I had a great time talking about a wide number of issues in immigration law with my friends Steven Meurrens and Deanna Okun-Nachoff on the excellent Borderlines podcast.
Summary: In this episode of the Canadian immigration law podcast “Borderlines,” hosts Steven Meurrens and Deanna Okun-Nachoff interview Raj Sharma, a Calgary immigration lawyer. They answer listener questions related to immigration law. They discuss the challenges in advising clients on divergent case law, processing delays, the possible replacement of immigration lawyers by AI, and the state of the immigration law practice. They also touch upon the complexities of the federal court practice and the uncertainty that often comes with it.
Topics: 1:30 – Addressing divergent case law 15:30 – Globe and Mail story about waiving TRV eligibility requirements to clear backlogs 23:00 – Chat GTP replacing lawyers and visa officers 31:00 – Processing delays 36:00 – Mandamus 42:00 – Open work permits for spouses of Canadians 56:00 – C-10 work permits and Express Entry 57:00 – A world in which GCMS notes are provided instead of refusal letters 1:00 – Is the practice of immigration law getting less fun?
Steven Meurrens: Hello, and welcome to Borderlines, a Canadian immigration law podcast. I’m Steven Meurrens. Our guest today is Raj Sharma, a Calgary immigration lawyer who can be found on Twitter at @immlawyercanada. So @immlawyercanada. This is Raj’s fourth appearance on the podcast. Previous episodes included episode three about marriage fraud, episode 48, which was about responding to procedural fairness letters, and episode 69, which was, like today’s episode, about a whole wide array of topics. Today we are answering listener questions that I canvased and received through Twitter and email. The questions that we answer include how to address divergent case law when doing judicial reviews, our thoughts on a recent Globe and Mail story which says that IRCC may waive eligibility requirements to bulk approve temporary resident visas to try to clear its backlog, ChatGPT and its possible implications or even replacement of immigration lawyers and/or visa officers, processing delays and when to file mandamus, whether the practice of immigration law is getting less fun, and many more questions.
Once again, if you like the show, please subscribe and leave a review on iTunes, and I hope you enjoy today’s episode.
How do you advise clients on divergent case law? So if you see cases on, I don’t know, proof of funds requirements for a study permit, whether the Bangladesh National Party is a terrorist organization and you see judges-
Deanna: 100%, yes.
Steven Meurrens: Yeah, exactly. You see judges going in different directions. How do you advise clients on this?
Raj Sharma: Well, I guess I can refer them to our firm’s most recent reported federal court decision where we ran those same… For example, the salutary or positive jurisprudence on study permit refusals, Justice Sadrehashemi or Justice Ahmedor Justice [inaudible 00:02:17], for example, but I think it was Justice Bell, I believe. Basically, he put in two lengthy paragraphs notwithstanding able submissions of council, which is always… This is our new [inaudible 00:02:34]
Deanna: That’s when you pat yourself on the back.
Steven Meurrens: Yeah, aside with the able submissions typically in this.
Raj Sharma: Yeah. This is our most recent associate, or most… Sarah Shibley. So, the justice went on and on about… It was Shahrukh Ali Khan is the name of the case, but he commented that the respondent pointed to these cases, the applicant pointed to these cases. Then basically he gave a summary of the federal court, which is the federal court, one decision does not necessarily bind another. So that’s why you had the divergence in the case before.
Let’s jump to citizenship. Before the two feet on the ground test of 1,095 days, we had this metaphysical test like, where’s your soul?
Deanna: Where’s your spirit? Yeah.
Raj Sharma: Where does your soul lie? Where’s the next system? You had a divergence in the case law, for example, of citizenship, which is a centralized mode of existence could qualify for the 1095 days or strict physical presence. So very odd situation that continued for many years with the federal court.
So yes, that is very true. That’s a little bit disheartening because lawyers love precedent and people love certainty. So they come to us, they pay us many thousands of dollars and they want some sort of certainty, which is like what is the percent chances of winning, which I hate, which of course we always get probably three times a day. You can say that, look, I think we’re okay, we’ve got the IELTS score. Let’s talk about a study permit. We’ve got the IELTS score, we’ve got proof of finances, we’ve got a statement of purpose, and then all of a sudden the officer says, “Well, the statement of purpose is vague.” Or “Why would someone come to Canada when there’s locally available courses at a lower cost?”
Now this is very problematic because for example, India has a far more developed post-secondary, postgraduate education system than Canada. Anything would be cheaper and available in India. Based on that, we should deny all study permanent applications from India. So you have these problematic decisions, you take it up and then all of a sudden you have standard review. Now notwithstanding Vavilov, [inaudible 00:04:58] and all of the cases from before, for a lot of judges, it’s a smell test. For a lot of judges, they try to be a little bit more principle about it.
So you may not get leave even though you’ve got something that appears to be on all corners with another case. Even if you get leave, you might have some sort of justice that has a certain take on it, which is, and we’ve seen this, that overseas visa offices, given the volume of applications before them, should be given greater margin. So these are complex, it’s tough for some lawyers to figure out. It’s very tough to advise to a client that we think you have a decent chance of winning, but then it might go sideways and then even if you win, it goes back and it might be refused again. We get into some sort of ping pong match. So these are the vagaries of federal court practice. That’s just the way the cookie crumbles.
Deanna: Yeah, I mean, I think that everything you’re saying really resonates very much with me. I think for me, there’s been clearly a great wave to bring in new faces on the bench, but the result has been that there is quite a divided bench.
Raj Sharma: There’s a schism. Let’s use the Orthodox and Latin church and whatever. There’s a schism.
Deanna: Yes, please. While we have so much welcomed the addition of members of the bench who were once practicing immigration lawyers, I mean, you mentioned Madame Justice Farhat Hashmi, and I can’t think of any major issue that is being litigated ad nauseum at federal court right now where there aren’t two pretty divergent lines of jurisprudence developing.
Raj Sharma: This is why I welcome our AI overlords. I believe that question [inaudible 00:07:03] This is why I welcome our AI…
Deanna: It depends who’s programming them, Raj. Which side of this schism are they going to be programming?
Raj Sharma: No, I’m thinking visa offices. So you have such discretion on a TRV application that honestly a little bit of AI intervention might be good because you are now seeing, for example, I don’t know how many GRs have done of truck drivers being refused [inaudible 00:07:35] states from massive trucking companies in Canada. We have divergence in terms of this language is not good enough. Well, it’s good enough for PR, but it’s apparently not good enough for a work member. Okay, let’s deal with that. Oh, you know what…
Deanna: Similarly for cooks.
Raj Sharma: You’ve been driving a Qatar for 15 years, but you know what, you’re unfamiliar with the weather trade and climate of Canada. Borderline racist and, based on that reasoning, I guess we’re only going to get truckers from [inaudible 00:08:08]
Steven Meurrens: On that weather point, I remember in 2021, I think November, there were two federal court decisions released the same day, both involving applicants named Sin, where one judge said it’s reasonable for a visa officer to determine essentially that someone who knows how to drive in a desert in a small country won’t know how to drive in a bigger country that’s a cold country. The other judge ruling that it’s unreasonable for the visa officer to make that determination.
