Episode #14 – How to overcome systemic barriers in LGBTQ asylum claims, with Sharalyn Jordan

Sharalyn Jordan is an Assistant Professor in the Faculty of Education at Simon Fraser University.  She works with with community agencies that support LGBTQ and refugee mental health as they develop and assess their counselling practices and programs.

In this episode we discuss how to overcome systemic barriers in LGBTQ asylum claims.  Much of this episode is dedicated to establishing how LGBTQ asylum claimants must prove their sexual identity during their refugee claim.  How does someone from a country where being gay is illegal and who has been a closeted homosexual for their entire life prove that they are gay? What do Immigration and Refugee Board members expect?  How can counsel assist? Finally, we discuss whether LGBTQ asylum claimants should even be required to prove their sexual orientation as part of their asylum claim.

Topics

1:13 – Sharalyn provides an overview of the history of how Canada’s immigration and refugee system has restricted the ability of LGBT people to relocate to Canada.

5:12 – Canada’s immigration and refugee system often requires that people prove their sexual orientation. How can LGBT people prove their orientation?

20:00 – Are there circumstances in which an Immigration and Refugee Board member can reject a person’s claimed identity?

34:30 – What degree of membership in a LGBT community is required or the norm for an LGBT refugee claimant?

36:40 – What is the standard of persecution in the LGBT context?

44:10 – What changes does Sharalyn think need to be made to Canada’s refugee system?

53:30 – Steven expresses concerns with the idea of not questioning one’s identity, and has his concerns answered.

Episode #13 – Efrat Arbel on Problems with the Safe Third Country Agreement and Interdiction

Efrat Arbel is Assistant Professor at the Allard School of Law at the University of British Columbia.  She is an executive member of the Canadian Association of Refugee Lawyers.  A list of Dr. Arbel’s recent publications can be found here.

During this podcast we talk about three areas that Dr. Arbel has recently focused her research on.  These include the distinction between physical borders and legal borders in the refugee context, how interdiction works, and the Safe Third Country Agreement.

The Safe Third Country Agreement between Canada and the United States requires that persons seeking refugee protection must make a claim in the first country they arrive in unless they qualify for an exception to the Agreement.  In other words, an asylum seeker who wishes to seek refugee status in Canada will typically be denied the ability to do so if they attempt to enter Canada by land from the United States.

This episode was recorded before President Trump’s recent Executive Order imposed a moratorium on asylum claims in the United States. President Trump’s decision has only intensified and magnified many of the issues that Dr. Arbel discusses in this podcast.

 

 

1:43 – Dr. Arbel explains different concepts of what a country’s border is, and the distinction between the physical border and the legal border.

 

4:10 – We discuss the Canada Border Services Agency’s multiple border strategy, the role of Canada Border Services Agency liaison officers, and interdiction.

mbs

 

16:15 – We briefly summarize Canada’s new Electronic Travel Authorisation.

 

19:00 – Dr. Arbel provides an overview of global refugee flows.

 

22:50 – Can claim asylum at a Canadian embassy abroad.

 

28:30 – Peter Edelmann addresses how the previous government tried to address the supply and demand of refugee intake.

 

33:20 – Steven asks Dr. Arbel what she thinks about the Government of Canada’s recent announcement that if a certain number of Mexicans claim asylum then the visa requirement against Mexico will be re-imposed.

 

41:00 – We introduce the Safe Third Country Agreement.

 

44:00 – Why someone would prefer to claim refugee status in Canada rather than the United States.

 

51:40 – What are the exceptions to the Safe Third Country Agreement?

#12 – Tips on making written and oral arguments in court, with Justice Alan Diner

The Honourable Alan S. Diner is a judge with the Federal Court of Canada.   Prior to his appointment, Justice Diner headed Baker & McKenzie LLP’s immigration practice.  He was also involved with managing the establishment and implementation of Ontario’s Provincial Nominee Program for the Ministry of Citizenship and Immigration.

We are grateful to Justice Diner for the time that he took in preparing for this podcast about tips and best practices in appearing before the Federal Court of Canada, including in providing a customised powerpoint, which can be found on our website at http://www.borderlines.ca.  As Justice Diner notes, many of the tips and strategies contained in this episode are applicable beyond judicial review, and will be beneficial to anyone preparing written submissions or making oral presentations.

