There is a plethora of Federal court cases dealing with the assessment of credibility by various officers and tribunals that constitute Canada’s immigration department.  Two common settings (among many) where credibility is a huge issue, include visa officer assessments of skilled worker applications, and in refugee claims at the Immigration and Refugee Board.

What is common in both settings is the placement of documentation before the decision maker, be it a visa officer, or a refugee Board member of the Immigration and Refugee Board.  The documents are reviewed by someone before the assessment of an application.  This is apparent in the process of ‘paper screening’ at visa offices, or the ‘screening form’ common to refugee claims at the IRB.  Concerns about the documentation are noted and are a factor in whether or not a would-be federal skilled worker immigrant should be interviewed or not.  Similarly, the documentation submitted to the refugee board often frames or creates issues that make a refugee claimant’s case harder.

Thus, if documents asserting a certain type of work experience look ‘funny’ (e.g. they are hand written, or vague, or resemble someone else’s work reference letter), this will lead to an interview, or even a refusal of the skilled worker application outright.  Similarly, a refugee PIF, if too vague, or if not supported by proof of what is alleged (e.g. police reports, medical documentation, identity documents), then the refugee hearing becomes all the more lengthy and more of an interrogation.

Visa officers have an idea about what a work experience letter should look like.  This is based on Canadian immigration law, their experience, and the use of locally engaged staff.  Similarly, the Members of the Immigration Refugee Board have regard to information such as response to information requests, and their past experience in dealing with things such as identity documents, and police reports.

Clients seeking immigration status in Canada have to convey the relevant information to the immigration authorities.  If clients don’t know what the visa officer or refugee board member is used to seeing, they will submit strange documents.  This will cause concerns or flags to be raised, making the immigration application more complicated, or delayed, or refused.

In my practice, I often come across cases where the damage has already been done.  For example, someone who represented himself at the Immigration and Refugee Board came to me for a federal court case against his removal order (he was deported for not having the minimum amount of days of residence in Canada).  Cases where credibility has already been assessed by the IRB or a visa officer make my job more difficult.  In the case I just mentioned, I tried to argue that an unrepresented party should be treated more fairly than a person who was represented by a lawyer.  The court disagreed, stating that a fair hearing at the IAD does not extend to giving directions or advice at the hearing.  Had the client retained a representative like a lawyer for the IAD hearing, his result may have been much more satisfactory than what occurred when he was self-represented.

Similarly, in a private meeting on November 20 2009 between immigration lawyers and Canada’s immigration department, the immigration department told us lawyers that it tries to ensure that checklists are as comprehensive as possible, but the onus lies with applicants to produce evidence that supports their statements in their application.  In other words, the document checklists in Canada immigration’s website do not constitute the last word about what documents should be presented to a visa office.  In other words, if you follow the document checklist as is indicated on CIC’s website an immigration officer can still refuse your application.

This message goes counter to the immigration department’s message on the CIC website that you do not need to hire an immigration representative.  In fact, another part of Canada’s immigration website states QUOTE  All the forms and information that you need to apply for a visa are available for free on this website. If you follow the instructions in the application guide, you can complete the application form and submit it on your own. UNQUOTE [Emphasis in original].  In other words, CIC provides the real message to the lawyers, and the fictional message is left for the public interested in Canadian immigration.

The current occupation list for Federal Skilled Worker immigration to Canada does not include journalists.  This is unfortunate, given the dearth of independent news reporting in Canada.  More foreign-trained journalists in Canada would perhaps increase the points of view about things immigration.  Editorial diktat over Canadian journalists is at times very transparent places such as the Canwest News Service.  Coverage of minority and Canadian immigration issues is often a victim of such subliminal editorializing.

A glance of the March 17 2010 article Kenney disputes UN report on Canada’s treatment of minorities, reveals nothing about the UN report, authored by Gay Mcdougall except its conclusion: “although diversity is celebrated in Canada, minorities are victims of disproportionate levels of poverty, discrimination in the workplace and job market, and racial profiling by police.”  The balance of the article can be characterized by stenography for Jason Kenney, the Canadian Minister of Citizenship & Immigration, who bashes the United Nations:

“Kenney said that rather than taking Canada to task over its treatment of minorities, the UN should be looking at the “dozens of regimes around the world that are engaged in widespread and systematic violation of minority rights.”

