Justice Avvy Go

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

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

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

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

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

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

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

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

CTV News: Welcome Place

Alastair Clarke was interviewed on CTV News yesterday regarding the labour dispute between Welcome Place and the workers’ Union. Reporter Josh Crabb has been covering this story and his written piece is included on their website.Welcome Place

In short, Clarke Immigration Law has worked closely with Welcome Place staff over many years. They provide invaluable services to immigrants and refugee claimants. We often represent individuals who first went to Welcome Place for help. They are often the first people in Manitoba who help newcomers to this province. They provide an array of services and many of the staff have gone through the immigration system themselves.

The current situation of funding shortages at Welcome Place are dire. Full disclosure: we provide regular donations to Welcome Place to help.

Labour disputes are complex and we are living during difficult times. Travel restrictions and quarantine measure re COVID-19 has had a large impact on the numbers of refugee claimants who are entering Canada both at Ports of Entry (POE) and through irregular entry. Alastair gave testimony to Parliament on this point in NOV 2020 and the situation remains very precarious for “asylum seekers” in the USA who are often subject to detention and hardship.

For more information on this ongoing situation, please follow CTV News and they reporting from Winnipeg. Welcome Place needs our support in order to continue to serve its clients and help welcome people to our city.

Winnipeg – Top 10 in Canada

One of Canada’s most respected magazines, MacLean’s, released its 2021 list of “Best Communities in Canada”. They looked at the quality of life in all the major towns and cities across all provinces and territories. I am proud that Winnipeg has been ranked #6 in Canada.Winnipeg

As noted by MacLean’s:

Population: 778,602
Property tax as percent of average income: 1.8%
Annual days above 20C: 110
Crime Severity Index 5-year average: 116
Doctors’ offices per 100,000 residents: 694
Household members able work on a single internet connection: 12

Personally, I have moved 24 times and I have lived in 5 different provinces. Winnipeg has been our home since 2013 and it has been a great place to live for our family.

A list of communities in Canada, from #1 to #15 includes:

  1. Charlottetown, PEI
  2. Fredericton, NB
  3. St Thomas, ON
  4. Belleville, ON
  5. Edmonton, AB
  6. Winnipeg, MB
  7. Moncton, NB
  8. Cornwall, ON
  9. Brooks, AB
  10. No community is listed at #10
  11. Toronto, ON
  12. Saint John, NB
  13. Brampton, ON
  14. Saskatoon, SK
  15. Welland, ON

For the full list of communities, please click here and read the details at MacLean’s.

We have helped many professionals and families come to Manitoba through the MPNP-SWM program as well as the MPNP-BIS stream. In cases where the applicants’ have a procedural fairness letter, we have helped clients stay in Manitoba.

Support Indian Farmers

I want to start by unequivocally expressing our support for the farmers in India who have worked tirelessly to provide for more than a billion people. We have served many of these Indian farmers over the years and we have become close to this situation. India is a country with many small farm operations. These farms are family-owned enterprises that focus on the needs of their community. In my view, government needs to support small business owners and this new regulatory system heavily favours big business and multi-national corporations.

At Folklorama Punjabi Pavillion

At Folklorama Punjabi Pavillion

For a brief background, the Government of India passed laws in September 2020 that included 3 parts: 1. The Farmers’ Produce Trade and Commerce Act which is designed to expand the scope of trade areas from the previous and established selected areas; 2. Farmers Agreement on Price Assurance and Farm Services Act which creates a legal framework to resolve disputes; and, 3. Essential Commodities Act which removes many items from the list of “essential commodities” and removes stockholding limits, among other things. For a detailed explanation of the “Farm Bills”, please click here for more information.

BBC News has clearly articulated the effects of the laws:

Taken together, the reforms will loosen rules around sale, pricing and storage of farm produce – rules that have protected India’s farmers from the free market for decades.

They also allow private buyers to hoard essential commodities for future sales, which only government-authorised agents could do earlier; and they outline rules for contract farming, where farmers tailor their production to suit a specific buyer’s demand.

To be clear, I do not practice Indian law and I am not an expert in the laws of India. We support, however, small business owners and we have seen, time and time again, how multi-national corporations destroy the livelihoods of small business owners. For example, when Walmart opened a huge box store near my grandmother’s town in Red Wing, Minnesota, most of the downtown shops were gutted and it became a ghost town. Main Street was mostly boarded up. Red Wing was saved by tourism. I cannot see how the millions of lost jobs are going to be saved by another industry.

