I joined my friends Steven Meurrens and Deanna Okun-Nachoff late August to discuss the spousal/common-law partner sponsorship process and some of the challenges including the interview and dealing with refusals based on genuineness/intent. A lot is at stake in such applications/appeals and it is important for those attempting to navigate it to understand the pitfalls and hurdles that are at play. I hope that the discussion is of assistance to other counsel, those that are intending to go down this road and those that are on it.
Steve Meurrens: We are joined again by Raj Sharma, who's been on the podcast several times, both to discuss marriage fraud, which is going to be a topic that we pick up again today. It was actually, I think episode three, many, many years ago that Raj was on.
Raj Sharma: We are so young, Steve.
Steve: We were so young. We had Peter still not as a judge.
Deanna Okun-Nachoff: What about me, was I not young then?
Steve: We recorded in our office.
Raj Sharma: You're always young. Deanna.
Steve: And then we add a series of episodes about the same person whose agency was refused, it went to fed court, got it set aside.
Deanna: Bhaona Mohammad.
Steve: Yeah. And then the IAD on the second go around said, "We don't care what the federal court said." That's really me paraphrasing, but back to fed court. And then I think she actually, she won the third go round, that's public record, isn't it?
Raj Sharma: That should be public record. We won it with Member Tucci on the last go.
Steve: Congratulations to you and her. But yeah, so for today, I want to revisit marriage fraud and spousal sponsorships in general. So, when I first applied to Larlee Rosenberg, before they hired me, they wanted me to go watch Peter Larlee in a spousal sponsorship hearing. And I remember sitting in it thinking to myself, "This is wild. This is basically a hearing to prove that two people are in love." It is basically what it boils down to. And I know you both have done spousal sponsorship, both initial applications as well as appeals.
What's your general take on it been? Have you found it that same odd thing that it's a trial to see if two people are in love? Is that basically how you view it?
Raj Sharma: Not quite, because a lot of my practice is arranged marriages, and so love doesn't enter into the equation until a little bit later. Or establishing love is not generally been the hurdle for my cases. I think the hurdle for my cases is that the officers, of course are not siffers. And so, they bring with them their own concepts of what is a genuine relationship and they will import or export whatever term you prefer.
Sometimes, a western ethnocultural perspective, for example, requiring my clients to demonstrate indicia of a relationship which is more in tune with a North American perspective instead of an Asian perspective, shall we say. So, love has not really been that much of a hurdle for me other than dealing with the visa officers.
Steve: Basically, expecting that western standard in arranged marriages.
Raj Sharma: Yeah. I mean look, let's put it this way. You can marry for money, but you can't marry for immigration purposes. And officers are suspicious by nature. It's part of the job, I suppose. Because the overwhelming positive cases go through without an actual interview. And so, the officers, again, are dealing with problematic files and perhaps the cynicism is a natural resultant.
Deanna: I think it's for me that we have this bipartite test in terms of what is a genuine marriage. And it does lead to a lot of what Raj is saying, that it's not enough that you are currently perhaps in love. It's about whether or not they believe, for example, with arranged marriages, that that is a reasonable arrangement to have been made. Like they're digging into why would this match have been made? Is that credible that this would've been a match that was made and not just for immigration purposes?
And while the dowry might be considered an inducement to make that a good match for the family, the idea that the person might have the opportunity to immigrate is not considered a legitimate reason for immigration purposes.
Steve: In law in the legislation, it's a two-part test. Is the marriage genuine? Looking at the present, at the time of assessment, appeal, whenever, is the marriage genuine? And then was it entered into primarily for an immigration benefit, which excludes the relationship from being considered.
So, I'm curious when you guys have, say clients who are coming to you because they have an interview being scheduled to assess this, which as Raj noted is not the norm. So, if there is an interview, there's likely a negative presumption that has to be overcome or they've been refused on genuineness, and so it's going to appeal. What's your general process in terms of preparing this file and getting ready to demonstrate that they meet this test?
Raj Sharma: I think firstly, if we step back a little bit, we look at the historical aspect of that test, Section 4 of the regulations. So, genuineness, and then of course the primary intent. Now, it used to be disjunctive. So, i.e., you only have to establish one of the two, i.e. this is a general relationship. Now, the appellant bears the burden at the appeal stage, for example, to establish that genuineness and intent, the primary intent is not an immigration purpose. And so, you have to establish both of those now.