Raj Sharma: It almost harkens back to the guy that we’ve got on the $50 bill who said that Punjabis or Indians are unsuited for the climate in Canada.
Deanna: You guys are going to love this one.
Steven Meurrens: Who, King Charles?
Raj Sharma: I don’t believe that King Charles is on a dollar bill yet.
Deanna: Well, you guys are going to love this, but I just got one of those refusals on a work permit extension for a cook, that insufficient language skills. Having been on an LMIA based work permit and now being told insufficient language skills to maintain the position. I mean, again, I think there’s a lot of ambiguity on that, on the question even of costs. I think that there has become a divergence on the question of legitimate expectations. There’s become a divergence on… So I think that there are many of these things. So you talked, Raj, about the dreaded question about what is the percentage of chance? You hate that question. I’ve kind of warmed to it over the years.
I feel like I’m being paid for my gut instinct and to give my gut instinct. I say to people, there’s no science behind my giving you a percentage as to what is the likelihood of approval or refusal. I’m just telling you, here’s my knee-jerk reaction based on what I’ve seen and knowing that there’s no scientific precision to this because there is this schism and we don’t know who’s going to end up deciding the application, but for what it’s worth.
Steven Meurrens: You also don’t know which DOJ lawyer will be assigned.
Steven Meurrens: There’s multiple avenues where different personalities can impact the outcome of a judicial review. We just tell clients a lot can depend on who the judge is.
Deanna: Yeah, for sure.
Raj Sharma: The problem with judicial review, justice needs to be obtained at the first instance.
Deanna: For sure.
Raj Sharma: Judicial review is an exogenous ex post facto, after the fact forensic exercise, which attempts to determine whether the relationship or that decision can be upheld or not. Now, judicial review for an inside Canada decision from a tribunal such as the IRB, any of the tribunals of the IRB is a far different beast than judicial review of a decision made with respect to a foreign national who had either no expectation to come to Canada or very little expectations to remain in Canada. So even within judicial review or immigration litigation, one must make this sort of understand how these things work and how these things are looked at by a judge or a justice.
So now of course, practicing for 20 years and being at the federal court many times, I do have this sort of feeling of not disengagement, not disillusionment either. I don’t want to give that impression, but judicial review is not really about justice. Judicial review is not really about getting things right. Judicial review is getting another crack at it. Then it depends on the visa office. Many times, I’ve now gone, I believe, maybe this is the record, I’m not sure. I’ve gone three or four times to federal court and succeeding every time on a refused visitor visa application. The visa office comes back with a refusal every other time. So it gets a little bit dispiriting at times.
Deanna: Yeah, I 100% agree. I think that it’s sort of like a de minimus exercise. I think that there is a larger kind of rule of law issue. We’ve talked about this numerous times. I feel like it’s becoming an increasing issue about dealing with the systemic issues. I have become disillusioned. I will not pull my punches on that because I no longer feel like the federal court is an effective way of trying to approach some of those more systemic issues.
Raj Sharma: It shouldn’t be. I mean, if we were to go back to Harry Arthurs, if you go back into judicial… We decided to take certain decisions out of the hands of the judiciary and create this sort of administrative regime so that they can deal with decision-making on this level of tens of thousands of decisions. Then the course hold a supervisory function.
Now too little judicial review means that executive, the officers run amok. Yeah, too much judicial review means that the whole system is plugged up. So judicial review I think should be almost nearly… Again, and we’ll get into this on the mandamus questions as well. There’s a spectrum judicial review probably, on a PR applications or citizenship again, or refugee or protection or admissibility, inadmissibility is again, a far different beast than work permit refusal or a visitor visa refusal or a study permit refusal.
Steven Meurrens: Yeah, and just before we go on to the next question, I do want to plug that in March, Sean Rehag is going to be on the podcast to discuss his latest paper on how who is deciding can often matter in the outcome. He just published a paper for the Center of Refugee Studies at York University called Luck of the Draw Three, using AI to examine decision-making and federal court stays of removal. He found that, or the AI found, I guess, that there is a big divergence in the likelihood of a stay of removal being granted depending on who the judge is.
Raj Sharma: Shocking. You needed ChatGBT, you needed AI to figure this out? Just pick up the phone call any one of us.
Deanna: Yeah, I know.
Raj Sharma: Justice Emmet grants or stays than Justice Anise. What? Wow, by a significant margin.
Deanna: Yeah, there you go. I think that one of the issues that we’ve been grappling with is the idea, if not judicial review, then what is the venue to try and address these systemic issues that are issues of discrimination, issues of lack of fair examination of the merits of an application at the visa office. You weren’t able to join us for the year in review, but that was a recurring theme that came up there is that we have these issues and I think that we haven’t seen the full pendulum swing yet.
Steve and I were commenting about how this was the first year on my practice that I’ve seen that we had to go into five digit file numbers for the federal court because there is a lot of grievance with the way that the visa offices are dealing with application refusals. We just don’t have a satisfactory method of redress. So I think that people are still flocking to the federal courts as an avenue to try and redress that. I agree with what you’re saying, Raj, that it isn’t the right way of going about it, but I think that we just don’t have an alternative. We did talk about case manage litigation in previous podcasts and some thoughtful ideas about how that might work. Anyways, I just put that out there.
Steven Meurrens: Now, one of the ways, moving to the next question of resolving systemic issues might just be to waive requirements. So I don’t know if you both saw that…
Raj Sharma: That’s not a way to systemically deal with anything. That is surrender.
Steven Meurrens: Yeah, for those who don’t know the story, the Globe and Mail apparently obtained a memorandum of argument act. It was through, from what I understand, the journalist source at IRCC, it wasn’t through an Accessed Information Act request or anything, which says that there’s a huge backlog of temporary residence applications. I think it exceeds 1 million. On the temporary resident visa side, the government is considering for about 400,000 temporary resident visa applications in the backlog to just waive the requirement that applicant show that Lee will leave Canada by the end of the authorized stay.
Couple other things to note about the memo. Apparently there were not going to be plans to communicate this, that this was happening. It was just people would notice all of a sudden maybe that there were a lot of approvals coming really quick and that it would eventually come out in ATIP. So one of the questions that I got from a few people was, what do you think about this?
Raj Sharma: I think it’s insane. I think it’s insane. I think it’s pie in the sky. I think there’s going to be significant downstream effects to this. I can only imagine the reaction by overseas visa officers who have been tasked with determining whether this individual meets the requirements of the act and regulations. Now you’re going to say just waive them. Look, they tried this with that spousal open work permit not too long ago and they said, “Hey, they should relax up on 179-B,” and that didn’t seem to have anything [inaudible 00:18:57]
Deanna: So tell me though, what’s your fear? What do you see as the worst case scenario here, Raj?
Raj Sharma: You suddenly approve 400,000 people to come here on a visitor visa and [inaudible 00:19:12] in Canada and a significant number of them perhaps don’t want to leave. You’re going to stress the system. You’re going to have LMIA and work permits under that. Obviously it’s not even a new public policy anymore. So you let 400,000 individuals in you are going to impact other aspects of this system, whether it’s the work permit regime, whether it’s the refugee system.
Steven Meurrens: They estimate in the memo that it will lead to 8,600 refugee claims.
