#32 – Keep Out the Poor – How Canada and the US Address Immigrants on Welfare, with Andrew Hayes

Andrew Hayes is a US immigration lawyer who practices in Vancouver.

In this episode we discuss how the immigration systems of Canada and the United States each deal with the issue of immigrants and social assistance.

How similar is the “public charge” rule in the United States and “financial inadmissibility” in Canada? What is a sponsorship bar? Can permanent residents be deported for imposing a fiscal burden on the state?

00:30 – How does US immigration law and policy development work?

1:45 – What is the public charge rule?

2:30 – What is an affidavit of support?

4:00 – Does the United States have a points based economic immigration system?

5:40 – What are the concerns about Donald Trump’s changes from a substantial impact?

8:00 – What is the Low Income Requirement in Canada? Is there a similar requirement in the United States?

11:00 – There are often situations where the sponsor of a family member may be poor, but the breadwinner of the family is the prospective immigrant. How does Canadian and American immigration law account for this?

13:00 – Are affidavits of support usually enforced? What about sponsorship undertakings?

23:00 – How does financial inadmissibility work in Canada?

25:30 – What is the consequence of being determined to be financially inadmissible?

27:00 – Can a permanent resident of Canada be financially inadmissible to Canada? What about to the United States?

38:20 – Can someone be medically inadmissible to the United States?

43:30 – How are the courts likely to react to Trump’s changes to the public charge rule?

57:20 – Can refugees be financially inadmissible?

59:00 – Does having US citizen children impact financial inadmissibility? What about in Canada?

#31 – How Much Does Immigrating Matter on Which Officer or Judge You Get? with Sean Rehaag

Sean Rehaag is an Associate Professor at Osgoode Hall Law School. His academic research focuses on empirical studies of immigration and refugee law decision-making processes.

Sean, Deanna, Peter and Steven discuss his quantitative research which has used large data-sets to study extra-legal factors that influence outcomes in Canadian refugee adjudication. Does immigrating to Canada, getting refugee status or winning a judicial review simply depend on the luck of who decides your application?

 

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#30 – Excluding Family Members from Immigrating vs. Compassion, with Jamie Chai Yun Liew

Jamie Chai Yun Liew is a law professor at University of Ottawa and an immigration lawyer. She acted for the Canadian Council for Refugees as intervener before the Supreme Court of Canada in Kanthasamy v. Canada (Citizenship and Immigration).

Jamie, Peter, Deanna and Steven discusses humanitarian & compassionate considerations in Canadian immigration law, including the Supreme Court of Canada decisions in Baker and Kanthasamy. We also discussed Regulation 117(9)(d), which excludes unexamined family members from future sponsorship, and the recently announced pilot to mitigate the impact of this exclusion.

2:45 – What is Regulation 117(9)(d)?

6:30 – What is a Family Member?

7:00 – What does it mean to be “examined” for immigration purposes?

7:30 – What are the consequences of someone’s ability to immigrate to Canada if they have an inadmissible family member?

14:00 – How does IRPR r. 117(9)(d) work to exclude immigration?

15:45 – Why would someone not declare a family member when they immigrate?

26:00 – What options are available to bring a family member excluded by Regulation 117(9)(d) to Canada?

33:00 – What is the difference between a humanitarian & compassionate application vs. a family sponsorship?

36:00 – What was the Supreme Court of Canada decision in Baker?

39:00 – What was the Supreme Court of Canada decision in Kanthasamy?

50:00 – What were the Minister’s recent announcements regarding Regulation 117(9)(d)?

#29 – Immigration Detention and Habeas Corpus, with Molly Joeck and Erica Olmstead

Molly Joeck and Erica Olmstead are lawyers with Edelmann & Co. They, along with Peter Edelmann, acted for the Canadian Council for Refugees as interveners before the Supreme Court of Canada in Canada (Public Safety and Emergency Preparedness) v. Chhina.

