Earlier this fall, the OBA’s Citizenship and Immigration Law Section hosted a great program on recent changes and developments in immigration law.
The program, What You Missed Over the Summer: Immigration Law Updates, was co-chaired by Cathryn Sawicki of PwC Law LLP and Ziah Sumar of Long Mangalji LLP and featured an esteemed panel of leading Canadian immigration lawyers and experts in immigration law and policy. The panel for this program included Chantal Desloges of Desloges Law Group Professional Corporation; Khrystyna Yankovska of Pace Law Firm; Lorne Waldman of Waldman & Associates; and Michael Reid, an Assistant Deputy Minister with the Immigration Selection Division of the Ontario Ministry of Economic Development, Job Creation and Trade.
Over the course of the program, the panelists shared valuable advice and helpful insights on the expansion of the biometrics program, the recent changes to the detention review process, the proposed changes to the refugee determination process, and updates to the Ontario Immigrant Nominee Program. The program was extremely informative and received overwhelmingly positive feedback from all participants.
The archived video and presentation materials from What You Missed Over the Summer: Immigration Law Updates are complimentary to the Section’s members and will be a valuable resource for anyone who practices in the field of immigration and refugee law. Some highlights from the program are provided below.
EXPANSION OF THE BIOMETRICS PROGRAM:
Khrystyna Yankovska, an associate with Pace Law Firm, opened the program with a comprehensive overview of the expansion of the Canadian Immigration Biometric Identification System (“the biometrics collection”). As Ms. Yankovska highlighted, starting July 31, 2018, fingerprints and photo, known as biometrics, became mandatory for individuals from Europe, the Middle East and Africa who are applying for a Canadian visitor visa, study or work permit, permanent residence or asylum in Canada. Ms. Yankovska further noted that on December 31, 2018 the applicants from Asia, Asia-Pacific and the Americas will also need to submit their biometric data when applying to travel or immigrate to Canada. It is anticipated that the collection of biometric data will facilitate faster processing of low-risk applications, prevent identity frauds and/or entry of known criminals, and will protect safety and security of Canadians.[1] Ms. Yankovska also highlighted that sections 12.2 and 12.8 of the Immigration and Refugee Protection Regulations S.O.R./2002-227, provide for certain exemptions from biometrics collection. Additionally, Ms. Yankovska cautioned that although many Canadian Visa Application Centers and Port of Entries are now able to collect biometric data, the inside Canada locations for biometrics collection will not be established until February 2019. Until then, those who are applying inside Canada are temporarily exempt. Ms. Yankovska recommended several very useful tips and advised of possible implications the introduction of biometrics collection program might have on our clients. Some of the tips Ms. Yankovska offered were: (a) to revise our retainer agreements and client intake forms in order to reflect the requirement for biometrics collection; (b) to be familiar with listed exemptions; (c) to know clients’ biometrics validity date; (d) to be aware of the possibility to voluntary re-enroll in the biometrics program; (e) to inform clients about biometrics fee and added application processing time.[2] These are just a few examples of many useful tips and suggestions Ms. Yankovska recommended during her presentation.
UPDATES TO THE ONTARIO IMMIGRANT NOMINEE PROGRAM:
Following Ms. Yankovska’s presentation, Michael Reid, from the Ministry of Economic Development, Job Creation and Trade, provided a summary of recent updates to the Ontario Immigrant Nominee Program (“the OINP”) along with some useful insights into the OINP. When speaking about the OINP’s past trends, Mr. Reid emphasized that although the OINP has roughly 254 different occupations, ranging from mushroom-pickers to physicists, the top occupations that received nominations in the past were those from the Information and Communication Technology sector.[3] Mr. Reid flagged that the 2018 allocation limit (6,600 nominations) would likely be met by early-to-mid November 2018. Mr. Reid also noted that during 2018 the OINP saw a high volume of applications to its Express Entry streams (Human Capital, French-Speaking Skilled Workers and Skilled Trades) and increased interest in its Employer Job Offer streams (Foreign Workers, International Students, and In-Demand Skills). When discussing the OINP’s future, Mr. Reid indicated that the program will likely continue its targeted Notifications of Interest searchers and selections in the Express Entry pool in order to respond to Ontario’s economic needs (i.e., individuals with job offers). The program will also continue implementing its new compliance and enforcement regime provided under the Ontario Immigration Act, S.O. 2015, c. 8 and its Regulations. Another priority that Mr. Reid highlighted was that the province will continue “agitating” federal government to get greater increase in the allocation of economic immigrants selected through the Ontario PNP. Finally, Mr. Reid noted that after the OINP transitioned to a new Ministry in June 2018, the Ministry of Economic Development, Job Creation and Trade, the program is now well-positioned to find ways to make it easier for international talents to come to Ontario. This will add to the province’s capacity for innovation, bringing diverse perspectives to Ontario businesses, and helping further develop the province’s highly skilled workforce.
