Access to Justice and Immigration in Canada with Arghavan Gerami and Kyle Hyndman from the CBA Immigration Law Section.
For many people around the world Access to Justice means Access to Canada. There is an expectation throughout the international community that Canada welcomes refugees and immigrants.
Economic expediency has often led to special fast-track immigration programs with varying degrees of successful application and execution, and the same has occurred in response, again in varying degrees, to various humanitarian crises around the world.
The Every Lawyer takes a deep dive into Immigration Law in Canada and sheds light on some serious Access to Justice issues. Some solutions included.
With Arghavan Gerami and Kyle Hyndman from the CBA Immigration Law Section in cooperation with the CBA Access to Justice Subcommittee.
Hosted by Julia Tétrault-Provencher.
Access to Justice and Immigration in Canada
[Start of recorded material 00:00:00]
Recording: This is The Every Lawyer presented by the Canadian Bar Association.
Julia: Hi, I'm Julia. Welcome, everybody. Welcome at The Every Lawyer podcast. My guests today are Arghavan Gerami and Kyle Hindman. Kyle Hindman is the head of the CBA Immigration Law Section. And he has been very generous with his time since we had a technical issue last time, which caused us to have to do this a second time. So Kyle, we really thank you for being such a good sport with us and for agreeing to record this podcast another time.
Kyle: My pleasure, really happy to be on and just an update in the intervening time, I'm now no longer the chair of the section, I’m now the immediate past chair, which is great news for me.
Julia: Things change so fast, OK. [Unintelligible 00:00:54]. Very glad to hear. So who's the new chair?
Kyle: So Lisa Middlemiss is our new chair as of a week and a half ago.
Julia: So, well, thank you again for being here, Kyle. And we have the pleasure to have Arghavan Gerami, who is the founder and Senior Counsel of Ottawa Immigration firm Gerami Law. Welcome Arghavan and thank you very much for being with us today. How are you?
Arghavan: I'm very well, thank you for having me.
Julia: Thank you so much for taking the time. I mean, I'm sure you're pretty busy. When John told me that we had like, we had you for a podcast, I was super excited. So thank you —
Arghavan: My pleasure.
Julia: — for taking the time. So we've asked you both here today to look into access to justice, or what we like to call A to J, and systemic racism in Canada's immigration system. So we will jump in right away if you don't mind, starting with the fact that, well, we know that in the world Canada has an international reputation for welcoming all comers. Do you feel that this reputation is accurate or is earned?
Arghavan: Well, yes, Canada has, of course, maintained this good reputation for welcoming newcomers. And this is premised on this notion that we have an open and procedurally fair immigration system, that we respect the rule of law, that our officers make reasonable decisions. But in fact, not all newcomers are equally positioned. We have immigrants that come through the economic channels, we have skilled workers, we also have some vulnerable migrants, humanitarian and refugee claimants. And in the past couple of years, we have seen backlogs and we have seen delays. And this has increased a lot of hardship, and also has the potential to jeopardize the reputation that we have, when you for example have to have a refugee claimant waiting for more than a year just to have an eligibility interview, work permit applications that are pending.
So these kinds of issues, if they're not addressed, could jeopardize our reputation. And similarly, differential policies that are not justified, such as for example, what we see in the case of the Afghan versus the Ukrainian refugees. You know, yes, we do have this wonderful reputation. But if we're not careful and not consistent, and not just and fair in applying our policies, this reputation can be, you know, harmed over time, and we may, in fact, lose that reputation globally.
Julia: Last April, the Standing Committee on Citizenship and Immigration called on the Minister of Immigration to extend the special immigration measures afforded to Ukrainian nationals to other regions, including Afghanistan, Yemen, and the Rohingya’s. And is it the kind of call that actually made a change in legislation?