Justice Diner’s powerpoint:

https://borderlines.ca/wp-content/uploads/2017/01/Leave-and-JR-Tips.Borderlines-podcast.pdf

A review of what we discussed is as follows:

1:18 – Justice Diner describes his history going from being an immigrant in Canada to leading a corporate immigration law practice to becoming a judge with the Federal Court of Canada.

14:30 – We discuss how the practice of immigration law is changing as larger firms and global accounting firms enter the practice area.

18:30 – Justice Diner provides his first three tips to lawyers appearing  in Federal Court, which are to treat everyone with respect, to prepare your case and arguments properly, and to respect timelines.

23:10 – Peter asks Justice Diner whether immigration representatives should consider preparing visa applications with possible litigation in mind and how long judicial review applicant records should be.

28:00 – How many arguments should someone make in a judicial review application?  If one thinks that an immigration officer made 10 mistakes, should the lawyer in a judicial review application list all 10?

35:00 – Given that there is a chance that the judge reading judicial review submissions could be a new judge, how much should lawyers explain what the law is in their legal submissions?

42:30 – When should counsel propose certified questions?

46:00 – Tips for citing cases.

49:30 – Is the increased number of sources of immigration law (legislation, Ministerial Instructions, guidelines, the immigration website, etc.) complicating the Federal Court’s ability to determine whether a decision was reasonable, and counsel’s ability to make arguments?

57:00 – Who makes a better litigator? Someone who is also a solicitor or someone who practices exclusively in judicial reviews and appeals?

1:01:00 – Tips for oral advocacy.

1:12:00 – Justice Diner reminds counsel on the need to balance strong representation of a client with being an officer of the court.

1:17:00 – We end with what might be the most important tip of all – the importance of not procrastinating.

#11 – The tension between political oversight and politicizing officer decisions, with Lorne Sossin

Lorne Sossin is the Dean of Osgoode Hall Law School.   Prior to his appointment, he was a Professor with the Faculty of Law at the University of Toronto. Dean Sossin also serves on the Boards of the National Judicial Institute and the Law Commission of Ontario. He has also acted as Research Director for the Law Society of Upper Canada’s Task Force on the Independence of the Bar.

We discuss three topics. The first is the oversight of CBSA and immigration officers in Canada. How do we ensure that there is political oversight and accountability without politicising the day to day operations and decisions of individual officers? The second topic is a discussion of Charter rights and Charter values in the immigration context.  Finally, we discuss whether it is OK that in Canada individual immigration officers can create an apply their own standards of the law.

A review of what we discussed is as follows:

00:00 – Introduction

00:51 – Steve Meurrens says what one of his favorite things about law school is.

01:14 – Overview of topics

02:55 – The role of federalism in police oversight.

06:30 – Is criminal law local or is it national?

09:09 – What are the mechanisms which limit executive oversight and police accountability in Canada and how can this be balanced for the need to avoid political interference in day-to-day police activity. Who decides on the operational day to day activities of police?

13:30 – Can a cabinet minister issue an edict directing police not to arrest people? For example, the Trudeau government wants to legalize marijuana, so can they just issue an edict stating that arrests should stop. Who should make the decision?

17:40 –   If individual decision makers or police units drive decisions there will be inconsistencies. What methods exist for people to address inconsistencies?

19:45    Many jurisdictions are creating independent oversight offices. What is the success of these? As well, what role does prosecutorial discretion play in both insulating decisions and providing oversight?

25:00    What role do departmental guidelines play in decision making?

27:30    In immigration law the Minister can make decisions that differ from visa officers. Indeed, the Immigration Minister has an office to receive applications and intervene in applications. Is this appropriate?

30:30    What is the Charter? What is an administrative tribunal?

34:20    Immigration officers are considered to be administrative tribunals, Should visa officers, IRB members, etc. consider the Charter when making decisions.

37:00    When is the distinction between Charter rights and Charter values?

42:10    Do Charter rights and/or Charter values apply outside of Canada?

43:15    Are Charter values arguable before visa officers or at the IRB?

48:20    Is it a breach of the rule of law that different visa officers can develop different tests for immigration?

57:30    How is standard of review jurisprudence likely to develop?

Episode 10 – Canadian National Security Law, Bill C-51 and Trudeau’s Reforms, with Professor Kent Roach

On the 10th podcast episode, Professor Kent Roach joins Peter Edelmann, Deanna Okun-Achoff and Steven Meurrens to discuss national security law in Canada.

