It's the end of another year practicing law. This is a time to look back and, also, forward to the year ahead. January of course is the first month of our Western or Gregorian calendar. It was named after Janus the Roman God of all beginnings. Janus was the spirit of doorways and archways; he was represented by a double faced head looking both backward and forward. There is an often repeated quote, "Those do not learn history are doomed to repeat it." It seems that the original version reads, "Those who cannot remember the past are condemned to repeat it." Remembering the past -- victories and more importantly defeats; introspection is an essential process. Every lawyer should take stock of what has gone before especially for litigators so that they can avoid the mistakes that led to past defeat.
This is why it is called the practice of law; there is no finish line certainly not after completing law school or articles and even after more than a decade of practicing this profession. It is obvious that this profession, this title, this calling, this public office of being a lawyer is always inchoate as it should be. The law is not fossilized or ossified and is ever evolving. We are continually and forever in the act of becoming (lawyers).
The year certainly started off with a rush of hearings; challenging because all involved disparate issues in different fora including the Immigration Appeal Division, the Alberta Court of Queen's Bench, the Federal Court and the Refugee Protection Division. The first IAD hearing dealt with a Permanent Resident of Canada that was facing the loss of status as a result of the non-disclosure of a child. The allegation of misrepresentation was made against my client who had accompanied his wife, the principal applicant, who had come to Canada under an economic class. Relief was granted.
The Federal Court proceeding was before the inestimable Justice Russell and concerned the efforts of the CBSA to vacate the refugee status of my client based on criminal charges in the United States. This was the second time that I had sought Judicial Review on this matter. As it turns out the Minister has now, or shall I say IRCC and CBSA has now proceeded to finalize my clients years-long application for permanent residence. This was a long drawn out fight. It was obvious that the CBSA wanted to strip my client of his protected persons status in this country. My client from a war-torn country had arrived in the United States, lived there for some time, and there were some intimation of charges arising from sexual assault/misconduct and he crossed into Canada to make a refugee claim. That refugee claim was accepted and years later the CBSA sought to stymie his application for permanent residence and vacate his status. The reason why they wanted to vacate his status is that an individual not only loses protection person status but also the ability to obtain permanent residence and that application, had it been successful, would have laid the groundwork for removing my client back to the country where he feared for his life.
The IAD hearing was an appeal against a refusal to grant a permanent resident visa to a spouse; the appeal was allowed and it is always very satisfying to help bring two individuals together living out their lives. The stress at the IAD is significant because failure is not really an option for a genuine couple. In this case my client was a hard working woman. She had been exploited and used by her previous husband and this raised some red flags [the first husband's actions in leaving her, obtaining a divorce from her and ultimately sponsoring another spouse to Canada]. My client had indeed moved on, remarried and had a child, however a child is not necessarily proof positive of a general relationship.
It is important for every lawyer to concentrate in one field. Intensity trumps extensity every time. There are no generalists or at least no proficient generalists that I know of. None the less I attended at the Court of Queen's Bench in Edmonton; and indeed I appear before that Superior Court on a far more regular basis.
The RPD granted protection to my client, a young man from Albania; I know the future will be brighter for him here than back home.
February was also busy and here I had occasion to give a speech at the Petroleum Club. Some of the sentiments I expressed are captured in this blog post on why the law remains a pale, stale, and largely male profession. The speech covered my thoughts on diversity in the legal profession. February also saw efforts in challenging the writing and referral of a section 44 report against a permanent resident of Canada. My client, here since he was quite young, had been convicted of seriously criminality criminal charges including drug trafficking. Whiel I sought the discretion of the officer not to write the report in 2015; the report was indeed written and referred and both were challenged. The matter was sent back for re-determination to a different officer. Ultimately and this is somewhat unusual a decision was made not to write the report of refer it and our client notwithstanding his serious criminal convictions has been allowed to remain in Canada [there is of course no appeal now for a charge that results in more than six months of incarceration].
February also saw a number of ADR or Alternative Dispute Resolution hearings. One was exceptional in the sense that it involved an individual who had been in Canada for many many years and had brought his wife and children from Pakistan. His first wife then suffered a catastrophic medical diagnosis and was then essentially bedridden for the next 20 years of her life. My client was a dutiful father and husband, worked very hard, and provided care for both his wife, who was suffering from a terminal illness, and his children here. Unfortunately that resulted in a significant amount owing in terms of a debt to the government which acts to stymie subsequent family class sponsorship applications. When he sought to remarry after the death of his first wife he ran into a roadblock and the application was refused given that amounts owing in excess of six figures. The ADR set out the complete circumstances of the case and I was gratified to see that the ADR itself was allowed, accepted and this debt, which arose out of a circumstance outside of his control did not prevent him remarrying or bringing his new wife, step-child and youngest child to Canada.