Arghavan: Well, you know, I, unfortunately, I haven't seen that. And sadly, I don't know that I'm optimistic that this will actually happen. Though, you know, it's good to raise it, it's good to continue to push for it. But I don't know that there is the political will to implement it. And, you know, again, I'm not trying to be pessimistic or, you know, I think we should continue to exert pressure on that point and extend the same programs. Because there's no justification for a differential approach, whether it's Ukraine, whether it's a Yemen or Afghanistan. At the end of the day, a refugee is a refugee is a refugee. It's not, you know, we're still talking about vulnerable individuals at risk who need protection.
And it's not, you know, there is no, you know, justification or rationale to implement one set of policies for the Ukrainian refugees to, you know, immediately, in an urgent basis, with a great momentum to get them to Canada, and yet with the Afghans, you know, design the programs in a way that we know will not have the same, you know, process and will not allow that kind of access. So, you know, we want to ensure that the communities in Canada feel that we are fair, and that, you know, our refugee system will be, you know, the legitimacy of it will be at issue if we don't have even handedness in the way that the policies are implemented.
Julia: Yes. So Kyle, can you tell us a bit like, what are common A to J issues in immigration law?
Kyle: My gosh, there are so many. I'll sort of land on a few that I think are especially important. A big one right now, that's kind of a hot issue in the bar, is exclusion of counsel, especially in the new online portals. IRCC has been moving away from paper applications and into online electronic applications over the last few years. And there have been some big moves towards that even in the last few weeks. And a lot of those portals make it very difficult to be properly represented by lawyers. And so there's an access to justice issue there, especially for people who aren't able to self-represent effectively. There's also the issue of legal aid for refugee claims in particular. It's very limited and doesn't cover a lot of things. And that's an ongoing issue for decades now, that the CBA has been proactive and lobbying over the years.
There’s the issue of legal fees in general. There's the issue of non-lawyers practicing immigration law in what is often thought to be a very poor regulatory regime. There's government actively discouraging legal representation throughout its messaging to the public. You wouldn't see that in any other area of law. But in immigration law, the government goes out of its way to discourage people from getting legal advice. There are opaque and inconsistent information on rules across various sources, various official sources. And there's also just a lack of hard law that makes it very difficult to know what the legal test is. In many cases, you're applying for something and you really don't know what is required in order to meet that test. So lots of really burning issues.
Julia: For regulatory regime, for non-lawyers practicing, there are legal fees. So what is being done by the government?
Kyle: They've certainly made some efforts to make the immigration system more accessible. Certainly, by publishing information online, where, you know, things used to be in paper manuals that you had to order. There are links to all the forms and application packages online. There are portals that people around the world can use, including on mobile. So those are all important steps. But the execution of any of those steps has been flawed. You know, an example is the latest round of online portals have some sort of legal mistakes, I would say, in them that force you to either misrepresent or make it impossible to apply for the thing that you're legally qualified to apply for. And they also make it very difficult to be properly represented by counsel. So yes, they are making efforts to make it more accessible. But I think there are some real flaws in the execution of that.
Julia: And has the CBA mentioned — has been mentioning those flaws Have you raised them?
Kyle: Oh, yes. Daily, daily.
Julia: OK. So that's really good to know that because it's also interesting to know that, I mean, the Immigration Law Section from CBA seems to be very active as well into looking into all those issues and talking to the government as well about it.
Kyle: Extremely Yeah. And you know, in addition to the sort of formal submissions that we do, the issue with online portals in particular became so pervasive that we appointed a coordinator just to deal with the online portals. And she is in contact with IRCC pretty much every day and sometimes several times a day about serious issues with the online portals that literally prevent people from using them.
Julia: With your own experience, do you feel that people of different countries of origin receive the same treatment or no?
Kyle: Not even close in so many ways. There are obvious ways and less obvious ways. Certainly things like the visa requirements that apply to some countries and not others, medical requirements that apply to some countries and not others, processing times being wildly different, documentary requirements being different. And then of course, the approval rates are wildly different between different countries. So yeah, there's not even a pretense of them getting the same treatment.
