Use of Representative form

By Author: Admin | July 31, 2015

 

The Use of Representative form, once completed and received by the immigration department allows a lawyer to interact with the immigration department on your behalf.  One key element is how to submit the use of representative form.

In the past, lawyers were instructed to exclusive use the email address cic-telecentre-contact-rep@cic.gc.ca.  Subsequently, at a conference during November 2014, a representative of Canada’s immigration department instructed lawyers to use a specific portal on the CIC website.  According to a standard email reply from the immigration department, “Once submitted successfully, your form will be added to your file within 5 to 10 business days.”

A common problem is that the immigration department, despite being stressed for resources, employs apparently many officers to critique and subsequently reject the addition of the use of representative form to a file of a client represented by a lawyer.

This has happened to me for reasons such as the form not being signed recently enough (in the officer’s view a six month elapsing of time apparently made the use of representative form stale dated), which is particularly odd, given that Canada’s immigration department cannot complete a permanent resident application within six months.

What this indicates is that the immigration department is expending a significant amount of resources on people such as officer Ingrid, officer Gionatan, officer Chularath etc., meticulously scrutinize the form not only for completeness, but also, to make judgment calls about the form such as its date of signature.  This slavish enthusiasm for rejecting the form has the effect of causing delays and miscommunication, particularly when an immigration officer sends correspondence to an old representative or to the client directly when the client has hired a lawyer to deal with the case.

Similarly, some call centre agents, as a way of blocking disclosure of information, sometimes mention that the required use of representative form is not present in the file (despite the fact that another call centre agent may notice that in fact, the appropriate use of representative form does appear  in the file, and thus will freely discuss the matter with the lawyer).

Encroaching Bureaucracy

This degree of scrutiny is presumably to protect the privacy of an applicant. However, other government departments tasked with ensuring privacy of information are much more flexible in dealing with the public. For example, officers tasked with an  Access to Information Request, typically dispose of such requests via email with a copied (not original)signature on a similarly phrased use of representative form, and routinely disseminate intimate information such as government file notes, often times within 30 days.

The immigration department is different however, as the unwritten mandate for some officers is to act like a bureaucracy in the worst sense of the word: by using forms, procedures and criteria as a means to obviate the need to perform tasks that are being requested by the public.

 

Clients Who Lie To Their Lawyers

By Author: Admin | July 24, 2015

Dealing with an untruthful client can be frustrating. As a lawyer, you would put in many hours into your client`s case to ensure he or she will be successful. However, if the client, for any reason, is not disclosing correct information that the lawyer requires, he or she is jeopardizing the desired outcome of a matter.

A worse situation would arise if the client is not forthcoming about his past leading to a finding of misrepresentation. A finding of misrepresentation would put the client into a worse position than before hiring a lawyer.Deception may lead to disappointment

An example of a case where the client consistently lied to his lawyer is outlined by Ali Akhtar in his article `Don`t Lie to Your Lawyer!` A personal injury client of Mr. Akhtar lied to him about getting head, neck, and hip injuries after a recent accident. Further, said client claimed that it was the first time encountering pain from injuries, and that he had not filed a claim arising from injuries before.

Just as in the immigration context, the effects of such falsehoods jeopardize the chances of deserving people with legitimate claims, be they refugee or other discretionary requests such as staying removal from Canada, or seeking release from immigration detention.

It is important for both the client and the lawyer to know his or her roles in the relationship prior to making agreements with one another. The role of a lawyer is to advise, to negotiate with the opposing party, to draft the appropriate documents, and to advocate. In addition, it is important for the client to have realistic goals about his or her position in the case. The lawyer has a right to withdraw from the case if they see that the case has no chance of success. Such an observation may arise after receiving further government documentation describing the history of a client’s interaction with the immigration department.