In my view, Canada needs to support the farmers in India. We need to build connections with these farmers and support small businesses. Unlike the Premier of Saskatchewan, I do not agree with the Indian government’s Farm Bills, as described above. Instead, we need to support the farmers. This is consistent with the Liberal Government’s family-first approach.

 

Thank you!

Good start to 2021! Alastair Clarke received this award for being one of the Top Immigration Lawyers. We are both humbled and honoured for this award. Thank you to all our clients and the network of folks out there who give us referrals and tell their friends & family about our firm. You all know how much work goes into each and every file. This is a labour of love for everyone here and we greatly appreciate being recognized as one of the best immigration law firms.

Top Immigration Lawyers

Honestly, we do not do this work for awards. We do this work because we are able to make positive change in the lives of our clients. We save lives. We reunite families. We help students achieve their academic dreams. We help businesses hire global talent. We assist groups to bring refugees from overseas. We represent individuals with conviction(s) who need a TRP or a Criminal Rehabilitation application. We use our expertise to handle appeals. All these applications help to strengthen Canada and our work matches the Objectives of IRPA.

As in the past, this award recognizes Alastair Clarke as one of the Top Immigration Lawyers. This award fuels us to continue to give our clients the best service.

We will continue to work hard on behalf of our clients. We believe that hard work is the best way to get the best results. These results lead to happy clients, referrals and trust. We build trust with strong communication. Hopefully we will continue to get awards and recognition as one of the Top Immigration Lawyers. Thank you!

Extradition Request: Nygard

Peter Nygard’s name and image have been plastered all over Winnipeg for many years. Finally, after years of alleged abuse of women, he is facing criminal charges in both Canada and the USA. He is currently behind bars at Headingley Correctional Centre, just outside the city.

I have given interviews on Mr. Nygard’s situation, from an immigration perspective. NygardI have represented clients on extradition matters related to the USA and Ukraine. These cases are rarely straight-forward. I attribute much of my knowledge to my International Criminal Law profession Elaine Krivel who authored “A Practical Guide to Canadian Extradition” and who has represented the Canadian government on many of these matters. As I recall, I actually got the top mark in that class… many years ago.

Currently, Mr. Nygard is only facing a criminal trial in Manitoba. To date, the American authorities have not submitted the extradition request to Canada. As I stated to CBC News, the prosecutors in the case are likely considering the relevant Statues of Limitations.

At the bail hearing on 21 JAN 2021, Manitoba Court of Queen’s Bench Justice Shawn Greenberg denied Mr. Nygard’s lawyers request to be released; however, he granted their request to put forth additional arguments on 28 JAN 2021. As I stated to CBC News:

Alastair Clarke, a Winnipeg immigration lawyer who has been following the case, says that while the issue of COVID-19 in jail is a legitimate concern, Nygard shouldn’t get special treatment.

“Not only do we need justice in this type of case, but we also need the perception of justice. And I don’t think Canadians would be very happy if an individual with deep pockets and got special treatment, and I don’t think people who are wealthy should get special treatment,” he said.

“He is subject to the law just like anyone else.”

We will continue to follow these criminal proceedings. We will also pay attention to potential actions by American prosecutors who may seek a concurrent trial, depending on the relevant Statue of Limitation period.

The importance of the perception of justice cannot be overstated. We are talking about the cornerstone principles of the legal system: fairness, equality, and arbitrariness. We live in a time of reconciliation and atoning for past injustice. These are principles that have been under attack for the past 4 years. In the USA, it is not clear to me the justice system is based on fairness. It is not clear to me that black Americans are treated the same as white Americans. And this is a problem that could easily manifest in Canada.

On the other side, it is equally important that Mr Nygard is not scapegoated for his behaviour. He may represent the vile and antiquated male attitudes of women as commodities to be used for their own pleasure, regardless of the law. He may have committed heinous acts to coerce young women to do his bidding. If that is borne out by the evidence, he should be punished according to the law. As anyone else would be punished for the same actions.

Congratulations to all Americans

Sanity has returned to the White House. We want to congratulate all the Americans around the world who voted for Biden. Over the past 4 years, I have met with dozens, or possibly hundreds, of people with horror stories. Americans who want to claim refugee status in Canada because they believed the Trump government would kill them. Skilled workers in the USA who lost their work permits and they want to immigration north. Foreign investors who changed their minds and decided that Canada was their best option as they read of racist and discriminatory policies. I have heard countless stories of the inhumane treatment of asylum seekers in the USA and folks desperate to find paths around the Safe Third Country Agreement (STCA). It has been rough.