So, the threshold has gotten higher for the IAD. And it's a really good question. I suppose the issue is there's a lot of people come to us after someone else has filed the application, after there's been a disastrous interview, and then they come to us to handle the appeal.
So, I suppose my first approach is that knowing the deference given to the IAD decision by the federal court, first step might be do we reapply, for example. Now, I tend to reapply where there's a validity issue. So, I guess that's the third question. Perhaps there's a defect in the marriage certificate. Perhaps the divorce, a prior divorce is of concern.
So, maybe there's a validity issue. Maybe I don't know why Pakistan is going down this pathway of Iddat, which is, we probably shouldn't get into that that much today, but we now have a concern where visa officers say, well, there wasn't a fire for Hindu marriage. There's some issue in terms of a prior divorce from Pakistan. So, those issues might be addressed by legal opinion or might be addressed by some sort of court judgment from the country in question.
So, I suppose that's the first thing that I think about is what are the concerns? Are the concerns going to validity or are the concerns going to genuineness? And what do I see from the visa office interview notes? Are we some sort of a bad interview? Are we seeing an inexperienced officer? Do we see some non sequiturs ? Do we see some leaps of logic and unfairness and a deleterious experience? Which can be easily overcome by preparing the client, both of them small-time applicant, and doing a hearing in front of an IAD member here in Canada and a CBSC officer.
So, I suppose the first approach would be to look at the record, see what those actual concerns are. If the concerns can be addressed by way of another application and overcoming a validity concern, do that, again depending on the timeframes. Once upon a time, it used to take us two years to get to the IAD and now we're getting to the IAD much faster.
So, instead of two, three years for an appeal process, I'll just fix something and reapply. You know what? Now I'm getting in front of the IAD within a year. So, you know what? I'll just put a bow on it and just deal with it right here. So, that's my first of take on it. Deanna, I'd be interested to know your guys' approach.
Deanna: Yeah. I mean, that's the same. So, for me, validity issues are in a class of their own, and often those are much more discrete and concrete issues to deal with. To me, the quagmire arises in the context of genuineness assessments.
The issue and I mean what I see time and time again is that what you're dealing with ... I've never been retained when it was like we're about to go for an interview, I've always been retained when as Raj says, the application's already filed, the damage is already done, the interview has already occurred, and I've got this transcript, which is riddled with things that the officer then says, "These are inconsistencies that have led me to conclude that this is a non-genuine relationship."
And they could be inconsistencies. And I'm actually citing from examples from my practice, like how many cavities does your spouse have? And the person does not know the answer and therefore they're found that they are not a genuine relationship. Or what city does he live in and how far is it from that other one? And the person who's never been to Canada or is not particularly geographic in their knowledge, that again is considered to be a not-knowing material thing.
And so, for me, it's really about getting to know the couple substantially and understanding, I need to satisfy myself in the first place that this is a genuine relationship regardless of my own cultural dispositions, regardless of how they met. Because on its face, I can appreciate that maybe, and I'm talking about a recent case here, the fact that somebody had a mental health diagnosis, had a criminal record, had a previous divorce, might mean that it doesn't make sense to the officer that they would be put together in an arranged marriage. But the fact is they were. They're now married and they're actually in love with one another.
So, that becomes the threshold that I need to meet and to explain to a board member that the fact that she can't answer certain questions about who he lived with before he was married, that those are not material to a determination about the genuineness. So, I really just wait in get to know the couple and go at it.
It is a hearing de novo. You still need to be prepared to go back to those questions that showed up on the interview. But overall, you're just having a second kick at the can to be in spite of all that, I don't know a lot of these things about my own spouse who is actually my anniversary, 21 years. I don't know a lot of these things, but that does not mean that I'm not in a genuine marriage. And where does that threshold arise? So, to some extent, yes, Steve, it's still, are these people in love? Is this a real thing or is this a sham?
Steve: Oh, congrats to you and your husband.
Deanna: Thank you.
Steve: Hope he doesn't mind you recording a podcast on your anniversary.
Deanna: No, he's working hard too.
Steve: So, going to what you were talking about there about the details, and we gave the cavities example as the type of inconsistency that a visa officer may cling to and how there's questions that get asked that you, I, Raj might not know the answer to. I sat in on an interview where the officer asked, "What is your spouse's favorite movie?"