In Chhina the issue before the Supreme Court was whether immigrant detainees have access to habeas corpus. We discuss Chhina, how immigration detention works in Canada, habeas corpus and issues going forward.

2:20 – Why would someone be detained in Canada for immigration reasons?

3:50 – In the federal detention review system who decides if an immigrant should be detained? What is the Immigration Division?

4:30 – How often would an immigrant who is detained have their detention reviewed?

5:30 – What are some issues arising with long term detention?

12:20 – Is there a difference in the issues that arise in long term detention in Ontario as opposed to British Columbia?

18:00 – Is an immigrant refusing to assist with removal by not getting a passport grounds for detention?

24:30 – What is habeas corpus?

27:30 – Why would someone in immigration detention want access to habeas corpus?

30:30 – Why is habeas corpus an alternative to federal court judicial review?

36:00 – The majority in Chhina appears to have commented negatively on certain aspects of the federal detention review process without striking it down. Why did they not just strike it down?

41:00 – How long do habeas corpus applications take?

46:00 – How many times can someone file habeas corpus applications?

51:00 – How has the Immigration Division reacted to the spate of habeas applications?

57:00 – How do detention review cases make it to the Federal Court of Appeal?

Episode #28 – Canada’s Caregiver Programs

Natalie Drolet is the Executive Director / Staff Lawyer for the Migrant Workers Centre.

We discuss the history of Canada’s caregiver programs, current issues and what the future looks like.

2:30 – What is a caregiver and how have Canada’s caregiver work permit and immigration programs traditionally worked?

7:00 – What are employer specific work permits? How do these impact caregivers?

14:40 – How do Canadian caregivers find families who are overseas?

16:00 – Why is the caregiver program necessary? Why are Canadians not applying for these positions? What role do wages play?

21:10 – How does the Interim Pathways program work?

29:14 – Could an Expression of Interest Intake model come to the caregiver program?

31:30 – What are employer compliance issues in the caregiver program? What are some of the abuses that occur?

38:00 – Are the problems now similar to problems that the program has traditionally faced?

43:00 – Where do caregivers live out typically stay?

45:00 – What will the program likely look at in the future?

56:00 – Do the caregiver programs allow governments to avoid funding daycare?

57:30 – Where do most caregivers come from?

Episode #26 – Representing Edward Snowden and an Overview of Hong Kong Refugee Law, with Robert Tibbo

Robert Tibbo is a Canadian lawyer based in Hong Kong, where he has an active human rights and refugee law practice. He has served as counsel in many notable cases, including Edward Snowden, a former contractor for the United States government who copied and leaked classified information from the National Security Agency in 2013.

Peter and Robert discuss what it is like to practice refugee law in Hong Kong and about Robert’s representation of Edward Snowden, which at one point included arranging for Mr. Snowden to stay with other asylum claimants in Hong Kong to avoid being detected by the authorities.

2:00 – What was Robert’s career path that led him to become a human rights lawyer in Hong Kong?

7:12 – What are the primary source countries of people who are coming into Hong Kong to make refugee claims?

9:00 – What is the asylum claim process like in Hong Kong?

17:20 – What does everyday life look like for an asylum claimant in Hong Kong?

26:30 – How did Mr. Tibbo come to represent Edward Snowden?

34:00 – What was Mr. Tibbo’s legal strategy for Edward Snowden?

38:00 – What was the legal context in which Mr. Tibbo helped Edward Snowden evade detection?

42:00 – Did Mr. Tibbo have any ethical concerns when Edward Snowden was “housed” with a few of his other asylum claimant clients?

50:30 –What is the current status of the seven asylum claimants who housed Edward Snowden?

55:20 – What was the final legal status for Edward Snowden in terms of his status in Hong Kong?

 

Episode 25 – Protecting Foreign Workers and Employer Compliance Inspections, with Meera Thakrar

The Government of Canada, as well as several provincial governments, have introduced several measures to protect temporary foreign workers and maintain the integrity of Canada’s foreign worker programs.

