Lev Abramovich is an immigration lawyer in Toronto. There has been an increase in security screening in Canadian visa applications for residents of several countries. Chen v. Canada (Citizenship and Immigration), 2023 FC 885 is the first Federal Court of Canada decision to discuss mandamus in the study permit context. Lev was counsel in this case. The court ruled that Immigration, Refugees and Citizenship Canada’s delay in processing the application was unreasonable or unexplained. However, the mandamus application failed because the applicant did not demonstrate significant prejudice. Mandamus applications are actions to the Federal Court of Canada to compel IRCC to conclude the processing of a delayed application. We also discuss security clearance delays for applicants from Iran and China. The lack of transparency and clarity in the immigration process, particularly regarding security concerns, is a growing issue.
Borderlines Podcast #96 – Inadmissibility for Espionage and Chinese Immigration, with Will Tao
Will Tao is a Canadian immigration and the founder of Heron Law Office. In January 2024 Justice Crampton, the Chief Justice of the Federal Court released a decision where he ruled that what constitutes “espionage” in Canadian immigration law must evolve “as hostile state actors increasingly make use of non-traditional methods to obtain sensitive information in Canada or abroad, contrary to Canada’s interests.” He held that it was reasonable for a visa officer to determine that a prospective Chinese PhD student, Mr. Li, was inadmissible to Canada for espionage because he may in the future be targeted and coerced by the Chinese government into providing information that would be detrimental to or contrary to Canada’s interests. There was nothing to suggest that Mr. Li has a present or future intention to provide such information to the Chinese government. Rather, the concern was future coercion or co-opting. Later that month, the Government of Canada’s announcement of a New Policy on Sensitive Technology Research and Affiliations of Concern (the “Policy”). The Policy included the publishing of a list of around 100 research organizations and institutions in China, Russia and Iran that pose “the highest risk to Canada’s national security due to … Read More
Borderlines Podcast – History Episode 1 – Order in Council PC 1911-1324 – The Law to Ban Black Migration to Canada
This episode is a historical deep dive on Order in Council PC 1911-1324, an Order in Council from 1911 which stated that for a period of one year black people would not be permitted to immigrate in Canada because the Canadian government deemed them unsuitable to Canada’s climate. Borderlines · History Episode 1 – Order in Council PC 1911-1324 – The Law to Ban Black Migration to Canada
Borderlines Podcast Episode 55 – Risk Salience and Unconscious Bias in Decision Making, with Hilary Evans Cameron
Hilary Evans Cameron is an Assistant Professor at Ryerson Law. Prior to become a faculty member, Hilary represented refugee claimants for a decade. She is the author of Refugee Law’s Fact-finding Crisis: Truth, Risk, and the Wrong Mistake. Her paper on risk salience in refugee decisions that we discuss can be found here. She is also the creator of www.meetgary.ca, a website which provides guidance to both decision makers and asylum claimants on the implicit biases and thought processes that can influence decision makers. She provides training to the Immigration and Refugee Board on this topic. 3:00 The two strong pulls in the law of how a decision maker should make a decision in a refugee hearing that impacts risk salience. 7:00 Can a decision maker ever be truly neutral? 11:00 Does the fact that the refugee process starts with a removal order “set things up” for strict scrutiny? Plus how politicians can influence error preference. 18:30 Refugee acceptance rates have increased recently. Is this a result of new decision makers or the same decision makers applying different maxims. Can someone’s risk salience approach change over time? 22:00 The non legal things that can influence decision makers. 26:30 Studies on accuracy … Read More
Borderlines Podcast #49 – The Supreme Court of Canada decision in Chieu and the Ribic Factors
Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3 was a landmark Supreme Court of Canada which affirmed the use of the Ribic factors in the H&C assessment. We discuss these factors and how they are used in immigration appeals. 1:00 – How the assessment of Humanitarian & Compassionate considerations has become somewhat nebulus. 4:00 – A case study of Chieu v. Canada 10:00 – What is an example of a negative country condition in someone’s country of citizenship? 13:00 – The decision and principles in Chieu. 15:00 – The Federal Court of Canada in Zhang v. Canada (Citizenship and Immigration), 2020 FC 927, which seems to limit Chieu. 16:00 – The Ribic factors and the types of immigration appeals. 20:00 How much weight each factor should get. 25:00 – Stories about our appeals. 32:00 – The remorse factor and flexibility. 45:00 – The counter arguments to considering country of citizenship conditions. 50:00 – Consents on appeal.