Julia: OK. Not even hiding. Is it known? I mean, is it because that's something you know, because you're working —
Kyle: I think, yeah, that's a good question. I think it is widely understood and I think even IRCC is aware of this problem. And, you know, there are some times arguably justifications for why there's different treatment between different countries. But some of the differences can't be explained by anything other than some cases [by us? 00:10:58]. And so I think even IRCC is aware of that problem and is working on tackling it, but it's very much present in our practices every day.
Julia: There's currently a parliamentary committee holding audiences on differential outcomes in Immigration, Refugees and Citizenship, Canada. So the IRCC. And one witness Christian Blanchette, the President of l'Université du Québec à Trois-Rivières, and what he said in front of the parliamentary committee was that, not to quote him directly, there is inconsistency, unfairness and notorious contradiction between what elected officials and the state are saying in terms of welcoming and integrating diversity, and the decisions made by public servants and machinery of government official. And I kind of feel like it really supports what you're saying. So I guess that you would agree with such a statement, right?
Arghavan: Yes. Well, I mean, as you said earlier, you know, Canada has this image of being universally welcoming. And this is also projected by our officials, there is that there are definite contradictions in how the system works on the one hand, and the impact on the applicants and claimants. So, you know, when, on the one hand, it's one thing to say, you know, we are making these promises that we want our country to take in migrants, that we have a fair system, but then look at the way we're implementing them. What are the challenges, you know? Are we keeping those promises, in fact? And so, you know, the Afghan refugee crisis is a good example of a situation where that has not been the case. You know, again, you know, we need to learn, and we're going to maybe look at the Ukrainian example and say, well, here, you know, here's where we did things differently. And how can we, you know, take a similar kind of approach for other refugee cases?
And so, you know, there needs to be more accountability, more concern for the impact of policies, and where there are families and children and lives involved, you know, we have to be, you know, aware of, for example, extended periods of separation, where people are waiting, and you have, you know, a family that should be reunited, but is waiting for a very, very long time. You know, ultimately, those kinds of things don't jive well with what we are saying we intend to do and the promises that we have made. So you know, that and decision making that doesn't reflect a fair or anti-racist kind of a lens. When we see, for example, refusal rates for various work permits, that varies hugely from one country to another. So those kinds of issues need to be addressed, acknowledged and openly discussed.
I think we do need to have some kind of an overall assessment of our immigration system, like a big picture. How are these applications all being decided? Why are we here? How can we ensure more equitable decision making? And these issues can be addressed, they're not insurmountable, but we need planning and leadership and consultation with experts, with the CBA, with other stakeholders in the process. In other words, there is no point in putting in place, you know, a regime that is facing issues and not having some kind of proactive measures that can address those challenges. You know, and I don't think the solution is to have a task force, for example, that's going to take two more years to come up with recommendations, you know? We need more — that defeats the purpose, because the problems are going to just [unintelligible 00:15:14].
Arghavan: But there needs to be some oversight, maybe an ombudsman, where we can actually, you know, channel our concerns. Particularly because we continue to have communication challenges with IRCC, and not have any, even in certain situations, no manager that we can really immediately reach out to. You know, it's almost like an entity behind closed walls, like we're, you know, we're not able to penetrate these walls that have been put in place. And that is not conducive to constructive feedback, it's not conducive to change and improvement. You know, the next steps are actually concrete measures that need to be implemented. And that takes political will. And it also takes, as I said before, planning and leadership and involvement also from organizations like the CBA. From the immigration bar, you know? We are here to facilitate and assist in that process and the more that we are able to work together, the better that we can brainstorm on the solutions.
Julia: Yeah, because I know that the CBA is doing this. I know, I sound like a really fan here, but because I've been following the work of the CBA Immigration Law Committee, and they've been reaching out to the government, have been sending out letters. So they've been doing an incredible work about that. And can you also tell us because I'm from an NGO background, so I'm always really interested to hear about advocacy, and could you tell us, what do you think is the role of advocacy in making immigration law fairer and more accessible?