Raj Sharma: That’s basically a third more than what they got right now per year. So every decision in immigration has corollary or secondary or tertiary impacts. Again, thinking as a visa officer, I can only imagine the reaction of these visa officers because some of these individuals that are trying to enter Canada have ulterior motives, not just overstay, not just working hard and fulfilling the Canadian dream. I mean, there are other nefarious actors out there as well. The message that you’re sending, you kind of hinted at an amnesty or waiver in September, October. Now you’re hinting at a whole stream, waiver of a requirement. So what do you do then? Are you setting the stage for an amnesty? Oh, we now have 400,000 plus the 500,000. I guess we have to do an amnesty. It sends us strange messages and I think that there’s going to be seen and unseen consequences to this.
Steven Meurrens: Yeah, the fact that it leaked I think is actually also going to lead to more applications. I don’t know if, when they do this, they’re going to have a cutoff date for applications received before a certain date for sure. I’ve been contacted by a few individual and representatives who are just throwing applications in or planning on throwing applications in now hoping that it’ll be bulk approved. On the judicial review side, I’ve been contacted saying, “Hey, can we get a quick consent? We want our application back in processing for when the bulk approvals start.” So it’s definitely created [inaudible 00:21:23]
Deanna: A buzz
Steven Meurrens: If anything else, has created a bit of a buzz that could lead to more of those downstream consequences.
Deanna: Especially because there’s been talk also about the work permit for working age dependents at the end of January. Am I right? So this might also kind of tie in timing wise as well.
Steven Meurrens: So what is the solution to this backlog?
Raj Sharma: Well, the solution going forward is very clear. Charge more money for TRVs that have some sort of internal review mechanism in place, the visitor visa application, charge more or give that option. Okay, here’s what it is for visitor visa application, for whatever decision. Charge more money and…
Deanna: A substantive appeal on the merits.
Steven Meurrens: I also don’t know how many people of multiple TRVs. Of this backlog, how many are the applications that were filed before September, 2021 when they told people to all just reapply. I don’t know.
Deanna: Also, I mean, you talked about this during our last podcast, Steve, is the idea of how much of the backlog is created by the logistics and the mechanics around issuing the counter foils. If we can issue documents electronically in theory with the ETA, why can’t we do a counter foil list TRV approval to just take away some of the work of issuing the TRV to visa requiring nationals?
Raj Sharma: Well, there’s a lot of moving parts there. The airlines, for example, have to determine whether this is legitimate or not. If it’s illegitimate, the airlines get charged fees for this. So again, those counter foils are there for a reason.
Deanna: Yes, they have been doing it though with the ETA, so again…
Raj Sharma: That’s okay. The ETAs, we’ve taken a risk that a guy from Germany is not going to now do something weird in Canada. So there’s a reason why those counter foils are there.
Steven Meurrens: Yeah. I haven’t seen the justification or the discussion on it. I’d love to see a pilot. I guess they’re doing it now with Ukraine on waiving the counter foil requirement.
Raj Sharma: Well, that makes sense.
Steven Meurrens: I feel like if the airlines could control with some sort of combo of the biometrics and just the number to board who gets on, who doesn’t. I don’t know how much that would go towards clearing this backlog. I mean, the other one, and this can actually lead into the next question, will chat GTP replace either immigration lawyers or visa officers? Raj, you were joking earlier, or maybe you’re serious, that divergent decisions AI could be part of this solution. Can chat GTP clear out backlogs or replace immigration lawyers?
Raj Sharma: Look, again, if we’re talking about disillusionment, then at a certain point I think I would prefer some sort of transparent AI that has some rubric that we can all sort of understand and apply. I think I’d rather have a AI, a decision maker for a TRV out of New Delhi. I think I’m at that point right now because you have to have some consistency and we do not see consistency out of decision-making out of certain visa offices. I played around with chat GPT a little bit. Honestly, it’s spit out stuff that, better submissions, better written submissions than I’ve seen from immigration lawyers across this country, consultants and some of my students at University of Calgary and Queens.
For now, I think it might be a nice additional tool. For example, I was playing around with it in terms of humanitarian and compassion submissions for example as well. So I think it could be a good tool in the hands of a good lawyer. I think it could make certain lawyers’ submissions readable and legible and understandable. So in terms of visa offices, it’s a tool. It just depends on how you use this tool. It could be a tool for good, it could be a tool for, it may not be good. If you program a ChatGBT out of the, let’s say, cynical officers out of certain visa offices, maybe you’re going to get a cynical ChatGBT.
Steven Meurrens: I think even just the fact the quality of writing that it produces is really high. It has big limitations. I don’t know why it’s limited in the data that it can review online to 2021 and it doesn’t have 2022 data. I assume that will get fixed, but in terms of the quality of writing, it is extremely good. Have you played around with it, Deanna?
Deanna: No, I’m scared.
Steven Meurrens: Oh, I think I’ve sent you some.
Deanna: Yeah, you have. Every time, it gives me this freaky…
Raj Sharma: Some are around the grade 12, a decent grade 12 student, native speaking grade 12 students, somewhere around there. It’s good.
Deanna: Yeah. I mean, I understand I can come to terms with the idea of sidling up to it as an effective tool and helping to produce things that end up getting looked over by a lawyer just to help facilitate a more efficient practice. Yeah, I mean again, I know I’m going to have to go there, but yeah, I’m holding out for the time being.
Steven Meurrens: I don’t think it’ll replace representatives or visa officers, although the department, we talked about this, the department in their HR plans, plans on reducing its decision maker headcount while increasing output, which to me suggests that the department might be planning on using chat GTP or other AI apps to reduce headcount. I think that it can definitely increase productivity for representatives and people at government.
Raj Sharma: If IRCC puts up a decent chat bot or tool, you can have individuals simply apply for a visitor visa without the need of consultant or lawyer. That I can see happening. Obviously you shouldn’t be a one trick pony, you shouldn’t have an entire practice built around TRV applications perhaps because yeah, those are things that… There’s companies out there that assist international students.
Deanna: Yeah, and from a access to justice perspective, it should not be necessary to require a lawyer to make a TRV application. That should you not have happened.
Raj Sharma: You don’t need a law degree to do a visa application or a work permit or study permit as long as everything is clear and transparent. Yeah, I think that certainly those lower end applications, a citizenship application, again, these are things that machines can do at this point.
Steven Meurrens: Just a form.
Deanna: I welcome that component. If somebody who is a non-native speaker of English is going to be able to put in the content and have a decent presentation of their application, I would welcome that. Similarly, if rather than the garbled reasons that we get out of the visa office, we had something that was properly articulated coming from the actual intention of the officer, and then we had it properly explained in reasons that were articulated by ChatGBT so we had something to go with, great. I welcome both of those things. I’m not really worried that we’re going to be put out of work. That’s not something that concerns me.
Steven Meurrens: I actually have the stats through ATIP. I just haven’t tweeted them or published them.
Raj Sharma: Sorry, Deanna. I don’t want more articulate reasons out of a visa office.
Deanna: You want the rubbish ones that we get right now.
Raj Sharma: Look, the shittier the decision, the easier they are. I don’t want articulate Shakespearean or Elizabethan or Victorian English.
Deanna: That’s for you and your oral submissions. I get it.
