Discussing the Procedural Fairness Regime on the Borderlines Podcast
Firm founder Raj Sharma joined Steven Meurrens and Deana Okun-Nachoff on their excellent podcast, Borderlines. The discussion started with the Procedural Fairness Letter and went on to talk about Officer bias/tunnel vision among other interesting topics.
Transcript follows:
Steven Meurrens: Hello, and welcome to the Borderlines Podcast, a podcast for the discussion of Canadian immigration issues. I’m Steven Meurrens. We are joined today by Raj Sharma, a partner at the Calgary law firm, Stewart Sharma Harsanyi. Raj previously appeared on Borderlines Podcast, Episode Three, about marriage fraud. And I encourage you to listen to that episode if that’s a topic that interests you. I think it was one of the most substantive discussions about marriage fraud and immigration that you will find on the internet. Today, what was initially supposed to be an episode about Procedural Fairness Letters, turned into a wide-ranging conversation that can perhaps best be described as getting things off our chest.
Raj, Deanna, and I discuss issues of possible bias against people from Punjab, unreasonable documentation requests, responding to Procedural Fairness Letters, tunnel vision on the part of officers, how if an officer … visa officer goes out looking for misrepresentation or a mistake on an application, that they’ll probably find it somewhere. IRCC, that’s Immigration Refugees and Citizenship Canada, misleading Parliament about whether it bounces applications for incompleteness, and more. As I said at the end of the episode, it felt therapeutic in a way.
And if you’ve ever encountered any of these issues, if you’ve ever represented someone in an immigration application, if you’re an immigration consultant or a lawyer, or you just want to know about different issues that people who interact with the system often come up against, I think you’ll really enjoy this episode. And Raj is always entertaining. If you’d like to connect with Raj, you can find him on Twitter at immlawyercanada, that’s @immlawyercanada, all one word. If you’d like to contact me, you can find me on Twitter also, at smeurrens, @smeurrens. You can also email me or Deanna. If you search either of our names, you’ll find our respective law firms pretty quickly. And if you would like to support the show, please leave a review on iTunes. I hope you enjoy today’s episode.
(music). Well, first, Raj, thanks for coming on.
Raj Sharma: Thanks for having me on. It’s a pleasure to be back, even though it’s virtual.
Steven Meurrens: Yeah. Even though it’s virtual. Hopefully we can do this more often. We’ve developed a little bit of a groove with virtual recordings that were easier than in person. But why don’t we kick it off with a discussion of when you actually have a right to a procedural fairness letter, versus when an officer can just refuse your application? And I guess the question that we all might be asked by clients is, “Will IRCC ever just refuse an application, or do I always get a Procedural Fairness Letter?”
Raj Sharma: Yeah. I think, number one, is that that Procedural Fairness Letter is very, very important. So, I think people … Again, the IRCC website always indicates that you don’t need a lawyer to assist, and I think as soon as you get a Procedural Fairness Letter you have to be on guard, and you have to do a good job in terms of responding to it. When I first looked at our overview of our discussion, I went back to look at the development of this Procedural Fairness regime. And it’s only about 50 years ago, was this, I think, Lord Denning, I remember him from law school. Lord Denning put the seal of approval that, “Hey, wait a second. In immigration there’s actually a duty of fairness.”
And so, that was, I think, a 1967 case, and it’s just like, “Well, an immigration officer should put his concerns to the immigrant and allow him an opportunity to disabuse him of those concerns.” So, that was only 1967 or so. And so, immigration law has evolved, I think, over that period of time. Because before, you were saying, “Well, duty of fairness only arises in a judicial proceeding or quasi-judicial proceeding, and not in an administrative context. So, this duty of fairness, this Procedural Fairness regime, has only been with us for a few decades. It’s been developed over time, and yes, it’s tied into the right that is at stake.
There has to be some sort of significant right at stake and obviously, we view it, I suppose, arising from Sing, which is … And from Baker, which is, “What is fairness?” It’s the right to be heard, it’s the right to have these concerns put to you and you have to have some venue to respond or provide information. Now, that doesn’t necessarily mean an interview. Sometimes it does, sometimes it just means a Procedural Fairness opportunity in writing. And it arises where there is an issue other than, let’s say, sufficiency of evidence or a completeness of the application.
Steven Meurrens: Yeah. I think that’s the key distinction. We should do a whole podcast on Baker, which was a Supreme Court of Canada decision from the ’90s, in a future episode. But basically, the way the procedural jurisprudence generally tends to read is that, as you said, the officers don’t have a duty to correct or seek clarifications on insufficiency of evidence, but where it gets into credibility or the veracity of documents.
Raj Sharma: Or admissibility.
Steven Meurrens: Or admissibility, or extrinsic … Where they’re relying on an external document, they do have a duty to send this Procedural Fairness Letter. Now, how can you tell when something is a concern about credibility, versus a concern about insufficiency of evidence?
Raj Sharma: It’s tough, because I think the officers have gotten the memo that refusing something on credibility requires them to do more work, which is to advise of those concerns in a Procedural Fairness Letter. So, they cloak it in the guise of insufficiency. And so, I don’t want to use sneaky. It’s just, human beings are lazy by nature. It’s just the way that we’re made. And so, instead of saying, “Well, I have concerns about employment.” So, for example, one of my … I had to do this for my own legal assistant, one of her applications before she came over here, her application was refused because the officer wasn’t satisfied with her duties, her employment duties.
And so, what the officer said is, “Well, your employment duties for this one-two [inaudible 00:07:43], the employment duties are almost identical to the duties listed in the NOC, and therefore I’m refusing her application.” Now, obviously he had some concerns that the information provided was not correct, but you can’t just refuse it on that basis. You have to then give this sort of opportunity, and then some case law that developed out of that as well. So, there’s an interesting case that I rely upon, which is [Cho 00:08:11]. It’s a PRRA decision, but to determine whether this is a credibility issue, or whether this is an insufficiency evidence, you have to look at, could the officer have made this decision without impugning the veracity of the information or documents before him or her?
So, Cho is helpful, I think, to sift the decision, and so, what is the officer saying? Now, some insufficiency is very clear. The officer needs proof of a language proficiency, and there’s no language proficiency test. Well, that’s obviously, the application is incomplete, or the officer does not have sufficient information to determine eligibility or admissibility. Well, there’s no Procedural Fairness that arises from that.
Steven Meurrens: No, I think it’s interesting how you … In terms of the way that decisions can be drafted to conceal what’s going on. And it reminds me, many years ago a Canada Border Services Agency officer once told me, “Mr. Meurrens, I know that by putting at the start of my decision, ‘I have considered everything before me,’ that I’m 95% of the way to winning any judicial review just by including that sentence regardless of what follows.” And there’s a little bit of … You can see that … And often what appear to be boilerplate notes in the IRCC decisions that just say, “I believe there is insufficient evidence.” And then it becomes, like you said, a question of parsing through the actual decision and what was provided, to say, “Well, is that really what went on here?”
Deanna Okun–Nachoff:
I don’t know if you two agree, but I do find that Vavilov has been helpful in that respect, because I think just saying that all of the evidence has been considered, doesn’t necessarily go the distance unless they have specifically explained what about the evidence leads them to a feeling that there is inadequacy, or that they have failed to make out the claim. And I’m finding that the courts are a little bit more receptive to that now than they once were.
Steven Meurrens: Yeah.
Raj Sharma: [crosstalk 00:10:30].