Borderlines Podcast Episode 48 – Responding to Procedural Fairness Letters, with Raj Sharma
A discussion about responding to procedural fairness letters with digressions on possible bias against people from Punjab, unreasonable documentation requests, tunnel vision amongst visa officers, how if an officer goes out looking for misrepresentation in an application they will probably find it, aggressively banning people from Canada as a deterrance policy, IRCC misleading Parliament about whether it bounces applications for incompleteness and more. Raj Sharma is a Partner at Stewart Sharma Harsanyi in Calgary. He can be found on Twitter @immlawyercanada. 2:30 When does IRCC have to send a procedural fairness letter vs. being able to refuse an application without one? 15:00 Specific issues with the Canadian visa offices in New Delhi and Chandigarh. 21:00 Racialized assessments of visa applications. 23:00 Why hunting for misrep can lead to misrep findings. 25:00 Misrepresentation as a deterrence policy. 35:00 Is there a specific focus on Punjabs? 44:00 Can you tell if someone is lying as soon as you meet them at the start of an interview? 46:00 Preet Bharara on investigations 50:00 When IRCC believes that a job is fake because no employer would wait as long as IRCC’s processing times to fill a position. 1:00 Procedural fairness letters in the citizenship … Read More
Borderlines Podcast #53 – Thoughts on Starting a Career in Immigration Law, with Joshua Sohn
Joshua Sohn practiced immigration law for over 25 years. He is a past president of the Canadian Bar Association’s Immigration section. He worked both as a sole practicioner, at a small firm and at a big 4 accounting firm. We discuss Joshua’s career, what made him go to law school, whether he took immigration courses in law school, how he started in refugee law, differences between working as a solo practicioner, small firm and eventually at a big 4 accounting firm, and then back to a small firm, differences working in a downtown core vs suburb, and managing the stress of practicing immigration law and running a business. There are a lot of nuggets in here for aspiring lawyers and current practicioners. 2:00 Quitting social media after retirement. 9:00 Law school 14:00 Articles 17:30 Are there any courses or law schools that are best to help someone start a career in immigration? 19:30 Starting a career in refugee law. 22:30 Is it possible to make a viable practice just doing refugee law? 29:00 The law firm as training ground. 32:00 Practicing as a sole practitioner vs at a large firm. 35:30 Does it make sense for someone to do just … Read More
Borderlines Podcast #42 – Section 15 of the Charter and Canadian Immigration, with Aidan Campbell
Section 15 of Canada’s Charter of Rights and Freedoms provides that every individual is equal before and under the law and has the right to the equal protection and benefit of the law without discrimination. Aidan Campbell joins to discuss the application of s. 15 of the Charter to Canadian immigration law and the implications recent Supreme Court of Canada decision in Fraser v. Canada. Aidan Campbell is an Associate at Mahon & Company, a progressive firm which practices in Criminal Law, Immigration and Refugee Law, Public Interest & Constitutional Litigation, Sex Worker Rights, Prisoners’ Rights, Professional Discipline. Extradition Law and Tenants’ Rights Podcast Notes: Section 15 of Canada’s Charter of Rights and Freedoms provides that: Section 15(1) of the Charter states: (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability; (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, … Read More
Borderlines Podcast Episode 39 – Immigration Detention Hearings after Brown v. Canada, with Aris Daghighian
Aris Daghighian is a senior associate with Green and Spiegel LLP in Toronto. He represented the Canadian Association of Refugee Lawyers as intervenors in Brown v. Canada, 2020 FCA 130. In this episode we discuss the issues raised in the case, including how immigration detention works in Canada, what the disclosure obligations should be on the government in an immigration detention proceeding and whether there should be a maximum time that someone can be held in immigration detention. On April 1, 2021 the Immigration and Refugee Board issued updated detention guidelines in response to the Brown decision. They stated: As a result of the FCA decision in Brown and the feedback received through our consultations, the IRB has revised the Guideline in the following ways: Clarify that there must be a nexus to an immigration purpose for detention to continue. Reinforce the Division’s obligation to consider sections 7, 9 and 12 of the Charter in exercising its discretion concerning whether or not detention is warranted. Confirm that consideration of conditions of detention is an extension of the ID’s Charter jurisdiction. Reinforce that the Minister has the legal burden to establish that detention is lawfully justified and remains on the Minister throughout the … Read More
Borderlines Podcast Episode 27 – Civil Forfeiture in Canada, with Bibhas Vaze
Civil forfeiture is a process in which the government seizes assets from persons suspected of involvement with crime without necessarily charging the owners with wrongdoing. Did you know that in British Columbia the government can seize and forfeit your car if you speed? Or that police can “seize first ask later” for property that is less than $75,000? This was a fascinating look at an area of law that receives little scrutiny, especially in how it can relate to immigration. Bibhas Vaze is a criminal defence lawyer in Vancouver. 4:45 – An overview of New Can and how it relates to civil forfeiture. 5:30 – What is civil forfeiture? 13:15 – Who has the onus of proving there is a tracing of property to unlawful activity? 16:50 – Can the government seize property that is partially the proceed of crime or that was used to commit unlawful activity? 17:10 – What is unlawful activity in the civil forfeiture context? 19:20 – What is the size of British Columbia’s Civil Forfeiture Office? How much property has it seized since its inception? 20:30 – Do all civil forfeiture cases have to go to trial? 25:10 – When is the property actually seized? 29:00 – What level of connection between the unlawful activity and the property is … Read More