And I messaged my wife saying, "Hey, what's my favorite movie?" And she wound up asking this question. Most people were getting it wrong. She said mine was Guardians of the Galaxy. And I don't even know if that's in my top 20 or 30, but it's an example where that's the type of questioning that if it's inconsistent ... The way I describe it is when you go to some Asian weddings and they play the shoe game to see if husband and wife are matching. And in this case, if you lose the shoe game, you're deported.
Deanna: Yeah, exactly. No, it's actually perfect. It's the newlywed show, isn't it?
Steve: Yeah. So, when it comes to prep, how much do you get into these types of questions with your clients? There's this balance I guess, of you don't want to overcoach, but these questions are coming. What's your general take on these random, how well do you know each other? The most extreme that I ever had, and I won judicial review where at the IAD, they asked the female applicant, "What's your morning routine?" And she says, "I get up, shower, feed the baby, eat breakfast, go to work." And they asked him, "What's your wife's morning routine?" "Oh, she gets up, showers eats, goes to work."
And the IAD member said, "Oh, well, he didn't mention that she feeds the baby. This is an inconsistency." And in judicial review, I was basically argued, "We can presume that he knows that his child isn't starving." And so, that's a bit different from the example that I gave. But for those examples of like you are expected to know what color sheets, what's his every uncle's middle name and what job do they have? What's their favorite book? How much do you get into those types of questions during your prep?
Raj Sharma: Well, I agree with Deanna and I think the only way to navigate successfully the labyrinth of establishing genuineness and intent is to get to know your clients. I would say that we spend hours in prep and for whatever reason, the bulk of the prep is going to be the applicant, the person overseas. And I have an advantage here. I'm a translator in the sense that I explain how North American decision makers think to non-North Americans.
Deanna: A cultural translator.
Raj Sharma: I have to explain how non-North American individuals think to North Americans. And I suppose I can do that because I'm in the middle as well, given that I'm a child of immigrants and I speak a few languages. And obviously, the subcontinent produces a lot of marriages and marriage refusals and marriage appeals. So, that's part of it. Just understanding it.
There is a frustration with the visa officer or the board member or CBSA hearings officers I would say, with this microscopic analysis. So, when you have this microscopic analysis, it places such a high burden of consistency, that only what, you're going to exclude evidence that that's not tightly scripted.
So, sometimes what I say is I always hearken back sometimes in my submissions, I've talked about this Japanese concept of wabi-sabi, which is that the imperfect is real. So, they have this tradition where they'll fix shattered pottery with let's say gold or what have you. And so, you have these cracks, but a mass-manufactured plastic mug is perfect. It's absolutely perfect. The first mug is absolutely perfect and identical to mug number 100,00 or 10 million.
But a pottery that's been made by an individual will inherently have flaws, will inherently be inexact. And that's how marriage is on. And every marriage is different. And Tolstoy said this as well, "War and peace, all happy families are alike and all unhappy families are unhappy in their own way"
So, this microscopic analysis, you got to get the big picture right. There's no way because we're going to be doing direct examination. So, if we do direct examination and I say, "What's your husband husband's favorite color? Or what's your wife's favorite breakfast food?" And the answer is prepped in advance. The member is going to put zero weight on it, zero. And what you have to do is if you get the big things right and you do your direct, then you know what magically what happens is on a cross, they will naturally say something that is so credible and that is so spontaneous and that's what wins your case.
Steve: Yeah. We should describe the order and how a spousal sponsorship appeal works and what direct and what. I don't know if you want to work that in or?
Raj Sharma: Sure, sure. So, let's say we're at the IAD. We've determined that it's not a validity issue. We've determined that the best step forward is to go to the IAD to establish that the marriage is genuine, that it was not entered into primarily for the purpose of immigration. And so, once we do that, then we're going to file the appeal within 30 days to the appropriate office. We're going to get an appeal record prepared by and sent to us by the CBSA.
Now, on the other side is going to be the member minister of Public Safety and Emergency Preparedness, i.e. a CBSA hearings officer, which may or may not be a lawyer, probably not going to be a lawyer. Then we have to provide our disclosure. Now our disclosure should be centered around, for example, the factors that go towards establishing a genuine relationship.