Steven Meurrens: I’ve had a few lawyers contact me, Deanna, about that episode that we did where we went through line-by-line parts of Vavilov, which anyone who reads Vavilov could have done as well. But that the officer did not consider evidence put for it. The officer did not consider internal guidance, and there’s now this list of factors that they have to consider.
Deanna Okun-Nachoff: Mm-hmm (affirmative).
Raj Sharma: I would agree with Deanna as well, Vavilov is a positive step. That being said, in our world, and I guess some listeners were not professionals. In our world, it’s different types of decisions. And the duty of fairness is flexible. So, it depends on the context.
Deanna Okun-Nachoff: For sure.
Raj Sharma: Where you have someone in Canada who’s had a refugee proceeding or any sort of tribunal decision, that’s going to typically attract a high degree of this sort of duty. So, the officer or the decision-maker has a higher threshold to meet, and that’s where Vavilov really comes in handy. Now, for decisions outside of Canada, this is a little bit more like the Wild, Wild West. Most of the officers overseas know that the only review is Federal Court in Canada, which is expensive, and you need a lawyer in Canada. So, the officers have a little bit more scope, shall we say, and decisions overseas or in terms of foreign nationals who’d like to enter Canada, again the scope depends. Is it a PR application? Is it within the family class? Or is it just a visitor visa application?
If someone is coming on a visitor visa application, and officers are enjoined or required to process thousands of these things, how much onus or burden are we going to put on an officer rendering TRV decisions? Not that much, because the system would grind to a halt if you expected the same threshold of fairness that you would on, for example, a tribunal within Canada. So, the scope of the duty depends on the nature of the application, the status of the individual applying, and the sort of repercussions on that individual in terms of the decision. So, the duty of fairness for a decision rendered inside Canada against a permanent resident, for example, allegations of misrepresentation, are going to be different than a foreign national facing allegations of misrepresentation seeking to enter as a visitor outside Canada.
Deanna Okun-Nachoff: It’s a really excellent point, that … I’ve been doing a large number of federal court judicial review applications for outside-of-Canada applicants, and I’ve been finding that my success rate is extraordinarily high since Vavilov. And I think the shame of it is that so few people are going to actually launch those challenges. But I can’t think of one that hasn’t been successful, because I find the error rate in terms of officers not turning their mind to whether or not it’s credibility versus insufficiency. And so many of them being on the wrong side of that line, but as you say, the expense of making those kinds of applications is very high.
And I think lawyers are still not recommending them because the standard is so high, and because it’s still so unknown. And many of those cases are actually being settled, but I think it’s just the power dynamic is such that the Visa Officers keep getting to make these decisions repeatedly. And I think as counsel, we do know that when we’re dealing with applicants … Say, you’re applying from Pakistan and you’re wanting to make a visitor visa application, there are things that we know as practitioners, these are going to be challenging applications to make, and that the degree of discretion afforded that Visa Officer is quite large. And the duty of fairness is considered to be on the low end of the spectrum. So, there are real challenges there, I think.
Steven Meurrens: I’d be curious, [crosstalk 00:14:43] to learn what’s going on in the last year or two, because I almost speculate that it’s, AI doing everything but the final submit where the officer might even just be reviewing a decision at the end, because a lot of … I’m sure as you’ve noted, both of you, that decisions in GCMS sometimes bear … Which is the Global Case Management System where the notes are stored, often bear little resemblance to the application that was submitted. And I have a hard time believing that someone who actually read the application with human eyes is typing a lot of the refusal decisions as they appear in GCMS. That’s just speculation on my part, because I can’t think of … I don’t understand why else there are decisions that do bear so little resemblance to the application.
Raj Sharma: Well, let’s modify Hanlon’s Razor. I think the Hanlon’s Razor is never ascribed to malice, that which can be explained by incompetence. Let’s modify that. Never ascribe to AI that which can be explained by incompetence, and pressure, and deadlines.
Deanna Okun-Nachoff: And laziness, as you said.
Steven Meurrens: It could be. But I have heard that the average visa decision takes about two minutes, just to get them the volume. So …
Deanna Okun-Nachoff: And when you look at how many of those refusals are going to become subject of Federal Court judicial review, I would say the percentage is in the range of 5%.
Steven Meurrens: Yeah.
Deanna Okun-Nachoff: And I think the fact that, in my own particular practice, that so many are succeeding it’s still a very expensive and time-consuming process. And even if you are successful, it doesn’t mean it’s not going to go back and get refused again with better reasons. And so, it’s a big gamble.
Raj Sharma: Well, they’re adapting. It’s like the Borge. Right? So, as soon as you modulate your shields, or change up your phaser or photon [inaudible 00:16:51] or whatever else, they’ll adapt. It’s a bit of a cat-and-mouse game. I agree with Deanna. I think I could probably, if I wanted to, restrict my entire practice to Federal Court that oversees refusals.
Deanna Okun-Nachoff: Totally.
Raj Sharma: But they, too, are adapting. So, over the years and … The standard advice years ago was simply to reapply for a refused visitor visa application. And I only got into this probably about five or six years ago, when I did the visitor visa application for my wife’s uncle, who is this very, very successful rich guy out of Rajasthan, India, who has, I think, about 350 employees. And so, we do the application and it gets rejected. Now, I don’t know. In my culture, I don’t recommend any Punjabi or Indian to work for or assist family members. But I had to obviously deal with this. So, when we go for the Rule Nine responses, essentially, no travel history, therefore no visa. It’s one sentence.
And so, I went to the Federal Court. I was so annoyed. And going to the Federal Court for a visitor visa refusal, it’s like using a hammer to kill a mosquito. So, when I went to Federal Court I said, “Okay.” And literally, it was a two paragraph [inaudible 00:18:08]. I was like, “Okay. No trouble history, therefore no visa, but no visa, therefore no travel history.” And there were some other comments about India and the general economic situation for India versus Canada. I’m like, “Well, if we’re based on … This is a poor country or the general economic conditions are poor compared to Canada, then restrict the Ambanis. There are more billionaires in India than there are in Canada. So, if it’s generalized, then no one is getting a visitor visa. So, after that-
Deanna Okun-Nachoff: And there’s so much jurisprudence on all of this-
Raj Sharma: On all of it.
Deanna Okun-Nachoff: … saying these are not legitimate grounds. It’s such a waste of everybody’s time.
Raj Sharma: So, after that, I guess the Punjabis, mostly in Alberta, has figured out that Raj has a solution to the refusal. And so, then all of a sudden I’ve probably done hundreds. But now they’ve adapted again. So, now if there’s … Even if we succeed on consent or Federal Court, it goes back. The officers are … Let’s say, there’s the interview, or it’s refused on similar grounds. Now, I sent my response to PFL to Delhi, to Steve on a relatively recent case. I did about 10 of these, R4, Section 40, the [inaudible 00:19:16] open work from refusals out of India.
And I flipped out, I think, in that response. Because I was like … Okay, the response is basically, how come your response to the PFL answers all our questions? How come you couldn’t say this in the interview but you said it in the PFL? So, I’m like, “Okay. Let me get this straight. You give them a PFL. And now you castigate them because the responses satisfy your concerns. So, if you didn’t satisfy the concerns he’d be rejected. And if you satisfied the concerns, he’s rejected because he should have said that prior to the PFL.