We have tried to help as many people as possible. It has been very clear the situation in the USA has been dire. Blatant breaches of international laws. Clear violations of human rights principles. 

Finally (finally!), we have hope that the Biden government will correct some of the wrongs and return the American government to sanity. We have hope the USA will return to a country that values its relationships with its neighbours and that values human life.

I want to be clear about one point. Trump has been great for our business. These past 4 years have been extremely busy. In the past, Canada was competing with the USA for the best IT professionals, investors and skilled workers. Trump changed that. Suddenly, there was no question that it was better for immigrants to come to Canada. But each new file that we get from clients who are fleeing Trump policies is bitter-sweet. We love to help but we also want the USA to return to its humanitarian roots. We have hope that Biden will lead the USA on a better path.

Personally, I was invited to Las Vegas to meet with wealthy investors from around the world, mainly China, Vietnam and UAE, as they lost confidence in the EB-5 program and they turned their attention to Canada. We have had many opportunities to assist clients who would not have considered Canada before Trump. Trump destroyed the reputation of Americans around the world. I suppose I should thank Trump for indirectly offering these opportunities. I will say that I would have traded them in a second for an American government that did not have abusive policies.

Over the past 4 years, we have gone through countless boxes of tissue from people recounting the abuse and suffering they faced in the USA. Advocates across the board have been vocal with systemic abuse in the American system.

My mother was born in the USA and I have family members in California, New York, Florida, Maryland, Minnesota and other states. We have even helped my family members who have plans to move to Canada based on their fears. Most of my family members voted for Biden – but not all. We do what we can to help.

I am optimistic. I was very moved by the poem by Youth poet laureate Amanda Gorman at Biden’s inauguration:

We’ve braved the beBidenlly of the beast
We’ve learned that quiet isn’t always peace
And the norms and notions
of what just is
Isn’t always just-ice
So true! Ms. Gorman is truly a truth teller.
It’s because being American is more than a pride we inherit,
it’s the past we step into
and how we repair it
Amen! Congratulations to all Americans who voted for change to give the Biden administration the power to repair the wrongs from the past and to build a better future. I look forward having conversations with potential clients who are debating which is the better country for their families: Canada or the USA, rather than having conversations about the racism and discrimination in the USA and how can Canada give them a safe home.

 

Testimony at CIMM

I had the privilege of being invited to give testimony to the Parliamentary Standing Committee on Citizenship and Immigration
(CIMM) yesterday. The CIMM has been investigating the impact of COVID-19 on the Canadian immigration system and my testimony is available on ParlVU. If you are interested, my testimony starts at the 17:12 mark. In particular, the Members of Parliament (MPs) are looking at the following points:

  1. 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;
  2. examine the government’s decision to reintroduce a lottery system for the reunification of parents and grandparents; to compare it to previous iterations of application processes for this stream of family reunification, including a look at processing times and the criteria required for successful sponsorship;
  3. temporary resident visa processing, authorization to travel to Canada by individuals with an expired Confirmation of Permanent Residency; use of expired security and background checks for permanent immigration;
  4. the facilitation and issuing of visas and study permits for international students, with special attention to the experience of groups of international students (such as students from francophone Africa) and to the usual administrative delays and additional delays caused by the COVID 19 pandemic;
  5. refugee resettlement program, meeting the Government of Canada’s international commitments to settle convention refugees in Canada, work of Canadian civil society groups to bring privately sponsored refugees to Canada, and to extend a life boat to the people of Hong Kong facing persecution under the new National Security Law;
  6. severe and long-term economic impact of reduced immigration to Canada in 2020-2023;
  7. administrative costs and delays related to Labour Market Impact Assessment (LMIA) applications under the Temporary Foreign Worker Program (TFWP) and consideration of possible solutions, including granting open work permits on a sector-by-sector basis to facilitate labour mobility; that LMIAs be biennial; that the duration of work permits be extended; that three-year work permits be extended annually;
  8. technological capability of the Department of Immigration, Refugees and Citizenship Canada, Immigration and Refugee Board of Canada and Passport Canada to work remotely or virtually, meet service standards and enforce applicable laws.
  9. that all testimonies received during a study pursuant to this motion be deemed included in further studies;
  10. the two pilot projects for Caregivers introduced as of June 18, 2019: (1) Home Child Care Provider Pilot; and (2) Home Support Worker Pilot; that the study examines the criteria and its effect on the caregivers who are trying to qualify under these programs toward the path for permanent status; that the Committee report its findings to the House; and that, pursuant to Standing Order 109, the government table a comprehensive response thereto.
  11. that this study begin no later than October 27, 2020, that the Committee table its findings in the House upon completion and that, pursuant to Standing Order 109, the government table a comprehensive response thereto.