So, contact and communication. Okay. Let's get all those trips in, let's establish all those photographs and make sure we know who's in that photograph. Establish the intent of the parties to the marriage, if there's any haste in the marriage, if there's any developments, what happened at the time of the proposal, what happened at the time of the engagement or the wedding, pre-wedding marriage, subsequent to the marriage, get all that length of the relationship, get the amount of time together, and let's get that financial support.
But ultimately, at the end of the day, the paper is not how you're going to win. If paper is how you're going to win an appeal, you just disclose 500 pages on each one and expect to win. No. The way to win is knowledge, is to lead evidence that indicates the intent of the parties, that indicates that explains the concerns of the officer concerning incompatibility, for example. Explain any other concern in terms of why did this happen so quickly? How come your parents weren't there? How come you got married again when you just got divorced from someone else?
Steve: And this is all at a hearing.
Raj Sharma: It was all at a hearing.
Steve: And so, you're giving direct.
Raj Sharma: Right. And so, when that member comes, when that prep is done, that's disclosure, that's prep, then the hearing. Hearing is this is our case. So, the hearing means that we lead. So, we ask the questions of the appellant, which is-
Steve: Let's just slow it down even more. So, who's in the room at this hearing?
Raj Sharma: Right now, it's all video conference and I hope it stays that way, but there's a board member present who's going to make that decision and should be neutral and should because it's an adversarial proceeding and that board member really shouldn't be taking over that proceeding, shouldn't be asking a lot of questions, just perhaps some clarifications. But unfortunately, we have some interventionist board members and that's fine.
Steve: So, it's not a CBSA officer, it's not an IRCC officer, it's an independent board member.
Raj Sharma: And then we're going to have a interpreter probably for a lot of my cases. And then we're going to have a CBSA hearings officer. There's going to be us. There's going to be the appellant that's the sponsor person bringing the individual over. And then I'm so glad with this new video set up because back in the dark ages when we all started and we've got a bad phone connection to the Philippines or in Nepal, where some dog is barking outside the window, we now have video. And that video technology is fantastic because we can actually see what's going on with that.
Steve: And that person overseas is not going to be there when the sponsor is testifying though?
Raj Sharma: Right. It will pollute or contaminate the testimonies. And then so what we'll do is we'll do the direct first. And so, direct means that we can't do leading questions, which is like, "You married your husband because he's a good person, didn't you?" I mean you, you're going to lead the evidence, which goes to the genuineness factors. And so, what I do is I have a printout of the factors, a little table, and then I go through them and I make my notes for the evidence because this is what I need because that's what I'm going to refer to in my submissions. And that's called direct.
Once we are done, the CBSA hearings officer will do a cross. Cross examination is relatively difficult and very few of them can do a cross effectively. Frankly, very few lawyers can do effective cross as well. They'll do their cross. After that, the board member may have some followup questions. We might have some opportunity as well. There might be a small break. Then we call the person overseas, the applicant. Same thing is repeated, direct, followed by cross, followed by a reply or further questions by counsel, and then perhaps some questions in the mix there somewhere by the board member. And then you have your submissions.
And that is typically a full day hearing. These things can get exhausting and annoying. Make sure everyone's blood sugar is up. Make sure there's water available.
Steve: Well, and there's a component to that that you hinted at, which is somebody, the person overseas, you gave the example of the Philippines, your 9:00 AM hearing in Alberta is going to be after midnight in the Philippines, when they are expected to fully testify. Is there any prep that you'd go into that or anything you advise regarding that? I've always thought it was a really weird aspect of the system that these people are, I don't mean I don't know what the alternative would be, but that they're going to be up at 2:00, 3:00 in the morning getting cross examined.
Raj Sharma: Well, we prep the applicant at the same time that they would be getting question and crossed. So, we would then prep the client at around ... We typically can get to the applicant by about 10:30, 11:00 AM So, we start prepping them 10:30, 11:00 AM, which is when we expect them to be questioned during the actual hearing.
Deanna: I want to answer something you said about those questions, those specific minutiae. Think what Raj said was very extremely helpful. But the thing about it is that I think it's more in terms of the prep work that you do. What distinguishes coaching from prep to me is that it's not about making sure they know the answers to all those silly questions because obviously, you can't cover them all.
I want them to be aware of the types of questions that they might be asked and help them understand what's behind those questions and what to do in situations where they just don't know the answers and understand, give them reassurance that it's totally acceptable to not know what feminine hygiene products your wife uses and to just explain that, "That's not something that we are comfortable talking about. That's not part of the culture of our relationship. I would feel uncomfortable going into her cosmetics drawer. That's just not the way that we work with one another."