March saw more hearings at the Immigration Appeal Division; all were allowed. One involved a Visa officer finding that my client could not marry his dead brother's widow under the Hindu Adoption and Marriage Act. Such cases are always somewhat interesting and convoluted, especially where there is a conflict of laws of where a Visa officer, not a lawyer, here or in the country where he or she is, making pronouncements about the validity of a marriage. In this case we did have to retain outside legal counsel to provide us with an opinion of whether a Sikh could marry his deceased brothers widow under the Hindu Adoption and Marriage Act.
April involved more hearings and more traveling. The month started off with a hearing at the Refugee Protection Division for a national of Morocco; the claim was denied and we have sought or filed and perfected an appeal at the refugee appeal division and decision is still outstanding. In this case I don't see what else could have been done, it seemed that the RPD member was fairly set in what he thought was the appropriate decision from the get-go. For whatever reason that Member seemed to feel that the victims of honour crimes were confined to females and he made a number of plausibility findings that regarding the customs or traditions of a number of countries that he has likely never visited in his life. I find that human beings are not as logical as we think we are; we are really rationalizing a decision that has already been made rather than reasoning to a justifiable conclusion. Fingers crossed for the appeal.
In April, Bjorn and I attended at the Canadian Bar Association or CBA National Immigration Law conference in the beautiful city of Vancouver. Bjorn gave a presentation on best practices before the RPD, a paper that both of us wrote; it was the third year in a row for SSHLaw to present to the national immigration Bar. It was a pleasure to spend some time with Lorne Waldman, a lawyer that has been at the forefront of the immigration bar for decades; my interview of him can be found on our immigration podcast. We have a great Bar, and I'm glad that I was able to talk with some of those that I respect (like Montreal immigration Mitchell Goldberg and Vancouverite Peter Edelmann) about what led them to the practice of immigration law and some of their experiences. Our Podcast Profile series can be found on our Soundcloud page; interviews with a number of noted immigration practitioners from across Canada.
April also saw the start of more consents coming in from the Department of Justice; the Court had granted leave and I was expecting to appear before the Federal Court on an interesting case that involved a foreign national from a country in Europe who had been convicted of serious criminal charges and sentenced to a significant incarceral term. Given his inadmissibility, an application was made for a temporary resident permit to allow him to remain in Canada and that application was refused. Judicial Review and leave was in fact granted. The consent has now ultimately led to the TRP being granted and that should be sufficient for us to obtain a record suspension and allow that individual, who has been in Canada since he was a toddler or preschooler, to remain here.
It was gratifying to assist a hard-working young woman at the IAD; she had come to Canada and sponsored her parents and unfortunately with the breakdown of her first marriage suffered a shortfall in meeting the minimal necessary income. It was an interesting decision by Larry Campbell of the IAD and while I take issue perhaps with the reasoning itself, the end result was a grant of relief to my client who has been working hard many many years, working two jobs at times to try and maintain her MNI and bring her parents and brothers to this country. I wrote about her circumstances, and that appeal in a previous blog post.
I was also able to assist a client with a years long outstanding application for citizenship necessitating filing an application for mandamus. My client had previously been under investigation of entering into a marriage of convenience that allowed her to come to Canada. I had first sought the remedy of Mandamus against the failure to finalize that investigation or decide whether or not to write the s.44 report; when I appeared before Justice Zinn last year, he suggested that a challenge be made to the suspension of the citizenship application instead. That, of course, was done. If a Federal Court Justice advises you to do something it probably is a good idea to take that advice. The subsequent consent and payment of costs by the Department of Justice was also nice. That award of cost could, of course, been avoided by the Department of Justice consenting earlier. The delay, of course, prevented the client from voting in the most recent elections and as an aside I don't think it would be very controversial to assume which party she would have voted for.
Many days were occupied in May with preparing for the Federal Court of Appeal on my case that dealt with whether Mandamus was possible, whether a private individual could compel the government or whether a sponsor could compel the government in investigating a spouse brought here for marriage fraud. Canadians were also informed of a startling Auditor General's Report on the prevalence of immigration, specifically citizenship fraud and inadequate controls to safeguard the integrity of our immigration system. I discussed this on a number of occasions with various CBC outlets and programs across the country.