CHANGES TO THE DETENTION REVIEW PROCESS:
Lorne Waldman, who practices exclusively in the area of immigration and refugee law, and has done so since 1979, delivered an excellent presentation focused on the recent changes to the detention review process. He provided an overview of the new initiative introduced by the CBSA, the Alternatives to Detention Program[4], which requires officers to carefully assess the risk of release and to balance it against alternatives to detention. One such alternative the CBSA is introducing (on a pilot basis), for instance, is the use of electronic monitoring. Mr. Waldman, however, cautioned that when considering potential alternatives to detention, one should be mindful of the fact that if it is a detainee who is proposing electronic monitoring, it will be him/her who will be responsible for paying all associated costs. Mr. Waldman also provided a summary of findings from the IRB’s 2017/2018 External Audit (Detention Review) Report[5] (“the Audit Report”). The audit, which was commissioned by the then Chair of the IRB, Mario Dion, was very critical of the conduct of detention reviews, especially in the Toronto region. Some key conclusions from the Audit Report that Mr. Waldman highlighted were as follows:
(a) in many cases a lawyer’s proposal for release was not accepted;
(b) the hearings were clustered in very long-term detention cases where the individuals were unrepresented at nearly all their hearings;
(c) many hearings were completed in less than five minutes;
(d) the detained person would often stop participating in ID hearings and sometimes stop attending altogether;
(e) the onus of proof in such hearings appeared to have slipped over to the detained person who was almost always unrepresented and powerless to articulate his/her argument for release;
(f) the Members appear to give little consideration to the submissions of a detainee;
(g) the Members to often relied on speculative and inaccurate statements made by the CBSA Hearing Officers. [6]
All in all, the overall conclusion of the audit was that, “in a significant number of [the randomly selected] hearings and decisions, there were notable discrepancies between the expectations articulated by the courts and the practice of the ID”.[7]
Mr. Waldman also provided an overview of the recent case law on the availability of habeas corpus as a remedy in immigration detention matters. As Mr. Waldman noted, until recently it was believed that habeas corpus would not be available as a remedy in immigration detention matters; however, in Chaudhary v Canada (Minister of Public Safety and Emergency Preparedness), 2016 ONCA 600, the Ontario Court of Appeal has opened the door to the possibility of utilizing habeas corpus as an alternative to judicial review in narrow circumstances. Yet, as Mr. Waldman stated, it still remains quite complicated and difficult to succeed in habeas corpus applications.
PROPOSED CHANGES TO THE REFUGEE DETERMINATION PROCESS:
Another stellar speaker who delivered her remarks on important changes and developments in refugee law was Chantal Desloges, a founder and senior partner of Desloges Law Group. Ms. Desloges provided a summary of key initiatives recently implemented by the RPD aimed to fix some of its lingering inefficiencies and to streamline the refugee determination process. As noted by Ms. Desloges, the RPD undertook to hire additional members and staff to speed up the process and eliminate backlogs. Additionally, the process of how the CBSA/IRCC refers the refugee claims has also changed. The refugee claimants will now receive a “Confirmation of Referral” document that will include important information (i.e., deadline for the BOC form, details about the processing of the claim), but will not include a hearing date. Instead, the hearing dates will be provided with the Notice to Appear. Another important change relates to the issue of voluminous and late disclosures. The two practice notices the RPD issued mandate to enforce the disclosure deadlines more strictly and limit country condition evidence to 100 pages, unless a member exercises his/her discretion and orders admission of additional evidence (after examining the rational for additional/late disclosures). Also, it will be easier now to obtain a copy of claimant’s file, after the RPD eliminated the requirement to file an access to information request. Instead, one will be able to retrieve his/her case file directly from the Registry via reception at the regional office responsible for handling the claim. Another recent change that Ms. Desloges highlighted was the RPD’s decision to begin holding hearings in Ottawa. Interestingly, the RPD has finally decided to become more environmentally friendly and initiated a file-scanning project aimed at elimination of excessive paper and creation of electronic versions of the appeal files that Members will be able to use, which has been long overdue! [8]
Ms. Desloges also discussed some of the findings from the Report of the Independent Review of the Immigration and Refugee Board: A Systems Management Approach to Asylum (the “Yeates Report”) [9] that was commissioned to review the current refugee determination process. One of the key recommendations coming out of the Yeates Report was the proposition to adopt a systems management approach. This is to be done in one of two ways:
- Option 1: largely maintaining the current structures and roles of the IRB, IRCC, CBSA but overseen by an Asylum System Management Board;
- Option 2: reforming the existing structures to create an integrated refugee determination system to serve as many functions as possible in a single organization (referred to as Refugee Protection Agency) reporting directly to the Minister.
The Yeates Report also suggests the development of decision-making guidelines and tools that are country and/or claim types specific, as well as the development of one common resource for country information designed to help decide protection related claims. Further, another priority highlighted in the Yeates Report was government efficiency. For example, one of the recommendations was to create a centralized post-decision PR processing regime that would eliminate collection of repetitive data. In her concluding remarks, Ms. Desloges briefly discussed uncertainty surrounding the status quo of the Safe Third Country Agreement (“STCA”) and the issues associated with the mandate of the new Minister of Border Security. As Ms. Desloges stated, although the future of STCA is not set in stone, the Minister of Border Security undertook to address it. However, the mandate of the new Minister remains quite vague with no force or effect of closing any loopholes, and there may be purpose behind that.[10]
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