Substituted Evaluations for Federal Skilled Worker Applicants [Updated]

There is a myth amongst potential Federal Skilled Worker Program applicants that their application is guaranteed if they can get 67 points. This is not true for several reasons, including the possible use of substituted evaluations.
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10 Pieces of Advice Before Entering First Year

Half way through my second year of law school I drafted a list of 10 pieces of advice that I would give to anyone entering their first year.  I passed this list on to between 5-10 people, and everyone seemed to appreciate it.  After not having thought about the list for a few years someone who had heard of it recently asked me for it.  It took me a fair bit of time searching through old Facebook messages to locate the list, so I decided to publish it here so that if I was ever asked again I could easily find my recommendations.

Remarkably, while I have updated the rationale behind each suggestion, my recommendations for people entering first year law remain the same now as they did when I was a second year law student.

So here they are.

1) You Control How Intense Law School Is

First year law school is intense.  There are typically mandatory year long courses, most of which are graded almost exclusively on a final exam.  You will be surrounded by some of the smartest people that you have ever met and will (depending on the school) be graded on a curve against them.  There will be a flurry of electives that you can choose from and if you’ve gone abroad for school it could be difficult to not become fully immersed in the study of law.

However, law school is only as intense as you want it to be. You could spend thirty hours a week in the library or just use other people’s summaries. For every student spending their weekend reading dozens of cases there is another student probably doing just as well who is rock climbing having just read a ten sentence summary of each case.

I am not recommending one approach or the other.  All I am saying is that you have a choice.  You control how intense law school is.

2) Be Prepared for Class

Most law school classes are taught by incredibly engaged and smart individuals.  I cannot remember having had any bad professors at either the University of Toronto (where I graduated from), the University of British Columbia (where I did a letter of permission for a semester), or Central European University (where I did an exchange).

Assuming that you enjoy learning about the law, and you probably should question why you are in law school if you aren’t interested in the law (but that’s a separate topic about whether you should go to law school, not advice for your first year there), then you will enjoy your classes even more if you are prepared for them.

The importance of being prepared is not only to avoid looking foolish if your professor uses the socratic method.  You will get more out of class discussions if you know what is being discussed.

If you are not going to read a case before class, then you should at least read a summary of it.  At every law school that I went to senior students were always happy to pass along USBs with case summaries and notes from previous classes. I imagine that such information is now even available online.

3) Don’t Ask People What they Got on the LSAT

Never ask someone what score they got on the LSAT or what their mark was in a course.

I was never asked these questions at UofT.  When I did one semester for my third year of law at UBC I was asked a few times what my LSAT score was.  It was annoying.

4) Don’t Give Legal Advice…

As soon as you are in law school people are likely going to come to you for legal advice.  When I was in first year law school friends and family approached me with questions on topics ranging from basic criminal stuff, landlord issues, pre-nups, vehicle accidents and even on setting up tax minimization schemes.

At the time I did my best to provide whatever assistance I could, always with the caveat that I was only a law student and probably didn’t know what I was talking about.  Having now taken and taught legal ethics I now realize what a bad idea even this was.

Put simply, if you don’t understand how confidentiality works in joint representation scenarios for people who haven’t signed retainer agreements then you shouldn’t be giving legal advice.

5) … But Do Fight Injustice

Having said that, within a few weeks or months after starting first year law school you will also start to realize how ignorant many laypeople are of how the law, and how others (sometimes innocently) take advantage of this ignorance.

You will look start looking at agreements between people differently.  If you rent, or have friends who do, then you will likely be especially stunned with what some landlords attempt to get away with.

You may not be a lawyer yet. But that doesn’t mean that where you do know what you’re talking about and understand legal ethics that you should let yourself or others be taken advantage of.

The help that you give can be as simple as spotting an issue and referring someone to the appropriate person who can help.

6) First Year Exams

Don’t make any vacation plans for the last two weeks of March and first two weeks of April during your first year of law school. Those weeks may be the worst and most boring weeks of your life.

Having said that, many years later the only thing that I remember about first year exams was that I preferred the three hour exams to twenty-four hour ones, and that an impromptu dance party broke out in my residency quad while we were studying on a Saturday night. It didn’t impact my mark.

