This episode is a joint recording of Borderlines and Ask Kubeir, a popular YouTube channel about Canadian immigration news and updates, hosted by Kubeir Kamal, a regulated immigration consultant in Toronto. We discuss how obtaining Canadian permanent residence is becomming more difficult for several groups, including recent international graduates, as well as how some immigrants feel let down by the high cost of living and the inability to get their credentials recognized.
Borderlines Podcast #82 – Jandu v. Canada, the top work permit Federal Court case of 2022
Jandu v. Canada (Citizenship and Immigration), 2022 FC 1787, was a decision where the Federal Court quashed several visa refusals and misrepresentation findings for truck drivers. The case raised several interesting issues, including the roles of Service Canada and IRCC in assessing genuineness, and what documentation visa officers can reasonably expect work permit applicants to provide. Rafeena Rashid and Jelena Urosevic were counsel for the refused truck drivers. Borderlines · #82 – Jandu v. Canada, the top work permit Federal Court case of 2022 3:00 The facts of Janndu 11:00 Conflicts when representing employers and employees. 13:00 The lack of communication between Service Canada and IRCC when it comes to work permit applications. 20:00 Assessing genuineness. 23:00 Unreasonable documentation requests. 28:00 Lessons from the case for future work permit applications. 37:00 The distinction between a lack of genuineness and a finding of misrepresentation. 54:00 What is the line between misrepresentation and lack of genuineness?
Applied Using the Wrong Form
In Zelmanovitz v. Canada (Citizenship and Immigration), 2023 FC 597, Justice Norris stated: I am satisfied that the officer’s decision is unreasonable. The determinative issue is the officer’s refusal to facilitate the processing of the work permit application as an out-of-Canada application. As part of her request for reconsideration, the applicant had corrected her earlier error and submitted the proper form for someone applying for a work permit from outside Canada. She also provided a detailed explanation (supported by a statutory declaration) for how she had come to make her earlier error and why she was now submitting the correct application form within the context of a request for reconsideration. On review, the respondent was unable to point to any legislation, regulation or policy to support the officer’s statement that the application ““as submitted cannot be considered as an out of Canada application.”” Importantly, and contrary to what the officer appears to have thought, it was impossible for the applicant to correct her earlier error by submitting a new application. Given that she was now outside the timeframe to apply for a post-graduate work permit because of how long IRCC had taken to deal with the application as originally submitted, … Read More
Juveinile Offenders and Canadian Immigration
Canada’s Youth Criminal Justice Act, SC 2002, c 1 defines a young offender as being someone who is 12 years of age or older, but under 18. Convictions under the Youth Criminal Justice Act Section 36 of the Immigration and Refugee Protection Act regulates when a foreign national or permanent resident can be inadmissible for criminality. Section 36(3)(e)provides that: (e) inadmissibility under subsections (1) and (2) may not be based on an offence (i) designated as a contravention under the Contraventions Act, (ii) for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or (iii) for which the permanent resident or foreign national received a youth sentence under the Youth Criminal Justice Act. It is important to note that unlike in some jurisdictions, juvenile offenders in Canada are not transferred to adult court. Instead, the Youth Criminal Justice Act established a process whereby the youth court first determines whether or not the young person is guilty of the offence and then, under certain circumstances, the youth court may impose an adult sentence. If a youth in Canada receives an adult sentence, then they can be inadmissible to Canada … Read More
Spousal Sponsorship Appeals
The spousal sponsorship appeal process at the Immigration Appeal Division (“IAD“) in Canada is a legal process that allows individuals who have had their spousal sponsorship application refused by Immigration, Refugees and Citizenship Canada (“IRCC“) to appeal the decision. The appeal process provides an opportunity for individuals to present their case to an independent body and have their case reviewed by a member of the IAD. Process The spousal sponsorship appeal process begins with the individual filing an appeal with the IAD within 30 days of receiving the refusal letter from IRCC. The appeal must be in writing and provide reasons why the refusal was incorrect. The individual must also pay a fee to file the appeal. Once the appeal has been filed, the IAD will provide a hearing date. The hearing will be conducted by a member of the IAD, who is an independent decision-maker. The hearing is an opportunity for the individual to present evidence, provide testimony, and argue their case. Prior to the hearing, the individual and their sponsor must provide all relevant documents and evidence to the IAD and to IRCC. This includes any new evidence or information that was not included in the initial spousal … Read More