Here is a copy of my opening testimony to the CIMM:

Honourable committee members. I’d like to thank you for this invitation to provide testimony on the impact of COVID-19 on the immigration system. I would like to acknowledge that I am giving this testimony on Treaty 1 territory, the homeland of the Metis Nation and the ancestral lands of Indigenous peoples.

I am appearing before you today as an immigration and refugee lawyer with more than 12 years of experience. I started my career at an immigration law boutique on Bay Street in Toronto. From there, I practiced at a legal aid clinic, assisting low income residents and for the past 7 years, I have practiced exclusively immigration and refugee law in Winnipeg, Manitoba – the heart of our continent.

Today I will be making five brief points.

My first point is that IRCC needs to further digitize the system and expand online services. For example, Spousal sponsorships and Temporary Resident Permit applications could easily be submitted online. In 2018, the Refugee Protection Division at the IRB introduced the e-Post system and it has been very successful. Epost makes it is easy for counsel to see details of documents that have been uploaded. IRCC has started to use e-Post for refugee claimants inside Canada and this tool be useful in other contexts. In short, a robust online system may provide solutions to dealing with long processing times and backlogs.

For my second point, I strongly support the possibility of applicant’s posting monetary bonds for TRV applications in the context of a Spousal Sponsorship applications. These applicants are sufficiently motivated to become Permanent Residents through the family class that there would be low risk in the possibility of them overstaying their visa.

I have reservations, however, if a monetary bond were to become a requirement of all TRV applications. I would not want the TRV application to become out of reach for low income applicants.

My third point relates to applicants in Provincial Nominee Programs. Many of these individuals are able to apply for Permanent Resident status based on their education and work experience in Canada. Once these workers receive their Nomination Certificate, they can apply for a bridging Work Permit that is restricted to their employer. This pandemic has resulted in many lay-offs and it has caused severe hardship. In my view, these Work Permits should be less restricted to avoid many issues, including potential problems with flag polling. For example, a NOC B worker could be allowed to accept a different NOC B position without having to obtain a new Work Permit. Similarly, I also urge more flexibility with Post Graduate Work Permits. They should not be limited to one PGWP per student.

My fourth point relates to refugee claimants. As you know, the travel restrictions have essentially closed the border to claimants from the United States. Justice MacDonald at the Federal Court of Canada recently held the Safe Third Country Agreement is unconstitutional and it is disheartening this government has appealed this decision. Notwithstanding these extraordinary times, Canada has a strong humanitarian tradition that must be protected.

My last point relates to a collaborative approach.

Part of the reason I was attracted to this area of law is that it is generally non-confrontational. To deal with minor issues, I can easily call a CMO at the IRB, a Superintendent at a POE, an inland enforcement officer or a lawyer at the DOJ. Dealing with IRCC, by contrast, is a constant struggle. When an IRCC Officer makes a clear mistake, there is no easy mechanism to get it fixed. In my view, the Request for Reconsideration system is broken and MPs are far too often put in the difficult position to act intermediaries. Bad decisions by Visa Officers are often easy to appeal to Federal Court but judicial reviews expend a huge amount of time and resources for both the applicants and the government.

The Dual Intent guidance issued last month is a step in the right direction; however, it does not go far enough to emphasize flexible decision making. An Immigration Ombudsperson is a possible solution. In my view, there may be a tech solution to facilitate better communication with Visa Officers to address minor issues. In short, I would urge IRCC to adopt a more collaborative approach.

I believe there is great merit in continued consultations with stakeholders and thank you for the opportunity to share my thoughts.

I look forward to further collaboration with MPs and IRCC Officers to deal with these issues. Hopefully, the report and recommendations that come from the CIMM committee will address the issues identified above. Many people have been adversely affected and there is still much that can be done to help.

As mentioned by Mark in his testimony to the CIMM, in some cases, media is also helpful to shed light on sympathetic cases. To this end, our office has built strong relationships with CBC, Global, the Winnipeg Free Press to advocate for our clients on every level.

URGENT – Parent Sponsorship

IRCC has announced the sponsorship application for parents and grandparents has reopened. We will be ready at 11AM on 13 OCT 2020 to submit the Interest to Sponsor forms, on behalf of our clients.

For more information, please click on this link for more details from IRCC.

