Borderlines Podcast: COVID-19 as an H&C Factor, Mandamus and FSW vs. CEC Priorities, with Raj Sharma

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Steven Meurrens:             Hello, and welcome to the Borderlines Podcast. The podcast for the discussion of Canadian immigration law and policy. I’m Steve Meurrens. This week, Deana Okun-Nachoff and I are joined by Raj Sharma an immigration lawyer in Calgary at Stewart Sharma Harsanyi. Raj previously appeared on episode 48 of this podcast, where he discussed responding to procedural fairness letters, and also episode three, where he discussed marriage fraud. And today Raj is on to discuss this case, Mohammed V Canada, citizenship and immigration, which is the first federal court decision of 2022.

Steven Meurrens:             There the federal court ruled that the immigration appeal division unreasonably minimized the extent to which working as a frontline healthcare worker during the COVID-19 pandemic should be a factor in the humanitarian and compassionate assessment. We also discuss processing times, mandamus applications, whether IRCC made a mistake in lumping federal skilled worker class and Canadian experience class applicants together in express entry and more. Raj can be found on Twitter @immlawyercanada. And if you enjoy today’s episode and you like the show, please leave a review on iTunes or wherever you listen to your podcasts. I hope you enjoy.

Steven Meurrens:             We’re two years into two weeks to flatten the curve, two years to two weeks for IRCC to digitize applications and respond to COVID. Raj, you have the first federal court case of the year, Mohammed V Canada, citizenship and immigration 2022 FC 1, congratulations on the first reported decision of 2022. And I think it’d be a good guide or a good case to summarize where we are two years into COVID. But actually, before we get to that, did you see that they finally replaced the blue horizontal bar with a green vertical bar as part of their digitization efforts to modernize client service?

Deana Okun-Nach…:       What are you talking about?

Steven Meurrens:             [crosstalk 00:02:28]. Did you see it Raj? On Twitter, Sean Fraser on Twitter, they announced that for family class applications, you can now see the progress of your application and it’s a green vertical bar instead of the current blue horizontal bar.

Raj Sharma:                       The more things change the more they stay the same.

Deana Okun-Nach…:       Exactly.

Raj Sharma:                       Call me as a skeptic or call me cynical perhaps after 17, 18 years of practicing in this area and trying to explain to my clients for the umpteenth time that processing times may not be actually indicative of reality. The proof of the pudding is in the eating of the pudding.

Steven Meurrens:             [crosstalk 00:03:10] someone who responded to their tweet that said, “But we never cared about the color of the bar. We just want our relatives to come to Canada.”

Deana Okun-Nach…:       Oh my God that’s awesome. [crosstalk 00:03:20].

Raj Sharma:                       Part of the problem is lack of transparency. Oh, sorry. Go ahead, Deana.

Deana Okun-Nach…:       No, I had a client who wrote me and was like, “Oh, good news. They’re going to get on processing times.” And I was like, “Okay, just don’t send your invites out for the party just yet.”

Raj Sharma:                       Don’t sell the farm yet.

Steven Meurrens:             But why don’t we talk about your case, because I thought it does tie into an aspect of COVID. We hear a lot about processing times, the border issues, but your case dealt with how frontline COVID workers are treated in the humanitarian and compassionate context. So do you maybe want to summarize [crosstalk 00:04:01] Mohammed’s background and how she found herself needing a lawyer?

Raj Sharma:                       Yeah. Bhaona Mohammed, I’m going to put this down as some degree of overconfidence on my part and perhaps that sneaks in, once you do a certain number of cases or litigation and every now and then you encounter that reality, which is the assessment was incorrect. I mean ultimately proven correct at the federal court. So Bhaona Mohammed was a permanent resident of Canada, she had come here many years ago as an international student. She graduated, she worked in Canada as a health aid. Things didn’t work out. It was a little bit harder to navigate from temporary residence to permanent residence back when she did it around 2010, 2011. Ended up going back to Fiji, and got sponsored to Canada by her first husband. And so she became a permanent resident.

Raj Sharma:                       She accumulated quite a number of days in Canada and working in Canada and then marriage breaks down, reconnects with an old boyfriend, ends up making this significant decision of going to the US and ends up getting married. So her boyfriend, husband is Muslim. His parents are like, “No, we’re not going to do this dating thing. You’re going to get married.” So ends up getting married, gets some shoddy advice, which is you can regularize her status from within the US. Husband’s a green card holder. I had to ask my own brother about this. My brother’s a US immigration lawyer, but in essence, she should have done something called consular processing, instead of trying to navigate the system from within the US.

Raj Sharma:                       She ultimately gets refused and comes back to Canada at the port of entry with her expired PR card. And she’s written up for non-compliance of the residency obligation. Everyone is probably familiar that you need to have two years. It’s this use it or lose it type of provision. You got to be in Canada two years out of a five year period. She’s way short. We run the appeal. In the meantime, she’s healthcare aid she starts working at Bethany Care at Airdrie, there’s been a massive outbreak, COVID happens. We run the appeal. So I look at this appeal to go to the IAD, she’s got lots of family in Canada, she’s studied in Canada, but for this mistake or this shoddy advice, she won’t be in the situation that she right now.

Raj Sharma:                       So all of the classic [inaudible 00:06:39] factors were there other than really best interest of child. I looked at her service in the time of a pandemic where we’re beating pots and pans on balconies in support of frontline healthcare workers. And so I made that the centerpiece of my appeal. And so I had letters from Bethany, I put in information about the outbreak there, the deaths of residents there. Really she’s there at the most vulnerable time. When their own family members couldn’t be there while they were dying, for example. She’s dealing with dead bodies. She’s dealing with feeding people. You name it she’s dealing with it. With people that have dementia.