And so, that that's an acceptable answer rather than being like, I don't know, and stabbing making a guess because they're afraid that by saying, "I don't know" that that's going to be held against them.
Steve: I think that's a huge and good point.
Deanna: Yeah. You have to figure out what misconceptions your clients are coming at it with and provide an overall understanding. And so, when I hear my clients say, "I don't know," then I'm like, "Okay, but why? Maybe you can just give me more. Why don't you know? Is it because you have a terrible memory? Is it because you don't care about that shit and so you don't record that information? Or is it because it's just something that's off limits?" Because all those explanations are perfectly good. It's just when they say, "He couldn't answer the question," that is a problem.
Raj Sharma: And look, and bear in mind, I agree with you, and I would argue that that would be, let's say not material, but look, if you're testifying that you don't want kids until she comes to Canada or he comes to Canada, then you better know and you're having intimate relations with your spouse, you better know the birth control and that birth control answer better be consistent between the two. So, that is a material question versus...
Deanna: For sure.
Raj Sharma: ... feminine hygiene products or what have you is I would argue is immaterial. But yes, you're exactly right. But certain questions, and again, this is going to be sometimes embarrassing talking to some person from whatever background and there's going to be talking about their sexual history with their spouse. And making sure that they're ready for those questions.
But yeah, I mean we have to be mindful. We've got some really good federal court case law on this though. We've got some really good federal court case law about officers expecting, for example, some type of Harlequin romance novel. That's a really good line. I always quote Justice Barnes in terms of, there's a case called Gill, where he says that, "The IAD must proceed with great care because the consequences of a mistake will be catastrophic."
We have board members, these officers maybe shrugging their shoulders at the presence of a child born into the marriage. You still can be refused even if you have a child together. People should be mindful of that. I mean, the federal court seems quite clear. There's a dated decision from Justice de Montigny when he was at the federal court, which is the presence of a child and the lifetime commitment leads to a presumption that the relationship is genuine, which is obvious, but there is some good federal court case law that ...
And remember at the end, counsel will have to put together submissions if CBSA officers will not consent even after all the evidence is in. So, in those submissions, you are going to go through the evidence that goes towards the factors. You're going to address any inexactitude of testimony and you're going to reference some decent case law jurisprudence.
Steve: Yeah. The issue with the child for those wondering, well, how can a marriage not be genuine if they have children together? I mean, it still might not be genuine, but that mainly comes up in the assessment of what the primary purpose was. Because you can have these situations where immigration may have been a factor or someone's immigration status may have been a factor when they started a relationship and then it evolves over time and now it's real and they have kids. But there's that initial issue of what the primary purpose was at the time.
Raj Sharma: Which I always found problematic, that the intent is locked in. So, if the intent is locked in and it was sus at that time, but what, 10 years later, three kids later, you still can't overcome the locked in intent that at that time immigration was 51% of the equation that unfortunate-
Steve: It's a challenge with the disjunctive test that you noted. One of my cases at judicial review before Martineau got into whether this is very niche topic, but in the concept of res judicata, which is that you can't basically appeal the same issues twice, is the birth of a child decisive new evidence such that you can overcome that presumption? And we won on that issue. But that just means there's going to be an appeal. It doesn't mean that necessarily the presence of a child will always be decisive as to primary purpose.
Raj Sharma: Oh, Steven, that's a really good point. Another issue that I've always had trouble probably a lot of people have, or maybe not that many, but another reason why you don't automatically appeal is that if you appeal and lose, and the federal court has a relatively high degree of deference towards the IAD, perhaps more so than the RPD, shall we say, res judicata, you lose that appeal. It's not like you can turn around and file another application.
This is relatively rare. There are times where I filed the appeal, I looked at the appeal, and I'm like, "You know what? I don't think it can be done at this time." And so, what you do is you pull back, maybe get a kid, maybe get some more travel, get some more contact and communication, get everyone on board and then apply again. Because that res judicata, especially when that George Pemberton guy was over at the IAD, just cranked out those refusals on res judicata grounds, it was very, very tough to overcome that issue.
Deanna: Yeah. And res judicata meaning it's already being decided. And so, you've already had your day and we've already determined this issue. So, you can't just have another go at it, is essentially the premise.