The role of the client, on the other hand, is to provide honest information to his or her lawyer because the rate of success of one`s case is dependent on the facts and the law. As well, the client is to tell the lawyer what to do after being given the courses of action available by the lawyer. The lawyer cannot make the decision for the client. The lawyer provides the clients with the various options that may be available. Finally (or firstly), the client needs to pay the lawyer. The client needs to be truthful and tell the lawyer if they are unable to pay the fees prior to signing the agreement. By speaking with the lawyer about the financial difficulties, he or she may provide alternate arrangements to be made if the facts warrant it.

Refusal of a Visa: Debate or Go To Federal Court?

By Author: Admin | July 6, 2015

You’ve applied for a visa.  It may be for a study or work visa or for permanent residence.  It gets refused.  What do you do? If you’ve hired an immigration  consultant, they should advise you that you have an option for judicial review at the Federal Court.  Some will not and will opt to debate the merits of the refusal.  This course of action is risky, particularly if the refusal is based on the officer’s discretion to refuse.   Although officers have to be reasonable, the definition of ‘reasonable’ is not in accordance with the colloquial meaning of that word.

The main definition of reasonable is whether the decision “ within the range of reasonable outcomes and the reasoning process was comprehensible, it ought to be upheld despite apparent logical flaws.”

In a case where, for example an officer has considered the evidence filed by a client in relation to something subjective such as a Humanitarian & Compassionate case, debate of a refusal is unlikely to lead to the overturning of said refusal. Similarly, where a client has filed a vague work reference  letter and is asserting they have experience in a certain job, an officer is at liberty  to refuse  the application.

 

One preferred approach would be to go both to Federal Court and debate the refusal at the same time.      Such a ‘two-pronged’ approach was counseled by Mr. Justice Rothstein (As He Then Was) of the Federal Court  in the case of Soimu.  He indicates that applicants must be prudent to protect their rights to judicial review by proceeding in a timely manner:

[para11]     I should observe that the procedural difficulty occasioned in these proceedings might have been avoided if the applicant had sought judicial review of the February 8, 1994 decision in a timely manner

Soimu v. Canada (Secretary of State) Action No. IMM 2551 94  Federal Court of Canada   Trial Division Toronto, Ontario Rothstein J. Heard:  September 12, 1994, Judgment:  September 13, 1994

Why Not Do Both?

Why Not Do Both?

His Lordship added that the proper approach would be to seek both a review from the visa office, and judicial review at the same time. Some officers either ignore requests to reopen the refusal , or issue a negative reply in a late timeframe, a timeframe that would make the refusal too late to seek judicial review.  The time frame for judicial review is 15 or 60 days from the date of the refusal, depending on the location of the officer who rendered the refusal.

If you’ve received a refusal you should be aware of the time limit in which to proceed to federal court and obtain advice from a Toronto Immigration lawyer.   Chaudhary Law Office is a firm with a significant amount of success in overturning refusals of visas at the Federal Court.

Do It Yourself Immigration – The Risks

By Author: Admin | June 29, 2015

For those self-filing their application for a visa to Canada (aka Do It Yourself-ers) , an additional basis to refuse your case may arise: if you fail to declare that you hired someone advise you on the application.  The relevant law is in the Immigration and Refugee Protection Regulations at section 10 which state in part:

(c.3) if the applicant has been advised, for consideration in connection with the application, by a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, include the information referred to in paragraphs (c.1) and (c.2) with respect to that person;

(c.4) if the applicant has been advised, for consideration in connection with the application, by an entity — or a person acting on its behalf — referred to in section 91(4) of the Act, include the information referred to in paragraph (c.1) with respect to that entity or person;

Failing to declare that a licensed professional reviewed your application for a fee would, based on the above result in an application that is incomplete.  An incomplete application may be returned as unprocessed by the immigration department, resulting in delays or perhaps a failure to qualify (in the event that the criteria changed or a cap was reached upon resubmission).