7) You’ll get a Job

The profession of law breeds career insecurity, much of it pushed down from the top.

First year law school comes with a bizarre obsession and pressure about getting a job.  Whether it is from your school or the big firms that dominate the private practice recruitment process, you will start feeling pressure to find summer job(s) and articles within the first few months of your first year.  I do not think that there is any other profession in the world that pushes such uncertainty and insecurity about getting a job to people almost immediately after they start an educational program.

When I first wrote this list of recommendations getting a job as a lawyer was admittedly easier then than it seems to be now. I am not going to pretend that everyone who graduates from law school will get a job in law as soon as they graduate.

At the same time, having seen how fulfilling the careers are for my former law school colleagues who either left the practice of law or never started in it, I believe more than ever that law students should not let the pressure to find articles plunge them into depression.

8) Determine the Kind of Person You Want to Be

You should determine early on what kind of person you want to be both in law school and after.

Are you willing to say “no” to something you really want to do in order to study for a few more hours? If you decide that you will put off doing what you like and missing important events while you are in law school, then you are laying the mental groundwork for doing the same thing during your career, and are setting yourself up for a solitary and lonely adulthood.

9) Keep an open mind

Some people go into law school knowing exactly what type of law they want to practice.

Others don’t have a clue.

Then there are people who thought they knew what area they wanted to work in without actually having a clue what the day to day practice of that area is like.

When I went to law school I thought I wanted to be a prosecutor.  Volunteering at a criminal defence clinic turned me off criminal law (although as an immigration lawyer I sometimes feel like I am practicing quasi-criminal law in a regulatory regime with far less procedural safeguards). At the start of second year law school I had no clue what I wanted to do. I then took a course on insolvency law. Then an advanced course. I even won the Insolvency Institute of Canada’s annual student writing competition and had a paper published in a law journal. By the time that I started articles I was sure that I was going to be an insolvency lawyer.  But then I did a tax evasion file. Boom. Now I knew what I really wanted to do.  Then the tax litigator that I was working for said that given my interests in certain files that I should consider immigration law.

And now I’m a partner at one of Vancouver’s largest immigration law firms. I have a blog and a podcast on the topic, and will soon be wrapping up a two year stint as the Chair of the Canadian Bar Association of British Columbia’s Immigration Section.

If you had told me when I started law school that this is what I would be doing I wouldn’t have believed you.

So if you’re unsure of what type of lawyer you want to be, don’t worry.  Most of those who say that they do probably will be as surprised as I was where their career took them.

10) Appreciate How Fortunate You are to be Studying Law

We live in a society where ignorance of the law is no excuse for breaking it.  Yet, there are not any real opportunities to study law unless you first complete an undergraduate degree and do very well on a standardized logic test.

For me the study of law was an exercise in unlearning alot of my previously held assumptions about the world.  My staunchly held but undeveloped opinions were replaced by a greater understanding of how complicated most issues are.

Concurrent with your textbook studies you will have the opportunity to participate in fascinating extracurricular programs. During my first year of law school I represented someone charged with domestic assault in criminal court, wrote briefs on behalf of injured workers seeking compensation, and facilitated legal workshops in high schools.

It still seems remarkable that I was able to do any of the things at the age of 22, just because I was in first year law.

 


Section 7 of the Charter and Deportation

Section 7 of the Canadian Charter of Rights and Freedoms (the “Charter“) provides that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

There have been several Supreme Court of Canada (the “Supreme Court“) and Federal Court of Appeal decisions involving s. 7 of the Charter and deportation.

Continue reading “Section 7 of the Charter and Deportation”


Strict Interpretation of Compliance in the Foreign Worker Program

[The following article appeared in the May edition of The Canadian Immigrant. I have slightly modified it for this blog post.]

Back in 2013, Canada’s temporary foreign worker program was rocked by wellpublicized stories of abuse. As a result, the Government of Canada introduced a comprehensive compliance regime for employers of foreign workers, and promised to ban companies from being able to hire temporary migrants for two years if they breached the new conditions. In 2015, Canada’s Immigration and Refugee Protection Regulations were further amended to introduce an administrative monetary penalty regime, which would also fine employers for non-compliance.