Steve: You can imagine how harsh that application is in the context of a lifelong marriage. And I studied res judicata in law school. It was about contracts.
Deanna: Yeah. When you start talking about-
Steve: Never occurred to me at the time that it would apply in lifetime marriages.
Deanna: Yeah, exactly. And when you start having conversations, let alone arguments in court about whether or not a child is sufficient evidence, new evidence, it's just like it should break your brain. But that's the kind of stuff we're up against in this form.
Steve: The other question that always or seems to arise at the appeal that's tough to navigate is what is the plan for the marriage if the appeal is unsuccessful?
Raj Sharma: Yeah, that's one, going back to what Deanna said, we don't coach, we prepare. And so, but that is a set piece approach by CBSA. So, that again, is one of those things where you're going to get into the weeds on it. And so, again, the North American perspective, the North American cultural lens is that individuals who get married plan out their future. And the reality is that for many cultures around the world, there's not that kind of planning. There's no Stalin-esque communist five-year plan, 10-year plan. They're like, "Yeah, we're going to get married and then we are going to live together. That's it."
And then you get some details from them. "What about children?" And they're like, "Of course." From a North American point of view or European point of view, where the couples discuss wages, job titles, duties, savings, RSPs, mortgage, property taxes, plans for the future, number of children.
Deanna: Who's going to go on leave, at what time?
Raj Sharma: And we just don't have that. So, for example, you might have a 40 plus year old woman from a Muslim country, and you'll have some questions from the visa officers. "Well, what about children?" And they're like, "Yeah, God willing." And then let's say the husband's younger and they're like, "Well, do you want children?" "Yes." "Then why would you marry a 40-year-old woman?" He's just like, "What do you mean? It doesn't compute." He's like, "Well, that's up to God."
Whereas a North American will say, "Well, if I really want four or five kids, then probably a 40-year-old woman is probably not where I should focus on or go for." So, again, that you have to get into the weeds, which is, "Okay, what happens if the appeal is allowed and your husband or wife or your partner is able to come to Canada?" All right, well then, unfortunately, you're going to tell them, "Look, the member will probably want to hear some specifics. It can be anything. "We're going to live here. I'm going to do a job. I'm not going to do a job. I'm going to study more. I'm not going to study more. We're going to have kids. We're not going to have kids right now. We're going to travel. We're not going to travel right now.
And what happens if the appeal is refused? Now, the worst possible thing is, "Well, if the appeal is refused, I guess we'll have to get divorced." "Well, I guess now we've lost on the second prong of the test, which is the intent of the relationship was to get to Canada." So, the answer will be, "Well, that's fine. We'll talk to our lawyer. We'll explore options. It won't impact our relationship." So, those are the types of questions that are a little bit annoying for me because I think that it catches people unawares who have not been prepped by an experienced lawyer in this regard. But yeah, you're absolutely right.
Steve: And it put people in a weird ... Because just because the visa is refused, the question you often get into, "Okay, well, he or she can't come to Canada," the sponsor may also not be able to go to that country, so the marriage may have to end, but does that mean it's primary focus?
Deanna: Yeah, exactly.
Steve: It's such a messy, messy area.
Deanna: Yeah, I don't think that there's an actual wrong answer to that question. It is a stage piece, as you said, Raj. It's something that I do generally let people know and we do talk about it because I know that it's almost always there at the very end, almost like a shock question, a shock and awe. And I think that when people get asked this out of the blue, it can have a very jarring effect.
But yeah, I mean, one thing I would say generally just about doing this type of work, you have to put aside any kind of shyness you might've had. You have to figure out how to ask in a gentle and in a way that's not going to close your client down, but to allow them to contemplate and be open and to start thinking critically about questions. You have to be able to ask any question no matter how uncomfortable it might be.
Because if they get asked that and flummoxed on cross examination, that's where the problems occur. They have to be resilient to that kind of interrogative type of questioning and be able to answer in a way that is, even though they've got pretty much everything on the line at that moment, that they're going to be able to respond in an intelligible way.
Steve: How much do you think gets lost in translation, Raj, during these hearings?