Steven Meurrens: I feel like we’re going to head that way though. [inaudible 00:30:04]
Raj Sharma: I need something deficient.
Steven Meurrens: I think it is moving to where AI will review the application, spit out a refusal or an approval, and the visa officer’s role will just be to almost provide a theoretical review of it and second guess maybe correct decisions, things like that. I think it will reach that stage.
Raj Sharma: Remember one thing, and maybe this is a question that’s coming up a little bit later about visa processing times in different regions. Each visa office or each region has different challenges than other visa offices. Let’s say that the greater the incentive to come to Canada, the greater, let’s say, the application of discretion by a visa officer. So if you have someone from India or Pakistan or whatever else where you will have a marriages of convenience as a significant issue or fraudulent documents like banking or what have you, you are going to see greater intervention and insight. If someone from Japan gets married, then there’s a spousal sponsorship for a Japanese national, you are not going to see an officer [inaudible 00:31:19] So all of these things are made within the context of which visa office is it. Show me the visa office and I’ll give you the result almost. It’s almost like determinism, which is very sometimes depressing.
Steven Meurrens: Well, how much of our judicial review practice is based on, oh, there was a document that wasn’t considered. I could totally see AI just reviewing and chat GPT spitting out, “I have considered,” and then just listing all the documents. Then the visa officer will write whatever conclusion they have. The fact that the AI is able to list all the documents, think about how that would impact probably most of our judicial reviews or at least a significant chunk.
Raj Sharma: Yeah, the [inaudible 00:32:03]
Steven Meurrens: Why are there processing delays still in 2023? We got a bunch of variations of this question.
Raj Sharma: Yeah, there’s variations. So number one is that where you have a greater push/pull factor towards immigration, you’re going to see greater scrutiny. Greater scrutiny means more time. Obviously, we don’t have visa officers in Moscow right now processing anything. So you’re going to have a situation where Delhi, for example, is the largest visa processing center outside of Canada. So different offices have greater resources and human resources at play. Then of course different visa offices have different requirements. So we have document fraud in one particular region, which means that we need greater verification and intervention by an officer. So some of that is going to be that. For whatever reason, some regions are understaffed. Nigeria for whatever reason, being this sort of leading country in Africa, has insufficient resources.
Steven Meurrens: Might as well combine this with that question. Why are processing times in West Africa so slow?
Raj Sharma: I think insufficient processing. We’re ignoring Nigeria. I think we need way more. It’s an educated population. It’s a commonwealth country. It’s very, very similar to India. If you look at India and Nigeria and post-colonial history, you’ve got a diverse multicultural country. You’ve got Muslims and Christians and what have you. So we got to pay more attention to Nigeria. I don’t understand why we don’t have a dedicated visa office over there.
Steven Meurrens: I mean, some people listening are going to be screaming, oh, it’s racism. Do you think it’s just not reallocating with the times? As you said, it’s resembling India in terms of country profile at least.
Raj Sharma: Remember, it’s Hanlon’s razor, never ascribe to malice that which is explained by incompetence. I mean, don’t jump to racism right off the bat. India’s the largest visa office outside of Canada. We have no problems providing resources to handle Indian nationals and applicants. So I don’t know. I don’t think it’s security. There’s a reason why London is handling Pakistan PR and that’s a different matter. That’s a security issue. I don’t know whether there’s a security issue out there. I don’t know whether there’s other concerns out there, but Nigeria must be recognized as this sort of… It’s a great source country. We’ve got these educated population that speaks English. This is a fantastic source country. We got to pay attention to Nigeria.
Deanna: Yeah. I also think, in terms of the Hanlon’s razor, is that there are issues in terms of even the systems and the processes. The portals are problematic. The flow of information is problematic. So I think we talked a little bit about these tools and the amount of effort that is required to make them work effectively. Even you want to request a document from an applicant and then it comes through a web form and then it takes however many weeks for it to be sent and put into the right hands.
The systems I think are not working effectively. We see that even just in the number of situations that I’ve handled where a document is requested, you’re told to upload it to the portal. The portal has no upload slot so you sent it by web form. The application is refused on the basis that it was not provided when in fact it was provided three times. There’s all sorts of stuff like that as well where the machinery in the background is not working effectively, but the amount of resources that are required to make these fixes are large. They’re not small. They’re big issues.
Steven Meurrens: Web form system, yeah, we talked about that last week. The web form system where you have to submit a web form versus an automatic ability to just upload documents to your application.
Deanna: There’s not one web form, there’s two or three, there’s the visa office specific one and there’s the general one. Nobody knows which one to use. It’s a bit of a gong show. So I think that there’s a certain amount of that that’s causing difficulties. Even just because there’s a delay, then they send a communication and the person doesn’t receive it. So I think that contributes to the delays. I don’t know to what extent, because of course we’re not privy to all of this information, but I think that it has to be counted in there as well.
Steven Meurrens: When should someone file mandamus? In speaking with lawyers, I’ve heard everything from, not when people should, but what people’s practice seems to be. If the processing time has exceeded stated processing by two x, if it’s even a day over or even any time, what’s the downside? Oh, and for those, a mandamus is an application to the federal court to compel IRCC to do something. In the visa context, it’s usually to conclude processing.
Raj Sharma: My philosophy is that mandamus and deciding mandamus and when to file or when to initiate a trigger is more of an art than a science. So I’ll give you my little algorithm. My algorithm is that the less discretion plays a role in the underlying application, the more likely it is that you should pull the trigger. So on that spectrum, when do you pull the trigger? Well, on a citizenship application, I will pull that trigger route mandamus quite quickly. On a PR application where everything’s met, it’s inside Canada, people need to move on with their lives. There’s definite benefits to getting that PR sooner rather than later. I will pull that man name as trigger quickly.
You pull a mandamus on a visitor visa application or an extension, you are asking for a refusal because that officer’s going to be like, “You want a decision? No problem. Here’s a no and deal with the exogenous after the fact, expos facto federal court system.” So it depends. On a visitor visa or visitor extension or work permit inside Canada, I’m a lot nicer in my demand letter. You have to understand the nature of the application before you. I don’t know, I’ve been doing mandamus for a long time. I’ve taken a mandamus matter to the federal court of appeal. It’s a very helpful tool on the right application at the right time, but it’s certainly not some sort of blanket cure all.
Deanna: That’s a very interesting perspective.
Steven Meurrens: So in terms of this pulling the trigger, would you ever pull it if the application hadn’t exceeded stated processing times or can you think of scenarios where you would? This seems to be something that at least I’m hearing about.
Raj Sharma: Don’t worry so much about stated processing times. This is my perspective on this. None of my mandamus applications have really turned on whatever the nonsense website says is… What is the process time? When they submitted it? Is it historical? Is it current? No, no, no.
Deanna: When it’s being sent back for redetermination.
Raj Sharma: It has to be in the circumstances [inaudible 00:40:04] It’s unreasonable in the circumstances the stated processing times is one factor.
