status is a high legal test and claimants must go through a rigorous adjudicative process, including examination and cross-examination of testimony. Another key fact is there is a shortage of competent legal counsel and claimants may be poorly prepared for their hearing.

Winnipeg Free Press reporter Eva Wasney published an article on the Auditor General’s report that discussed the challenges faced by CBSA:

Winnipeg immigration lawyer Alastair Clarke said some of the criticisms in the report are valid, but the audit is a an “oversimplification” of the removal process because it doesn’t include specific case examples.

“My concern is that the public reads this report, they don’t understand the details, the individuals who are behind these numbers, and this type of report causes undue or exaggerated anxiety in the public,” Clarke said. “The individuals who are under enforceable removal orders in the serious criminality category are generally only a small fraction of individuals in that entire pool.”

Of the more than 34,000 cases in the agency’s wanted inventory, 2,800 were criminal.

Indeed, to a certain extent, this report provides a limited perspective on the current state of removals and it fails to provide a nuanced approach to a complex procedure. I have spoken many times on this topic. Canadian laws require CBSA Officers to adhere to procedural fairness and, in our experience, CBSA Officers in Manitoba are vigilant in following Canadian laws and regulations.

In addition, I strongly agree with my friend and advocate Dr. Lori Wilkinson who has been doing significant research at the University of Manitoba’s Immigration Research West group:

While Wilkinson said she is glad to see the immigration removal audit, she is worried that the report could have a negative impact on people who are in Canada legally.

“There could be backlashes against immigrants,” she said. “Lots of people make the leap that if the deportation system isn’t working, then the immigration system must not be working.”

This is absolutely correct. In my view, IRCC Officers and CBSA Officers are working hard to ensure integrity in the system and they take deportation orders seriously.

On the flip side, let us be reminded of deportations that have been rushed and have led to disastrous results. One example that comes to mind is the case of Lucia Vega Jimenez from 2014. She was a failed refugee claimant from Mexico with an enforceable removal order as described in the Auditor General’s report. While she was on the verge of being deported, she took her own life in Vancouver. Advocates point to the serious risks to her life. On its face, I believe anyone can understand that if she was so afraid to go back to Mexico she would take her own life to prevent deportation, she had genuine fear.

In my view, it is important to consider the people behind these numbers. Every case is different, and I can tell you from many years of experience, immigration is messy. As correctly noted by the report, CBSA Officers focus their resources on serious criminals and ensuring the safety of the Canadian public. This is exactly how the system is designed to work.

Feature: Bee’s Exotic Shop

As part of our goal to promote our clients’ businesses, I am thrilled to promote Bee’s Exotic Shop, based in Brandon, Manitoba. This is a shop where customers can find exotic pieces of clothing, art, accessories and jewelry from East India. The shop owners, Bansri and Devin, are long-established residents of Brampton and they have strong connections with the local economy. Bansri’s family in India is very well respected and she has a strong entrepreneurial spirit.

During this pandemic, it is important to support and promote local small businesses. Bee’s Exotic Shop adds culture and flair to Manitoba and we are proud to support this business.

For more information, please visit their website by clicking on this link.

As we have done research for Bee’s Exotic Shop, we pleasantly discovered that Bansri is offering Henna as well! Although I have never seen her Henna work personally, I have no doubt that she is amazing. It has been a pleasure to work with her in the past and I am thrilled that she is providing this service to Manitobans.

Bansri has been building this business and establishing an online presence. Personally, I follow the business on Instagram and it is always a pleasure to see the gorgeous pieces they are selling and where to find them. They travel all over Manitoba, selling their goods at community fairs including Minnedosa, Winnipeg, Morden and many other markets!

Donations for Mohammed

Thank you for the tremendous support for our client Mohammed. You can read about his story in the WFP article. Basically, he is in Canada on a Work Permit and he is not covered by Manitoba Health. He had COVID19 symptoms and he paid $359.00 CAD to be tested:

Mohammed called Health Links to find out how he should proceed. He told the Free Press after waiting on hold for two hours, the representative on the other end of the line advised he go for testing at the nearest emergency room — not one of the off-site coronavirus testing centres.

He went to the downtown Health Sciences Centre and was swabbed for COVID-19. He was handed a bill for $359. He has no idea where he’s going to come up with the cash to pay it.

“I already don’t save a penny for myself,” he said. “I could pay if it was a smaller amount. And I only took the test. I didn’t take any medicine or anything like that. It is a lot of money to me.”

We have been helping Mohammed with his immigration applications. We hope that we can help him become a Permanent Resident and he will not have to worry about paying cash for health care.

We have been contacted by many WFP readers who would like to help Mohammed. Manitobans are so generous!

If you would like to help Mohammed, please contact our office and we can accept donations.