Borderlines Podcast #81 – Artificial Intelligence and Differential Decision Outcome Concerns, with Sean Rehaag
Sean Rehaag is an Associate Professor at Osgoode Hall Law School, the Director of the Centre for Refugee Studies and the Director of the Refugee Law Laboratory. Today we discuss his use of GPT to conduct legal research, artificial intelligence and decision making, differential results in Federal Court and Immigration and Refugee Board decisions, and how to identify if differential outcomes are actually a problem or significant. 2:00 Using GPT to conduct research. 14:00 Issues with unreported decisions or decisions lacking precedential value. Do all decisions need to have precedential value given that it results in inconsistent jurisprudence? 19:00 AI making decisions vs. AI helping to write decisions. 22:00 Bias in decision making in LGBT claims around physical appearance. 28:00 AI leading to uniformity in decision making. 38:00 The receptiveness of the Federal Court to research into judicial decision making. 42:00 Forum shopping as a result of judicial research. 46:00 Should AI play a role in helping judges write decisions. 52:00 Baker as an example of transparency in decision making. 54:00 Is it possible to tell if AI is starting to render unintended decisions? 1:05 Trauma in refugee decision making. 1:14 How do you decide if differential results are problematic? … Read More
Borderlines Podcast #80 – AMA with Raj Sharma on Processing Delays, Mandamus and Bulk Approvals to Clear Backlogs
Raj Sharma is an immigration lawyer in Calgary. He can be found on Twitter at @immlawyercanada Topics: 1:30 – Addressing divergent case law 15:30 – Globe and Mail story about waiving TRV eligibility requirements to clear backlogs 23:00 – Chat GTP replacing lawyers and visa officers 31:00 – Processing delays 36:00 – Mandamus 42:00 – Open work permits for spouses of Canadians 56:00 – C-10 work permits and Express Entry 57:00 – A world in which GCMS notes are provided instead of refusal letters 1:00 – Is the practice of immigration law getting less fun?
Borderlines Podcast #79 – Recapping 2022 and Predictions for 2023 in Canadian Immigration Law, with Tamara Mosher Kuczer
Tamara Mosher Kuczer is the Founder & Principal Lawyer of Lighthouse Immigration Law Professional Corporation. She can be found on Twitter @ttrrmk. 5:00 How would you summarize 2022 for Canadian immigration? 13:23 Favorite development in Canadian immigration law 25:00 Least favorite development in Canadian immigration 39:15 Favorite Federal Court decision 52:00 What should people watch the most in 2023 56:00 What might happen this year that people might not be expecting? 1:04 What will happen with the Self-Employed Class and Start-Up Visa Program? 1:09 Will Express Entry take under 6 months again and will there be a draw in the Parent & Grandparent Program? 1:12 Predictions for citizenship and abolishing PR Cards.
Borderlines Podcast #78 – Canada’s No Fly List, with Sadaf Kashfi and Eric Purtzki
The Secure Air Travel Act provides the Minister of Public Safety and Emergency Preparedness with authority to establish a list of individuals that the Minister has reasonable grounds to suspect could be a threat to aviation or national security or intends to travel by air for the purpose of terrorism. Sadaf Kashfi, works for Edelmann & Co. She advises clients on complex issues concerning U.S. and Canadian immigration, criminal law, and during the COVID-19 pandemic developed a successful practice representing individuals accused of quarantine act violations. Her e-mail is sadaf@edelmann.ca The second, Eric Purtzi, is Associate Counsel at Fowler & Block, a criminal defense law firm. He has appeared at the Supreme Court of Canada 7 times. He is also a past guest on Borderlines, having appeared on episode 9 to discuss the constitutionality of retrospective laws. His e-mail is epurtzki@fowlerbloklaw.ca How does the Secure Air Travel Act work? Who reviews naming on the Secure Air Travel Act? What is the threshold to be added to the list for possibly committing a crime in the air? Does the government have to publish how many people are on the list? How does someone learn that they are on the SATA list? … Read More
Borderlines Podcast #77 – #When Processing Delays are an Abuse of Process, with Prasanna Balasundaram
Prasanna Balasundaram is the Director of Downtown Legal Services. He represented the Canadian Association of Refugee Lawyers as interveners in the Supreme Court of Canada case Law Society of Saskatchewan v. Abrametz, which dealt with when delays can amount to an abuse of process. 2:00 Why did CARL intervene in this case? 6:00 Recalibrating abuse of process. 10:00 Possible remedies for abuse of process. 17:00 What is an abuse of process claim? 20:00 What is the Blencoe test? 25:00 Is a remedy under an abuse of process claim cash? 28:00 How can lawyers, stakeholders, and CARL collaborate on systemic issues? 31:00 Why does __ think that the Supreme Court did not address CARL’s argument about removal in the decision? 39:00 How does one choose test litigation cases?