Raj Sharma:                       And so I made that the centerpiece of the appeal and I really thought, okay, well. We’ve all done residency appeals. And a lot of them are these country western songs, like my dog died, my wife left me. And whatever. Right? And so they’re not that compelling sometimes because ultimately most times when you lose your status and you lose at the IAD, it’s because of choices outside that you’ve made, not because of extenuating circumstances that you chose. And so you picked your bed, now lie it. And so this was truly compelling. And again most residency appeals fail at the IAD. I made it the centerpiece, and we got this strange decision from the board member, which was that, I give this moderate weight, I give this some weight, I give this some moderate positive weight. And we took it to the federal court had [crosstalk 00:08:23].

Deana Okun-Nach…:       Raj, Sorry.

Raj Sharma:                       It was member Stephanie Pinto.

Deana Okun-Nach…:       Okay.

Raj Sharma:                       Stephanie and I, we worked together at the IRB 20 years ago. She was a case officer at that time. She then became a hearings officer. So even seeing Stephanie, I felt confident. I had this CSA officer who’s, again, just has never seen any appeal that she’s liked. An officer that I’ve done a complaint against in the past. And so, again, I was like, “Okay, she’s going to be over the top. And my client is very compelling and very credible, and I’ve got all of the evidence and I’ve got a good draw.” Lo and behold, I get this refusal, went to the federal court, we got a very good decision and I remember telling the federal court justice, and again, I’ve got this DOJ lawyer on the other side.

Raj Sharma:                       I quoted Justice Harrington who quoted from Shakespeare -Titus Andronicus in this case. And the DOJ lawyer interrupts and she’s interrupted and said, “Excuse me. I’ve never heard counsel quote from Shakespeare before.” And it’s Justice Ahmed, and Justice Ahmed is like, “Well, there’s a first time for everything.”

Deana Okun-Nach…:       That’s amazing.

Raj Sharma:                       I then start talking about what she has to do as a healthcare aid in Bethany Care. And I said, “This is very difficult work.” that, “This moral debt that we owe these individuals is not easily quantifiable. This is not something that we can put into words exactly. And how does that board member deal with it?” I said that, “This work is so difficult.” and I said that “I could not do this work.” Again, she interrupts, she’s like, “I object. Counsel should not be expressing their personal opinions.”

Raj Sharma:                       At this point I’m just quiet and I’m just waiting to see Justice Ahmed’s response and Justice Ahmed’s like, “Mr. Sharma, I want to hear more of your opinion on this matter.”

Deana Okun-Nach…:       Oh my goodness. Raj, this is amazing.

Raj Sharma:                       So, yeah. And the only thing going through my mind is don’t gild the lily, Raj. And I’m just, okay, just bring this home now. Everything’s done. And then the decision was as good or perhaps better as what I expected, that moral debt phrase was there. Let’s not just pay lip service to the frontline, the essential care workers, there was evidence before Justice Ahmed in terms of the impact on racialized immigrant women, that took the brunt of it. So in Toronto, for example, they were disproportionately affected by COVID and infected by COVID during the worst outbreaks.

Raj Sharma:                       We had that evidence before the IAD itself. We had this disproportionate impact on racialized immigrant women, and Bhaona Mohammed is a racialized immigrant woman. So we had everything there. And so here I will castigate myself a little bit on the IAD that perhaps I was over confident on this one exceptional factor. Ultimately, I was proven correct. This time around, it’s obviously going back to the IAD. So we will address more of the typical Ribic and Chieu factors which frankly rarely work in residency appeals, but we will now cross the Ts and dot the Is.

Steven Meurrens:             Always unpredictable. That was the paragraph that leapt out at me when I read the case. And you just alluded to it, which is paragraph 43 that, “The moral debt owed to immigrants who worked on the front lines to help protect vulnerable people in Canada during the first waves of the COVID-19 pandemic cannot be understated. I do not find that the IAD gave this contribution the weight it deserved.”

Raj Sharma:                       You should have seen Justice Ahmed when I quoted, I went through the transcript. CBSA Hearings Counsel said that my client essentially is working as a frontline healthcare worker to buttress her appeal. This is in the transcript. I was appalled, “Let me get this straight. My client dealing with an unknown pathogen is going to put herself in harm’s way, potentially risk her life, just so she could potentially win an appeal that’s a year or so in the future?” Mind boggling stuff.

Raj Sharma:                       So again, I thought that I had it at the IAD, got a strange decision, we had the federal court, so very grateful for that decision. And the beauty of that decision is that, in December after I ran that argument in front of the federal court, I was in front of Stephanie Pinto again, on an IAD for misrep for a non-disclosed family member, for a young girl from Nepal, who was working as a healthcare provider in a COVID facility, who studied in Canada. And I said to Stephanie Pinto, I said, that last case we had, I have leave. And I just argued that in front of Justice Ahmed. And I’m going to tell you that her contributions on the front lines is a significant factor, and you cannot underplay it.

Raj Sharma:                       Fast forward, get the decision, sent it into the IAD post hearing. It was accepted, obviously was referenced in submission. So I believe Bhaona Muhammad is going to assist other cases. It’s not going to be a lot, but it will come in handy.

Deana Okun-Nach…:       No, I wouldn’t underestimate it, Raj. I think that this is a really epic decision in so many ways. And first of all, just the way that you just articulated what you did in that, was so brilliant. I think it even elevated the decision itself, which was pretty spectacular. But for me, and you’re going to need to cut me off after a few minutes, but I just wanted to say that my takeaways from both the decision and from also what you said right now is that we are working in truly Shakespearean times. And if we are not prepared to bring that level of, I don’t even know what you call it, but to your litigation, then you shouldn’t be in front of a decision maker right now. You said at one point you’ve been castigating yourself because, oh, I didn’t do this quite as well, and dah, dah, dah.