Meera Thakrar is a Canadian immigration lawyer whose practices focus on helping companies recruit and retain foreign workers.

Meera joins Peter Edelmann, Deanna Okun-Nachoff and Steven Meurrens to discuss various measures that different levels of government have introduced to protect foreign workers, challenges do governments face in this task and how employer compliance inspections work.

2:15 – Deanna discusses vulnerabilities that caregivers face. These include nonpayment of wages, excessive hours and more. What aggravates the situation is that because caregivers typically seek permanent residency and reporting abuse could potentially jeapordize this.

4:30 – What are some of the motivations of caregiver employers who exploit their foreign workers? What are some possible solutions to reduce the vulnerability of caregivers?

10:20 – Do what extent does the caregiver program deflate Canadian wages? To what extent does the fact that foreign workers provide cheap labour, making goods and services affordable, create a disincentive to stricter enforcement of foreign worker rights.

12:20 – An overview of how the government’s enforcement of compliance in the Temporary Foreign Worker Program and the International Mobility Program works.

14:55 – Canada and British Columbia have an agreement whereby foreign workers who have been exploited can get a six month open work permit. How is this working out? What about the new British Columbia law to protect vulnerable foreign workers? How likely is that to succeed?

25:30 – Peter summarizes a criminal case that he had recently in which a trucking company was charged criminally for paying foreign workers by the mile instead of by the hour.

33:00 – Meera summarizes the case of a Canadian mine was fined for hiring Americans at a higher wage than the mine told the government that it would pay them.

36:20 – Meera discusses a case in which a company faced fines for not tracking the hours that a senior manager who made $500,000 a year was working.

40:00 – Steven discusses a case in which a company got fined for providing training to a worker in a different occupation than what they were supposed to be working in.

41:00 – What are ways to target policies and laws to actually protect foreign workers? Why do authorities seem to be keener to punish workers than prosecute employers?

 

 

Episode #24 – The Temporary Foreign Worker Program, with Meera Thakrar and Kyle Hyndman

The Temporary Foreign Worker Program, also known as the Labour Market Impact Assessment, is the main program through which Canadian companies hire temporary foreign workers.

Kyle Hyndman and Meera Thakrar are both Canadian immigration lawyers whose practices focus on helping companies recruit and retain foreign workers.

We discuss numerous aspects of obtaining Labour Market Impact Assessments, including prevailing wage, recruitment, transition plans, processing times, job match, the Global Talent Stream and the Owner – Operator LMIA.

3:00 – What are the first questions or things that Kyle and Meera tell Canadian employers that want to apply for Labour Market Impact Assessments?

3:57 – What is the difference between the Temporary Foreign Worker Program and the International Mobility Program?

8:00 – Why are companies generally reluctant to obtain Labour Market Impact Assessments?

8:20 – What are the recruitment requirements for a Labour Market Impact Assessment?

12:50 – What is Job Match?

19:00 – What do companies have to show and demonstrate through the recruitment process?

23:20 – What is the wage requirement for a LMIA? What is the prevailing wage?

25:00 – Do employers hire foreign workers to undercut Canadian wages?

26:30 – Can employers of foreign workers offer raises or bonuses?

30:00 – What are Transition Plans in High Wage LMIA applications?

36:00 – How does the Low Wage cap work?

37:00 – How does an employer show they can afford to pay the foreign worker?

39:00 – Can recruitment have a language requirement?

41:00 – What is an Owner Operator Labour Market Impact Assessment?

42:15 – What is the Global Talent Stream?

47:25 – How long do LMIAs take to process?

51:45 – What changes would Kyle and Meera like made to the Labour Market Impact Assessment process?

Episode 23 – Appellate Advocacy Tips, with Former Supreme Court of Canada Justice Marshall Rothstein

Marshall Rothstein served as a Justice on the Supreme Court of Canada from 2006 – 2015. He previously was a Judge on the Federal Court of Canada and the Federal Court of Appeal.