Canada’s immigration Minister knows, or should know, that the United Nations does in fact deal with other regimes and their human rights records, such as in Darfur, and Tibet, not to mention a whole host of other countries and vulnerable groups as can be seen here.

Reading the article, one gets the impression that Ms. Mcdougall took a leisurely vacation in Canada and then composed her conclusion.  This is apparent in the sentence,

“McDougall, who spent 10 days travelling across Canada last fall, said that although diversity is celebrated in Canada, minorities are victims of disproportionate levels of poverty, discrimination in the workplace and job market, and racial profiling by police.

The above quote is no doubt true, but does not capture the fact that Ms McDougall’s office requires her to do more than ‘travelling’.  Some other tasks announced by the UN for her project include to consult on legislation, policy and practice relating to minority communities and a wide variety of issues relevant to diversity, equality and minority rights in Canada.

Canada’s immigration minister conceded some validity in Ms. McDougall’s report when he stated, “We always need to make more progress in creating opportunities for members of our cultural communities, for newcomers, for visible minorities.”  Indeed Mr. Kenney has spoken out about the gatekeeper attitude amongst some professional regulatory bodies which prevents foreign-trained professionals from working in their intended careers once in Canada.

Mr. Kenney also “acknowledged domestic reports from such agencies as Statistics Canada have said immigrants are worse off than their Canadian-born counterparts.”  Similarly, when the Minister of Immigration for Canada states, “All levels of government and many agencies have taken up the challenge,” Mr. Kenney is conceding that Canada must take more steps towards integrating skilled immigrants into Canada’s labour force.

However, since one element of the article was to express disdain for the UN’s position that Canada has a problem with its minorities, Mr. Kenney added, “We’re not perfect, but we’re pretty darn good,” and “I just think they (the UN) have got their priorities wrong.”  These latter two sentiments are synonymous with stating that the UN’s mandate should only encompass brutal dictatorships because Canada is generally ok as it is.

If you are considering immigration to Canada under the Federal Skilled Worker or Canada Experience Class category, you must possess a certain level of English or French language skills.  The amount of fluency depends on your score in the other factors such as experience, education, education of a spouse (if any), a history of Canadian work or Canadian study, and age.

With regard to the proving of English language ability, the Canadian immigration department prefers third party language testing in the form of the IELTS.  Legally, speaking, there is an option to forgo the writing of the IELTS test; one can compose a submission with evidence asserting their level of English, in lieu of the IELTS.  However, I invariably instruct most of my clients to take the IELTS language test;  the only exceptions are clients who were educated in English in a predominantly English speaking country.

Canada’s immigration department shall (as of April 10 2010) actively discourage immigration applicants from asserting their own fluency in English without the IELTS.  The change is quoted below:

Effective April 10, 2010, visa officers will only consider the evidence of language proficiency provided at the time of application.  Currently, if a written submission does not satisfy the visa officer that the applicant has demonstrated the level of language proficiency claimed, the applicant is offered the opportunity to undergo and submit the results of a designated language test.  Under the new directive, visa officers will no longer offer the applicant a “second chance” to prove their language proficiency when the written evidence does not support their claim.  This will apply to all FSW and CEC applications received on or after the effective date.

In other words, clients who don’t obviously present proof of their level of English ability may have their application for Canadian immigration refused, should a visa officer disagree with the asserted level of English.

The immigration department’s reasons for the change are as follows:

This change is another improvement which supports the Action Plan for Faster Immigration.  A survey of missions abroad revealed that a substantial proportion of applicants worldwide are providing written submissions as evidence of language proficiency, and a sizeable majority of these submissions do not support the level claimed.  Offering these applicants a “second chance” not only lengthens the processing of their applications, but also adds to the overall processing burden for all FSW applications.  Consequently, removing this extra step in the process will improve processing times.

In other words, it appears that applicants for immigration may have inflated their level of English language ability, or at least, have not been able to prove the level of English asserted, thus causing delays in the processing of immigration applications.