Deana Okun-Nach…:       But at the same time, it’s just, I know what you’re saying when you talk about when I get the facts from my clients and I do a bunch of time just making sure I’ve got the whole insides and outs of the case, I have a gut instinct as to how this is going to do. And usually my gut instinct is pretty spot on and I’m not trying to beat my own drum, but I just mean when you’ve been doing it for a long enough, and with enough cases, you’re like, “Okay, this is a winner.”

Deana Okun-Nach…:       But some of those winners are tanking and you have to anticipate, even in what you… I got in trouble with a client the other day, because I was like, “No, no, we’re going to settle this case.” Not only do we not settle it, we didn’t get leave. I don’t think I’ve been denied leave since I was an article student. I just was like, “What’s happening to me right now?” And so you can take nothing for granted.

Raj Sharma:                       I think that in fact, a lawyer or an advocate, in the appropriate case should demonstrate passion and should be eloquent and persuasive. That’s true, a lot of lawyers won’t quote Shakespeare. I was actually referencing Sean Harrington who quoted from Titus Andronicus, “Can you hear a good man groan and not relent and not compassion him?” That’s it and you’re trying to explain the Chirwa concept of H&C relief, and then the convergence between section 25 sub one and section 671C of the IAD and where they came from and how do we apply that? And what is the jurisdiction of the IAD and there’s other cases, which is that the IAD H&C is not a quantifiable process. It’s qualificative. I believe that was Justice Shore or Justice Zinn.

Raj Sharma:                       And so one factor could be in our overwriting factor. So I agree. We do have a good sense of it, and I’m glad that I was sort of vindicated. Client was watching during this Zoom thing, so that was also… Just a note to other counsel, DOJ counsel interrupted me a couple of times, and then couldn’t find something in her materials and then said, “where’s that document, Raj? What page is that document at?” Justice Ahmed simply told her that firstly, it’s not Raj it’s Mr. Sharma, or my friend. And number two, you better find this on your own. And so maintain some degree of decorum. It’s the federal court. I know we’re doing everything on Zoom these days, but-

Deana Okun-Nach…:       Without a gown and all, this kind of stuff, but it’s still representations in front of the federal [crosstalk 00:17:52].

Raj Sharma:                       That’s where the experience I think probably comes in handy, know who you’re in front of, but I think, know who-

Deana Okun-Nach…:       You’re across from?

Raj Sharma:                       Yeah, perhaps.

Deana Okun-Nach…:       I think so too, honestly. I think you can leave no stone unturned right now.

Raj Sharma:                       I think more senior DOJ would not have done what that counsel did.

Deana Okun-Nach…:       Exactly my point.

Raj Sharma:                       That much I can say.

Deana Okun-Nach…:       Yeah. But I think also you do need to bring every tool. So whether or not that means you’re going to be literary, whether that means you need to be a bit theatrical, whether or not that means you need to be extremely political. I think you have to be prepared with all of that material right down to the point of like, do not gloss over the affidavit is no longer just about showing the materials that were before the officer. I think you really need to up your game and be like, yes, but also consider this material.

Deana Okun-Nach…:       When I’m approaching litigation right now, I’m pretty confident in my own skills, but that doesn’t mean I’m not speaking to the three litigators or maybe the two litigators I have on speed dial to be like, “Would you do this differently? Am I missing something?” This is part of what’s so challenging right now is we really need to collaborate and be like, “Oh, how did this work? Why did this work?” I took Gordon Maynard for lunch the other day to be like, “You need to set me straight, because this is a hard case.” And he was like, “whoa.” Gordon said, “I don’t get surprised much, but this one surprises me.” And so I [crosstalk 00:19:27] that was a lunch and just toured apart.

Raj Sharma:                       All of those points are good and I would say that also you should pick your battles.

Steven Meurrens:             Yeah.

Raj Sharma:                       That may be more true for DOJ than us.

Steven Meurrens:             I’m going to come back to the case in some of the possible implications where it may also apply, because I agree with Deana. I could see this possibly having wide ranging implications, but coming back to something Deanna just said about, the affidavit not just being something where you strict to what was purely before the visa officer. Something that I’ve kind of learned over the years is, the federal court judges when they present at CBA conferences will often say, try to keep your applicant record as small as possible. Try to keep your memorandum of argument as small as possible. And I have found over the years that I will regret what I didn’t say much more than possibly putting too much into an applicant’s record.

Steven Meurrens:             And that was really driven home early at the IAD for me by the hearings counsel who I won’t name, but who is actually really good. And I would say made me a much better litigator there because he would just focus in all the time on what was missing from an applicant’s record. And if the applicant, the appeal, I can’t remember what it’s called at the ID, but the material the applicant puts forward, the disclosure. And it was always, well, if the applicant cared more about their case, they would’ve made this more comprehensive. So I don’t know kind of [crosstalk 00:21:01].

Deana Okun-Nach…:       I’ve seen a lot of that too, and at the board and at the federal court.

Steven Meurrens:             Yeah. So I don’t know if you [crosstalk 00:21:05].

Deana Okun-Nach…:       Why didn’t you explain better why you’re not sharing this information with your children? Really getting into people’s personal decisions and personal life. Just feeding off of what you’re saying, Steve, is that like the… I think that when you deal with the deference given to decision makers, they’re allowed to take into consideration general country conditions. That’s not something that’s on the record, I don’t know if I’m making sense here, but that will be part of the reasonableness assessment. Was it unreasonable given what their deference is owed given like they know country conditions. It seems to me that if there are assumptions being made about country conditions, you need to provide counter evidence to that.

Deana Okun-Nach…:       I feel like this needs to be thought through more specifically, more meaningfully. Don’t just take for granted that because that evidence wasn’t there, that talking about the risks that somebody would take working in the healthcare sector can’t be something that you still argue. So I just think that really we should take the blinders off and take the most broad spectrum approach to how you strategize around the case. And then to go off of something that Raj said too, you were saying Raj about choose your battles. But I think the other kind of practice advice right now is that you need to be very different about managing your client expectations.