So, this crazy Catch-22, this strange Kafka conflict that I now have with New Delhi is now we’re getting … And this is a Federal Court return. And I said, “I guess we’re going back to the Federal Court. It’s inevitable.” So, it’s a very strange situation where … You’re right, Deanna. We’ve done all this. There’s this quasi-solution out there, but now they’ve adapted as well, and unfortunately all of us who’ve done this have … Perhaps we’re elevating their game. We’re training them. We’re training them on case law, we’re training them on jurisprudence. And so, they are now better.
Deanna Okun-Nachoff: I know.
Raj Sharma: And I guess we have to get better. Right?
Deanna Okun-Nachoff: And it’s funny because-
Raj Sharma: There’s this militarization of administrative law.
Deanna Okun-Nachoff: Exactly. But different Visa Offices clearly have different games, because you’re playing a game with Chandigarh and New Delhi.
Raj Sharma: [crosstalk 00:20:50].
Deanna Okun-Nachoff: I’m playing it with Beijing, and their game is sometimes you get sent back for redetermination, and they just decide to sit and wait until I bring them a [inaudible 00:21:01] application, or Manila, and they decide that it’s a … They’ll trying something. And don’t even talk about Pretoria. They’ve all got their own little games.
Raj Sharma: Manila, we’re going to do a [crosstalk 00:21:15] equivalency of charges that were dropped in 1984.
Deanna Okun-Nachoff: Like, bigamy. Exactly. Perjury based on something that they have to do in the Philippines with birth registration, and it doesn’t even exist in Canada. They’re always-
Steven Meurrens: I had out of Manila this-
Deanna Okun-Nachoff: There are all these … They’re basically [crosstalk 00:21:29] of Roman Catholicism. Like-
Raj Sharma: But remember one thing. One thing that I’ve learned now after 17 years of doing this, certain Visa Offices have racialized assessments of credibility and risk. And until you are in this world you won’t understand. You’re like, “Well, that’s crazy. Why would these officers do this?” I’m like, “You don’t understand unless you walk a mile in my shoes.”
Deanna Okun-Nachoff: Well, this is the nugget there, because … Again, bringing up Manila you just got my hackles up. It’s because there’s no divorce in Manila, for example. So, people do what they need to do when they’re in an abusive marriage. They go off and all sorts of shenanigans ensue, because they can’t get a divorce. And it’s like … But everyone talks about Filipinos and misrepresentation. But it’s a racialization of-
Raj Sharma: Yeah. They’re hunting for misrep. So, yeah.
Deanna Okun-Nachoff: Totally, 100%.
Raj Sharma: Yeah. Client is married to his wife in the Philippines. He’s married, legally married in the Philippines. Can’t get divorced in the Philippines, he’s married in the Philippines. Comes to Canada, separate from his wife. Goes to Vegas, gets a legal, valid divorce issued out in Nevada.
Deanna Okun-Nachoff: Yes.
Raj Sharma: Comes back to Canada, applies for permanent residency. Manila is like, “Oh, you are now inadmissible because your divorce certificate in Nevada is not recognized in the Philippines. You’ve married someone, and therefore you’ve committed bigamy. And I’m like, “Step back, see Section 36, 1B, C, whatever you want to say. The offense has to occur right in the place. So, there’s no offense in Nevada, and there’s no offense in the Philippines. So, they’re hunting for inadmissibility. And what happens [crosstalk 00:23:25]-
Deanna Okun-Nachoff: [crosstalk 00:23:25] committing an offense. Right?
Raj Sharma: What happens when you’re hunting for something? Oddly enough, you tend to find it. If you’re hunting for misrep you will find it.
Deanna Okun-Nachoff: Absolutely. But again, I think that what you’re saying here, in terms of the drivers here, what is the public policy incentive for doing this sort of thing? And I think that looking at this from a first principles perspective, what is it that they’re after in this way? Because in the Philippines I think that there’s such a clear cause and effect component. I just wonder whether anyone has done this kind of strategic thinking about what is the so-called evil that they’re trying to get at, that they’re trying to get out of the Canadian Immigration System? They talk about it as being a kind of integrity of the Canadian Immigration System. But I really am at a loss here.
Raj Sharma: Well, some offices are facilitative and some offices are enforcement-minded. And if we look at … There are competing objectives of the IRPA, which is in Section Three. So, one of it is, of course, to uphold the integrity of the Immigration System. So, you can’t run roughshod over that either, because if you did then public support, which is vital … Public support for our immigration program would drop. So, there is some basis to it. But I agree. There has to be some … There’s lies, and then there’s, I guess, damned lies. I agree. There should be some sort of understanding of the fragility of the human condition, as Justice Shore so eloquently puts it.
Steven Meurrens: Yeah.
Deanna Okun-Nachoff: Mm-hmm (affirmative).
Steven Meurrens: So, while we’re on the topic of visa-specific policies, let’s jump to Chandigarh and New Delhi. And Raj, you had mentioned that you’d send me a copy of a response that you had sent in response … Of a response that you had sent to the Canadian High Commission. And the reason you had CC’d me, or sent me a copy of the response … I wasn’t actually CC’d. It was because of some internal documents that I had put on my blog regarding a deliberate … What I call the IRCC Deterrence Policy. So, I’ve just put up the post.
And Deanna, I’m not sure if you’ve read it or not, but it’s to summarize … There’s a series of emails that were released, in which the First Secretary of Migration at the High Commission of Canada in New Delhi, emailed the Program Officer to express concerns about what they believed was an increase in fraud, citing different stats amongst … open spousal work permit applicants. And at least as far as these emails said, the Canadian Visa Offices in New Delhi, “Support the application of A-40, which is misrepresentation, in R-4 refusals, so genuineness cases involving open spousal work permits.”
And going forward, we are trying to, “Reduce the number of subsequent applications we get when we believe that there might be a marriage of convenience.” And I think this was the quote that especially got Raj. Raj’s notice was, “We also want to send a message to the community and to do so are going to start applying misrepresentation wherever possible.”
Deanna Okun-Nachoff: Wow. So, this public deterrence motivation for using the [crosstalk 00:27:15].
Steven Meurrens: Yeah. It’s not a public policy. We only learned about it through internal emails. It’s definitely a policy that I’d say has been noticed, because I’ve certainly noticed out of the New Delhi Visa Office … Certainly I’ve been contacted by many more people who have misrepresentation refusals, and there is a two-part question that is … Because later I want to talk about a specific Procedural Fairness Letter that seems to only originate out of that office regarding employers and work permit applications. But Raj, when you see something like that, and you know that an office is going to be, as you said, looking for misrepresentation, and when you really look for something you possibly will find it. How do you approach a Procedural Fairness Letter and application in that context?
Raj Sharma: Well, whatever … The response that I did, I would only recommend to other experienced immigration lawyers such as yourselves. I went a little bit over the top on that one, and the reason for that is that I suspect now we’re approaching bad faith. We’re approaching bad faith because I have a reported decision. These issues were addressed by Justice Zinn in a reported decision. And it is not for officers to disregard on-point decisions by the Federal Court. So, that’s one issue. Your-
Deanna Okun-Nachoff: So, you have a reported decision on this particular case that was … Sorry. Explain what you mean by you had a reported decision.
Raj Sharma: Right. We challenged the original decision. So, the original decision was, my clients met in school, they fell in love, they’re from different castes and backgrounds. So, the girl comes here. She’s a student. She goes back to get married. And what happens is that they essentially elope. They elope, and because her family is … And her father is relatively well known. And in fact, had beaten the husband a couple of years ago when he discovered their love. They decide, quite properly, to go and get married in a different state. So, they go and get married in a different state. They get a married certificate, and they apply for an open work permit for the husband to join her in Canada.