Canada Immigration’s preference for standardized testing in the form of an IELTS test is very apparent in the following passage:

For others [those whose language is not English], providing the results of a language test by a designated language testing agency ensures a higher degree of reliability and transparency.  FSW applicants will know from the outset how many language points will be awarded on the selection grid, and CEC applicants will know whether they meet the minimum language requirement.  Therefore, it is strongly recommended that these applicants have language test results before application.

As a lawyer to takes cases to the Federal Court of Canada, it can be said that the refusal to accept a certain level of language ability can be the subject of action at the Federal Court (for example, if a visa officer, after reviewing evidence submitted by an applicant concludes that a person is not fluent in English).  However, such a federal court case would only be successful if the conclusion reached by the visa officer was obviously wrong.

It may also be arguable that a visa officer may be unfair for refusing to award a certain number of points for English without telling the applicant about the negative finding regarding English.  The answer to this argument will likely come out after April 10 2010, and after someone is refused Canadian immigration on the basis of a self-concocted submission on English language ability, and takes that decision to the Federal Court.

The Edmonton Journal has confirmed that Canada’s identity includes immigration.  Citing a well-produced ad for Tim Horton’s that encapsulates an African family’s resettlement in Canada, Columnist Paula Simons concisely described the commercial as follows:

It begins so quietly. A man who seems to be an immigrant from Africa sits alone in a dingy apartment on a winter night, talking wistfully to someone on the phone in Zulu, while his finger gently strokes a family photograph. Then we see him at a department store, buying colourful parkas in different sizes, which he takes back to his apartment and carefully packs into weatherproof bags. He wakes to the sound of his alarm clock. It’s early, still pitch black, as he makes his way through the falling snow to the airport.

He heads to the Tim Hortons counter and orders two coffees. We watch his anxious face light up as he sees his wife and two daughters arrive. The couple exchange a kiss. He hands her a coffee and says, “Welcome to Canada.”

The family head out into the snow, dressed in their new winter wear, as the first winter morning light breaks.

“Welcome home,” he says.

The ubiquity of Tim Hortons all over Canada has spawned an entire sub-culture.  I’m not talking about the phrase ‘double-double’, which originated not at any Tim Horton’s, but on an episode of the television show Dragnet that aired long before Tim’s became a nation-wide phenomenon.  There are other terms brought on by the presence of Tims.

A couple of days ago, while walking on Bloor Street near the University of Toronto, I observed a gathering of protesters,  (by the appearance of their hand-held placards, they were unionized workers asserting rights for minorities and women).  There was a Tim’s just around the corner.  One of the persons in a group said to another, “Are you going for a Timmie Run?”  TRANSLATION: are you going to buy some of Tim Horton’s products for our group?  Similarly, South Asians typically describe the spherical South Asian dessert ladoo as a being ‘like a Timbit’.  Tim Horton’s is no longer the exclusive haunt of shift workers like policemen.  On my way to the Immigration and Refugee Board this morning, I passed three Tims on foot.

I personally find some of this lingo corny or downright scary.  When I hear the word ‘Timbit’, it brings to mind some dark vision like clones of the late Tim Horton secretly located at each Tim’s franchise, constituting a core ingredient at Tims, along the lines of the plot from the movie Soylent Green.  Or, I think of pieces of the Ford Pantera that he drove at the time of his death being sold as metallic souvenirs like James Dean’s Porsche.

One element of immigration reality not alluded to is that skilled immigrants to Canada often start their Canadian work history working at low-level employment such as in service jobs provided by Tim Horton’s franchisees.  Indeed, there is a low skill program administered by Canada’s immigration department  that many Tim Horton’s franchises benefited from, especially those in Alberta prior to 2008, when the job market was hot, and local Canadians had no interest in working at or near minimum wage.

Indeed, when completing a labour market opinion for a Tim Horton’s franchisee in Calgary during 2007,  a Tim’s franchisee confirmed that a sizeable number of their workers were recent immigrants who were well-educated and would consistently quit after a few months (for example, as soon as their credentials were recognized, or as soon as they commenced a course of study to have their credentials transferred to a Canadian setting).