Garth Barriere is a criminal defence attorney in Vancouver. He was counsel in Khosa v. Canada (Citizenship and Immigration, a major Supreme Court of Canada immigration decision in which Justice Rothstein wrote a concurring opinion.

In this episode Justice Rothstein provides tips for written and oral advocacy. While the focus is on appellate litigation, anyone interesting in strengthening their advocacy skills will benefit from what he has to say. We also discuss the Supreme Court of Canada’s decision in Khosa v. Canada (Citizenship and Immigration), and its impact on administrative law in Canada. It is a frank conversation.

9:00 – What it was like for Justice Rothstein when he was appointed to the Federal Court of Canada and to adjudicate cases on which he had no previous experience?

12:30 – How was it different being on the Federal Court vs. the Federal Court of Appeal vs. the Supreme Court of Canada?

14:20 – What strategies or approaches would Justice Rothstein suggest for counsel appearing at the appellate level instead of at the trial division?

18:23 – What is the most important thing to remember in written advocacy? What is “point-first writing?” A helpful piece to read on this can be found here. http://www.ontariocourts.ca/coa/en/ps/speeches/forget.htm

21:10 – What tips does Justice Rothstein have for oral advocacy at the Supreme Court of Canada?

31:30 – What makes a good factum? Does Justice Rothstein believe that the IP bar produces the best factums?

36:20 – What was the Supreme Court of Canada decision in Canada (Citizenship and Immigration) v. Khosa about?

41:15 – How did Khosa change the standard of review analysis?

45:00 – Justice Rothstein discusses his dissent in Khosa and his thoughts on Dunsmuir v. New Brunswick, the leading case on standard of review.

57:40 –  Garth Barriere, who was counsel in Khosa, offers a critique of the Supreme Court of Canada’s standard of review jurisprudence.

1:01:20 – What, if any, guidance should be given to judges regarding when they should show deference and when they shouldn’t?

1:08:00 – At the time of Khosa did Justice Rothstein predict how far along the deference path that standard of review deference would develop?

#22 – The Implications of R v. Wong

R v. Wong is a 2018 Supreme Court of Canada decision in which the Supreme Court of Canada had to determine whether a person could withdraw a guilty plea if they they did not know that their pleading guilty would lead to deportation.

Peter Edelmann and Erica Olmstead are lawyers at Edelmann & Co. They represented the accused at the Supreme Court. Lobat Sadrehashemi represented one of the invervenors, the Canadian Association of Refugee Lawyers.

2:00 – The facts of the case. Mr. Wong pleads guilty to trafficking cocaine. He learns afterwards that this will lead to his deportation. He did not know this when he pled. Can he reverse his plea?

4:29 – How does a guilty plea work? Is it like in the movies?

7:40 – What was the judicial history of this case?

8:50 – What was the perspective of the Canadian Association of Refugee Lawyers regarding whether previously unknown immigration consequences should result in a person being able to set aside their guilty plea?

14:00 – When Peter, Erika and Lobatt talk about whether people should know about the immigration consequences of a guilty plea, what does “immigration consequences” mean? How did the court rule?

19:00 – If the Crown or a judge now have the obligation to ensure that an individual is informed about immigration consequences when they make a guilty plea, should defense counsel worry that this might usurp their role?

19:30 – What is problematic about the incompetence of counsel framework?

23:40 – What was the majority ruling in R v. Wong?

25:06 – The court ruled that to set aside a guilty plea a person has to show that their plea would have been different. What does this subjective requirement look like?

33:18 – At what point in the criminal justice system would someone’s immigration system become known?

34:45 – How complicated are the immigration consequences of a guilty plea? What level of immigration consequences should determine whether a guilty plea is informed? Is it just deportation? Or should it be other things, such as inability to sponsor a spouse, or being ineligible to apply for citizenship, for example.