Please note that Clarke Immigration Law is based on service and principles of fairness. We provide many services pro bono to clients and we are committed to helping clients through Legal Aid. Alastair worked as Staff Lawyer at various community legal aid clinics in Toronto and Kingston. Our firm is modeled after the legal clinic system and our focus is on helping our clients and providing the best quality service.

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.

TEDxWinnipeg – Borders and Immigration

As previously noted on this website, Alastair gave a presentation on immigration issues at TEDxWinnipeg this year. The topic of the presentation is Imagine No Countries. The video is currently in the TED feed on YouTube.com along with other videos from TEDxWinnipeg:


TEDxWinnipeg
Summary:

Borders are arbitrary lines drawn on paper that affect each and every one of us. What happens when lines are made more important than lives? What happens when we look beyond those lines? Alastair Clarke manages Clarke Immigration Law, a boutique law firm. He and his staff assist with all types of immigration and refugee cases; they currently have more than 250 open files. Based on over 30 years of combined experience, the staff guide each and every client, including individuals, families and businesses, through the complex immigration system, including complex humanitarian and compassionate applications. The firm is based on experience, value and results. This talk was given at a TEDx event using the TED conference format but independently organized by a local community. Learn more at https://www.ted.com/tedx

If you had the opportunity to attend the TEDxWinnipeg event, be sure to check out the photo stream.

From TEDxWinnipeg:

All the speakers are listed here. It was an amazing group, covering topics from spoons to bitcoins to identity. Here is Alastair’s bio on the TEDxWinnipeg site:

Alastair Clarke manages Clarke Immigration Law, a boutique law firm. He and his staff assist with all types of immigration and refugee cases; they currently have more than 250 open files. Based on over 30 years of combined experience, the staff guide each and every client, including individuals, families and businesses, through the complex immigration system, including complex humanitarian and compassionate applications. The firm is based on experience, value and results.

Alastair provides expert advice to the media on a regular basis in both English and French. He has been interviewed by Ian Hanomansing for CBC News as well as by journalists at Global News. He also contributes to radio and print media on justice issues. Alastair’s firm has represented many refugee claimants who have walked across the border from the United States since 2016, and he delivered a presentation on the Safe Third Country Agreement at the 2017 CBA conference for immigration lawyers.

In 1970, Alastair’s father sponsored his mother to stay in Canada, where Alistair was raised in Edmonton, Alberta. His mother focused on hosting exchange students and professionals from around the world to live and stay in their home. In school, he pursued an International Baccalaureate stream with classmates from Mauritius, Israel, Japan, Taiwan and many other countries. From a young age, he developed an international perspective and since then, has lived in many places around the world, including France, Ecuador, Japan, different parts of the USA, and many different cities in Canada. In many ways, Alastair is a nomad at heart who is constantly learning about the world and fighting injustice.

Fundamentally, Alastair is a perpetual student who takes every opportunity to learn from the clients who walk through the door. They share their culture and their experiences while he, in turn, teaches them how to navigate the Canadian immigration system. He is driven to ensure that each case is handled fairly and that every person has the chance to live in peace and security.

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.

Permanent Residence By Phone

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

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

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

Telephone Landing

permanent residence by phone

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

Permanent Residence By Phone

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

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

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

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

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

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

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

Former Immigration Officer: “Gave Bad Advice for Money”

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

Here is an excerpt from the Windsor Star article:

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

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

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

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

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

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

“He gave some bad advice for money.”

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

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

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

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

Non-licensee practising law or providing legal services

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

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

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

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

 

CBC News: Expedited Processing

CBC News Reporter Karen Pauls published a piece today on the expedited processing of claims at the tribunal. We have had success with these procedures and they are open to certain applications that are made to the tribunal. As noted in the article, the average processing time for these cases can take 14 to 18 months and there is currently a significant backlog of cases. Through the special processing, some clients are able to access these procedures so they do not have to wait.

An excerpt from the CBC News article on expedited processing is below. The full article is posted on their website.Expedited Processing

The Immigration and Refugee Board is clearing about 160 claims per month using an expedited process that eliminates the need for hearings in straightforward refugee claims for people from seven countries.

It’s a “win-win situation” – for the IRB, which is already facing a backlog of refugee claims as a result of the flood of asylum seekers walking over the border this year – and for the people filing those claims, says Winnipeg lawyer Alastair Clarke.

“For the claimant, they essentially get two kicks at the can and they potentially have an early positive decision. Secondly, for the tribunal, because they save resources. They don’t have to have a hearing, they don’t have to expend additional time to hear oral evidence, and they can review a case based only on the documents,” Clarke said.

“Our job is to do our best to make sure all the potential issues are dealt with in the supporting documents. And once it gets to an adjudicator, it’s up to him or her to decide whether or not what we’ve submitted is sufficient to meet the test.”

If you believe that your case is suitable for expedited processing, please contact our office and book a consultation. 

 

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