The effectiveness of the ad was captured by Ms. Simons as follows:

What we’re being sold, of course, isn’t just coffee. We’re being sold a vision of Canada as a multicultural country that welcomes hardy refugees and immigrants from around the world, and absorbs them into its national fabric — one Timbit and double-double at a time.

Ms Simons contrasted the ad with the reality that faces many recent immigrants to Canada that is wholly absent in said ad:

In reality, plenty of newcomers have a difficult time making the economic and cultural transition to life here, never mind being accepted as Canadians. But the happy immigrant story is part of our national mythos. The ad works, in part, because it reminds many of us of our own family histories — but also because it allows us to pat ourselves on the back, just a little bit smugly, for being citizens of such a noble nation.

Ms Simons implicitly acknowledged the current government’s lack of vision by highlighting the fact that sophisticated corporate marketing is taking up the torch of multiculturalism:

How odd, that it should take the most “white bread” business imaginable — a multinational doughnut corporation! — to capture the authentic face of today’s urban Canada.

And how intriguing, too, that one of Canada’s corporate giants has chosen to make the immigration narrative such a large part of its brand identity.

By contrast, current Canadian government policy is more intent on atomizing Canada’s minorities by unduly ethnicizing politics in Canada.  The intent appears to be pandering to ethnic minorities who are politically connected and/or politically active at the expense of other minorities. This could create a big rip in the cultural mosaic if Canada takes sides on contentious historical or current foreign policy issues like Greece/Macedonia, Kurdistan/Turkey, India/Pakistan, China/Tibet, and Israel/Palestine.  A more principled approach would be to place less of a priority on the government’s reelection, but rather, to articulate a position on well-documented human rights issues (positions that are defensible should there be some complaint by one ethnic group or other).

In a previous weblog entry, I commented on the utility of using Canada’s call centre, for, among other things, checking the status of an immigration application filed with Canada’s immigration authorities.  Indeed, lawyers with proper authorization do regularly ascertain some basic information about the file through the Canada’s immigration call center.  Recently however, due to the expansion of immigration call center employees, it has been more difficult to reach a person at Canada’s immigration call center and obtain information.  The immigration department has confirmed that officers normally answering the phone line are currently training other people to answer calls at the call center.  In addition, there’s been marked increase in the amount of telephone calls the call center has received.  The normal volume of calls is around 30,000 per day, whereas earlier this week they received 70,000 calls per day.

The inability to reach somebody at the call center has caused people to try to ascertain their application’s status on Canada’s immigration website.  This has overtaxed the abilities of Canada’s immigration website, and for that reason people are unable to get the status of an application on the website as well.

The reason for the recent surge in inquiries can be any number of things, such as the situation in Haiti, or the amount of visitors in Vancouver for the 2010 Olympics who may wish to extend their status.  However, it is reasonable to assume, that immigration will remain an important part of Canada’s growth, given the demographic challenges that Canadian society shall face over the next 20 years.  Such challenges have been outlined in a Parliamentary Budget Officer’s Report dated February 2010.

The demographic predictions in this report are consistent with what is happening in Europe and Japan where the proportion of elderly (i.e. economically non-productive) persons is increasing in relation to work-aged persons.  The lack of work-aged persons in Canada and the simultaneous economic burden on Canada’s health and pension systems spells future deficits for Canada’s governments well into the future.

The demographic projections in this report were premised on current Canadian immigration levels remaining the same.  Thus, pro-immigration advocates could argue that increased immigration beyond the current levels would have the effect of increasing the government’s tax base (assuming that the new immigrants are integrated into Canada’s labour force).

It is hard to see what other alternatives there could be.  Relatively xenophobic and Japan is investing heavily on robots to take care of its elderly.  This will no doubt exacerbate their stagnant economy as robots won’t expand their tax based as much as human beings.  I’m more partial to human contact, and will likely have this opinion as I age into retirement.

Before the economic woes of 2008, Europe was contemplating increased migration from developing countries as opposed to the dead-end ‘guest worker’ programs of earlier decades.

Given the paranoia of terrorism, and the consequent inconvenient road blocks this poses for productive, legal migration, I can foresee a bright future for immigration lawyers in developed countries like Canada, as long as Canada’s economy, and the world economy, is managed responsibly.