Now, the first interview, he gets called in and it’s the same officer. So, Officer A.P., out of the seven or eight Federal Court applications I’ve done on similar issues, Officer A.P. is the one that interviews them and refers the matter to an interview. She started off as a locally engaged officer, and in fact I cross-examined her on another Federal Court matter some years ago. What they said is, “Well, the marriage certificate out of this Arya Samaj Temple, basically a very simple ceremony. People go there, low cost, quick, a favorite of couples that elope, I suppose. “Some of the marriage certificates from these types of temples from this particular town where you guys went, have been found to be fraudulent, or they’ve been done for money.”
So, the couple goes and gets their marriage certificate verified by the appropriate authorities. It gets refused, and it gets refused not on a … I’m now satisfied that this marriage certificate is valid. It gets refused on, “It’s a fraudulent document.” So, there is the misrep, and that’s a five-year ban. And why that’s important is that if the husband is denied on misrep, that means the student that’s in Canada, that’s here on a postgraduate program perhaps, she too is inadmissible for misrepresentation for five years, and her PR will probably be waylaid. So, we challenged this decision, and luckily I ended up before Justice Zinn, and so, that’s now been reported and we dealt with this. And Justice Zinn is like, “Well, most-
Deanna Okun-Nachoff: So, this wasn’t a sponsorship application? This was like a Federal Court … Like a skilled worker application or something?
Raj Sharma: No, no. It’s a spousal open work permit.
Deanna Okun-Nachoff: I see. Okay. Right.
Raj Sharma: And so, what happens is that if you’re a permanent resident [inaudible 00:31:28], and you get married and sponsor someone, if the officer is not satisfied that the marriage is not genuine, it’s refused under Regulation Four, which means you have a right of appeal to the Immigration Appeal Division. Now, on these students that are trying to bring their husbands over, it gets refused with like, “Oh, we don’t think it’s a genuine marriage,” which is the wording of Regulation Four. “But because we don’t think it’s a genuine marriage, we’ve … You’ve lied to us.” This is a misrepresentation under Section 40, which is the five-year ban.
So, this is why it’s pernicious. This is why it’s litigious. This is why Steven’s materials indicate this is very litigious, because we have to go to the Federal Court. If we don’t get this thing overturned, there’s going to be a five-year ban, and there’s going to be a PR that’s going to be waylaid in the future.
Steven Meurrens: And that is an interesting … As I have JRs on that ongoing as well, where the status of them is who knows, because of COVID, and everything in the Federal Court is delayed. Justice doesn’t consent, but it’s this issue of when this insufficiency of evidence become misrepresentation. And in their case … I’m not sure how many work permits you do through Chandigarh and New Delhi, and that JR wasn’t actually my application, but I have since on subsequent applications gotten a Procedural Fairness Letter, and I’ve seen on the lists of immigration lawyers, the Canadian Bar Association lists, that this appears to be a common request.
And I even did a Access-to-Information request to try to figure out what gave rise to this concern, and there is nothing. It just seems like it’s a standard request in a work permit application. So, what they are asking a work permit applicant is … First they say, “Please send this to your employer.” And the employer is asked, “What steps will you take to ensure visa compliance?” Which is sort of weird but fine. We were, as a joke, going to be like, “Well, seize his passport. I don’t know what you want us to do.”
But then the other questions. “Provide a description of your business. Provide your business registration. Provide your most recent unaudited financial statements. Canada Revenue Notice of Assessment for the last three years. An org chart of your business, listing the job titles and name of all employees. Evidence that you have been paying employment insurance premiums. A list of your major customers, including supporting materials such as sales contracts and accounts receivable. A list of your major suppliers, including supporting materials, such as purchase contracts and accounts payable. Copy of your business lease and website of the company.”
Raj Sharma: Right. So, what you’re saying-
Steven Meurrens: Wait a minute. What is the employee, a work permit applicant, and in the case that we’re JR-ing, it was a long-haul truck driver, who the Canadian employer obviously didn’t want to provide their employee with all of these documents. Not even their employee, somebody who hasn’t even started yet. And then, in terms of the looking for misrep, they discovered that in one of the financial statements they basically determined, based on a financial statement that was two years old, that the amount of money that the company had earned was less than the salary that would be paid to the foreign national. Therefore, they couldn’t pay the foreign national. Therefore, the company had committed misrep. Therefore, the foreign national had committed misrep.
Raj Sharma: We’re doing an almost identical case.
Steven Meurrens: Yeah. Deterrence, supposedly. So, how … You get a Procedural Fairness Letter like that, and you really do, as … You can preface any concerns you have with the fairness of that letter, in a cover letter like what you did, Raj. But from the applicant’s perspective, you really have to just hope that your employer is willing to give someone who hasn’t started yet, a lot of pretty sensitive information about the [crosstalk 00:35:37].
Raj Sharma: But what you’re seeing there, though, Steven, is a creation of an ad hoc policy by certain individuals within the Visa Office, and they’re doing it for a particular reason that is outside perhaps of the statutory mandates. Again, now we’re approaching bad faith. If you want to deny a long-haul truck driver, then that’s fine. I’ve done 15, 20 of those recently as well. It seems that there’s a concerted non-legal push to restrict truck driver work permits, perhaps of the Humboldt tragedy. That has certainly been … So, again, you have discretion. Without discretion the gears of the machinery for immigration will not work, they’ll jam up. But now you’re talking about massive discretion where you can invent requirements that are only tangentially related.
Presumably the employment bona fides issue should have been assessed by Service Canada, and there should be some level of deference to the LMIA. Some level. I’m not saying that the officer can overcome in this case [inaudible 00:36:45] as they can. But this is the concern. And so, now on my case we’ve succeeded with Justice Zinn. Justice Zinn has said that the response addresses every concern raised. The outcome appears to be contrary to the evidence before the decision-maker. Now it’s gone back, and the officers are now going back down the same path.
And so, that’s when the over-the-top response came in, which is, “Okay. According to the materials on Mr. Meurren’s blog, which he gained through an access-to-information request, it appears that you are targeting specific communities in India. I would note that all of my JRs …” and I gave a table of all of them and outcomes. I said, “I note all of them are Punjabi, and in fact all of them belong to the Sikh religion.”
Deanna Okun-Nachoff: Right.
Raj Sharma: So, we are not seeing-
Steven Meurrens: There is a weird racial component, and you have a Visa Office adopting a policy of, “We’re going to find misrep everywhere,” but it’s only in one Visa Office. There’s a strange racial component [crosstalk 00:37:41].
Raj Sharma: I don’t see any refusals for Tamils. I don’t see any refusals out of Andhra. I don’t see any refusals out of Goa. All I see is Punjab, which can fit between Calgary and Edmonton. It constitutes 100% of the refusals that I’m JR-ing. And so, with that … But the misrep, they’re going the extra step. They could have just said, “Look. I’m not satisfied. Therefore, I’m refusing it on Section 16 or 20.” Right? They could have done that. Instead, they go that extra … I said officers are lazy at times. They’re sneaky or lazy. Here they’re taking the extra step. “We’re going to interview them, and we’re going to make [inaudible 00:38:22] of Section 41.” They don’t need to, and they’re doing it on purpose to stop repeat applications, and they’re doing it to send a message to a certain community. And that community happens to be Punjabi, and more specifically Sikh.