Kyle: There are a lot of things that that are happening. The CBA obviously takes a very active role in lobbying for a fairer immigration system that treats applicants equitably. We advocate for better legal aid funding. We advocate for appropriate regulation of non lawyers. We advocate for, you know, fairer and more transparent decision making, especially when it comes to the role of artificial intelligence and things like that, and decision making. So we've been very active on all of those fronts.
There is also the role in sort of shining a light on these inequities and barriers in the system. Sometimes it's through doing access to information requests, and there are a few lawyers who have sort of made it their career to do these requests very regularly and sort of expose the inner workings of the decision making process. And then there are also lawyers who litigate regularly on these issues. And that's maybe the most effective one. The CBA hasn't done a lot of major interventions as an organization, but a lot of individual lawyers are doing this as central parts of their practice to challenge these inequities.
Julia: OK. OK. Do you have any names? Because I always [unintelligible 00:18:17] so interesting. Or just the —
Kyle: I mean, there are lots, but I mean, Arghavan is someone who’s —
Julia: Arghavan, yeah, OK. Yeah, that’s it.
Kyle: — and lots of litigation in this area and a number of other lawyers. I mean, really dozens of them. It's an important part of what we're doing. I’m not a litigator myself, but you know, I would say every immigration litigator in this country is contributing to that fight.
Julia: Well, thank you actually, I wanted you to say Arghavan. And what would you say to our listeners who, actually, or who — or wants to be immigration and refugee lawyers? So what do you say they should have at their fingertips when they are working in Canada?
Arghavan: Well, they need to continue to inform themselves, update themselves because we are in this ever changing landscape and we need to share our expertise and, you know, support each other as colleagues. We’re, at the end of the day, we're in this together, like, we don't have all the answers, we face similar challenges. So the only way is really to be resourceful, to have mentors, to mentor others when we can. And so I would say that overall, like, we need the knowledge, we need the resources and just a strong network at our fingertips. That is really super important. I mean, in any area of law, but immigration, because there's been so many changes, especially in the last couple of years.
Julia: So I feel like humility as well, the humility to know that you don't know and that you need the resources and to ask your colleagues.
Julia: Yeah, yeah. And what do you think they must constantly keep on their radar?
Arghavan: Well, they need to keep up the areas that they think they can make a difference in. I think they can, you know, there are always issues that are emerging. But, you know, when they know that they can advocate or pay more attention to one, and, you know, they shouldn't be afraid to jump in and tackle them. I think, you know, whether it's writing to the minister, joining an organization that, you know, they can be collaborating with like minded colleagues, discussing an issue, even with members of parliament, speaking to the media. All of those are examples, that we need to keep in mind what's important in terms of what's going on out there that we need to keep on our radar, and how we can exert our influence where it's most needed. So those are some of the things I would recommend.
Julia: Thank you very much. And I would — last question about that would be, what would you say is their basic bread and butter?
Arghavan: Well, basic bread and butter is like, you know, sort of knowledge and experience.
Julia: That’s it, right?
Arghavan: Going hand in hand, you can't do one without the other, you know? We're applying our knowledge and experience every day to advocate for our clients. We're constantly working on our skill set. And, you know, we know we have to also work on the client side, manage their expectations, help the vulnerable, hear their tough stories. You know, when we have clients who've been through trauma, be sensitive, and do the client informed, trauma informed approaches that are needed. So it's not a black and white, there's not one set approach to it. But I think that we need to be massaging our skill set to, you know, customize it to the situation and the needs of the particular client.
Julia: Yeah, no, definitely. And I heard the, one of the very — approach, and I really like to hear the trauma informed approach. And I'm wondering, because I'm more working in a sexual violence and gender based violence in general in my area, but, so do you also have like this kind of referencing that you can do with your clients? For instance, if you feel like they would need some psychological assistance or medical assistance at some point, is it something also that exists at your firm or in general? I really have no idea. I'm an immigration lawyer, but I'm wondering.