Deana Okun-Nach…:       And so like what the cost might be like, you can quote your fees for an IAD but if there’s a real good chance you’re going to lose at the IAD and then you’re going to have to start quoting fees for federal court application. You need to foreshadow this in your conversations with your client and repeatedly bring it up and just be like, we might not win here. And even though I think we’ve got a winning case, you might need to budget for both an IAD appeal and a federal court, and then go back to the visa office and then being refused again. It’s just really hard to think of all the things you need to at least open as a conversation with your client from the very beginning and just keep bringing back all the way through. The professional responsibility here is real, real high.

Steven Meurrens:             So on the case just swinging back then, as far as where it could apply, her NOC is as a healthcare aid is what the government would consider an unskilled NOC with no immediate pathway to permanent residents. So I guess Raj, my question would be, do you see this decision as possibly forming a basis for well, healthcare NOCs to claim H&C? You could expand it to the whole, all of the TR/PR occupations is what the government considered essential to COVID-19. And do you think that this creates, I guess my question is almost its own factor in an H&C assessment?

Raj Sharma:                       I think so. I hate the word unskilled to describe NOCs occupation because, when you need them they’re essential workers and when you don’t need them, then they’re unskilled workers. I prefer the term low wage workers rather than unskilled workers. I had a discussion with Doug Saunders of the Globe and Mail about this. We have a Byzantine immigration system. COVID threw a wrench into already cumbersome and inefficient machinery. You could have, for example, in Alberta the AINP, you could have someone that provides for my 93 year old grandmother, someone that goes to her residence and assist her where she lives with my uncle in Edmonton. Someone that goes there and provides her assistance, same graduation from Alberta DLI, that person’s ineligible under the AOS, the Alberta Opportunity Stream.

Raj Sharma:                       If that person’s working in residence care facility on the other hand as a home support worker, that person is. So again, this Byzantine rules that you have the same duties, but you do it in this location versus this location. This one’s in this one’s out. You have accounts payable clerk, who’s a one, four that’s an NOC. So one year working as accounts receivable or payable clerk at Sheraton hotel, you’re not in. You’re an NOC for unexperience class. Now a bookkeeper at a one, two that person’s in.

Raj Sharma:                       We have to get rid of this Byzantine system. That’s the future. Now can change happen? Obviously, sclerotic organizations like government departments don’t like change but COVID has forced change. We saw, for example, the TR to PR pathways, which was one of the silver linings of COVID, but COVID continues, and our processing continues to have significant human cost. I agree with you, they’ve moved it from a blue bar to a green bar, but people’s lives are still hanging in the balance of whatever status bar, whatever color that status bar is.

Deana Okun-Nach…:       There’s so much packed into that, Raj, and that’s really brilliant. I’ve made a career out of making these arguments about the healthcare sector, like my whole obsession with the caregiver stuff and all the jurisprudence around that. So I feel like it’s starting because of what you said, that when we need them they’re essential when you don’t they’re low skilled. Right now anybody who’s going to care for anybody under any circumstances is just essential. So to call them low skilled and C&D and fewer opportunities it’s primitive and archaic. Nick Keung, by the way, from the Toronto Star has done some really, really good writing on this subject as well.

Deana Okun-Nach…:       The part that complicates it for me is this TR to PR pathway being one of the bright lines, part of what we’ve been talking about in other episodes. And Steve and I have done this a whole bunch is that like, yes, it’s a bright line, but the numbers for that program carved out of the express entry. And I’m not saying that’s a good thing or a bad thing, but it just has created this situation we’re in right now. Which is that there are enough people in the backlog to fill the entire quota for next year. And are they the right people leaving? We don’t even know. We’re kind of hamstrung on this thing. And also people are coming to Canada and paying hundreds of thousands of dollars on Canadian education with the expectation of a CEC pathway that may not exist when they get there.

Deana Okun-Nach…:       I think that the idea of the total absence, or at least the appearance of the total absence of strategic planning from the department’s perspective, like who are you going to bring in? The total lack of transparency, so people don’t have any way of planning around this is, it’s epic.

Steven Meurrens:             Well, the lack of transparency is part of what’s really getting rise to the sense that there is no plan. Or the plan is just based on what can we do to hit a numbers target?

Deana Okun-Nach…:       Sure. [crosstalk 00:28:52] maybe there is a plan, and if you’re not telling anybody, it’s not of any value to the public.

Raj Sharma:                       The plan is that we’re going to build a plane while we fly it.

Steven Meurrens:             Mm-hmm (affirmative).

Deana Okun-Nach…:       Yeah.

Raj Sharma:                       That’s the plan. And I agree in terms of transparency, almost a fifth of Canadians are immigrants. Immigration will have to do better. They got a pass. A lot of ink and tears have been spilled over the impact of the pandemic on immigration processing. You can’t keep beating this dead horse of the pandemic. We’ve had enough time to adjust. We have enough technology [crosstalk 00:29:33].

Deana Okun-Nach…:       We’ve all had to pivot, so how come you can’t? And we’ve had to pivot right around a sharp corner. A total U-turn kind of a pivot. We’ve all had to do that. Not just the lawyers, the people have had to pivot around the life planning and all this kind of stuff. So the department has to be better, as you say Raj, that’s totally it. And this email about like, I’m sorry, we can’t answer your question because we’re dealing with people from Afghanistan. Bullshit. I’m sorry, but bullshit. And I just want to be like, that is not okay.

Raj Sharma:                       Yeah, let’s not put this on the people of Afghanistan they’ve suffered enough. Right? But don’t put this on them.

Deana Okun-Nach…:       And also you’re not actually helping them either. I have a bunch of those cases and they won’t answer my emails either. So don’t tell me that’s who you’re paying attention to because I know you’re not.