Raj Sharma: Lots. Thank God I speak a couple of languages, but we got into a bit of a problem in the middle of a hearing, and it was all based on the individual, they got married. And so, he's saying, "Well, my wife encouraged me to see a doctor because of my sterility or infertility." And so, the question naturally arose like, "Well, you were only married for a month, so why would she be asking to see a doctor regarding your sterility?" And I was trying to think, and I'm like, "Wait a second, we're missing something." And of course I can't lead any evidence.
I'm like, "Wait, what does he actually say for the interpreter?" Interpreter's like, "Well, there's some issue with his sperm." And I'm like, "What's the Urdu word for sperm?" Because I don't know it, never heard of it. And she's like, "Well," I'm like, "yeah, because he didn't say it." He was impotent. He had impotence issues arising out of a ...that horrifically, he was tortured in the past. He had impotence issues. His wife was encouraging him to seek medical treatment for his impotence, not his sterility.
But you can see how that would confuse everyone. Why are you going to see fertility treatment after only one month of marriage? So, that interpretation is huge.
Steve: I can understand Mandarin. And at the hearings, I want to be careful in how I word this because I don't know if the translation quality would've been better if the lawyer me was Chinese. But every hearing, almost every hearing that I've been involved with, where there was a Mandarin interpretation, I have at some point stood up and said, "The interpretation is not accurate or it's not complete."
And in one case it was a, this might have been a misrep or a spousal where the sponsor said, "Oh, her dad died of a heart disease." And the applicant said in Mandarin, "Her dad died of a heart disease," and the translator said, "Her dad died of cancer," which is a difference, and-
Raj Sharma: Maybe it was a cancer of the heart.
Steve: And if I hadn't stood up and said there's a ... And she opened a dictionary and the whole thing. But I've just always wondered how many of these appeals get refused because of translation issues.
Raj Sharma: So, again, ideally the appellant has facility in English and can advise you of any interpretation concerns. IAD proceedings are open, so you can certainly have one of your staff there, or you can have a friend who presumably has language facility as well. But Steven, very good point. And everyone knows the importance of interpretation in refugee, in rad, in immigration matters. But yeah, absolutely there's there, but for the grace of God, go, there's any number of things that have been saved just because, and again, I want to be fair, just this is a grind.
Deanna: It's hard.
Steve: Oh, yeah.
Raj Sharma: You try doing 6, 7, 8 hours of interpretation and the connection and listening and legal terminology. A lot of people criticize my own fluency in Punjabi or Hindi or do whenever I go on ethnic radio program, so I'm mindful of this, but yes, that interpretation, make sure that's covered off. If you don't understand your clients, make sure that whenever you meet with them that the prep ... And by the way, that'll help you for the prep. You'll be like, "Wait a second, we already did the prep. We've covered this three times. Why she's saying something completely different." It's interpretation,
Deanna: But also like accent dialect. For many, there are 30 dialects and they're just finding the interpreter who has the same general language.
Raj Sharma: Punjabi from India versus Punjabi from Pakistan. Hindi from here versus ... Punjab can fit between Calgary and Edmonton, there's at least three different dialects. We have different words for onions and salt and everyone looks down at each other, and that's the situation.
Deanna: And there can be dynamics too, because dynamics that you're not alive to as the lawyer between the interpreter and the client. There's another thing I just want to add and I'll do it very quickly, which is that there's also, even beyond language translation, there are nonverbal things. Like when I'm working with clients and I get to know them fairly well, I can tell when somebody's not entirely present, for example.
I have a client who, whenever certain triggers would happen, he would just start laughing, because he had had a very traumatic past. But I was terrified because in a hearing, if you start being asked about things and the client starts laughing, and it was like an evil maniacal laugh, and having worked with him and I knew about mental health diagnoses and he had been treated and all of this sort of thing, it's like, but still the board does not have time. They do not have the weeks and weeks of preparation.
And it's very difficult to be like, "I need to put this in context. You can't produce your own evidence as the lawyer." And so you still have to deal with that issue in a live hearing situation.
And so, a lot gets lost in translation because the way that you're going to be able to communicate with your client in a nonhostile adversarial setting is entirely different than what you're going to see on the day of a hearing when they understand that everything in their life is on the line on that day. And so, that just is what it is.
Steve: You prefer the hearings on Zoom over in person?
Deanna: I prefer them on Zoom.
Steve: Yeah.