Arghavan: Of course. So I do a lot of refugee work and refugee appeals and litigation. And in my own practice, it is actually also focused very much on gender based violence, assisting those who are, you know, women who are fleeing persecution based on those grounds. And of course, we refer them to psychologists or counsellors or assistants, as it may be needed. And then also take very, you know, take our time with working together to build trust, because the trust is at the foundation of our ability to hear their stories, for them to disclose all the important details of their situation, the facts, which are, of course, at the heart of every case. Like the facts are super important that they be disclosed upfront, that, you know, that we get the complete picture upfront, and make sure that the decision maker also can grasp the significant events that the person has experienced.
Julia: Totally. And I kind of feel like I could make an entire podcast just on your technique or best practices on a trauma informed interview or also help to build trust with your clients, especially in a GBV case. So if they're interesting, maybe I will, maybe we'll follow up later.
Arghavan: Yes, absolutely.
Julia: But thank you. So, John, I'll just make a break here. Because —
Julia: Thank you both very much for those very insightful answers. So I waited just long enough to make this a little bit uncomfortable, because well, I believe that waiting is very much a thing in Canada, especially in the immigration system. At what point would you say that waiting becomes an access issue?
Kyle: That's a really, really good question. In immigration law, I think the issue of delays does really go to the administration of justice. And it's an issue I feel really strongly about. I had the privilege of addressing the House of Commons standing committee a couple of months ago on the issue of delays and backlogs. And one of the points that I tried to make to the committee was that, when it comes to immigration law, waiting — delays aren't really about waiting, they're really about the loss of rights. And because a lot of immigration law is sort of time specific, you gain and lose eligibility for certain things over time, depending on your work experience, depending on your age, depending on your children's age, depending on when you did your studies. And so the timing of things happening actually impacts your eligibility for things.
So for example, if you file an application when your children are 21, and let's say it takes a year for immigration to open that file and do a completeness check on it, and they decide, oh, there's some trivial thing missing, and they send it back to you. Now your kids are 22. And you can never include them. They're done. There's no fix to that. That's a simple example. But there are dozens of examples like that where people lose critical rights, and there is no fix.
Julia: So and you can not do anything? You just lost the window?
Kyle: That’s right. There's really no remedy for that other than some very sort of vague humanitarian and compassionate grounds. But their approval rates are extremely low and very difficult. There's also a fairness issue in that people are paying for a service and not really getting that service within a reasonable amount of time. And IRCC actually went to the point of opting out of some of the provisions of the service fees act, specifically to avoid accountability for long, long waiting times on some types of applications.
Julia: We know we have many people that are on the so called waiting list to access Canada and to access some status for immigration. Do people who are on this waiting list have any access to the Canadian justice system and to its protection?
Kyle: It's limited. I mean, you know, if it's something like a returned application, really, you know, you can sometimes advocate behind the scenes to get something reopened if you can prove that the thing that was supposedly missing wasn't missing or wasn't required. But really, the Federal Court is the only real remedy. And it's a pretty limited remedy. You know, if it's just a matter of delay, yes, you can go to the federal court and seek an action in mandamus to try to force a decision. But the courts are very hesitant to get involved in these cases, unless there's a very case specific delay, rather than just an overall systemic slowness. So if your case in particular has been singled out for poor treatment and has taken longer than the normal processing times and longer than other similar applications, yes, sometimes a court will intervene. But for the most part, if things are just slow, there's really not much you can do.
Julia: And regarding the cost of it, because we know that to apply to those legal processes that are very long, sometimes they are very also time consuming. And we might also think that some people will not have the means and financial means to apply for it. Do they have access to legal assistance?
Kyle: There really isn't for that sort of thing. Yeah, they're very limited resources there. There are non-profit groups that try to fill some of that breach, the members of Parliament sometimes get involved to try to help, although their ability to help is pretty limited as well. So yeah, really, there aren't a lot of resources for that.