Now the other thing people need to understand, and I’ve said this before, mandamus is chopping down a tree, tipping over a vending machine or breaking up with a boyfriend or a girlfriend. You may have to do it more than once. You do it bad, there might be some movement. Yeah, right. Okay, fine. Discontinue. Don’t do it. Demand, no movement, ALJR. Okay. Some movement. Now technically [inaudible 00:40:33] We know that it doesn’t count. Whatever happens after ALGR is not counted. Otherwise you just take one stupid step [inaudible 00:40:42].
I’m doing mandamus for the fifth time for one client. It’s just one of those things. So again, it depends on the particular application. On a citizenship matter, what does it matter? There’s no harm, right? I mean, if he’s eligible, he’s eligible. So it’s contextual, but processing times isn’t that foremost in my mind. I look at the type of the application. I got a single guy from Yemen who’s a PR, he hasn’t left Canada. I need citizenship for this guy so he can go potentially work abroad or work for a better oil and gas company. It depends on the needs of the particular client.
Deanna: Yeah, I like that. [inaudible 00:41:31]
Raj Sharma: I need a travel document. My dad is really sick. I really need citizenship. The travel document is taking 11 months to get. All right, I’ll pull that demand fairly quickly. So it all depends on the needs of the client. Again, now that everyone knows about mandamus, so this little secret, non-secret is out, everyone’s been asking about mandamus, but many times I tell people, I’m like, you know what? Not right now. Come talk to me in a few months. Come talk to me in six months.
Deanna: Yeah. Yeah. That’s a great answer.
Steven Meurrens: So I’m at one individual who says that a lawyer told them there’s no point in doing web form inquiries when you could just do mandamus. I guess that person’s take is why ever ask for a status update when you can throw in mandamus?
Raj Sharma: Well, look, it depends. If you’ve done 15 web form applications, no one’s getting back to you, you know what, I’m not a huge fan of MP inquiries. I’m not a great fan of web… If they’re ignoring you, I mean, sometimes you have to get the… Then one way of getting their attention is certainly mandamus application.
Deanna: I’m also very cautious about my own reputation in terms of being the lawyer that cries wolf every single time that something goes beyond the processing delay and I just want something to move. So what Raj is saying about having looked at all the facts of the case and said, this is one that is really egregious. It’s not just simply that I’m paying attention to that status tracker on the website and saying, now it’s too long.
Steven Meurrens: No, I’m the same. I’d say I’m pretty cautious on it, mainly for that reputation.
Raj Sharma: Look, I don’t know about my reputation with CBSA or IRCC. I think that ship has sailed. All right?
Steven Meurrens: Oh no, they won’t. I’m talking federal court or…
Raj Sharma: Yeah, yeah. I don’t worry about that. They know that I will safeguard my client’s interests. If they can’t respect that, they can’t respect it. I’m not losing any sleep about it. I do it when it’s in the client’s interest to do so. I don’t really think about anything beyond that.
Steven Meurrens: No, but I guess the example that I’m getting…
Deanna: [inaudible 00:43:53]
Steven Meurrens: I’ve started to hear grumblings of express entry application goes in. One week later, someone’s filing mandamus.
Raj Sharma: Yeah. Look, that being said, again, all these people pulling the trigger on mandamus too soon have never probably argued a mandamus application in front of a judge.
Raj Sharma: Only too soon, they’re using it as a collateral attack. That’s not in the client’s interest either.
Deanna: No, exactly. So that’s all I’m getting at.
Raj Sharma: It’s not in our judicial systems. We’re still officers of the court. We can’t plug up [inaudible 00:44:28]
Deanna: For sure.
Steven Meurrens: I’m concerned that there’s some information or misinformation spreading of like, oh, just do mandamus with job.
Raj Sharma: Yeah, this happens all the time. They’re like, oh yeah, we can do this now or we can do that now. I’ve been hired by consultants, other lawyers, and again, they think judicial review is like an appeal and it’s not. Then you’re like, look, I need to review everything. 50% of the time, I’m like look, probably there’s no reasonable decision or it’s not warranted at this time. Mandamus is not a magical wand. It’s nothing like that. You really have to understand and steep yourself in the client’s circumstances and the overall context and then go from there.
Deanna: Whether the legal test has been met.
Raj Sharma: With mandamus, be careful what you wish for. You want an interview, you’ll get an interview. Mandamus is just a simple thing. I need movement. I need substantive movement or decision or finalization.
Deanna: Yeah, definitely.
Steven Meurrens: We’ve talked about this on the podcast. Why are spouses or citizens of permanent residents not eligible for work permits or open work permits while disposes of foreign workers in Canada are?
Raj Sharma: Look, these are apples and oranges.
Raj Sharma: Well look, on open work permit, you might have a foreign national that’s working as some oil and gas executive or what have you. He might be married for 10 or 15 years. He might have a couple of kids and his wife is going to get a open work permit and he’s going to be living and working here. On a PR or citizen, that marriage might be one month old. There’s no determination, nothing about bonafides that has been established. So these are two separate things. They look alike, but they’re quite different in their overall policy. Why do four nationals in Canada that are working here, not subject to medical, excessive bad, blah, blah, blah. This guy’s economic class is applying for a PR and his autistic daughter or what have you. These are two separate things. They look alike. It’s like birds and bats. Both can fly, but they’re still two different species.
Deanna: Yeah, but oil and gas executive…
Raj Sharma: Just one second. You cannot treat someone who just got married in an arranged marriage in India and you expect that spouse to get open work permit before a visa office has determined bonafides?
Deanna: Okay, but if they were married to a foreign national who came on a skilled work permit, they would be able to.
Raj Sharma: Yeah, they theoretically can. They would apply and they would show the bonafides as well.
Deanna: So they can still do that with respect to the spouse of a Canadian. I mean, I understand what you’re saying about they need to do a bonafides assessment, but that doesn’t mean that they should not be eligible to apply for a work permit.
Raj Sharma: Look, I’m with you. They should be eligible to apply for a work permit. They should be eligible to apply for a TRV. I’m with you. What I’m saying is that just saying black and white, how come this, how come that? Well, there’s some policy considerations here. They are a little bit different. So I think people, again, they get all… Especially immigrants, it’s really odd because you’ll have immigrants saying, “Well, how come it’s taking so long for my wife to get here and all these Ukrainians or Syrian…” Pick the nationality of it.
Deanna: Yeah, no, I get it.
Raj Sharma: “They’re coming here and they get to work.” So I get it, but this is an area where immigration can improve. Remember again, they tried to waive the 179-B requirements for the visitor visa for spouses, the PR and that never worked.
Steven Meurrens: I think they’re going to do it this year. I do think an interesting unintended consequence… We’ve seen in India this huge uptake in misrep findings where a open spousal work permit for a student or a worker is refused on genuineness and they throw on the misrepresentation. I’m pretty sure, and either of you can correct me if I’m wrong, that the right to appeal to the immigration appeal division is based on a permanent resident visa application. Let’s say someone overseas applies for their open spousal work permit because they have a PR application and process and it’s refused for misrep, there wouldn’t be a right to the appeal division. There could actually be a huge negative unintended consequence.
Raj Sharma: There’s no right to appeal to the IAD.
Steven Meurrens: If they do introduce this ability for outland spouses to do open work permits, there could actually be an interesting flurry of misrep cases.
Raj Sharma: I’ve done a lot.
Steven Meurrens: That don’t have appeal rights.