Raj Sharma:                       What I love is the email where it says like, our offices don’t have any more information than you do regarding processing. Wow.

Deana Okun-Nach…:       That’s problem?

Raj Sharma:                       That is a problem.

Steven Meurrens:             Also not true because they have access to GCMS. I’ve never understood that. They totally do, they just won’t share it. Which again goes to the whole, people never cared about the color of the bar they want to be able to see basically what’s in GCMS and I don’t know why the department doesn’t. Well, but the thing is, we think that-

Raj Sharma:                       My sympathy dried up about, I think maybe six months ago. I did have some sympathy too.

Steven Meurrens:             Yeah. Well I think that the big thing for the department is, in our own ability to adjust to COVID we could, and the government did this a bit, slow down intake, whereas the number of new applications that they kept receiving. We say that the department hasn’t been able to adjust to processing, they I think achieved what they wanted, which was their target. That was their starting point. And that’s what they planned around. It may look like they’re being impacted by the pandemic or that this is chaotic, but really they achieved their objective. They launched a new program. They hit their targets. If you start from [crosstalk 00:31:42].

Raj Sharma:                       Well, okay. Hold on. All right, yeah. That’s fine. If the measurement of success is immigration intake, that’s fine. You’re right. They did hit their target of 400,000. If you measure the ability of a fish to climb a tree, it’ll think it’s a failure for the rest of its life. It all depends on what your measurement is. We took in 400,000 at a cost. There was a cost to many other applicants as well. You did hit your 400,000.

Steven Meurrens:             [crosstalk 00:32:15] but I think it was deliberate. I think the government could have completely processed those skilled workers in 2021, but that wasn’t their goal.

Raj Sharma:                       No, no. I would prioritize always applicants that are living, working, studying in Canada over anyone overseas under the economic class, to be clear. That should have been shifted. CEC should never been competing with FSW anyway. We should never have deleted the pre 2012 CEC pass fail and put them in the general pool with FSW, that should never have happened.

Deana Okun-Nach…:       Can I give another example of that is the caregiver categories, the HCCP and the HSWP, those two pilots. They also have overseas competing with people who are here and have already done their two years of work. And if they give those spots away to the people overseas, those people in Canada cannot get landed and continued in that, have to continue in that indentured servitude of LMIA based employment on a fixed employment contract with, does the employer want to spend a thousand dollars on an LMIA application. It’s another one.

Raj Sharma:                       I don’t have sympathy for IRCC at this point, I have a modicum of sympathy of FSWs that have been selected and they’re waiting in limbo, and there’s just not enough transparency as Steven puts it. And thank God for his ATIP efforts, that they now know that it could be a very long wait indeed. I have a great deal of sympathy for family class that are in limbo, that are stuck. Families are being affected. Families are being torn apart. Marriages are failing. Relationships are failing.

Deana Okun-Nach…:       Things are suffering.

Raj Sharma:                       That is a fail by IRCC.

Deana Okun-Nach…:       I have a question for you both though about the quota thing, is the 400,000 or whatever it is, is that decisions or is that actual humans?

Steven Meurrens:             Humans.

Deana Okun-Nach…:       It’s humans. I want to take you back to the HCCP/HSWP thing, which is that they say 2750 per year on each of those programs, but I’m getting the most insane refusals. And I think those people took up their spot in the 2750. They hit the target, let’s say in March, then they stop accepting applications. And then the refusals come out almost a year later.

Deana Okun-Nach…:       So like the spot is burned for both the overseas person and for the one just trying to regularize her status and bring her family over. They’ve burned that spot. And then they refuse because like literally for a three month period, they call themselves self-employed and the department says self-employed is not a job description. So they will refuse the application on that basis a year later. And then I have to get this caregiver to finance a federal court judicial review application on her $14 an hour wage, where she’s raising the kids and taking care of the elderly person who’s in this COVID environment. It’s just mental.

Steven Meurrens:             Go to your question of that, so their target for people under the caregiver programs, agri-food pilot, and rural and northern immigration pilot was 8,500 people. So how that 2,500 applications plays into that and how many dependents there are I’m not sure, but yeah, that’s a measurement of people.

Deana Okun-Nach…:       It can’t be about people though, because it definitely doesn’t include their dependence, it’s applications they will accept in the door. But then if 50% of those, and I haven’t got the skill that you do Steve, to be able to do the appropriate ATIPs to figure out like, let’s get at the quality of the decisions that happened on those 2750 applications brought in. I’m sure there’s only maybe of the number that I speak to a super small margin who can actually have an employer who will pay me to run the judicial review. I don’t have the funding to do them all for free, and I have to pay stuff. It’s a problem that is so broken that I think getting beyond that, how many in the door and how many actual decisions that actually brought humans and those programs needs to be broken down better?

Steven Meurrens:             My point is they’re clearly planning on a number refusals because if you have 2750 plus dependent, plus the agri-food pilot, rural and northern immigration pilot, and you’re only planning on approving 8,500 people, there’s definitely a plan for a certain amount of people.

Deana Okun-Nach…:       Exactly.

Steven Meurrens:             They plan on that. Going to the processing times. Raj, another thing you’ve been tweeting about recently is Mandamus, which we did an episode on sometime last year.

Raj Sharma:                       Our first podcast was the Zaghbib case where I took a mandamus issue to the federal court of appeal on marriage fraud that was years ago.

Steven Meurrens:             Yeah, we did an episode. It was the, I think the fourth or third episode. But I think you’ve been filing them more now. Or threatening, at least sending the demand letters.

Raj Sharma:                       Bear in mind again, you pick your battles. Look -mandamus I’ve been doing for 10 years plus, and I’ve used mandamus in a variety of circumstances, including compelling CBSA to investigate marriage fraud. Mandamus is not a great remedy. Okay. It’s a very, very stratified. It’s very sclerotic. You go back at the federal court of appeal for Zaghbib and I realized mandamus this is not a great remedy. It’s not like certiorari, it’s not like these other things. So mandamus is you got to fit this sort of square peg square hole.