Deanna Okun-Nachoff: Sorry. Something that you said, Raj, is that from the beginning it’s always been my experience that when you’re dealing with anything spousal-related out of India, that there is just a whole additional layer of complexity because of the caste system, and because of just the way marriages work. Where when you’re dealing with genuineness of marriages, let’s say, in any other part of the world, it’s like two people are marrying. But you know that when you’re dealing with a marriage application in India, they’re like, “How did your families come to meet one another?” “Why did your parents accept one another’s spouses as acceptable candidates?” And they do look into things like, “What caste are you from? What religion?” “Why would your parents have accepted somebody from a different caste, from a different religion?”
So, again, there’s this whole element here. If different couples were going to a particular temple because they were willing to marry … They were willing to conduct inter-caste marriages, it’s almost that it’s penalizing groups that were having to take certain routes because of the fact that there were limitations within that society as well. So, in terms of targeting too, there are specific repercussions that are caused by these circumstances as well, that seem to me to be arising in these cases, and this policy is specifically having this detrimental effect on them as well. Am I correct?
Raj Sharma: I agree. And it goes back to our earlier discussion about how different Visa Offices approach things differently. I remember many, many, many years ago we would not see refusals based on, let’s say, Section 40 out of Beijing. We started seeing refusals based on Section 39.
Steven Meurrens: So, 40, just to make it … 40 is misrep? 39 is financial inadmissibility.
Deanna Okun-Nachoff: Oh, really?
Raj Sharma: That’s right.
Deanna Okun-Nachoff: Whoa.
Raj Sharma: So, what would happen [crosstalk 00:40:37], what’s going on? Why is Beijing issuing 39? So, what happened is that the concern over-
Deanna Okun-Nachoff: I’ve never heard that before.
Raj Sharma: Yeah. They did it for just a brief period of time, and then they saw that-
Deanna Okun-Nachoff: They all got thrown out and then they realized that they had to get smarter.
Raj Sharma: Yeah. Correct. And so, they adapted the … They suspected career parents, so-called career parents. So, someone’s here, they get divorced, they go back to China, they marry some … I don’t know, a rube from backwater China, and there’s no employment history, the person here is not employed, their income is not sound. The person overseas is probably 50s or 60s, and has no language ability or employment history other than farming or whatever else. And so, instead of doing a refusal based on genuineness, they started doing refusals based on finances, which is … Even though there’s no income requirement to sponsor a spouse, they started saying, like, “Hey, there’s no provisions other than social assistance for this individual.”
And that was a very strange … So, again, when we all get together, when lawyers get together and maybe I’m the … Let’s say I do a lot of Delhi. So, Raj will have some [inaudible 00:41:49] to Delhi particularly, perhaps here. You do a lot of Beijing and what have you. And so, you see things that certain offices do that cannot be found at any other Visa Office.
Deanna Okun-Nachoff: Wow.
Raj Sharma: [crosstalk 00:42:03] will find that equivalency of the 1984 ask-grab that got discharged or dropped. No other Visa Offices do that.
Deanna Okun-Nachoff: I saw that. I know how to read NBI clearances, and marriage certificates, and birth records from the Philippines like nobody’s business. These Article 34 Marriages, I know what those are. These strange skills we develop based on specializations with persons of certain nationality, but no lay person is going to understand what these notations mean. They have relevance. And it does come in waves. When all of a sudden, the Visa Offices become aware of what an Article 34 Marriage is, all of a sudden they’re like, “Oh, great. This is a new game we can play.”
And all of a sudden you get all the bigamy cases, or all of those … The Article 34 Marriage is the thing in the Philippines where you don’t get a marriage license because you’re claiming that you didn’t need one because you were living together for a period of time prior to your marriage. And they now say that there’s perjury because you didn’t actually live together for the requisite period. So, [crosstalk 00:43:09].
Steven Meurrens: You do wonder what goes on at a visa post when they discover something like that, like in Korea.
Deanna Okun-Nachoff: Oh, yeah. For sure. You do the happy dance. Yeah.
Steven Meurrens: [inaudible 00:43:15], I guess Korean applications are now processed in Manila. But when they realized that they had been requesting the wrong type of police certificate all that time-
Deanna Okun-Nachoff: [crosstalk 00:43:26]. Yeah.
Steven Meurrens: …and that is the police certificates the Koreans were providing omitted a lot of offenses.
Raj Sharma: Like DUI?
Steven Meurrens: There’s all, like, oops, that they must have just gone through. And then all the [crosstalk 00:43:38].
Deanna Okun-Nachoff: And now the number of refusals you get because they don’t have those three words written on the clearance.
Steven Meurrens: Yes. Yeah.
Raj Sharma: The best insight that I got for … You talk to some of our CBSA colleagues that have been posted overseas, and you can get a little bit of insight there. You start reading case law, and [inaudible 00:43:58] notes. The best insight I got was that Vic Satzewich book, Points of Entry, where he goes and does a hundred interviews overseas. That was really interesting. And in fact I attached one of his chapters to that response to Delhi, which talks about that interview setting, that power dynamic that a lot of these officers said that, “Yeah, I know when someone’s lying within two or three minutes of walking into that room.”
And I just want to tell these officers that you don’t. You don’t actually, because demeanor is very difficult to assess, and different people respond differently to stress. And there’s a language barrier, and there’s a cultural barrier. And you’re not as good as you think you are to determine anyone’s hidden motives or intentions.
Deanna Okun-Nachoff: Yeah. For sure.
Steven Meurrens: Yeah, I have a copy of his book. He actually came in here to drop it off, and I’ve been meaning to go back and reread it.
Raj Sharma: I use it. I taught from it. When I taught the immigration course at the University of Calgary, I actually used it for my instructions.
Deanna Okun-Nachoff: Yeah.
Raj Sharma: Have you read Preet Bharara’s book, Doing Justice?
Steven Meurrens: No. I’ve read a lot of books during this pandemic, but haven’t gotten to Preet’s.
Raj Sharma: He had a whole passage that stuck with me about how once an … It’s very important that people who start investigations or have suspicions, that once you do that, especially if it’s like, say, in Chandigarh, the deterrence policy. That policies get drafted, resources are allocated, people are assigned, and it’s important for the sake of justice to realize, “Okay, we have to walk away.” And that it’s very hard to do that once the machinery start interacting.
Steven Meurrens: Commitment. Yeah. You’re committed. Yeah.
Deanna Okun-Nachoff: I want to go back to something that Raj said, though, and then to something that Steve said. That in terms of reading a lie within two minutes, the fear response looks exactly like the deception response in two minutes. It takes a … Having spent however many years doing this type of work and working with a client, I know that usually I don’t get to the belly of the content when I’m working with somebody who’s highly agitated, for at least an hour. And this is what I do all day every day. Yeah. Anyways, I think that they do look very similar in terms of the response.
But in terms of what Steve was saying before about the shift toward putting the onus on the applicant to produce documents that aren’t in their own possession, we talked about that being a real challenge. And I know this is something that’s gone back for years in terms of caregivers, where they’re asking for documents, like personal financial documents from their prospective employers. And that is just another one where, like, “Please send the Notices of Assessments of the employers whose home you’re about to live in.” And just the … I think that it’s the touchiness of which employer who’s about to welcome this foreign national into their house is going to want to give them their personal financial documents to send to the Visa Office.