Raj Sharma: I’ve done a lot of this and in fact, I lost in front of Justice Ahmed on something like this. So this is a big problem. You do open work permit application. Your wife is here, she’s about to apply for PR. You get a five year ban. That five year inadmissibility ban will affect her PR application as well.
Deanna: Right, because you need to do an arc then, even if the…
Raj Sharma: Yeah, correct. Very good. Yeah, exactly. You need an ARC. Now, one of the issues is that if it was a PR application, let’s say it’s a spousal sponsorship, and there’s where they say, “I’m not convinced that your marriage is genuine,” that’s not a section 45. That’s just a regulation four sub one. So you get a right of appeal to the ID. What the details are saying is that I’m not satisfied that your marriage is genuine under regulation four. That could make me commit an error under the administration act under section 40. So they’ve conflated section four and section 40.
So we ran this several times and luckily some of the times we were able to get a consent, but Justice Ahmed was like, “Yeah, that’s reasonable.”
Steven Meurrens: Yeah, there’s the similar, that’s split in the jurisprudence, it seems like.
Raj Sharma: That’s Justice Ahmed. So it’s like I had a good draw.
Steven Meurrens: They also don’t provide the opportunity for an ARC. I’ve seen the PR refused without giving the opportunity for an arc.
Raj Sharma: Look, I want to say this as well, when we talk about work permits and things like that, I frequently tell particularly Indian nationals… They’re like, “Oh, I want to apply for my husband’s open work permit.” I’m like, “Listen, he’s tried three times before. Delhi might shut him down, or you got married after the study permit was issued, apply for PR, forget about the open work permit. What if we go down this misrep route and then I’ve got to untangle all of this?”
Steven Meurrens: Yeah. I give the same advice. I always tell people to get the PR application in if they’re eligible to avoid any possible misrep issue down the road.
Deanna: Can you give us the citation for that decision before Ahmed? I’m sure we could figure it out. Just we can add it to the case note to the notes for this session because that’s one to watch out for, for sure.
Raj Sharma: Yeah. I mean, part of it was his response to, “What does your wife like to do?” He’s like, “She likes to go out and eat ice cream.” Really that ended up being a big sticking point. So-I don’t know if I want to give that citation to that.
Deanna: We can find it.
Raj Sharma: There’s plenty of other misrep. It’ll take you some time, but you got to be careful. It depends on the visa office.
Deanna: Yeah, but that is really troubling though. It’s sort of enlarges the scope of that exercise so much. It circumvents the entire appeal process pretty effectively.
Raj Sharma: Delhi will find a misrep behind every leaf, tree and bush. You got to be very careful.
Steven Meurrens: Well, yeah. I’ve shared with you Raj that, and I’ve blogged about it, it’s a policy. At least in 2018, it was a policy.
Raj Sharma: In fact, I believe I used those materials in some of my JRs to show that it’s a policy to prevent multiple applications. It’s almost like they’re punishing these applicants.
Steven Meurrens: Well, they’re sending a message to the community to use their words.
Raj Sharma: Sending a message to which community? Even in India, they’re sending a message to the Punjabis, not necessarily to the Gujabis or the guys from the UP or these other states. It’s a message to the Punjabis.
Deanna: You guys made some comments about 117-9, I think, unless I was missing what you were talking about. 117-9, you said that they try to do this. I just missed what you guys were referring to.
Raj Sharma: No, that’s 179.
Deanna: Oh 179, okay. So you’re talking about the overstay requirement. Tell me what you’re referring to exactly. I’m not sure I’m following.
Raj Sharma: Applicants need to demonstrate that they’ll leave [inaudible 00:53:54]
Deanna: The intention to leave at the end of the period authorized for their stay. Okay. That’s with respect to spouses when they have… Is that what you mean?
Raj Sharma: Yeah. They tried that in the past when people were clamoring that there’s a massive delay. At least give our spouses visitor visas together.
Deanna: Okay. Isn’t that just like the doctrine of dual intent? I don’t get it.
Steven Meurrens: No. There was a big push from the House of Commons committee on making it easier for spouses with PR applications and process to get TRVs. So I can’t remember if it was 2020 or 2021 where the department added this guidance on their website on how to assess these. I actually think it made it stricter, which wasn’t how it was presented, but I was like, whoa, these factors are tougher than I feel like the… There weren’t really any factors before. Now there’s all these additional tests.
Deanna: Yeah. I just feel like that should never be an issue. Anyways, that’s a whole other conversation, but at least I know what you’re talking about.
Raj Sharma: Well, I mean, the argument is this, is that why would this person overstay their [inaudible 00:54:57].
Raj Sharma: When they have a PR application in process.
Deanna: Yeah, exactly.
Raj Sharma: That’s why 179-B should be diminished importance when you have an underlying PR or a sponsorship.
Deanna: This is one of those things when they make a policy to explain what’s already the law. [inaudible 00:55:16]
Steven Meurrens: I’ve tweeted the stats. The spousal sponsorship approval rate is something like 91%. The TRV approval rate for where applications are in process is around 40 to 50%. So you’d at least think they could try to bring that TRV approval rate to somewhat mimic what the ultimate PR application is, because otherwise they’re just theoretically delaying unnecessarily 40%.
Deanna: Well, this is sort of similar but kind of still different, which is that I hear, and you might get this even more, Raj, is that people being advised that the principal applicant is going to apply for their temporary resident document through a visa office in India. They’re being told, don’t apply for your family at the same time because that’s going to make it harder. So the principal applicant then gets their permit and now they try and apply for their dependents and they all get refused. So to me, it doesn’t make sense because I would never advise them to apply separately. It seems to me like, you approve the whole family, but whatever. Once the one person, the principal, the lead applicant is work permit authorized to then do a fulsome assessment on the other family members in a way that’s different than had they applied altogether to be as a little bit…
Raj Sharma: Well, there might be some reason. When you apply for the work permit for, let’s say, the worker, you might want to show that he’s going to leave, he’s going to comply with Regulation 179-B because he’s got ties back home. Once he’s here and he’s working, then you apply for usually the wife and the kids to say that, look, she’s eligible for the open work permit, again, under the regs and the act. So I can see this why that would be done, and I believe I’ve done that myself. Yeah, I typically do like to touch a file once.
Deanna: Yeah, exactly. What I’m seeing is the applications that were advanced didn’t make any arguments about ties. I mean, maybe they listed them as being dependents that stayed and they were hoping those ties would be imputed to them.
Raj Sharma: I just thought about something? Can I chat about you guys about something?
Deanna: Yeah, please.
Steven Meurrens: Yeah, go for it.
Raj Sharma: So we chatted last year, right, about this time?
Steven Meurrens: Yeah.
Raj Sharma: We talked about Bhaona Mohamed, which was the first reported decision for 2021?
Deanna: Yeah, I remember about that decision.
Steven Meurrens: H&C with Covid.
Raj Sharma: H&C with Covid, frontline worker, longterm care facility worker handling dead bodies, dealing with families behind screens, whatever have you. Federal court, very Shakespearean, whatever assign the moral debt owed to, right?
Steven Meurrens: Yeah.