The number of Canadian employers who have either been banned or fined for non-compliance is currently quite small, although both Immigration, Refugees and Citizenship Canada (IRCC) and the Department of Employment and Social Development (ESDC), the two main government agencies that manage Canada’s foreign worker programs, have indicated that the number is likely to grow in the near future, especially considering new funding announced with Budget 2017 to better protect vulnerable workers and to encourage employers to do more to hire Canadians first.

On March 23, 2017, the Federal Court of Canada released its first publicized decision on an ESDC decision to ban a company from hiring foreign workers for two years. The decision, Farms v. Canada (Employment and Social Development), provides much-needed guidance to both companies and to the government on how foreign worker compliance regime should be interpreted.

 Conditions for hiring foreign workers

Employers of foreign workers must agree to comply with numerous conditions outlined in Canadian immigration legislation. The most significant one is the requirement to provide foreign workers with wages and working conditions that are substantially the same as — but not less favourable than — those set out in their offers of employment. Essentially, this means that employers must strictly follow their employment contracts with regards to wages, working hours, duties and benefits.

Other requirements employers must follow include complying with all federal and provincial laws that regulate employment and making reasonable efforts to provide workplaces that are free from abuse. In cases where employers made certain labour market promises (such as job creation or skills transfer to Canadians) to receive permission to employ foreign workers, they must they fulfill those commitments.

Canadian employers of foreign workers can also be subject to both inspections and audits by government officers, and must provide any documentation relevant to their compliance on demand. In fact, the government announced it will be increasing onsite inspections of workplaces that employ foreign workers.

Non-compliance with any conditions will only be justified in certain circumstances, including changes in federal or provincial law, new measures by the employer in response to dramatic changes in economic conditions, or errors that were either made in good faith or as the result of administrative error (if the employer subsequently made sufficient efforts to provide compensation to foreign employees).

Since 2015, the consequences of non-justified non-compliance are administrative monetary penalties and bans on hiring foreign workers.

 Conditions have strict interpretations

In Farms v. Canada, the Federal Court held that the justification provisions mentioned above must be interpreted strictly so the Canadian government can prevent the abuse of foreign workers. The often tenuous circumstances of their employment can lack the normal safeguards preventing abuse otherwise available to most Canadian workers.

The court further found that a good faith justification only works where the non-compliance conduct can be seen to benefit the foreign worker and is in the worker’s interest. As well, where a labour market impact assessment application form or a contract employing foreign workers lists conditions and terms of employment, an employer will be unable to claim a good faith lack of knowledge of any conditions or requirements.

Even where non-compliance may factually be justified, employers will not be able to claim that a breach was justified if they do not document any modifications to employment contracts.  In Farms v. Canada, for example, the employer deducted pay from its foreign worker employees’ first paystubs in order to provide them with cash advances, and even produced a letter from a former employee that confirmed that he had received the cash payment. However, the Federal Court determined that such proof was not sufficient, and that employers had to keep records of changes, and obtain written consent from their employees as it occurred.

 Not enough guidance for employers?

At the same time that the Federal Court upheld ESDC’s decision to ban the employer from hiring foreign workers for two years, the Federal Court also chastised ESDC for not providing clear guidance on its website as to what employers had to do to demonstrate compliance with certain conditions, and specifically noted that small businesses may not know what is required.

The most important thing they should recognize, however, is the need to strictly follow the contractual obligations in their employment agreements with foreign workers. Given the decision in Farms v. Canada, it is important that any ambiguities be interpreted strictly and in favour of the foreign workers.


Withdrawing and Reinstating IRB Proceedings

Sections 5 and 6 of the Immigration Division Rules, SOR/2002-229 state:

Withdrawing a Request by the Minister for an Admissibility Hearing

Abuse of process

5 (1) Withdrawal of a request for an admissibility hearing is an abuse of process if withdrawal would likely have a negative effect on the integrity of the Division. If no substantive evidence has been accepted in the proceedings, withdrawal of a request is not an abuse of process.