Arghavan: The challenges and at times helplessness that both the applicants and immigration lawyers feel when we cannot communicate effectively, or actually talk to a real human being about an important issue or a significant delay in a particular file. And, you know, there's zero transparency in that respect. You know, we have to rely on access to information requests, we have to wait further. And believe it or not, go through our member of Parliament, it has become a new development now that immigration lawyers themselves cannot reach IRCC managers, but the have to go through member of Parliament who has contacts in IRCC to be able to tap into those, to be able to get an update on a file. I mean, that is what it has come to in terms of —
Arghavan: Yes, for Afghan refugee files, for other files where we are desperate and we have no other way to reach an actual manager, you know, we go through our MPs. And then they ask for a consent form to be signed and the client consents. And then it's through them that finally we may be able to get an update through a manager or somewhere, you know?
Julia: OK, yeah, so that's why the wall, inside the wall. Yeah, I see that. I see it.
Arghavan: A wall inside the wall.
Julia: Yeah, it’s an actual maze. But going back a bit to the famous IRCC. So Immigration, Refugees and Citizenship Canada, and mainly transparency that I would like to talk a little bit with you. You did mention that, for instance, there were some lawyers who were spending their career making some access to information requests. And you've been, yourself, you've been working a lot regarding access to justice and what the IRCC is doing. And would you give the IRCC a passing grade for transparency?
Kyle: I mean, honestly, no. I think there is a lack of transparency on a number of levels. Certainly, in the day to day decision making. The decisions that you get from IRCC often lack meaningful reasons or explanations. And you're left to do access to information requests to try to get copies of the officers notes to figure out why they refused an application or why they made a certain decision. And then when you make those ATIP requests, they're very slow to respond. And sometimes they redact a lot of information. You know, we had an example recently where a colleague sought a list of the immigration program managers at the major visa offices, and sometimes we need to contact them in emergencies. So something's really gone sideways and outside of the normal course of business, there's really no other way to deal with it other than contacting a program manager. So IRCC actually went to the point of releasing the full list with all the names and email addresses redacted. So it's basically a five-page blank document. And someone bothered to do that.
Julia: Someone did that? Yeah. And someone thought, that will be useful. Yeah, OK, so I see. Not a passing grade here, I don't think we're even to the —
Kyle: I’m afraid not.
Julia: No. I can understand why. You have a reason, though. That's good. And because I, and I must say, I've heard this story. I mean, it was last week, I think someone was telling me that they received, like the reason it was others, like just other. There was just — and it was no other thing, just other.
Arghavan: Ultimately, decision makers have discretion. And so the decisions they're making is on this range, the standard of reasonableness. So, we need to ensure that we understand those decisions, that there's transparency, transparency, rather, in public implementation, but also, you know, fairness of the process, so that people are, you know, ultimately receiving a just outcome. So, very simple example, if it's possible to record an interview, an officers doing an interview, and he can record it and provide that to the court or to the applicant. Why rely on his notes and summarize them and say, well, I'm sorry, we don't have, you know, we don't have a recording. I mean, that's just a very concrete example of where, you know, it's not fair to do that.
Julia: Who are the IRCC managers legally accountable to?
Kyle: I mean, that's a really tough one. And I don't mean to sound too harsh here. But I honestly think that they do their best not to be accountable to anyone, certainly not to applicants or their counsel or even the public. And maybe they consider that they're only accountable to the minister or to Parliament. But there's very little transparency, or oversight, or accountability when it comes to the actual users of the immigration system. And the courts are really one of the only effective mechanisms to seek accountability.
Julia: How would you say that they typically react when access justice concerns or race, for instance, by CBA?
Kyle: So, I would say that at the corporate level, at the sort of headquarters level, I think IRCC is alive to these issues. I think the challenge is at the operational level. And to be fair, these offices are dealing with staggering numbers of applicants, often working in very challenging circumstances. So this is not a personal sleight against them. It's more about a culture of sort of circling the wagons and not being accountable to the users of the system or to the people paying the bills. And so yeah, I think, you know, this example of hiding their contact information is really just an example of that. It's avoiding having to deal with the consequences of their own decisions.
Julia: And how much transparency should we expect from government agencies, in general, would you say?