In June, we attended at a session discussion best practices before the Immigration Division; it was nice seeing the Board Members (that we usually see via video conference) in person. June saw us preparing for an IAD hearing in Edmonton. Our client, a Canadian citizen, had sought to bring her husband to Canada. The husband was convicted of an offence in the United States but before the hearing took place we managed to have that record expunged and the hearings officer graciously agreed to a joint recommendation allowing the appeal prior to the hearing.
I was happy to assist on a successful refugee claim made by a woman fearing gender related persecution against India. It involved a young woman that feared her own family as a result of the breakdown or of an engagement/arranged marriage. There was significant amount of evidence and it turned out the corroborative witness was greatly appreciated by the presiding RPD member.
At the end of June Bjorn and I dealt with an IAD proceeding. In this case the client had come to Canada with the use or reliance on fraudulent documents. There was no doubt that he had done so. In this case we sought to bifurcate the proceedings to the extent that Bjorn represented the principal applicant to the APR and I represented his wife and child. His wife and child had no knowledge, no participation, no involvement in terms of the misrepresentation and the first that she learned was when the couple received notification from the CBSA. This was a case that involved the best interests of two children and a pregnant woman that had no knowledge of the misrepresentation. There was a clear explanation as to why the misrepresentation occurred, clear remorse and acceptance, responsibility and of course significant prejudice to the best interests of very young children. The appeal was allowed and this family will be remaining in Canada.
My friend Harjap Bhangal, a well known UK immigration lawyer came and visited Calgary and Edmonton. In between the shooting (where he played himself, an immigration lawyer for a Punjabi film) we spent some time together and went to the Calgary Stampede. We also had the chance to talk about "Brexit" and immigration law generally. An audio of that discussion is contained in this blog article. The summer saw another refugee hearing this time a young woman fearing return to Pakistan where she alleged forced marriage to a cousin. The protection was granted. The summer also saw an appeal to the Immigration Appeal Division concerning a young man that had sought to bring his wife to Canada. The sponsor had some intellectual deficits and a psychological report and assessment was necessitated. However the testimony of the sponsor, the sponsor's uncle, who was an uncle or relative to both and the applicant demonstrated that it was a genuine marriage and not entered into primarily for the purpose of acquiring status in this country.
In July, I was required to fly up to Edmonton where we had to deal with an appeal against a finding that our client had breached the residency obligation. In this case he was married to a Canadian citizen and there was an issue in terms of the calculation of days [remember time spent with a spouse who is a Canadian citizen outside Canada counts in terms of meeting the residency obligation under section 28 of the Immigration Refugee Protection Act].
July also saw a matter involving the Minister's efforts to remove someone for "marriage fraud"; I have acted for those that allege that they are the victims of marriage fraud and those that are accused of committing marriage fraud. In this case we were able to provide significant disclosure as to the nature of the relationship and ultimately the Minister withdrew the allegation.
The summer also saw another appeal, this time against a finding of medical inadmissibility. My client was a educated professional and had sought to bring her parents who lived in Iran to Canada. However, her father suffered from a health condition; despite our submissions the visa office refused the application. An appeal was filed with the IAD and the ADR was also not successful (I find that hearings officers are reluctant to allow medical inadmissibility matters at the ADR stage); the full hearing heard her testimony and after Minister's counsel conducted his cross examination he was satisfied that the appeal should be allowed.
At the end of July I attended before a three member panel comprised of two new additions to the board for a spousal sponsorship appeal. That appeal was ultimately refused. Looking back I'm unsure as to what could have been done differently. Clients sometimes want to have their cake and eat it too. In this case, while the relationship was genuine, the intentions at the time of the sponsorship were more analogous to an "engagement". Remember, immigration officers are very aware of cultural traditions and rituals and departing from the norm inevitably raises red flags and concerns that cannot be cured even at the appeal. This may have been the rare file that might have benefited from a withdrawal of the application or appeal and a refiling of the application. As they say hindsight in 20/20 and this option was put to the clients. At the end of the day I believe that the IAD was able to discern the motivations or intentions at the time of the sponsorship; we will be, of course, refiling the application and will have to deal with the application of the legal doctrine of res judicata.
August saw another appeal at the Immigration Appeal Division. This was another case where my language abilities, or my second or third languages come in handy and was able to clarify something that appeared to be confusing the interpreter, and in turn the Board Member. This marriage involved the second marriage of the sponsor and some perceived incompatibility. However all is well that ends well.
