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.
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.
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.
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.