Raj Sharma: On the basis of that decision, I was able to win another IAD because at that time Deanna said, “Don’t underestimate this, Raj.” I was just like, “I don’t know if this is going to be a big deal or not.” Deanna’s like, “Don’t underestimate this decision.”
Deanna: Oh no. I’ve relied on that decision many times already.
Raj Sharma: I won this other case based on Bhaona Mohamed. Bhaona Mohamed went back to the IAD. CBSA, the hearings officer does like five, 10 minutes submissions. He’s like, “Look, you know what? Obviously these are the concerns. It’s a big disparity. He stops, right? So you can see that the CBSA is there, but not really there.
Deanna: Not really. They’re dialing it in.
Raj Sharma: Right. He’s dialing it back. He’s like, “All right, Raj.” I’ll go on. I explain everything. Refusal.
Raj Sharma: Refusal for Bhaona Mohamed because Ferrari, he’s like…
Deanna: Right. Okay. That says a lot.
Raj Sharma: “I don’t understand this moral debt line. Is the moral debt for a frontline long-term care facility worker different than the moral debt owed to janitors at schools or school teachers. I just don’t get it.” I’m like, “You don’t need to get it. You don’t need to understand member Ferrari. You just need to read Justice Ahmed’s decision and apply it in a very logical way.” So he refuses. I’m back at the federal court and I just got a production order, so I’m assuming I’m going to get leave. A journalist had reached out to me on this case a little while ago and I’m like, “Wait til they find out that somehow, even after that decision by Justice Ahmed,” which is as close to a direction as you can [inaudible 00:59:50]
Deanna: Yeah, for sure.
Raj Sharma: And the CBSA officer dialing it back. The first CBSA officer was, me and her don’t get along and we have a big issue for many, many years. This officer, we’ve been dealing with each other for 20 years and he dialed it back and did five, 10 minutes of whatever questioning. Five, 10 minutes of subs. I even said, I’m like, “Clearly you can tell from the respondent’s position that he’s not really opposed to granting this leave.” I don’t know what happened. Ferrari’s a good draw. I had a good draw the first time too. So I don’t know what’s happening. I don’t know what’s happening. I don’t know why I’m sticking on Bob Mohamed, but I will get this guy on the third.
Deanna: Oh my goodness. Yeah.
Raj Sharma: Third time, I will get this time. In Shala, I win at the…
Deanna: In Shala. Yeah, honestly.
Raj Sharma: I do want to fill you guys up because that was a year ago and we were…
Steven Meurrens: What was the underlying IAD about again? Oh, it’s a residency obligation.
Raj Sharma: Residency obligation. She was in the US. She thought she’d be sponsored by her husband. She stayed there on legal advice, regularization through that process and it didn’t work out. We were able to demonst-… So her family’s here. She came here initially as international student. She studied nursing here. She went to the US. She came back. Obviously, her family’s still here. So yeah, I don’t know what to say. It was a residency, residency. That too was an on point decision that had helped other… So the decision that I used, that decision, federal court decision, Bhaona Muhammad, I used on IAD for a misrep. Obviously misrep is usually more challenging than a residency.
Deanna: Yeah, for sure.
Raj Sharma: I don’t know. Maybe.
Raj Sharma: This is the exciting thing about litigation. You can never quite tell.
Deanna: No, no.
Raj Sharma: I was hopeful, I thought, because I’d use this case to succeed on other cases…
Deanna: Me too, many times.
Steven Meurrens: Well, you’ll have to update us in annual.
Deanna: Oh my God, let’s hope not. Oh, my God. [inaudible 01:02:14]
Raj Sharma: January 2024, Bhaona Mohamed will have permanent residency. She’s a lovely person.
Deanna: I have no doubt.
Steven Meurrens: Next question is super specific and almost just read like someone wanting legal advice. Whether a C-10 work permit, which is a significant benefit work permit, can be claimed for express entry. Answer’ yes. Not sure we need to spend any more time on it. I don’t know if there was something behind that question.
Raj Sharma: Most legal work in Canada can be utilized. Most legal full-time work in Canada can be utilized.
Steven Meurrens: You don’t get self-employment for CEC, but it can…
Deanna: Yeah, you need to have one year work experience though on that permit, right?
Raj Sharma: I’ll send you a case because the client just contacted me earlier today as well. Self-employment for CEC, there is a way around that, but I’ll send you my…
Deanna: Okay, okay. Yeah, I think that’s enough on that one though. I think that’s pretty straightforward.
Steven Meurrens: How would immigration be different if applicants were given GCMS notes instead of refusal letters by IRCC?
Raj Sharma: Well, it would cut down on the ATIP backlog.
Deanna: Yeah, for sure.
Steven Meurrens: Yeah.
Deanna: I don’t know if that would mean there would probably be a lot… Well, I don’t know, a lot fewer. There would probably be fewer leave applications filed and withdrawn. So I think the DOJ would like that because I think people are filing leave applications and then withdrawing after they received rule nine reasons, which is annoying.
Steven Meurrens: Or there’d be a lot more JRs because a lot more people would see what they view as unreasonable.
Deanna: How outrageous the decision was, yeah. Yeah. That’s basically the answer, but I still think that it would make for a more… I just don’t understand why even just the contents of the officer’s notes aren’t just copy, pasted. I understand they’re ugly, but at the same time, the idea that somebody has to go that extra step to get the substantive decision rather than that silly checklist.
Raj Sharma: Public policy is that transparency should be encouraged in affairs of the state and the individual. So from that point of view, we should encourage it, I agree. They’ll cut down on ATIP requests, they’ll cut down on JRs as well I think that are done just to get the rule nine. Again, there’s sort of consequences. If you get those reasons, let’s say for an agency, now your timelines for JR are going to be truncated. Again, like we said at the beginning of this discussion is that there’s many consequences. Anytime you change something in immigration, there’s going to be primary, secondary, tertiary consequences. So they start giving us those GCMS, then we’re going to start pulling the trigger on H&C, pros perhaps. I mean, the list goes on.
Deanna: Yeah, I would live with that.
Steven Meurrens: Yeah, I think it’d be a worthwhile trade off.
Deanna: Yeah, for sure.
Raj Sharma: Well, that being said, some of the clients, it’s finances at issues sometimes.
Deanna: Yeah, for sure.
Raj Sharma: Sometimes it comes in handy every now and then just to have some breathing room.
Deanna: Yeah, for sure.
Steven Meurrens: Then the last question is what we were talking about briefly when we started, which was that there’s been a trend of soon-to-be retired or retired lawyers on the podcast who’ve talked about how practicing immigration law is less fun than it used to be. I’ve heard one person from the Department of Justice say similar. Do you think that that is the case? How long have you been practicing, Raj? When were you called or when did you start doing immigration?
Raj Sharma: 2022. 2002, I was called. 2003 in Alberta. I was a hearings officer in 2002. So it’s been 20 years more or less in immigration.
I think we were talking about it. It’s the mileage, not the age. It’s not the age, it’s the mileage. So the practice of law’s a grind. These things are challenging. They weigh on you. I mean, there’s only so many refugee hearings and traumatic incidents that you can review yourself as counsel. There’s emotionally, you got to be a psychologist, you got to be a counselor, you got to be a social worker. Sometimes at times, it’s a very challenging profession. So sometimes it’s a mileage issue. Sometimes you’ve been there, you’ve done it and you’ve exhausted, let’s say, your insight at it. You may be doing the same thing over and over again.