2015-06-29 checklist

Even worse, the application may be accepted for processing but then refused and you may be banned from entering Canada for five years on the basis of misrepresentation.  I recently came across the following email from a visa officer in Hong Kong:

Furthermore, paragraph 40(1)(a) of the Act states that a permanent resident or a foreign national is inadmissible for misrepresentation for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

As the information on your file appears to indicate that you have used the services of an unauthorized immigration representative, yet you have not submitted a Use of a Representative form, I have concerns that you have not met the obligation of subsection 16(1) of the Act that you be truthful and provide documents reasonably required, and I also have concerns you may be inadmissible to Canada on grounds of misrepresentation pursuant to paragraph 40(1)(a) of the Act.

In the above case, the person who received this email did, in fact use an unlicensed representative and did not declare that representative’s services.  There is some authority for the position that the Regulations do not require unauthorized counsel advising the person to be declared nor those who are only providing interpretive services.

 

There is nothing wrong of course with getting advice before filing your application.  However, to help avoid the problems described above, it would be advisable to indicate in your application that a lawyer has reviewed your application, or said lawyer has given advice on the application that is being submitted.  Our office has provided such a reviewing services for a client’s application.  We subsequently drafted a certificate stating that the application was reviewed by me and advised the client to include that as part of their application for a visa.  This clarifies to the visa officer what role may have been played by an authorized representative.

 

 

 

An Invitation to Apply -What Did You Sign Up For?

By Author: Admin | June 18, 2015

For the Express Entry draw of June 12 2015 the  minimum points imposed by the Minister of Immigration was  482. Persons who meet this minimum threshold are invited to apply for immigration to Canada, often under the Federal Skilled Worker Program, or the Canada Experience Class.    Interestingly, there have  been some persons  whose profile was lodged as Canada Experience Class and were selected as a Federal Skilled Worker candidate.imgres

Such a difference in selection can be critical since some CEC candidates  may not be prepared to submit to those requirements of the FSW that may differ from the CEC.  For example, the FSW requires settlement funds an amount of which is dependent on the size of the immediate family of the applicant – two persons require  around $17000CAD.  CEC does not have a requirement for settlement funds.  Similarly the FSW category requires an education credential assessment issued after April 2013 and the CEC does not.

This can lead to paradoxical outcomes.  An Express Entry applicant putting her profile up as a CEC candidate may have placed much of her money into a condominium in Canada and thus may not have the funds required under the FSW category.   If selected under the FSW, she would have to sell her condominium, bank the equity so show ‘unencumbered’ funds.  This potential compromising of such a person’s economic establishment cannot be the intention of Canada’s immigration laws.

Similarly, the person who placed her profile as a CEC candidate, once selected as an FSW would be shocked to learn that an Educational Credential Assessment is mandatory.  The shock would set in when realizing that one only has 60 days to submit an application after receiving an Invitation to Apply.  Factor in the time to obtain original transcripts from various universities and have them forwarded to one of the various Designated Organizations for an ECA, then await the assessment by said  Designated Organization, may very well mean that the invitation to apply would be met by the candidate with an failure to file a complete application.

CIC’s invitation to apply becomes effectively forfeit if you lodge an application that is missing one of the required documents, be it proof of settlement funds, or evidence of an ECA.  An application under Canada’s immigration laws is not an application unless the appropriate forms, supporting documents and government fees have been submitted.

Canada Citizenship Laws: Impending Changes to Residency Requirement – How Will This Affect Cases Already in the Queue?

By Author: Admin | June 6, 2015

As of the date I’m writing this (2015-06-06), one of the basic requirements for acquiring Canadian citizenship include physical presence in Canada for three years out of four  years prior to submitting an application for citizenship.  However the residency requirement will change on June 11 2015.  This change was announced yesterday.    The residency requirements for Canadian citizenship will substantially change in other ways as well.  How will this affect applicants who have applied before June 11 2015?

It is expected that applicants who apply prior to the implementation of this more onerous physical presence requirement will be subject to the three years out of four years rule.  However, this would only be a certainty if there are some transitional provisions specifying the status of pending applications for citizenship in relation to the four years out of six years requirement.  There is also a requirement to reside for each of the four years for a minimum of 183 days per year, thus barring the ability to apply in a residency pattern where an applicant has spent two non-stop years outside of Canada followed by a four years of nonstop physical presence in Canada.