Raj Sharma:                       So I avoided mandamus more than a year, a year and a half people were asking me for mandamus demand. We’ve heard you can do this. And I’m like, no, no, no, I’m going to wait. And then all of a sudden the dam burst. In fact I think my Twitter followers have leaped since I’ve been posting, showing demand, no response, we file ALJR, we get consent or we get leave. So 17 days, the last one was we filed our record on January 24th or so we got the landing instructions for a US nurse who is ready, willing, and able to serve on the front lines of this pandemic, graduated from the US, everything set right to go, came up here is actually studying in her field as well, paying international fees. So we can’t land her? Well, we now did. We did on Saturday.

Steven Meurrens:             [crosstalk 00:39:00] mute your mic and scream?

Deana Okun-Nach…:       What?

Steven Meurrens:             Did you just mute your mic and scream?

Deana Okun-Nach…:       Yeah, I have been.

Raj Sharma:                       Yeah. So that was a most recent case. Now the floodgates are open. Now I don’t care. I was very reticent. I was like, I don’t think we’ve got a mandamus, my personal opinion is no mandamus. I don’t want to take your money if I don’t think I can meet the test, but now we are meeting the test. We now have delays of landing prior to the pandemic, prior to. This person should have been landed before March, 2020, for example. We’re getting leave. We’re getting leave from the court. The court is not responding. The respondent’s argument, it’s a COVID, it’s impacted processing. We just got leave. I have a matter on this. I have to discontinue it because my 58 year old just got landed under the CEC. So we’re discontinuing that as well.

Steven Meurrens:             Yeah. I’ve noticed mandamus has been productive as well. I held off the same way you have, and I’m finding it to be very productive. And also, apparently they’re now getting so many of them that like DOJ across the country appear to be working on it. I have a chat with the department of justice lawyer, like they’re pulling in lawyers who don’t normally do immigration because of the volume that they’re getting.

Steven Meurrens:             I don’t know how big a wrench this actually throws, when you have a certain number of people that are filing mandamus, how much does this actually impact normal [crosstalk 00:40:31]?

Raj Sharma:                       It’s huge. Just on the DOJ side. My last one where I got leave, they had to get an affidavit from some officer saying, look, I’m reviewing this under… It was an Indian army guy from 30 years ago. And so they had to review security for Indian army. I thought this matter was settled 10 plus years ago. But in any event, you’re getting affidavits, they’re fighting us on some but mandamus will be very, very relevant. If we’re talking about judicial review, the story of 2022 will be mandamus.

Deana Okun-Nach…:       Yeah.

Steven Meurrens:             Yeah, I think so as well.

Deana Okun-Nach…:       A few points here on the mandamus thing, which is that first of all is about the delay. And I think that what I’m really kind of grappling with, because to me it is a bit of an ethical quandary. I don’t want to bring vexatious litigation. I don’t want to bog down that process and all this. I don’t want to add to the DOJ problem, which I’ll get to in a second. But at the same time, it’s not just about the number of months. It’s about the impact on that human given the specific circumstances of that human’s life.

Deana Okun-Nach…:       Where two years might be a no biggie for somebody who just wants to be able to leisure travel, on somebody who can’t visit family members because of this, or can’t be with a kid it’s a shorter timeline. And I just don’t know if that kind of tethering of the time and the consequences is really there in the way that it needs to be. Raj is looking at me like he doesn’t know what I’m talking about, but I just feel like, this would be more crude months in the past. I feel.

Raj Sharma:                       Mandamus is like using a hammer to kill a mosquito.

Deana Okun-Nach…:       But an ineffective hammer, this goes also to the point about the inefficacy of the remedy.

Raj Sharma:                       You probably would not use a mandamus for an outstanding TRV, for example, because you’re asking for refusal.

Deana Okun-Nach…:       Right. Exactly.

Raj Sharma:                       You’d use that because that’s the easiest way to exercise decision. Okay. No, I’m not satisfied. Done. Now what are you going to do?

Deana Okun-Nach…:       Yeah, exactly.

Raj Sharma:                       So mandamus again, you pick and choose, it’ll probably be a PR it’ll probably be citizenship. It is probably going to be tied to some objective sort of criteria, which is some kind of posted processing times. Some kind of determination pre-pandemic perhaps. Right? I would probably say mandamus for PR somewhere over 18 months or so. Put it this way [crosstalk 00:43:09].

Steven Meurrens:             That’s what I say, about few times the stated processing is usually the [crosstalk 00:43:12].

Deana Okun-Nach…:       I wouldn’t go that far anymore.

Raj Sharma:                       And there’s no such thing I believe, now the bar is I think the vexatious mandamus are few and far [inaudible 00:43:23]. Who’s going to pay you for a mandamus demand whatever, they self-select. You are going to get most applicants are going to be waiting around. They’re going to give them the year. A couple of expired medicals. Okay. 18 months or so is when you start thinking about mandamus seriously.

Steven Meurrens:             Well, and so the other thing with the skilled worker applications is a lot of times it seems like they’ve all been processed. They’re just not being finalized. So you mentioned with the TRV, they could just refuse it. But these skilled workers, it seems to literally be just a question of pushing a button. And I think that button wasn’t pushed before because they were prioritizing CEC to hit their numbers. But as far as going before the federal, in terms of DOJ, whether you settle and just tell I IRCC to approve the thing or go before a judge, if you really want to go before a judge with an application where the GCMS notes, I’ll say it’s been approved and it’s just been sent, waiting to be landed. I had that tweet.

Raj Sharma:                       Remember one thing they used ministerial instructions when they trashed the pre-2008 FSW applications.

Steven Meurrens:             Yeah.