Kent Roach is a Professor of Law and the Prichard-Wilson Chair of Law and Public Policy at the University of Toronto.  He is a Member of the Order of Canada and is considered to be one of the foremost experts on national security legislation in Canada.


Kent begins by providing an overview of national security law in Canada, starting with the MacDonald Commission and the October Crisis of 1970, the formation of the Canadian Security and Intelligence Service, the Air India bombing, the Arar Inquiry, 9/11, and Bill C-51.

He then summarises the roles of CSIS, the Communication Security Establishment, the Royal Canadian Mounted Police, and the Canada Border Services Agency.

Finally, Kent provides an in depth analysis of several controversial elements of Bill C-51, and the current Liberal Government of Canada’s response.

His book, False Security The Radicalization of Canadian Anti-terrorism, can be found here.

The paper that he authored which he references throughout the podcast, Righting Security: A Contextual and Critical Analysis and Response to Canada’s 2016 National Security Green Paper, can be found here.  Its abstract reads:

This article responds to the Canadian government’s 2016 consultation on national security law and policy. It outlines a series of concerns, both with laws enacted in 2015 (and especially bill C-51) and some interpretations of C-51 and other laws in the consultation documents. It urges the need for a systematic and contextual understanding of the many issues raised in the consultation. For example, information sharing and increased investigative powers should not be discussed without attention to inadequate review and accountability structures. Similarly CSIS’s new disruption powers need to be understood in the context of the intelligence and evidence relationship. The article proposes concrete and significant changes to the current legal and policy regime motivated both by civil liberties and security-based concerns.

http://www.scc-csc.ca/WebDocuments-DocumentsWeb/36784/FM010_Appellant_Thanh-Tam-Tran.pdf

Episode 9 – Garth Barriere & Eric Purtzki on retrospective laws, plus Donald Trump and Canadian immigration

On the 9th podcast episode, Garth Barriere and Eric Purtzki join Peter Edelmann and Steven Meurrens to discuss the constitutionality of laws that are retroactive or retrospective.  Peter and Steven also discuss the recent election of Donald Trump as the 45th president of the United States.

Garth and Eric are both criminal defence attorneys in Vancouver.  Both have appeared before the Supreme Court of Canada on numerous occasions.

 


A retrospective law is a piece of legislation that operates going forward, but looks to change the consequence for a past action.

A retroactive law changes the legal consequences of what the act was in the past. It changes someone’s legal status as it was in the past.

There is a presumption against both retrospectively and retroactivity in Canada, however, there is no general Charter protection against it.

The Supreme Court of Canada in R. v. K.R.J.can be found here. Garth and Eric both appeared as counsel in this case, which formed the basis for our discussion.  In this case, the Supreme Court affirmed that while criminal laws should generally not operate retrospectively, an exception would be made in the case of sentencing for sexual offenders involving minors.

http://www.canlii.org/en/ca/scc/doc/2016/2016scc31/2016scc31.pdf

In reading this case, and listening to the summary of it, it is helpful to keep section 11(i) of the Charter in mind, which states:

11. Any person charged with an offence has the right …
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment

It is also helpful to understand how s. 1 of the Charter works.  Section 1 of the Charter states that:

  1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

As such, a breach of s.11(i) of the Charter will still be constitutional if the law is demonstrably justified.

The Supreme Court of Canada decision in Canada (Attorney General v. Whaling) .can be found here. Garth and Eric were both counsel in this case, in which the Supreme Court found that the retrospective changing of parole requirements to make them more onerous was a form of punishment, and unconstitutional.

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13543/index.do

Another leading Supreme Court of Canada case on retrospective legislation, which Garth briefly mentions, is R. v. Dineleyin which the Supreme Court of Canada stated that where new legislative provisions affect either vested or substantive rights, retrospectivity is undesirable, and accordingly Parliament must have a clear intent that legislation be retrospective.

http://www.canlii.org/en/ca/scc/doc/2012/2012scc58/2012scc58.pdf

The Supreme Court of Canada decision in Canada (Citizenship and Immigration) v. Khosa that Peter mentions can be found here. In this case, the Supreme Court ruled that courts should give a measure of deference to administrative tribunals, including the Immigration and Refugee Board.  Garth was lead counsel in this case.