But it’s another one that I’ve appeared in Federal Court on frequently, where they’ve then denied the application because of the lack of sufficiency of evidence that they can cover the salary, and all of that sort of thing, and just raising procedural fairness arguments there. We talked about what the kind of hidden motive might be, but in terms of the legality it goes back to what you said earlier, Raj, about, is this about credibility or is this about insufficiency? That this gives the decision-maker the ability to say, “This is about insufficiency of evidence to show that this is a genuine job.” And I know this argument that you’re talking about, that they say, “Well, we do have the authority to assess whether or not this is a genuine job, and I know that there was an LMIA approval there, but still, we do have the authority.”
It’s still to me that jurisprudence is quite murky, and I don’t know if you’ve seen that that has come with more clarity in the cases that you’re arguing. And just to add one other thing to that too, is that in the new iterations of the caregiver program, there is no LMIA process. That assessment does get done by the Visa Office. And so, I see more challenges there. They have actually taken out the LMIA, and the assessment of the genuineness of the job does get done by the Visa Office. And so, as far as I know, none of those cases have been decided yet, but I’ve got a real fear about the officer deciding the genuineness of the job, and whether or not the person is a qualified worker, when I’m sure they’re going to be requesting documents that that worker can’t possibly be in possession of.
Steven Meurrens: That will be in Edmonton, I think, for the caregivers now. Or are they still going to … Anyway, that’s a tangential issue, that question.
Deanna Okun-Nachoff: We don’t know, because we haven’t seen any of them get decided.
Steven Meurrens: Yeah. The jurisprudence that I’ve seen has been because … The first thing I did with that Procedural Fairness was think, “Well, how can they even ask this? The LMIA is there.” But the jurisprudence says that officers can revisit what was done in the … Well, it’s not even what was done. They can just go beyond the scope of … Like, they can ask for additional documents. Like a hearing de novo you can almost treat it. They don’t just review … They don’t review whether the LMIA was reasonable, but they could look at new documents to determine … Because they do have to be satisfied that it is genuine.
Deanna Okun-Nachoff: Yeah.
Raj Sharma: Yeah, I think there’s a subterranean level of decision-making that we’ll simply never be privy to. Locally engaged staff, or decisions to refer to an interviewer to escalate … You’ll put a sticky note on a file which will never end up, for example, on those GCMS notes.
Deanna Okun-Nachoff: Don’t get Steve started on sticky notes. [crosstalk 00:50:22].
Raj Sharma: Again, there was a glut of caregivers from Chandigarh for a couple of years, and so, all of a sudden it was taking 20-plus months to get an interview.
Deanna Okun-Nachoff: I remember.
Raj Sharma: So, there are ways that an office can execute, again, non-statutory, non-legal “policy objectives,” which are not amenable to judicial review.
Deanna Okun-Nachoff: No. And then they start saying that the job offers are not genuine, because first of all, human traffickers start capitalizing upon this when they see that no genuine employer actually wants to wait 20 months for somebody to take care of an elderly. They start manufacturing job offers, and then caregivers end up getting prosecuted for misrepresentation when they arrive, and the job offer no longer exists. So, that was one that actually was a major issue when processing times did get that long. And I did end up unsuccessfully representing many caregivers who arrived when the job offer was no longer in place by the time they actually got here, because of those long processing times. So, it’s yet another example of where they were able to execute or massacre the legal rule operationally.
Steven Meurrens: Yeah. That’s an interesting … That it took us so long to process the application, that we don’t believe that the job is real because no employer would be willing to wait.
Deanna Okun-Nachoff: Well, then they just arrive at the border, they would call the employer, the employer would say, “No, we don’t need this person.” And then they would send them home. And when the caregiver had received notice that the job had gone away, even if it was the night before they got on their plane, they would make it a misrep allegation.
Steven Meurrens: So, just to tie it back, how would you respond to a Procedural Fairness Letter? Like, if you were representing someone who did get a Procedural Fairness Letter that said, “Hey, you said you were going to work as a caregiver for a two-year-old, and she’s now four. We have concerns that this employment offer is still real.” What’s the type of documents or response that you would include?
Deanna Okun-Nachoff: Are you asking me or Raj?
Steven Meurrens: You, or both.
Deanna Okun-Nachoff: Or me? Well, the standard thing I would do is try and go back to the employer and see whether or not they were still intending to support the job offer, and if so, why they needed a caregiver for their four-year-old, and details about what the intention was in terms of before and after care. And that sort of thing. That would be the straightforward way of doing it. It’s more challenging if the employer has decided they no longer require that person on a full-time basis, and then it would be a whole thing of trying to scramble and see if I could get a new LMIA in place. And then put it forward to IRCC, and say, “The reason for the delay was yours and not ours, and so, you have to accommodate this change of employment because the delay is on you. And I’ve done both things.
Steven Meurrens: And a more recent question that I come across is, you get a Procedural Fairness Letter that says, “We don’t have enough set proof that you’re cohabiting. We don’t have enough proof that, I don’t know, you worked for a year in this job. Please respond within 30 days, providing as much information as you can within two megabytes, or within four megabytes.” So, how do you deal … Because I remember before … I sent a box once, a proof that someone was in a common-law relationship after a Procedural Fairness Letter, and I have sent … Like, do you let file size dictate your response? Or do you just wind up sending, “This is case-specific inquiry one out of seven uploading documents.”
Raj Sharma: Well, I think it depends, because it’s like that Tolstoy quote from Anna Karenina. “All happy families are happy or alike in their happiness, and all unhappy families are unhappy for different reasons.” Each Procedural Fairness case depends on the nature of the ostensible concerns of the officer. Many times you would want to do an Access-to-Information request, and get further details. There’s some good case law from Justice Diner in Toki, I believe. Take your time. If you need an extension, get an extension. If you need to … If you’re a little bit confused, ask for a more detailed Procedural Fairness Letter.
I got some kind of Procedural Fairness Letter for my client in [inaudible 00:55:46], and like, “Oh, we have some concerns regarding your inadmissibility under Section 36, 1B. You have 30 days to give us a response.” I’m like, “Well, you’ve got to tell me what’s the nature of the criminality. How do I do a Procedural Fairness Letter if I don’t know how to do an equivalency, or who is saying what? Right? So, I think you use Justice Diner’s decision in Toki, you ask for a very detailed Procedural Fairness Letter, you ask for an extension of time if necessary. You get an Access-to-Information request perhaps, and kind of go from there.
And then, I don’t necessarily subscribe to the file size theory. I subscribe to the theory that it should decisively address every point of the Procedural Fairness Letter. Think carefully. What is the officer trying to achieve here? If something seems odd to you, it may be that there’s a sort of … Some other unstated, hidden agenda here. Again, in terms of the Procedural Fairness, many times do you need to engage in this regime? If you think something is weird that’s about to happen, or something bad is going to happen, or something that you can’t fix might happen, maybe you can withdraw this thing.
Let’s say you’re called in … Let’s say some marriage fraud … You’re accused of marriage fraud from within Canada. You’re a permanent resident. They call you in, there’s no application in the mix, and they ask you to come in to attempt to explain why you separated from your sponsor within a couple of weeks. Maybe you don’t need to attend. Maybe that would be a mistake for you to attend. Maybe it’s better that, if they don’t got anything, let it go to the Immigration Division, where they bear the onus of establishing the case. So, the answer as to how you respond to a Procedural Fairness Letter is the unsatisfying answer of, “It depends.”