Raj Sharma:                       Okay. So they used it, ministerial instructions trash this. Okay. Done. They brought in express entry thinking that 80% we’re going to finalize in six months. So mandamus is very suited for express entry work because they trashed it, we couldn’t use this on the ministerial instructions. We couldn’t JR this stuff on the ministerial instructions. And you trashed 800,000 applicants or 600,000 applications. You might be able to use ministerial instructions right now. And that might happen. You might say, you know what, we’re going to restrict FSWs to 10,000 per year, or we’re not going to take any more FSW under express entry.

Steven Meurrens:             Yeah. The department isn’t making it easy on themselves.

Deana Okun-Nach…:       Thank goodness.

Steven Meurrens:             I just went to the IRCC check processing times website, select an application type, economic immigration. Which type? Federal skilled worker. Have you already applied? I already applied six months. Mandamus is in part based on what are their normal processing times. And if the IRCC website and they continue to say it should be six months and it’s actually, as per that memo that I tweeted two years to three years.

Deana Okun-Nach…:       When we were talking about where do I still have sympathy or empathy, whatever we’re going to call it. I still have empathy for the DOJ. And I actually have growing empathy for the DOJ. I would love to be a fly on the wall in some of those conversations between the DOJ lawyers and their client trying to get instructions about these mandamus applications. Imagine if you’re the lawyer and your client has this decision on the books in GCMS saying we’re approved, but now you’re still waiting for a year. And DOJ is like, “Why are you wasting my time? Just paper that decision so that I can move on to real litigation.”

Raj Sharma:                       We have a fair group out in Alberta. So a lot of counseling [crosstalk 00:46:26].

Deana Okun-Nach…:       Here in BC too. We have a wonderful DOJ.

Raj Sharma:                       So obviously, whoever I encountered at the litigation talked about wasn’t in Alberta.

Deana Okun-Nach…:       Right. I see.

Steven Meurrens:             My understanding also though that DOJ is dealing with certain individuals in private practice who commoditized JRs and mandamus, that are filing applications that have nothing personalized, just [crosstalk 00:46:52]. Yeah. They just file the initial application and don’t do anything with it in the hopes that [crosstalk 00:47:00].

Deana Okun-Nach…:       [inaudible 00:46:59] of those people please stop. You’re breaking the [crosstalk 00:47:03].

Steven Meurrens:             So I’ve heard that a couple DOJ lawyers say this is that, it’s being just sold as something like, we can file an ATIP, we can file a JR and see what happens with no intention of applicant’s records. Well, that’s the big one of applicants records and it’s just clogging the system. I don’t know anything beyond what DOJ says but.

Deana Okun-Nach…:       There is supposed to be statutory limit on replying to an ATIP. And if they were meeting that rather than requesting extensions every single time, then those would not turn into JR. So again, I understand that some advocates have this attitude, or this approach to lawyering that you keep knocking on the door every time until they answer it. But at the same time, it’s causing so much push along effect. Because, let’s say you have a really legitimate JR that’s maybe not even a mandamus. But the department of justice in Vancouver, at least in my experience, they can’t read the file until maybe a day or two days before their reply deadline. Which means that they can’t settle.

Deana Okun-Nach…:       If they had had two weeks to get instructions from their client, they would’ve been able to. But their own personal inventory is so high right now because of this new manifestation of what is really an ATIP request now being processed by the department of justice. It means that by the time they get to your file, it’s too late for them to have a meaningful conversation with their client, especially when they’re in a different time zone.

Raj Sharma:                       We’ve got some instructions. I’ve got like eight JRs in the next two months. And so I believe they’re trying to force the parties to come to a decision on consent prior to the hearing.

Deana Okun-Nach…:       There’s a new practice direction I think, where the DOJ actually has to paper, like F. I have looked at this, I am not going to settle with you.

Raj Sharma:                       Because sometimes they’re settling with us like two days prior to the hearing. Well, that’s not very fair. We’re ready to go.

Deana Okun-Nach…:       No, it’s not. They’ve already spent all their money by then or not all of it, but a whole lot of money.

Raj Sharma:                       No, no, but we’re ready to go. I’d rather get a decision. A risky strategy, but I’ve resisted consents in the past, and I’ve been successful at it. If you take that risk, if say, “I want the draw. I want to see what I get out of the judge.”

Deana Okun-Nach…:       So I’ve also tried to refuse consent. And sometimes they bring motions that are directed for [crosstalk 00:49:33] judgment or whatever it’s called. I can’t even remember.

Raj Sharma:                       You could resist the motion as well, but [crosstalk 00:49:38].

Deana Okun-Nach…:       Again, it’s just a lot more money and time. I don’t know if I can suggest that as a viable strategy to my client. I’m pissed about it, but that doesn’t mean that they need to pay for that.

Steven Meurrens:             It hasn’t been pretty clear to me where the federal court is coming from. Because they keep using that term settle. And as one DOJ lawyer told me, this isn’t a monetary amount that we’re trying to calculate. It’s basically as they put it, either the person can come to Canada or they can’t. And as long as there’s federal court dismissals, are still the majority. I think I don’t fully see where there’s pressure on DOJ to settle more.

Deana Okun-Nach…:       What was the loop on this mandamus thing though? I think that I want to go back to what Raj said about the inefficacy of the remedy too, because there’s something more there. When you “win” a mandamus, that might just be because you settled because they’ve started doing something. It doesn’t necessarily mean they’ve finished doing something. And so the idea that it’s just some legitimate move on the file is kind of like, I would love some guidance from Raj about, what do you do? Now they’ve started processing. Do you withdraw? Or do you still hold the JR?

Raj Sharma:                       Well, and I tell my clients this, and I’m paraphrasing Jerry Seinfeld on this, but mandamus is sometimes like tipping over a vending machine or breaking up with their girlfriend. You may not be able to do it on that first go round. You do the mandamus, they take a meaningful step or they ideally like for example, my client gets landed, last two just get landed or they take a meaningful step or they tell you like, oh actually, you know what? We just need this one thing. And so you would discontinue, you would then diarize it, and then you’d do it again. You’d do another demand.