 

http://www.canlii.org/en/ca/scc/doc/2009/2009scc12/2009scc12.html?searchUrlHash=AAAAAQAQImdhcnRoIGJhcnJpZXJlIgAAAAAB&resultIndex=9

Starting at around the 31 minute mark we discuss the retrospective nature of the 2013 amendments to the Immigration and Refugee Protection Act.  Previously, a permanent resident who had been convicted of an offence and got a sentence of 2 years or more could not appeal a deportation to the Immigration Appeal Division.  In 2013, the 2 year sentence rule was changed to 6 months, and applied retrospectively.

Finally, Peter’s factum in Tran v. Canada (Public Safety and Emergency Preparedness), which the Supreme Court of Canada will hear in January, can be found here:

http://www.scc-csc.ca/WebDocuments-DocumentsWeb/36784/FM010_Appellant_Thanh-Tam-Tran.pdf

 

 

 

 

Episode 8 – Lobat Sadrehashemi on whether Maryam Monsef’s Canadian citizenship could be revoked.

On the 8th podcast episode, Lobat Sadrehashemi joins Peter Edelmann, Deanna Okun-Nachoff and I to discuss issues in Canada’s citizenship revocation and refugee determination processes.  The recent controversy around Maryam Monsef guides our discussion.

Lobat Sadrehashemi is an Associate Counsel at Embarkation Law Corporation.  She is also the Vice President of the Canadian Association of Refugee Lawyers (“CARL“).

Sorry about the sound quality at some points in this episode. We’re still getting the hand of this equipment.

 

CARL’s reform proposals for Canada’s inland refugee determination system and other aspects of the immigration system, which we recently submitted to the Ministers, their staff, IRCC, and the Immigration and Refugee Board can be found here.

Lobat’s paper on Refugee Reform and Access to Counsel in British Columbia can be found here.

 

 

Borderlines Podcast Episode 7 – David Eby and Tom Davidoff on Vancouver’s Housing Market

On the 7th podcast episode, Tom Davidoff and David Eby  joins Peter Edelmann and I to discuss Vancouver’s housing market.

Tom Davidoff is an Associate Professor at the University of British Columbia’s Sauder School of Business.  He is frequently cited in the Vancouver media as being an expert on Vancouver’s housing market, and was part of a team of nine academics who created the B.C. Housing Affordability Fund proposal.

David Eby is the Member of the Legislative Assembly for Vancouver-Point Grey, and was previously the Executive Director of the British Columbia Civil Liberties Association.  He is a passionate advocate for making Vancouver a more affordable place to live.

 

The questions that we discussed in the podcast are:

  • What has been going on in the Vancouver housing market? How fast have prices been rising?
  • Is there evidence that foreign investment / foreign funds has been the cause of the increase in Vancouver housing prices?
  • What data is there regarding the amount of foreign home ownership in Vancouver?
  • What is the property transfer tax, and what are the new rules on how it applies to foreign buyers?
  • Is there evidence that high housing prices impacts the rental market? Does it matter if the landlord is a Canadian or a foreigner?
  • Why should high housing prices matter? Why should people think that they should be able to live in a market that they cannot afford?
  • Should we move beyond the paradigm of valuing single detached homes?
  • What role do international students play in the increase in housing prices?
  • Does the fear of being accused of racism prevent government from addressing the issue of high prices?
  • Is real estate such an integral part of the British Columbia economy such that high prices are now “too big to fail?”
  • Should we move beyond the paradigm of valuing home ownership?

Episode 6 – Dani Willetts on the Transition from Working for CIC to being an Immigration Consultant

On the 6th podcast episode, Dani Willetts joins Peter Edelmann and Steve Meurrens to discuss the decision making process at Canada’s immigration department, her experience transitioning from a career working for CIC to being an immigration consultant, some recent cases impacting international graduates in particular with regards to the Post-Graduate Work Permit program, a recent Parliamentary report on the Temporary Foreign Worker Program, and the discovery that Canada has started negotiating an extradition treaty with China.

Dani Willetts is an immigration consultant at TDWImmigration. From 1989 – 2012 she worked in numerous capacities with Canada’s immigration department, including as a Supervisor in Vancouver.