Withdrawal if no evidence has been accepted

(2) If no substantive evidence has been accepted in the proceedings, the Minister may withdraw a request by notifying the Division orally at a proceeding or in writing. If the Minister notifies in writing, the Minister must provide a copy of the notice to the other party.

Withdrawal if evidence has been accepted

(3) If substantive evidence has been accepted in the proceedings, the Minister must make a written application to the Division in order to withdraw a request.

Reinstating a Request by the Minister for an Admissibility Hearing

Application for reinstatement of withdrawn request

6 (1) The Minister may make a written application to the Division to reinstate a request for an admissibility hearing that was withdrawn.

Factors

(2) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice or if it is otherwise in the interests of justice to allow the application.

Application

The leading case on ss. 5 and 6 of the Immigration Division Rules is Canada (Minister of Citizenship and Immigration) v. Sheremetov, 2004 FCA 373.  There, the Federal Court of Appeal determined that the Immigration Division should not consider the merits of the government’s case when considering whether to accept a withdrawal of a request for an admissibility hearing where no substantive evidence has been accepted in the proceeding.  It is only upon reinstatement that the Immigration Division may consider whether the government’s conduct amounts to an abuse of process.


Borderlines #15 – Gordon Maynard on New Can Consulting and the Biggest Immigration Fraud in Vancouver History

Gordon Maynard is a Vancouver based lawyer who practices exclusively in Canadian immigration law.  He is a past Chair of the Canadian Bar Association’s Immigration Section.

In this episode we discuss the biggest immigration scam in Vancouver’s history, which is still unfolding. Xun (Sunny) Wang was a ghost consultant who is estimated to have made $10 million by filing fraudulent immigration applications for clients of his two firms, New Can Consulting and Well Long Enterprises.  Mr. Wang, who is currently serving an eight year jail sentence, and his staff, apparently put fake passport stamps in peoples’ passports in order to lie about having spent sufficient time in Canada to qualify for various immigration programs.  The Canada Border Services Agency is now endeavouring through what the Department is calling Project New Can to remove over 1,500 former clients of his for having committed misrepresentation to obtain Canadian permanent residency and/or maintain it.  All of the lawyers involved in this podcast have and are representing some of his clients in these removal proceedings.

Topics

1:39 – Gordon provides an overview of the timeline involved in Sunny Wang’s alleged fraud.

7:50 – What constitutes misrepresentation in Canadian immigration applications?

10:30 – We discuss some of the mechanics of what Sunny Wang is alleged to have done.

12:00 – Many New Can clients are saying that they signed blank forms and did not know that the applications were fake. Is this a defence to misrepresentation in Canadian immigration law?  Plus Steven reads a summary of what a typical Project New Can procedural fairness letter or allegation looks like.

19:30 – What is the process for having a permanent resident or a foreign national removed from Canada for misrepresentation?

23:00 – What sorts of misrepresentations can actually lead to removal from Canada?

28:30 – What sort of flexibility is there amongst enforcement officers once they have found a misrepresentation to still not have someone removed?

34:45 – As a lawyer, if a client comes to you and says “I submitted an immigration application with fake stamps in my passport and I knew they were fake,” what would you recommend? Do they have a chance of staying in Canada?  And other issues representatives need to be aware of.

 


Ministerial Relief Exemption Requests

Foreign nationals who are found to be inadmissible to Canada on the basis of security (including espionage, subversion, engaging in terrorism, or being a member of a group that engages in terrorism), certain human and international rights violations, or organised crime can still visit or immigrate to Canada despite being inadmissible for such serious reasons if they satisfy the Minister of Public Safety and Emergency Preparedness (the “Minister“) that their entry to Canada is not contrary to Canada’s national interest.  Such applications are referred to as “Ministerial Relief applications.”

In assessing a Ministerial Relief application, Canadian immigration law somewhat confusingly provides that the Minister “may only take into account national security and public safety considerations, but, in his or her analysis, is not limited to considering the danger that the foreign national presents to the public or the security of Canada.”