Raj Sharma: They're in your own office. They've been to your office multiple times. They're comfortable. We can get them some water or what have you. They're in a familiar environment. What you have to do in any litigation setting is to control as many variables as you can. And I found that, and again, watching, for example, a telephone call versus the applicant actually crying when she's talking about when her husband got COVID and he was in the hospital and she wasn't there for him and she was in Albania, and you see this woman just literally tears going down her cheeks, but the voice is fine. We wouldn't have had that with the telephone.
Steve: Yeah, that's a very good point is that the shift from some would argue that in detention reviews, there's a loss of the personal dynamic of being in the room or in federal court, but with Zoom, you arguably have more personal interactions because you can see the applicant. Whereas before, as you said, they were a cracky voice on a phone.
Raj Sharma: Well, remember one thing, and when we talk about that test, the intention of the applicant is the primary approach. So, that's why 60% plus is the applicant. That's why 60% of the prep is going to be for the applicant, is understanding the applicant's mindset. And the applicant is a bit of a star here. So, if you can get that applicant on that video, I've never seen it be worse. It's always added something to the equation.
Deanna: Yeah. And I think the fact that if they're overseas, I think for both of them, because I've also had it when even the sponsor was not in the same city as me, and just the idea of being in the comfort of their own setting and still being able to make eye contact. I can't imagine how discombobulating it would have been to undergo examination without being able to see who was questioning you, without being able to visualize the room. So, to me, it is a dramatic improvement.
Steve: And I think my last question, if you could make one change to the law around this area or the process, what would it be? Or a suggestion for a lawyer on how they can be helpful. I think we've actually gone through a lot. I think this has been super informative and helpful for counsel starting.
Raj Sharma: I am a big fan of Vic Satzewich. There's his book, Points of Entry. There's a chapter about the visa office interview and the dynamics of that visa office interview. Because the applicant is approaching the visa office as a supplicant. He or she's nervous. They need something from them, and they're frightened or fearful they say the wrong thing and they'll lose the chance to be with their loved one. And so, that dynamic is crucial. If I were to suggest any one thing, I'm even okay with the conjunctive test as it is.
Steve: Disjunctive.
Raj Sharma: Yes, the disjunctive test as it is. The one thing that I would suggest is we really need these officers to be trained to be on guard for cynicism, that they need to address unconscious bias, that they need to understand that demeanor, for example, in a visa office interview is very, very problematic because stress and nervousness can be confused for lying and mendacity. I think that we need to address that North American viewpoint or those cultural assumptions, and that has to be done on a regular basis that we just need better training on the visa officers.
Over here, we have CBSA hearings officers of varying quality and experience. And look, the newbies will get up to speed over time, but I think that they're throwing it to the deep end as well. Let's just start them off on RPD interventions, but let's start them off on detention reviews and okay, now let's get you the eight-hour grind of a genuineness on a family-class sponsorship. We need greater training. We need greater support for these first line decision makers and gatekeepers, right? That's what they are.
Steve: Yeah. I'll go in now because when I asked the question, I didn't know what my answer would be, but as soon as you started talking, I thought back to Erin O'Toole's campaign promise, former conservative party leader, that all of the overseas interviews would be recorded and made available afterwards. And I find that the overseas interviews, what goes on, you always just hear both from the applicant's perspective and what they say goes on, but there are some stories that come out that are problematic, just to say the least. So, getting greater transparency into those would be great.
Deanna: Yeah. The interviews, it's not just about some of them. I just don't believe that these interviews are conducted pretty much in general in a manner that is facilitative. It's not like, "Okay, come on in. Let's talk about your relationship. I'm going to have a conversation with the two of you and ask some questions." I don't understand why it needs to be, "I'm going to separate the two of you, ask you interrogative questions, try and compare them. Look for contradictions." There are still credibility assessments that can be done where people aren't made to feel like, "I am investigating you for lack of credibility, and this is an interrogation essentially." That is the approach that's being taken, and nothing good can come of it.
I think that there are entirely different approaches to doing a real assessment. If people are making up a story, there still would be the same evidence of inconsistencies and correcting one another or whatever. Yeah, this approach, I'm on board.
Steve: Awesome. Well, Raj, thanks for coming on. I'm glad it wasn't to talk about your client, Ms. Mohammad. She was successful at the IAD and good for her for now applying for citizenship.
Deanna: Amazing.
Raj Sharma: She's a model individual, a model immigrant.
Deanna: Yeah.
Steve: Well, very awesome.
Deanna: Yes. Yeah.
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