We expect the Interest to Sponsor website to be open for LESS THAN 15 MINUTES. If you would like the best chance at getting a spot, please contact our office ASAP to get a file ready. Our fees are only $500 for this service.Parents

As you know from reading our website, the parents and grandparents sponsorship application was scheduled to open at the beginning of 2020; however, due to COVID-19, it was delayed and it did not reopen. We have posted updates on this program as much as possible to keep folks informed on this chaotic situation. As we reported in DEC 2019:

Only sponsors and applicants who submit the interest to sponsor form in time will have the opportunity to submit a full application in 2020. At that point, we can assist to prepare the full application. There is a 60 day deadline to submit the full application. Based on previous experience with these applications, if a family is not eligible and/or the applicant is inadmissible for any reason, IRCC will contact the next potential applicants.

We expect the above to apply to new applications. Alastair has given many presentations on this application, since it was relaunched by the Liberal government back in 2016. For other posts on this topic, feel free to browse our website for useful information. It is a pleasure to work with clients to bring their parents and grandparents. These family members are extremely important to pass along family history. Our goal is to reunite different generations of clients.

DEADLINE: To reserve your spot, please have a file open on or before 9 OCT 2020. Please note we are not open on 12 OCT 2020 due to the Thanksgiving holiday.

CBC The National: Extradition

Alastair Clarke was recently interviewed by CBC News regarding the potential criminal charges against Peter Nygard. At this point, Mr. Nygard’s son has concerns that his father may leave Canada to escape justice which would force the Government of Canada to make an extradition request. Extradition is a complex area of law; however, based on his studies in International Law at Queen’s Law (Bader International Study Centre @ Herstmonceux Castle) and his professional experience dealing with the intersection of Criminal Law, Immigration Law & extradition law, Alastair was able to provide insight on the potential legal issues.

Please note: this case has been unfolding quickly and the information is only current as of today, 18 SEPT 2020. As noted by CBC Reporter Caroline Barghout, based on an exclusive interview with Peter Nygard’s son:

The son says he’s speaking out now because he’s afraid if he stays quiet, his father’s accusers — including his two brothers — may never get justice.

“My No. 1 goal is for him not to escape,” he said.

He says Nygard spends summers in Falcon Lake in southeastern Manitoba, and would normally head to one of his properties in California or the Bahamas by the third week of September. But with his father under a cloud of sex allegations, the son thinks his father will instead set his sights on a jurisdiction that won’t extradite him if charges are ever authorized.

“He believes that he’s above the law — the law does not apply to him,” said the son, adding he bases that on his father’s past actions.extradition

This point leads directly to the possibility of an extradition request made by the Canadian government, if criminal charges are laid and the accused flees the country.

Winnipeg immigration lawyer Alastair Clarke says unfortunately, the more money a person has, the easier it can be to evade the law.

“It’s entirely possible that in this case … Mr. Nygard may find a country who is sympathetic to his, let’s say, his net worth, to his financial capacity,” said Clarke.

“And so he could find possibly a safe haven, which would be, in my view, quite unfortunate.”

He says if a country doesn’t have an extradition treaty with Canada, there may not be anything the government can do to get a person back, even if charges are laid.

Canada doesn’t track, or keep a record of, people who leave the country, he said. Only entries are monitored.

“If we had the resources in place, that would, in my view, uphold the Canadian rule of law and make sure that alleged criminals are not simply using their private chartered jets, for example — flying to places where we don’t have extradition treaties and escaping the law,” said Clarke. 

Indeed, extradition can be very messy as we have seen in both the Meng Wanzhou case and the Carlos Ghosn case. These are both ongoing legal matters that involve Canada, the United States, China, Japan, Lebanon and France. A friend of Alastair Clarke, lawyer Richard Kurland has spoken on the complexity of these cases, as reported by CBC News:

The fight may be over the technicalities of legal privilege — the right to shield sensitive communications and documentation — but observers of the case say the outcome could prove crucial in Meng’s battle against extradition to the United States.

“This disclosure of who said what to who is critical,” said Richard Kurland, a Vancouver immigration lawyer who has followed the proceedings closely.

“The line here is how much information ought to be revealed in order for the defence to know the case they have to meet and mount their defence, counterbalanced against the right of the state to conduct clandestine service. That’s quite a difficult balance in a case like this.”

For more information, please watch CBC The National on youtube. This story starts at 22:40 of the episode.

Currently, Peter Nygard is in Manitoba and there are no criminal charges. The above is purely speculation. This is an ongoing matter and, as with the other cases above, we will be following this case closely to see if extradition becomes a necessary recourse.