Ministerial Relief applications, previously done under ss. 34(2), 35(2), and 37(2)(a) of Canada’s Immigration and Refugee Protection Act, and now s. 42.1, have long been problematic. As the Government of Canada noted when it introduced a standardised process on March 10, 2017:

A number of issues have contributed to inefficiencies in terms of processing requests for Ministerial relief. These include the lack of a formalized application process, the inability to close applications as appropriate in the absence of a declaration by the Minister, and voluminous applicant submissions of varying degrees of relevance to the ministerial decision-making process. Currently, there is no standardized application form and applicants may seek Ministerial relief at any time. For instance, applicants may simply indicate that they wish to be considered for Ministerial relief, providing little or no supporting explanation or documentation. This means that resources are allocated to processing applications from individuals who may not be found inadmissible and thereby not require Ministerial relief (e.g. they have been granted permanent resident status). Until recently, approximately 50% of the inventory of applications comprised cases pending a final decision on inadmissibility. This has contributed to a significant backlog of cases, all of which must be personally decided upon by the Minister.

How to Submit a Ministerial Relief Application

As of March 10, 2017 Ministerial Relief applications must be made in writing.  An inadmissible individual can only submit a Ministerial Relief application after their application to travel to Canada is refused / they are issued a removal order, their inadmissibility affirmed and then only when either they have decided to not challenge the decision in court or after they have already lost in court.

The Ministerial Relief application must include:

(a) their place of birth, gender and marital status and the names of any former spouses or common-law partners;

(b) their telephone number and email address, if any;

(c) their former countries of citizenship or former countries of nationality;

(d) their education, including the name and address of all elementary and secondary schools and post-secondary, technical and vocational institutions attended and the start and end dates for the periods during which they attended each school or institution;

(e) their work history, including volunteer work, from the age of 16 years, including start and end dates for each period of work, their job title and job description and the employer’s name and address;

(f) their international travel history from the age of 16 years, including a list of the countries visited, the purpose of the visits, the dates and duration of the visits and any immigration status sought from or granted by any country visited; and

(g) why their application was refused.

Incomplete Ministerial Relief application will be returned.  Interestingly, the Government of Canada when it announced that it would return incomplete applications determined that each returned application saves the taxpayer $25,444.00.

The Canada Border Services Agency assesses requests for Ministerial relief and develops a recommendation for the Minister.

Upon being granted relief by the Minister, the matters which had led to a finding of inadmissibility under the above-listed provisions no longer constitute inadmissibility.

A person who has been granted relief may then make applications for temporary or permanent resident status without the applications being rejected on the basis of the grounds of inadmissibility for which relief was granted.

Processing Times

While the above changes are mostly welcome (there is some controversy in requiring that a permanent residence application be refused before one can apply for Ministerial Relief, especially given how long permanent residence applications can take to process) the fact remains that the biggest issue in Ministerial Relief applications is the processing times.  The biggest obstacle appears to be the requirement that the Minister personally sign off on granting Ministerial Relief.

Previously, the Government of Canada has taken the position that because of the Minister’s many duties and responsibilities, the Minister should not be subject to any timeline whatsoever in rendering determinations in respect of such requests.  In Tameh v. Canada (Public Safety and Emergency Preparedness), however, the Chief Justice of the Federal Court strongly disagreed, and opened his decision by writing that:

Ministers of the Crown are typically very busy people. But they are not so busy that they can take as many years as they see fit to respond to requests made pursuant to validly enacted legislation, by persons seeking determinations that are important to them. At some point, they will have an obligation to provide a response.

He went on to state that the Minister must process Ministerial Relief applications “within a reasonable period of time.” What constitutes a “reasonable amount of time” will depend on the actual matrix of a case.

Even in Tameh, the Federal Court accepted that taking several years to process Ministerial Relief applications could be reasonable.  In light of the fact that people who receive Ministerial Relief essentially need to apply for permanent residency twice, and given that the Government of Canada has now standardized the process, processing times will hopefully come down dramatically.

 


Borderlines 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.

Post Show Notes

After listening to this episode one might want to see examples of decisions where the Refugee Protection Division engaged in reasoning that was not sensitive to LGBT issues. Isesele v. Canada (Immigration, Refugees, and Citizenship) is a good example. There, the Federal Court set aside a decision in which the RPD determined that a bisexual woman could avoid persecution if she simply kept a “low profile.”