Raj Sharma:                       And so I’ve done a mandamus for one client. I’ve done it three times and each time it gets some movement, then it gets stalled again. Then I do another mandamus then I get some movement. Then I do another one. And so sometimes, on the rare occasion, you might have to do multiple mandamus applications. Again, you’re tipping over a vending machine. You’re chopping down a tree. You use whatever analogy you want to use. And the beauty of mandamus is that there’s no prejudice. You can discontinue and do it again.

Steven Meurrens:             Yeah, no, we have where we filed a mandamus and then 10 days later there’s a request for an updated job offer. And a client provides that same day and we don’t bother discontinuing. We just keep it going and saying [crosstalk 00:52:13].

Raj Sharma:                       You don’t discontinue in that case because according to Justice Russell in Ovalle is that it locks in, it’s frozen. Once you file that mandamus subsequent steps should not be again, new evidence shouldn’t be in play.

Deana Okun-Nach…:       [crosstalk 00:52:30] citation on that Raj, I don’t know [crosstalk 00:52:32].

Steven Meurrens:             But for the most part I’m finding the same thing as you are [crosstalk 00:52:33].

Raj Sharma:                       If I knew the citation off the top of my head, that would be impressive.

Deana Okun-Nach…:       Oh, I don’t mean like that. I mean, you email. I wish I had that brain. Oh my God [crosstalk 00:52:43].

Raj Sharma:                       I was like, wow. No. It’s Justice Russell and ovalle. O-V-A-L-L-E. Yeah.

Deana Okun-Nach…:       Okay. That’s we needed.

Steven Meurrens:             Do you think, because I’m seeing a lot of chatter about whether processing will return to normal. Do you see there being a new normal when this pandemic’s over? Do we go back to federal skilled worker and CEC being in the same draw six months?

Raj Sharma:                       No.

Steven Meurrens:             Is the future of these TR/PR pathways?

Raj Sharma:                       Yes.

Steven Meurrens:             I went on someone else’s consultant show named ask Kubeir. And I kind of made the same point that you guys did, which is I have much more sympathy for the people inside Canada than the federal skilled worker applicants who are outside or especially those who are just in the pool. And that I believe politicians will also… And I got a bit raked over the coals as an anti-FSW for that. But do you see-

Raj Sharma:                       Why would we select a 32 year old botanist from Pune, when we’ve got a 25 year old Punjabi guy making $80,000 a year in Canada? I’m with you brother.

Steven Meurrens:             We’re going to get hate men.

Raj Sharma:                       The new normal is we should never have put the CECs and the FSWs in the same category. The future is CECs. The future is these TR to PR pathways. That is the future. The FSWs are going to be an add on. Historically, the FSW started about 50 years ago or so, it was the most popular, let’s say oversubscribed model of economic immigration. Now that you have a constant intake of international students and temporary foreign workers, there’s absolutely very little justification for the FSW to remain as the default route for economic immigration to Canada. The future’s going to be employer driven. It’s going to be PNP. It’s going to be CECs. It’s going to be TR to PR pathways. That is the new normal.

Deana Okun-Nach…:       No, I totally get it. But this is where I get super political. And it’s partially because of my ties to the caregiver community, which is that, I understand that TR to PR is kind of the way that they’re going, what they’ve always said to me is, the reason we can’t land caregivers, nurses, those kinds of people from abroad is that, well, it’s mostly about caregivers.

Deana Okun-Nach…:       If you bring in the caregivers, as permanent residents, will they actually work as caregivers? But the problem here is, the forcing them to come in as TRs and then to work in this indenture of servitude kind of model until they’ve earned the right to apply for a permanent residency. They’ve entirely closed down the possibility of somebody coming into Canada as a TR right now as a caregiver. So you have to apply through the PR. I get these emails all the time, like a caregiver from a broad cannot apply for a work permit anymore.

Deana Okun-Nach…:       There’s a refusal to process ministerial instruction. So they cannot. So unless we have enough within our existing labor market pool, either Canadians or people here on work permits, there’s no option for them to do that. So it’s again like, this is where the strategic planning hasn’t been thought through. Because if you say it’s all those in Canada, then we are going…

Deana Okun-Nach…:       This is why I’ve said since the beginning, since the introduction of the HCCP and the HSWP, they’re killing the caregiver program. This is just a more political way of doing it.

Raj Sharma:                       To be fair, they’ve been killing the program for a number of years now.

Deana Okun-Nach…:       Well, they’ve been killing the people up until now. Honestly, they have been. The way that it was before with the abuse and you must live in the house, and it’s going to take you six years to become a permanent resident. And in that time you just have to keep working in this role, even if you have a nursing degree. And in that amount of time, you’re going to get to the point that you can’t even reawaken your nursing credentials because you haven’t been working as a nurse for so long. So, they’ve been killing the people, but now they’re making it so they can’t even come in.

Steven Meurrens:             Yeah. Raj, I see you’ve got a meeting to run to, before you go, where can people contact you on Twitter all those FSWs in the pool to convince you why they should take priority. It’s like the Spider-man meme, right? Everyone pointing at each other when all they could do is just increase numbers.

Raj Sharma:                       It’s @immlawyercanada is my Twitter handle and the website is sshlaw.ca … this has always been fun. I really enjoyed my time. And I always learn something new and I think we could spend at least another hour on this, but thank you so much.

Deana Okun-Nach…:       Well, thank you so much Raj, you like seriously broke my brain with all of that wisdom. So thank you for that.

Raj Sharma:                       I always learn something from you, Deana and Steve. Thanks a lot. Take care.

Steven Meurrens:             Okay. Bye.