It depends on the nature of the nature of the PFL, it depends on the nature of the inadmissibility, it depends on the status, it depends on where you’re at, it depends on the risk that you’re facing, it depends on the alternatives that you may have. But each time you have a Procedural Fairness Letter, there is some element of risk there. And too often we’re called upon … After there’s been a response, an inadequate response to the PFL by some ghost consultant out of India or wherever else, and then they come to us with a refusal, and then they expect us to work our magic at the Federal Court. Well, the Federal Court is going to really look at what the response was to the Procedural Fairness Letter.
So, if we’ve done from A to Z, we’ve got a decent shot, a very good shot perhaps, at Federal Court. If we get in, and then later we get involved, it’s inversely proportionate to the success, I think.
Deanna Okun-Nachoff: Yeah.
Steven Meurrens: Yeah.
Deanna Okun-Nachoff: And I think people just don’t realize that you can’t add anything new at Federal Court. The record is sealed, and so, that really does tie our hands so much. And I really appreciate this comment too, Raj, that a lot of the time the PFL is really just a fishing expedition. And so, just honing your reply to not respond to a fishing expedition, because if you answer with three razor-sharp documents and not with 40, then they don’t have more material to work with, and you’ve just responded to their specific request. And I’m obviously not talking about failing to disclose information that’s relevant or material, but just in terms of … If you are aware that they are trying to make a mountain out of a molehill, then I think you want to be very precise in what you’re putting forward.
That said, in answer to your question, Steve, I think that sometimes those stupid file limitations, I blow straight past them. I don’t think that they have any … It’s supposed to be fairness in anything that-
Steven Meurrens: Yeah. No, we send, like, “This is case-specific inquiry 107.”
Deanna Okun-Nachoff: Yeah. I know it’s very frustrating. And even I feel the same way about even spousal applications. “Please send 20 photographs.” It’s like the onus is on you to show your … This is the best sufficiency of evidence. They can’t put the onus on you to make the sufficiency of evidence argument and then limit-
Raj Sharma: And then can convoke and interview because you haven’t provided sufficient proof of the relationships.
Deanna Okun-Nachoff: Yeah. Forget about it. I don’t look at that stuff. I provide the evidence that is necessary to make out my case.
Steven Meurrens: Raj did provide … And maybe we can slowly wrap up with this other type of Procedural Fairness Letter, which is more the investigation type. So, the example he gave was somebody who’s a permanent resident who gets a letter saying, “You may be inadmissible for marriage fraud. Please provide evidence showing to the contrary.” And the permanent residents and citizenship revocation process, like we recently … We currently have a citizenship revocation file where the initial letter just said, “We have reason to believe that you committed misrepresentation when you obtained citizenship. Please provide details regarding your establishment in Canada, and why you’re remorseful for what you did and what you did.”
And you have this super broad question at the start, which is … Well, they haven’t specified what you did. And at the same time, in your H&C responses, theoretically a big factor would be whether you’re remorseful. So, how do you balance … First of all, you’ve been trying to figure out what the thing that they’re looking for is, without just throwing up … Yourself just throwing darts up, and, “If it was that, I’m sorry. If it was that, I’m sorry.” Versus … So, the issue between wanting to balance getting factors positively for remorse, versus confessing to stuff that might not need to be confessed to.
Raj Sharma: Well, I think we have to start with principles rather than methods. In terms of a principle, I would be aggressive where … Or let’s put it this way. If the burden is on them, then very often my default might be … And if I have a review mechanism somewhere else, then my default is probably to give very little. I like absence. I like letting them do what they need to do. And so, it depends on who bears the burden and whether there’s a substantive review, and again, were the individuals inside Canada? Where you’re asking for something, as opposed to what you’re entitled to. So, where you’re asking for something, then you’re probably going to be facilitative and trying to … Hopefully you and the officer are going to try to get to the just sort of conclusion.
So, again, it depends on when to be aggressive, when not to be aggressive. I think just like in life and in immigration, many, many wounds are self-inflicted. You have to be careful. And again, this is why litigation or having some sort of litigation background is so essential for application. A lot of people do applications, but honestly, without doing litigation how do you truly understand what is relevant and what is material? And how far can you push this officer? And how far can this officer go? So, I think you have to bring that balance that comes out of litigation into each sort of application, and response to the Procedural Fairness. And I think the officers know. The officers know who can do it, who can’t do it.
I think the officers push and won’t push certain lawyers, because they’ll know that certain lawyers can call bluffs and certain lawyers can’t. So, I would go back to principles rather than methods, because there’s procedural fairness, there’s so many different aspects of this.
Steven Meurrens: I think that’s a good point, that it’s helpful to bring a litigation perspective to an application process, because you often hear people talking about, “Well, we’re going to JR proof, Judicial Review proof this application. And you go, “Oh, have you ever done a Judicial Review?” “No.” “Well, how do you know what that action means?”
Raj Sharma: Trying to do a Judicial Review, an application might just cause the contrary. Yeah, you have to be careful. That’s the one thing that I’ve learned, is that you must think before you do something. Don’t do something just for the sake of doing something. Just think carefully and consider first-order repercussions, second-order repercussions, third-order repercussions.
Steven Meurrens: Yeah. No, that’s a good-
Raj Sharma: Many, many times we’ve succeeded out of Delhi lately. Many, many times I’ve withdrawn the application, because I do not want to jeopardize the PR application later on. So, many, many times. Again, you withdraw, and [crosstalk 01:05:33].
Steven Meurrens: Are you talking about a work permit application when there’s a PR application in process? Or …
Raj Sharma: Or it could be in process, and you already see what’s happening. The Fabian strategy. Right? The famous Roman general, he’s handling this guy from Carthage, and he’s like, “Look. This guy is a deadly general. Let’s just withdraw. He has no siege engines. Let’s just withdraw.” Withdraw. Withdraw. Many times, you withdraw instead of engaging.
Deanna Okun-Nachoff: And it’s because you see them going down the path of a misrepresentation allegation. Wow. That’s really harsh.
Steven Meurrens: Hear, hear.
Deanna Okun-Nachoff: Oh, it’s just depressing.
Steven Meurrens: We’ll see what Raj’s response [crosstalk 01:06:18].
Deanna Okun-Nachoff: Yeah.
Steven Meurrens: And I think even just shedding light on the distinction between these offices, and then other people who are more academic and in tune with being able to go into the stats and research, is there a racialized component? We were talking about from that section from the podcast that we recorded with Aidan about substantive equality. And if you have-
Deanna Okun-Nachoff: Yeah. This is what I’ve been thinking about too Steve, really.
Steven Meurrens: … a Visa Office … Yeah, that is only in, say, Punjab, rendering decisions to send a message to the Punjab community, how does that impact people’s right to substantive equality under Section 15 of the Charter?
Deanna Okun-Nachoff: Well, maybe it ties in too, but I was thinking as a parting question for Raj is, I’ve been wondering just generally, it’s kind of an esoteric question, but what are your thoughts about the use of litigation as an instrument for public policy reform?
Raj Sharma: Well, litigation is absolutely necessary. When I was with Steve on the last Borderlines episode on marriage fraud, it concerned Mandamus. So, I took a Mandamus to the Federal Court of Appeal, on forcing them to investigate allegations of marriage fraud. And so, Mandamus is a democratic accountability tool. Certiorari, these remedies, these traditional remedies that we have, certiorari, prohibition, quo warranto, habeas corpus, Mandamus, these are all democratic accountability principles. How do you ensure that those individuals that are tasked with carrying out a mandate from the executive do what they’re supposed to do, and not do what they’re not supposed to do?