August also saw the closed door round table discussion with the new Minister of Immigration Refugee and Citizenship Canada. It's been a year and a bit since the new government took over and started unraveling the Harper Decade on Immigration.
The summer ended with another appeal to the IAD. This IAD was somewhat unusual in the sense that after my client's wife was refused a Visa overseas he had sought to appeal and the appeal itself was denied. Judicial Review was sought in respect of that refused appeal and the matter was sent back for re-determination. My client retained me and after his testimony and the testimony of his wife there appeared to be a reluctant consent on the part of the hearings officer. Reluctant or not, it was welcome.
September saw us make application before Judge H.M. Van Harten for the bar call of our newest associate and most recent articling student. That same day I was at the Federal Court dealing with a finding of misrepresentation against my client's wife. That Judicial Review did not succeed and that finding of misrepresentation and the five year ban and resulted inadmissibility will present issues for my client/the applicant's husband in Canada, who is here as an international student. A solution will have to be found for what is, in my opinion, a disproportionate decision.
There was a hearing scheduled in September. It concerned a refugee claim against Pakistan. However that matter was rescheduled after some documents were intercepted on their way to my clients. Needless to say that matter is still not scheduled and much thought and consideration has gone into the next steps. Clients should realize that CBSA is aware of and often intercepts identity and other documents sent from overseas; sometimes those documents corroborate a refugee claim, sometimes those documents undermine them.
That was before the IAD in September dealing with an appeal based on financial shortfall. Somewhat convoluted but the decision is still outstanding. The last two years have been difficult economically in Alberta and with the loss of employment or disruption to employment we will see many such similar cases of sponsors financials or MNI or being interrupted or shortfall to MNI.
Immigration was once again brought to the forefront of national attention with the revelation that Maryam Monsef, a Federal Cabinet Minister, was born, not in Afghanistan but in Iran. Other first generation Canadians face loss of status for similar misrepresentations, omissions. I discussed what I called the fever dream of deporting Ms. Monsef with a number of media outlets.
October was occupied, largely, with the two week plus criminal jury trial that I was co-counsel on. The criminal jury trial was a "stretch goal" and such challenges should be accepted and taken up by any serious advocate or litigator. The only way to improve is, in the words of Anders Ericsson, deliberate practice which involves getting comfortable with being uncomfortable. Skill acquisition and progression is not for the lazy and unambitious.
There was a conflicting hearing in Edmonton and luckily my senior associate, Ram Sankaran, was able to step up and attend and succeed on that IAD hearing [another MNI shortfall; allowed].
[The jury came back with a decision to convict on one of the charges of assault with a weapon. The appeal is in the works.]
A hearing scheduled for the end of the month to deal with allegations of inadmissibility for a crime that my client allegedly committed in Europe was withdrawn by the Minister. We are now exploring to see how we can move forward as a client's application for permanent residence was prejudiced by this allegation which was ultimately withdrawn.
At the end of the month, I gave a presentation to the CBA Immigration Subsection on the consequences of criminality. After that presentation, I sat down with Mark Holthe and recorded some of those thoughts for his excellent immigration podcast.
November was busy with doing media as a result of the Trump quake or Trump Election. Inquiries from anxious Americans apparently crashed the IRCC/CIC website; indeed it caused a 24x increase in web traffic to the New Zealand immigration site as well. there were more appearances the IAD for a spousal sponsorship appeal twice and then two hearings at the RPD from Libya and Somalia respectively at the end of the month (both were granted refugee protection). I also, after receiving a call and a visit from MP Deepak Obhrai, buried the hatchet. Some ill-will was occasioned by our debate on Alberta Primetime discussing the increased language requirements imposed by the Harper some years ago. I'm glad we were able to put our difference in opinion behind us.
November ended with an IAD hearing - a spousal sponsorship appeal for an Ismaili Muslim couple; allowed after the consent by Minister's counsel. The couple can now prepare to start their lives together in Canada, including the care for the sponsor's special needs child.
December is almost at an end and December, at least, "only" involved a Judicial Review matter at the Federal Court involving a refusal of a humanitarian and compassion application from a husband and father that originally entered Canada as a temporary foreign worker from Nepal. I appeared before Justice Gleeson; the application was successful and the matter has been sent back for re-determination by a different officer. The year came to an end with the news that the so called "4 in 4 out" rule for temporary foreign workers has been rescinded. I discussed the development on Alberta Primetime.
Happy New Year!
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