Featuring a Review of Five Lessons Learned About Fixing Problem Files
We wanted to share our experiences as a Firm with a recent procedural fairness matter. This matter epitomizes both our ‘ideal file and ideal client’, but also the challenges in navigating the grey and murky waters of Canadian immigration.
This matter began with a referral from an RCIC. In picking up the file, we knew the file to be only a PFL, where “immigration had made a mistake” and the consultant thought we would be in a better position to fix it. [Lesson 1: Nothing is as Simple As It Appears]
The matter ended up being much more complex, including both incorrect legal arguments, improperly sworn affidavits, and actually quite a complex legal scenario. To make matters worse there was also a loss of status issue (non-filed extension) that was not communicated.
When we got the file, we recognized the legal issue was both a combination of a misunderstanding by the overseas Visa Office, but also generally just very old convictions from a time where much of the written law and proceedings were not documented. Unlike in Canada, where even a CanLII search can help us note up laws, the original laws of the 1970s we were looking for were unavailable. The offenses were also in a grey area quasi-criminal area (intellectual property violations). We had to levy a few intro meetings with Intellectual Property lawyers from the country of residence/citizenship, and ultimately landed on hiring a leading criminal law firm and a junior lawyer who spoke the language and could independently assist in putting together a strong criminal equivalency analysis. [Lesson 2: That’s What Friends Are For]
As immigration lawyers, we could have also performed an equivalency analysis – comparing the key elements and defenses, but in this case we needed something a little more. The alleged convictions were not properly separated by the visa officer as separate incidents, and merged into an assessment of each of the convictions as being the same offense (subject to immigration consequences). Our working theory (based on our conversations with the Client/Applicant) was that one of the convictions was possible s.36(2) IRPA criminality (but subject to deemed rehabilitation), and the others seemed unlikely to have a Canadian equivalency. Indeed, when we looked at the activity that was subject to conviction – it seemed like it punished as a obscenity violation, content that we would normally see on our TV screens. The running theory we had of 1970s laws in the country of residence being very different from Canadian law today, became the underpinning of our case and the criminal lawyer helped by shedding light on the internal workings of more obscure provisions of Canadian Copyright Act and Criminal Code obscenity provisions.
A key aspect of the work that often goes underappreciated is getting to the point and level of trust in order to be able to receive the stories, containing what may seem to be immaterial facts, but end up making the big difference. In our case, the client had a history of going along with whatever the advisors recommended. He signed documents and never asked for proper interpretation. We had an in with the client because one of our team members shared the same language and birth country. Even with that, it took multiple meetings, hours of listening to stories not related to the actual convictions to get the details. Those details, which we set out in a thesis-length affidavit, provided the important factual context to allow the Officer to go behind the sparse Court documentation to see what accurately occurred. [Lesson 3: Nothing replaces time and good Affidavits take time].
After we successfully navigated the PFL issue (we didn’t know for certain, but based on the request for a medical exam we had a ‘gut feeling’), we then had to navigate another issue – the unexpected loss of status of our client. It had turned out that there was miscommunication between the client and their former RCIC and the application for extension which would have maintained the Applicant’s status was not done. This emerged after the Visa Office requested an update around current status. While our initial plan was for the applicant to return to the country of residence to await final processing, we spent time navigating options, and doing due diligence. As fortunate would have it, a travel restriction from said country made it impossible to travel back. The Applicant’s larger family, including a young daughter he was primarily helping raise, would have suffered if he had to return back to country of residence. [Lesson 4: Delays can be your friend.]
This leads us to the last lesson. [Lesson 5: Take calculated risks.] While we tried, the Visa Office ultimately asked for us to have the client back in status so they could initiate landing (as having status is a requirement, short of an H&C exemption). We made a calculated decision, even if these COVID days, to have the family take a short trip to the United States (as one family) and return to try and be re-stamped as a visitor back in to Canada. This was not an ideal situation, but with the switch to a RAT test being at the time the only requirement and the leveraging of family support and importantly a visa office letter, we felt confident. At the end of the day, he was readmitted as a visitor and within a few weeks received his COPR portal invite.
It is good to review cases – both positive and negative – to see how things went and how processes could have been improved. This case highlighted again how important it is to submit good upfront materials and not rely on the process resolution route, one that can be both more costly, time consuming, and ultimately more stressful – as avoidable admissibility issues were put on the table.
Our Client wanted to share the following feedback with our services with our Heron followers:
Thank you very much Will I almost cried >_< like you said what a journey and in so many points I almost gave up because all the complexities about his case.
I’m extremely glad that I have found you and Candy and your amazing team back then!!!!!!!!
I will definitely recommend you to my friends in the future.
We are grateful too, to have had such an amazing client and experiencing reuniting this family!