Litigation is it. The Federal Court is it. Unfortunately, again, to my earlier point, Federal Court is like using a hammer to kill a mosquito. It would be nice if we had greater oversight mechanisms for overseas decisions. Greater training, greater oversight mechanisms, nonjudicial perhaps oversight mechanisms. But we don’t have it. And so, litigation is all we’ve got to make sure that the officers at least have a modicum of oversight, even though, as you put it, these are minority. JR refusals that are made overseas are a minority, an absolute minority. It’s not ideal, but it’s what we got.
Deanna Okun-Nachoff: And I totally agree with you. In terms of what their function is meant to be, you’re preaching to choir. I just feel … That’s why I feel the sadness of the fact that even though this is your perspective on things, you are inclined to go with withdrawals as in the best interests of your client. And I feel that the piece that’s missing is the part that looks at the jurisprudence and takes it up to say at a systemic level, “We are getting this case law and this is how we have to approach these overarching issues that continually arise.” These are being repeatedly litigated with the same results, and yet it’s not trickling down to the frontline decision-makers.
And so, I think that there are certain limitations in the Federal Court process in the sense that there’s no way of actually bringing together these overall principles, and raising them as systemic issues. And that’s something that I wish we could think of.
Raj Sharma: Well, we tried. I think Steve tried, I tried it. So, once I saw this happening, the conflation of Regulation Four with this non-genuineness, with Section 40, which is a misrepresentation. After we won a couple of them, we got a couple of consents, that I reached out through a DOJ colleague and I’m like, “Hey, can you talk to your liaison over in Delhi? What’s going on here?” Now it turns out with Steven’s materials, they heard those concerns from DOJ counsel and they don’t care. Robbie [Sahl 01:10:54], the program manager, is perfectly fine with sending a message to certain communities, and we know who those communities are. So, DOJ counsel, our colleagues, it’s clear from their perspective that we are right, that this is an overreach. And that’s borne out by all the consents we’re getting.
Deanna Okun-Nachoff: That’s right.
Raj Sharma: If they were on site with Robbie Sahl and these decisions, why are they not fighting us out on all of their … They’re fighting us out on a minority of them, where there’s actually [crosstalk 01:11:25] case we made.
Steven Meurrens: Yeah.
Deanna Okun-Nachoff: That’s true.
Raj Sharma: So, yeah, I agree with you. I wish there was a way to deal with this without open warfare, which is basically what litigation is. [crosstalk 01:11:35].
Steven Meurrens: Litigation also is really good at shedding light. And I think you wind up getting a level of research to pick up on things that you might not have, just on a straightforward application. So, I’ll give an example. I JR’d a decision to bounce an application that was express entry, and wound up doing a deep-dive rabbit hole on something that I’ve tweeted about, which is that IRCC repeatedly, for five years, tells Parliament, the House of Commons Committee on Immigration, that they don’t reject applications that are incomplete. That they work with MPs and reach out to people to fix them. The most recent one was they said they have not refused a single application during COVID due to missing documents, which is complete … That’s just not the case.
I don’t know if the person was just misinformed, or if they are relying on a cute legal distinction between reject and refuse an application. Anyway, the Judicial Review, I included five years’ worth of these statements, and DOJ actually included a paragraph, and I just pulled it up, which says that … It’s a quick throwaway, “The applicant references several questions and answers in their material that [inaudible 01:12:59] his willingness to contact applicants, and there’s a simple fix to a problem with an application. However, any steps are just at the discretion of the officer.”
So, you can see that DOJ’s position is, “Look. What they say to Parliament, who cares?” And you can take that back now to the Parliamentarians, and it’s something that I wouldn’t have done that level of deep dive, and hopefully the more light that is shone on this and other issues, the more that that drives change.
Deanna Okun-Nachoff: Yeah. I think that the shame of what you’re saying too is that those conversations with the DOJ liaisons, I think would be very fruitful. Except, of course, they are muzzled by clients with their privilege. They can’t speak to what … They can’t speak with candor to what the resistance is by the Rabisols and the parallel people, the Pretoria at Manila, at Beijing, and all of that sort of thing, which is a shame because that would be a really wonderful conversation to have, really as an open conversation with the Parliamentarians, but also with those in the Visa Office. But I feel like the conversation is being muzzled right at the point where it could actually be effective, and I wish that that could change.
But also, a part of what you just said, Steve, brings me back full circles to the beginning of the conversation, when Raj was talking about going back to Baker, and Lord Denning, and where this whole notion of Procedural Fairness came from. And I think that while we’re talking about the rise of the jurisprudence around Procedural Fairness, there has been a corresponding decline in any human touch to immigration. And so, this automatizing, almost robotic manner in which immigration processing works, the need for Procedural Fairness safeguards has risen, because … Dennis, who was the founder of the firm that I now own and run, used to talk about the days when he would walk with his clients into an immigration office, they would make an application, they would talk about the merits of the application, and they would walk away with the work permit.
And so, this whole stuff about the jurisprudence around Procedural Fairness was slightly less volatile than it is now, when we don’t have a phone number, we don’t have an email address. We don’t know what country the person is going to be in sometimes where they’re processing it. And there’s no name on the letter where the refusal comes from. So, this is really super hot, this topic, because of the invisibility of the decision-maker and the … Maybe it’s not AI, but it might as well be, because it’s a faceless decision-maker, where there’s absolutely zero interaction between the human being who is applying and whose life is being impacted, and the decision-maker.
Steven Meurrens: You talked about going back to first principles, and if you look at the objectives of the Act, to see the families are reunited, to maximize the benefit of immigration. It’s not to scare the hell out of someone during an interview, or require companies to provide years of contracts with customers in order to get someone the ability … Basically to get someone the ability to enter Canada and work. And I just feel like a lot of … If we go back to the objectives of the Act, and if all of these resources were just better spent on these minutiae. And the minutiae, I think, is the word I’ll stick with, were just redirected to the objectives of the Act, the system would just function a lot more efficiently and not really lose anything.
Deanna Okun-Nachoff: For sure. Yeah. And I really do question the, like, well, this is for the efficiency of the process. When they said that the complete screening process was being done with the objective of reducing the time wastage, I really wonder. When it was Dennis and his client walking into the Visa Office with their documents, was that more time-consuming? I would love to see the metrics on that personally.
Steven Meurrens: Yeah. Anyway, I think that is it for now. Unless you have any last thoughts on Procedural Fairness or Delhi, I feel like any thought can turn into five minutes of just pounding the table about systemic injustices and negative experiences that applicants are having.
Raj Sharma: No, I think those … I really enjoyed that. I think I learned something as well. So, thanks for having me on.
Steven Meurrens: It’s therapeutic.
Raj Sharma: I suppose. But yeah-
Deanna Okun-Nachoff: Saved by the bell?
Raj Sharma: Here’s hoping for 2021 to be a better year than 2020. Happy New Year to you both, and I’m looking forward to seeing you guys in person one of these days.
Deanna Okun-Nachoff: Wouldn’t that be nice?
Steven Meurrens: Oh, if only.
Deanna Okun-Nachoff: Yeah.
Steven Meurrens: Yeah. All right. Talk soon.
Deanna Okun-Nachoff: Take care, all.
Steven Meurrens: Okay. Bye, bye.