The implementation of the four years out of six requirement would coincide with the concomitant implementation of more accurate exit controls for Canadians departing from Canada’s Ports of Entry.  More accurate exit controls mean that the citizenship department will be able to detect falsehoods regarding residency when applying for Canadian citizenship.

The new citizenship law’s intention to reside in Canada requirement may adversely affect those applicants who applied for Canadian citizenship in the past and whose applications have not yet been disposed of since the passing of the new citizenship law.  Specifically, those applicants who met the three years out of four years requirement under the old law and departed Canada after filing an application for citizenship may be determined to not have an intent to reside in Canada and hence may be denied Canadian citizenship.

Such scenarios may include those applicants who are an accompanying spouse of a Canadian citizen abroad.  Section 6 of the Canadian Charter of Rights and Freedoms may be the basis to attack the intent to reside section of the new citizenship law, the section of the Charter which allows Canadians free mobility.

There is no information about how the government will implement the intent to reside provisions throughout the process.  The new law states that the intent to reside must be continuous up until the applicant is invited to make an oath of citizenship.  It is not clear how citizenship officers will judge whether or not the applicant for citizenship has the intention to reside in Canada at the time of applying for Canadian citizenship.  A temporary work assignment abroad, or availing oneself of studies abroad or caring for a relative who resides outside of Canada may in fact scuttle an application for citizenship (or possibly lead to the revocation of Canadian citizenship )depending on how broadly the intention to reside is assessed by citizenship officers.

Express Entry Profile: You have Been Warned about Misrepresentation

By Author: admin | June 4, 2015

People seeking immigration to Canada under Express Entry (or “EE”) must first lodge a profile with Canada’s immigration department.  That profile entails having proof of language ability (e.g. for proof of English ability, an IELTS), and in many cases, proof of equivalency in educational credentials (or educational credential assessment or ECA) if you have gone to school outside of Canada.  You must have the IELTS and the ECA results at the time of composing your online profile for EE, and you must faithfully input those results into the EE profile.

There is a CIC website warning stating:

If we find that you misrepresented yourself (gave us false information or left out important details), we will refuse your application. In that case:

  • your application could be refused,
  • you could be found inadmissible, and
  • you could be barred for five years from applying to come to Canada for any reason.

Leaving out important details (or omitting a fact) may, for a particularly prickly immigration officer, may include something innocuous like failing to disclose some aspect of job history, such as a previous job, a more junior position at the same place of employment, etc.  At the very least, such an omission may cast doubt about whether or not the work experience you have acquired comports with the National Occupational Classification code you have listed on your EE profile.  In this latter situation you may not be ‘misrepped’, but rather simply refused.

Theoretically, misrepresentation may be legally untenable. The issue may be whether there can  logically be a  finding of misrepresentation in an Express Entry online profile when a profile, in fact, is not an application per se; no fee is taken when uploading an Express Entry profile and no application is deemed to be received by Canada’s immigration department.  Rather, the application process starts with the Invitation To Apply (or “ITA”), where the immigration department, based on reviewing the EE profile, invites an applicant to submit a complete application within 60 days.

CIC may take the view that the ITA would not have been issued but for the falsely-based EE profile and, that the EE is effectively a summary of an application that would be lodged after being issued an ITA.   However, previous case law has stated that an application is ‘locked-in’ as of the date of an application and required fee have been submitted.

An (old) Immigration Manual from 1999 states:

  • PAQ’s are only preliminary assessments. They are not affected by lock-in factors associated with those processes for which processing fees are collected. The resulting assessment is not binding on the applicant or Citizenship and Immigration.

The above excerpt refers to a PAQ or Preliminary Application Questionnaire, a roughly analogous stage of processing to an EE profile (analogous in that there is no fee paid, and there is no promise to process an application by CIC).