First, using three recent cases as examples we discussed how Immigration, Refugees and Citizenship Canada officers view themselves. Do they see themselves as administering the Immigration and Refugee Protection Act or as administering Canadian immigration programs?  Three recent cases from the Federal Court were used to guide our discussion.

The first was Zhang v. Canada (Citizenship and Immigration), 2016 FC 964, where the Federal Court determined that a visa officer was correct when it determined that a person  had engaged in unauthorized study in Canada while in Canada as a visitor.  Ms. Zhang had arrived in Canada on a visitor’s visa on August 23, 2014, which was valid until February 23, 2015. On January 16, 2015, she applied for, and was eventually granted an extension of that visa, until August 30, 2015. On January 5, 2015, she began a 14-week English as a Second Language [ESL] program.  The Officer determined that the study was unauthorized because Ms. Zhang did not complete the studies within the initial period authorized by her stay.  When Ms. Zhang argued that this was unfair because the IRCC said that she could study, Justice Bell said:

I cannot accept Ms. Zhang’s contention regarding the interpretation of paragraph 188(1)(c) of the Immigration and Refugee Protection Regulations (the “IRPR”). Indeed, the Officer’s conclusions cannot be based upon information found on websites. He or she is required to interpret the Act and the IRPR.

The second case was Zhang v. Canada (Citizenship and Immigration), 2016 FC 1057 .  There, the Federal Court found that it was for immigration officers, and not post-secondary institutions, to determine what constituted full-time studies for the purpose of eligibility to the Post-Graduate Work Permit Program. Once again, this seemed to contradict information that was on the IRCC website, and once again the Federal Court found that it was reasonable.

The third case was Nookala v. Canada (Citizenship and Immigration), 2016 FC 1019. Once again, the Federal Court determined that it was reasonable for an officer to determine that it was not possible for an applicant to restore his status from student to post-graduate work permit holder, despite language on the IRCC website that indicated the contrary.  When confronted with the inconsistency between the officer’s decision and the website, Madam Justice Mactavish noted that:

After these reasons had been completed, but before they were signed, the applicant provided the Court with a portion of a guideline published on a Departmental website. The operative position of the guideline states that “the phrase ‘initial requirements for their stay’ should not be read too literally when it is being applied in the context of a restoration application”. The guideline goes on to state that “the preferred interpretation in this context would be that the person seeking restoration must meet the requirements of the class under which they are currently applying to be restored as a temporary resident”.

According to Mr. Nookala, this means that an individual who has previously held a study permit can have their status “restored” to a work permit, including a Post‑Graduation Work Permit.

I do not need to decide in this case whether this interpretation suggested by the Departmental guideline is a reasonable one. The decision to refuse Mr. Nookala’s restoration request was one that accorded with the express language of section 182 of the Regulations. It was, therefore, well within the range of possible, acceptable outcomes which are defensible in respect of the facts and law. In other words, it was reasonable.

Given these numerous decisions in which officers seemingly ignored the IRCC website we asked Dani whether IRCC officers view themselves as implementing Canadian immigration law or Canadian immigration programs? What does the Department do when officers deviate from the website? Her answers were fascinating.

Dani then provided a summary of her experience transitioning from a career at Canada’s immigration department to being an immigration consultant.

The topic then shifted to a discussion of three recommendations from the Huma Committee. These were (1) whether work permits should not be limited to specific employers, (2) whether there should be a trusted employer program within the Labour Market Impact Assessment program, and (3) whether specific industries should get preferential treatment in the Temporary Foreign Worker Program.

Finally, Peter provided an overview on Canadian extradition law.

Episode 5 – Marilyn Sanford -Search of Electronic Devices at the Border

On the 5th podcast episode, Marilyn Sanford joins Peter Edelmann and Steven Meurrens to discuss whether the Canada Border Services Agency can search people’s electronic devices.

In addition, we discussed the recent stay of proceedings in the Nuttall decision, a well publicised case in which two individuals were charged with attempting to blow up the BC legislature. Marilyn was counsel to Mr. Nuttall, and provided her insights on the case.

Finally, Peter and Steve touched on recent developments in Canadian immigration law, including the Owner Operator Labour Market Impact Assessment recruitment exemption, a puzzling case in which the Federal Court upheld an officer’s determination that people who extend their visitor status in Canada cannot complete short term courses during that extension without first leaving Canada, and the Supreme Court of Canada dismissing leave in the Torres case.