DOJ counsel, I mean, I can do their argument. I mean, there’s nothing to most of those arguments. The decision is reasonable. The officer looked at everything. The officer doesn’t have to write everything down in his reasons and blah, blah, blah. You have to find meaning in your own practice. You have to find that way to… So I’ve added teaching to my sort of repertoire. Writing this book, teaching, being at the university. I think you add to it. It’s up to you, but it is a grind. There’s no doubt about it. It’s very challenging and it does take its toll and you have to fill your cup from time to time before you fill the cups of others.
Steven Meurrens: On the solicitor side, do you think the increased focus on bouncing applications changed the practice?
Raj Sharma: I think continuous change is challenging. When I started with, I would know the forms, I would know the question numbers. Now at this point, obviously I have a staff and I have assistants and they’re dealing with the portals. It’s to the point where I’m not sure whether I could log into my own portal without assistance.
One challenge in immigration is the continuous change. We don’t get a respite. Every week, every month, there’s something new. So that is also challenging in this area of law. Dare I say it, I mean, if you practice wills and estates, it’s entirely possible that you won’t have those sort of sudden shocks that we get it seemingly every six months or a year. Certainly the pandemic has increased the frequency of change and the challenges that immigration practitioners have.
I think the after effects of the pandemic is going to be a lot of immigration lawyers that are thinking about retiring have probably moved that up a bit and gone maybe to a less part-time practice as well. You can probably run a practice out of your house at this point and decrease those expenses. So that might be interesting. Yeah, the legal profession is challenging generally and immigration practice, particularly the last few years, have been exceedingly challenging.
Deanna: Yeah, we see sometimes these waves where some of the seasoned practitioners are going to the board, they’re going to the bench, just the wear and tear occurring. That learning curve is pretty intense and it’s never relenting. Sometimes I find now in consultations, clients are saying, “Well, what about this program that I read about in the newspaper? What about this policy? What about that?” It’s very, very challenging to stay on top of all of these new developments all the time. So I think in a lot of different areas, I imagine you get to the point of being like, okay, I’ve got this covered, and of course you need to continue up your continuing professional development, but I find that the pace of change has just been quite unrelenting.
I think that one of the things that you’ve said that that has really been very true for me is the degree to which there is so much breadth in the immigration practice. So I have changed so that my practice is very much on the refugee practice enforcement, litigation, but at some point when I can sort of take my own temperature and be like, I see burnout approaching. I’m going to just take a bunch of spousal applications or I’m going to do a few express entry applications. That breadth can be excellent to just manage the self-care component of it and just plow through a bunch of straightforward applications and just take a breath and that sort of thing and just manage that balance. It also makes it practical when you’re managing stuff and all of that sort of thing and should just make sure your profitability is there while still keeping close to your ideals and your principles and that sort of thing. You just need to keep it fresh and alive because otherwise burnout can be pretty severe and you don’t want to hit that before your time is up.
Raj Sharma: Look, there’s natural stages in life. There’s seasons in our lifetime as well. There’s a reason why most people start looking experienced practitioners obviously, or start looking towards the bench at around 50 or so. So if you look at the federal court, people are applying to the federal court when they hit that sort of mark. They’ve done what they needed to do and they’ve achieved what they felt that they could achieve and now they’re onto a new challenge.
Steven Meurrens: This podcast used to have a co-host who did that.
Raj Sharma: Yes, absolutely. So I mean, you have those sort of superstars that can start looking at that as well. “I’ve done this all right. I’ve made my mark such as it is, and it’s time to move forward.” That’s something to be celebrated as well.
Steven Meurrens: Yeah, definitely.
Deanna: Are those your tabs over there hanging on your filing cabinet, Raj? They’re not getting much use these days, are they?
Raj Sharma: No. Although I got my silks from London. So I went to London with a buddy of mine, so I picked up the silk. Yeah, I haven’t worn my robes from London yet, but I guess after April.
Deanna: After April. So they’re going back to in-person hearings. That shocks me, I got to say.
Steven Meurrens: It’s for certain types. Certain types.
Raj Sharma: Well, yeah. So if you look at the practice director, Justice Crampton was very clear. He wanted in person last year. If you recall, lawyers, especially the younger variety, were apparently running these things far too casually. He was about to make people gown up, robe up for the Zoom hearing.
Steven Meurrens: Yeah, I heard someone showed up in a t-shirt.
Raj Sharma: Yeah. Well, for the Bhaona Mohamed, I believe my colleague had some sort of strange headgear. I don’t know exactly.
Steven Meurrens: Well, the big question I remember when they switched to… Most people were like, “Okay, when the judge appears on the Zoom screen, is council supposed to stand up like we do in person?” If you stand up, then really all you’re doing is giving the judge a shot of your crotch.
Deanna: The abdomen. Yeah.
Raj Sharma: I think, yeah, what’s going to happen now is it’s going to be… I think TRV applications, JRs of applications outside Canada will remain on remote unless requested otherwise. Then IRB basically is in person and that makes sense as well. That’s a good compromise. I ran that JR in front of Justice Ahmed. That was in Hawaii and that was great. It was a great [inaudible 01:14:07]
Deanna: That’s amazing. That’s amazing. Yeah. Do you miss it actually being in the open courtroom?
Raj Sharma: I do a little bit. I think in litigation, your physical presence matters. I mean, a lot of your…
Deanna: Didn’t stop you from you quoting Elizabeth in English in the Bhaona Mohamed.
Raj Sharma: No, Zoom, I’ve taught on this. I think it’s just as good. I think that the technology is there now. That’s not an issue, but I think in person and walking over to that courtroom and putting your bag up on the desk… Our profession is one of tradition.
Deanna: Yeah, for sure. It does make a difference. I miss that [inaudible 01:14:52]
Raj Sharma: When you put your 20 year old bag up and you open it up and you take on your yellow legal pad and you put on the whole gear. It really is a transformation because you are now an officer of the court. You are now going [inaudible 01:15:06] with these rights.
Steven Meurrens: Bring back the wigs.
Deanna: Yeah. I have to share an anecdote, which is that Dennis McCrae decided to finally part with his gowns and with his old 20 year old… I’m sure it’s not a 20 year old, it’s probably more like a 50 year old briefcase. We opened it up and the whiff that came out of that was not one that you wish to share with others. Again, I understand the nostalgia that comes with it when it’s your own bag and your own gear inside of it. I do have a bit of that as well.
Steven Meurrens: The nostalgic whiff of Dennis McCrae. That could be an interesting place to end the podcast.
Raj Sharma: Bats fly out.
Deanna: That’s right. You forgot the old Kleenex he left in there.
Raj Sharma: Smells like some tomb opening after thousands of years.
Deanna: The fear from the last hearing when you got shot down. Yeah, it’s still stuck in there. Yeah. There you go.
Steven Meurrens: I think that’s a good note to end it on.
Deanna: Yeah, it’s always fun to have you on.
Steven Meurrens: We’ll learn if Dennis still listens to the podcast.
Deanna: I don’t know. We’ll find out.