This issue may be resolved when the Federal Court disposes of a case where a person placed an EE profile and was given an ITA but was subsequently refused by CIC on the basis of an application that did not cohere in a material way with the EE profile. Nevertheless, as I have written previously in this blog, the advantages of being a test case are meagre; make sure that you are submitting precise and accurate information. Consider hiring an experienced immigration lawyer to help you complete the profile.

IMMIGRATION CANADA’S INCREDIBLE SHRINKING DATA

By Author: admin | May 19, 2015

I requested the immigration history of a client whose last interaction with Canada’s immigration department dated from around 1990. He wanted me to find out what information the immigration possessed about him as of the year 2015. This is captured in the government notes known as “Field Operations Support System”, or FOSS.

After sending the appropriate request, Canada’s Access to Information and Privacy responded stating they “decommissioned the FOSS system on 13 Dec 2014. CIC says they have “no way of retrieving FOSS”. This has happened with around three other access to information requests I’ve made. The decommissioning was likely due to the immigration department adopting a new record keeping system, the Global Case management System.

As all nerds are aware, a profound change in computer hardware or software must be accompanied by a backup prior to making such a change.

I googled the phrase “backup data” and obtained “About 239,000,000 results (0.28 seconds) “. That’s a lot of solutions to backing up data. Even the “seriously dumb yahoo answers” sagaciously mentions: “Personally I always back up Windows and documents saved on the computer to an external hard drive”

I suspect most immigration lawyers have a backup of data on a periodic basis. Indeed, the Canadian Bar Association recommends among other things,

“5. Back up your data.

“If something screws up today, if someone steals the computer today, if it is destroyed in a fire today, you have the information necessary to carry on your practice,” advises Ferguson. “That means backing up daily, taking backup media offsite on a regular basis, and checking that backup data to make sure it’s working.”

In other words, one’s confidence can’t be inspired if the government “has no way of retrieving” a record of someone’s interaction with said government.

As for those clients whose records have vanished, some other possibilities may emerge; some clients may opt to return to Canada after a long absence with a much less complex history for immigration officers to glean. Other clients who are subject to deportation may leverage this absence of information to try to remain in Canada. The concept of the government having a ‘thin file’ is viewed dimly by the Federal Court; the Federal Court sets aside refusals on the basis of the government keeping an inadequate record.

This lack of government accountability is related to a larger trend of decreasing government transparency either on the basis of “culture of secrecy “ of the failure of the government to keep up with technology.

Use of Representative Form (IMM 5476)

By Author: admin | May 5, 2015

The above forms as of March 2014 states, You do not need to hire an immigration representative. It is your choice. No one can guarantee the approval of your application. All the forms and information that you need to apply are available free at www.cic.gc.ca. This is an example of intentional obfuscation: providing a form (the IMM 5476) that exists only to allow a lawyer to represent you, and simultaneously undermine the purpose of the form by stating, (almost akin to a last ditch effort) that you do not need a lawyer. And while it is technically true that a lawyer is not required, often times individuals choose to hire a competent professional to eliminate the possibility of errors that can lead to a refusal, or, for more obtuse and esoteric applications, provide the submission that is less-than-explicitly required by CIC.

The Use of Representative form indicates that you may only have one representative at a time and that if you appoint a new one, the previous representative will not longer be recognized by CIC as having a relationship to your file.

Conveying the signed Use of Representative form to CIC is often a frustrating ordeal for your putative Representative. There is a dedicated CIC email address to which a completed Use of Representative form is sent. However, it takes 10 (!) business days for the Use of Representative to be matched to a visa application. This assumes that the lawyer is able to get the form past a CIC agent seemingly tasked to deflect the Use of Representative away from the officer assigned to a client’s file.

CIC call centre agents apparently have a mandate to deflect a Use of Representative form for among other things, failing to indicate the “type of application” or “location of office” (contained in question three of the imm 5476). One pedantic call centre person I spoke to mentioned that this is required because a person may have more than one representative – despite the fact that the form itself says it is not possible to have more than one representative.

