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

Steven Meurrens

Dani Willetts joins Peter Edelmann and Steven 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. She can be reached on Twitter at @TeedyW

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

Steven Meurrens

Marilyn Sanford joins Peter Edelmann and Steve 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.

Episode 4 – Citizenship Revocation for Misrepresentation, Cessation, and War Resisters, with Jenny Kwan

Steven Meurrens

Jenny Kwan is the Member of Parliament for Vancouver East and is the New Democratic Party of Canada’s Immigration Critic.

Ms. Kwan is the Member of Parliament for Vancouver East and is the New Democratic Party of Canada’s Immigration Critic.  Prior to being elected a Member of Parliament, Ms. Kwan was a Member of the Legislative Assembly (MLA) of British Columbia for the riding of Vancouver-Mount Pleasant, and a senior member of the provincial caucus of the New Democratic Party.

Her Twitter is @JennyKwanBC

2:30 – 16:13 – We talk about Bill C-6, the Liberal Government of Canada’s reforms to Canada’s Citizenship Act. Ms. Kwan both talked about what she likes and dislikes about Bill C-6.  A specific concern that she has includes the procedural fairness afforded to those facing citizenship revocation due to misrepresentation.  The current process, which is the subject of numerous court challenges, is that an individual’s Canadian citizenship can be revoked by a bureaucrat if the bureaucrat determines that the Canadian citizen obtained their citizenship as a result of fraud. Humanitarian & compassionate concerns are not considered, and the only recourse that a former citizen has once their citizenship is stripped is to seek judicial review in Federal Court.   During this portion of the discussion we also briefly discuss the topic of language testing requirements for grants of citizenship, which Ms. Kwan believes is too stringent.

16:13 – 31:48 – Ms. Kwan explains that one thing that she hopes is urgently changed in Canadian immigration law is the current situation involving the cessation of refugee status. Ms. Kwan has introduced into Parliament Bill C-294, which calls on the government to end the automatic loss of permanent resident status when a refugee’s status as a protected person is revoked.

31:48 – 40:37 – Another topic that Ms. Kwan is passionate about is whether the Canadian government should let American war resisters / dodgers / conscientious objectors remain in Canada. Jenny believes that they should. A specific question that Steven asked Jenny was whether she is concerned that Canada being too accepting of war resisters in this regard would open the floodgates such that anyone from Russia, South Korea, Taiwan, etc. where the draft exists, could come to Canada and get permanent resident status as a way to avoid serving in their country’s military.

40:37 – 55:23 – As a member of the House of Commons Standing Committee of Citizenship and Immigration, Ms. Kwan shared her thoughts on whether certain vulnerable groups should be given immediate, and some would say preferential, access to refugee resettlement in Canada. Jenny proposed five actions that she believes Canada can immediately take. The first is to work with organisations that deal with the world’s most vulnerable people and give them a pathway to resettlement in Canada. The second is to work with the LGBTQI community to help resettle members of that community in Canada. The third suggestion was to help immediately resettle individuals from northern Iraq using the UNHCR to process these cases. The fourth was to look at reintroducing the source country of origin class completely, and in particular for the LGBTQI community. Finally, the fifth was increase humanitarian aid to vulnerable groups.

55:23 –   1:03:08 – Peter and Steven discuss Ouedraogo v. Canada (Public Safety and Emergency Preparedness), 2016 FC 810. In this case the Federal Court determined that an individual can be removed from Canada both during the 90 day restoration period and that they could be removed even after they have applied for restoration. The court’s approach is even stricter than current CBSA policy on the matter, which I have reproduced below.

1:03:08 – 1:05:51 – Peter briefly mentions the BC Supreme Court decision in R v. Nuttal, 2016 BCSC 1404, and mentions that we plan on having Marilyn Sandford, counsel for John Stuart Nuttall on in a future podcast. For those who do not know, this case involves a stay of proceedings being ordered after the court determined that police had entrapped two individuals into attempting to bomb the BC legislature.

1:04:41 – Finally, we wrap up by briefly talking about Pokemon Go.

Episode 3 – Marriage Fraud, with Raj Sharma

Steven Meurrens

Raj Sharma joins Peter Edelmann and Steven Meurrens to discuss marriage fraud.

Raj Sharma is the managing partner of Stewart Sharma Harsanyi.  He is a well known commentator on immigration law. In addition to his active blog and numerous presentations that he has given at immigration conferences and seminars, he has written numerous op-eds on immigration, diversity and multi-culturalism that have been published in many manjor Canadian newspapers. He has debated Martin Collacott of the Fraser Institute and Centre for Immigration Reform on whether Canada accepts too many immigrants; Deepak Obhrai (MP and Parliamentary Secretary) on additional and stricter language requirements for citizens; David Seymour of the Manning Centre on whether Canada’s new immigration policy is too exclusionary; Imam Syed Soharwardy on honour crimes in Canada; and a CSIS agent on the profiling of Muslims.

He can be reached at raj@sshlaw.ca or on Twitter at @immlawyercanada.

2:33 – 44:20 – We discuss marriage fraud, and how the previous government introduced several measures to try and prevent it. These measures included introducing a disjunctive test in which a marriage would not facilitate immigration if the marriage was not genuine or if the marriage had been entered into primarily for the purpose of immigration. It also included the introduction of conditional permanent residency, in which immigrants who immigrate to Canada as a result of a marriage or common-law relationship would lose their permanent resident status if the relationship broke down within 2 years of immigrating. Finally, the previous Conservative Government of Canada also introduced a five year spousal sponsorship bar, in which a permanent resident who immigrated after marrying a Canadian could not sponsor a new spouse or common-law partner for five years after immigrating.

Raj was a fantastic guest to have for this topic, given that he represented a Canadian citizen who sued the Canada Border Services Agency to compel them to complete an investigation into whether that person had been the victim of a marriage fraud. Raj during the podcast provided an overview of this case, Zaghbib v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 182. Peter then raised the difficult question of “where do you draw the line?” If a Canadian can compel CBSA to remove someone from Canada for marriage fraud, can a company compel CBSA to do the same for a competitor where the Canadian company knows that that the competitor has engaged in foreign worker fraud? What about an average citizen trying to compel the Vancouver Police Department for visiting the Amsterdam Café and smoking marijuana?

44:20 – 49:30 – Peter discusses the ongoing detention situation in Canada, where immigration detainees are often held in provincial prisons. Minister Goodale recently wrote an article in the Huffington Post in which he set out a number of goals in immigration detention, but at the same time also provided justification for the ongoing detention. Peter also showed us a recent tender that CBSA has put out in which they are seeking feedback on alternatives to detention. After providing a brief overview of why people would be detained in Canada, we discuss what possible alternatives there could be. The word “Kafkaesque” makes its first appearance in the podcast, although I’m sure not it’s last.

49:30 – 55:13 Continuing with the theme of detention, we discuss the Federal Court’s recently certified question in Canada (Public Safety and Emergency Preparedness) v. Lunyamila, 2016 FC 324, in which the Federal Court asked whether it can usurp the powers of the Immigration Division to either order release or continue detention.

51:13 – 56:00 – Finally, we conclude by providing a statistic of how what percentage of people who submitted applications to Immigration, Refugees and Citizenship Canada had representatives.