Similarly, the ‘location of office’ is often, over the life of an application, more than one location. For example, a sponsorship file may move from Mississauga to an immigration office in Canada, or to a visa office abroad. Further, some applications submitted online are at locations in which the lawyer may not be apprised of when uploading said online application.

The delay by CIC call centre agents in conveying the Use of Representative form to the officer dealing with the file often causes prejudice to said lawyer’s client. This may occur, for example, where a request for information is sent to a client rather than to the client’s lawyer leading to the missing of a deadline in which to submit said information. The Federal Court has repeatedly stated that this is a denial of procedural fairness and an error; CIC may not legally dismiss a representative for bureaucratic minutia. Still, it can be frustrating for me and the client to have to threaten legal action to reopen the file.

I often have to remind myself, through gritted teeth, that call centre agents are not officers. They are placed so that officers do not have to speak to the public and so they can devote their time to administering the Act rather than providing advice. Most officers are very happy to communicate directly with counsel as they do not have to worry that their instructions are not sufficiently laic and thus do not have to devote time to explaining or repeating instructions.

All the above being said, there is a persistent view among the self-filing community that call centre agents are a substitute for counsel, and that if you are having a problem or if you have a question, you can call them and they will be happy to help. Although most call centre agents do not lack for enthusiasm, this view is completely wrong. As a colleague once remarked on reddit (http://www.reddit.com/r/ImmigrationCanada/comments/2k9r82/to_be_clear_you_do_not_require_a/clv2rd4): “There are people in jail, or who have been removed from Canada, based on relying on flatly-wrong Call Centre advice.” If a lawyer is wrong about the advice he or she gives you, that lawyer may be subject to disciplinary action if they are wrong and you are harmed. Call centre agents have no such responsibility.

Interrupted Studies in Canada – Will a 3 Year Post Graduation Work Permit be issued?

By Author: admin | April 24, 2015

An application for a Post-graduation work permit of three years duration is available to those foreign nationals who study at an appropriate school in a program of at least two years duration. One question that arises is whether the duration of the minimum two years of study can be interrupted. Such an interruption may occur if a person studies for perhaps one year, leaves Canada due to an emergency and returns after more than one semester to study at a different course.

The policy in the above scenario is not helpful. Said policy requires full time studies in Canada ‘continuously’. The only exception to the requirement to continuously study is when a person is in her final semester of studies and has met the requirements to graduate in the studies pursued.

The only other exception to study permit holder having a gap in studies and being eligible for a Post Graduation Work permit is where a study permit holder obtained a one-year graduate degree or diploma from an appropriate school in Canada. If two years prior to obtaining said one-year graduate level degree or diploma, the student had obtained a degree or diploma within the past two years, then a three year post graduation work permit may be possible.

Restoration within 90 days of losing a study permit is possible if the person holding the lapsed study permit continued to meet the requirements under which the person was allowed to enter and stay in Canada, as well as meeting all the conditions imposed on the study permit.

Immigration Regulations amended June 1, 2014 reinforce the requirement to be “actively pursuing” studies while in Canada and while possessing a study permit. Thus the possibility of losing a study permit is possible if an immigration officer discovers that a student has not registered or attended classes for extended periods of time, or arguably, has failed to acquire a passing grade in a certain number of courses. Such a lack of attendance and/or failure to pass has been associated with study permit holders who are not genuine students, but rather, persons who used a study permit as a way to work in Canada illegally.

If you’ve acquired a gap in studies it’s a good idea to get legal advice about whether the gap may make you ineligible to either renew your study visa, or to obtain a Post Graduation Study Permit.

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Salam Max

MY spouse [xxxxxx] has received her passport back with the immigrant Visa and landing papers and other related doxs. All of the dox are attatched for your references. congratulations and Thanks Thanks Thanks

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Hello again Max

I just wanted to thank you again for your exertions yesterday and for all your preparation leading up to the hearing. I felt that I was well represented and that you articulated the issues and the argument for my case very clearly. Look forward to hearing from the judge next. Hope you are feeling better today,

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