Kyle: Yeah. I mean, unquestionably a lot more. And, you know, we can look at lots of other government departments and agencies that have made big efforts to improve accountability and transparency. It's not set in stone, and it can change. Independent civilian oversight of the police is an example of this. It's an institution that, in the past has maybe been very resistant to change, and over time, has built in additional accountability mechanisms. And there many others like that.
Julia: And now from the IRCC, more specifically.
Kyle: I mean, it's a good question. And it's challenging for IRCC, just because the volume is so huge. And so, you know, I don't know if I really have the answer to what the right mechanism is, but I don't — there's no inherent reason IRCC can't implement some of the same accountability and transparency measures of other government departments and agencies, it's really just about political will, in my view. And requires a little bit of creativity just because of the numbers of people that they deal with in their work. It's a very strange area of law, in that what we call law is not necessarily legislation or even regulations. Sometimes it's not even ministerial instructions. Sometimes it's what IRCC put on their Facebook page this morning, or, you know, things like that can actually impact the outcome of applications and the test you have to meet when you're applying for something.
So, yes, having clear guidelines that are consistent and updated in real time, but in a way that everyone can access clearly, and everyone can find the information, that's really, really important for making the system fair and accessible. I think they're changing at the corporate level. I feel like, you know, the people that we deal with in Ottawa, the minister and his office, and some of the senior people, I think they get these issues, and they're concerned about them. You know, for example, IRCC now has their own anti-racism initiative internally, that's collaborating with our anti-racism committee and there's a bunch of work happening. The problem is at the operational level, and I really feel like there's a bit of a, there's a slow filtering down of that mentality. And there's just, there really is this, like, circle the wagons mentality within the operational part of the department where they really seem to fear accountability. Yeah. Yeah, something like that,
Arghavan: You know, the notion that immigration is beneficial to our country and you know, that we are indeed a country of immigrants is very well recognized by most Canadians. You know, we pride ourselves in being generous, committing ourselves to the human rights and international law, and helping those in need. But there's still this notion in policymaking that we need to somehow balance what we give as opposed to what we gain from our immigration and refugee system. And so this I would call the politics of immigration that sometimes, unfortunately, interferes. And you know, and it has in the past, as well, in differentiating and placing more value on some migrants, rather than others and depending on for example, how they made their way to Canada.
But someone who immigrates, you know, through an economic category is not in any way more valuable to Canada than for example, a refugee claimant who becomes a protected person and eventually becomes a permanent resident. So that is a false way or a myth in a way that should not be perpetuated. All pathways to permanent residency and citizenship are legitimate. At the end of the day, they're valuable. And, you know, refugees are extremely worthy to Canada and even more so given that, you know, they have a commitment, they have families, they were bringing their diverse experiences. And so I think we have to learn from our history and not repeat the same mistakes again. You know, for example, the exclusionary policies, the overtly racist Chinese head tax, and those kinds of things. So we really have to be careful and, you know, be mindful of those false notions that are still somehow seeping through the political channels.
Julia: Can you tell us a bit more what are the origins of letting the Canadian economy dictate immigration policy?
Kyle: For sure. And yes, definitely, it's been the era of the niche immigration program lately. So yeah, I actually wrote my master's thesis on pretty much this topic a long time ago. So some things have evolved since then. But basically, where this economic imperative comes from was a shift in the 60s and 70s, moving to what they call the human capital model, where we started selecting immigrants, supposedly on a purely objective basis, it was — the intention was to get away from the sort of ethnic and national focus of our immigration system earlier, to focus on sort of a basket of qualifications that would give us an idea of how well people would integrate into our economy.
In the late 2000s, early 2010s, we kind of shifted again. Still an economic model, but we ended up downloading most selection to employers and schools, and the idea that employers are the best position to determine what skill sets are needed in the economy. And that's more or less the system we have now with some tweaks. We've also downloaded some of that decision making to provinces and regions and even individual municipalities. And so, in many ways, the federal government isn't even really making most of those decisions now.
Julia: And do you believe that this approach has a lead directly to issues relating to access to justice, leaving immigrants beholden to their employers?
Kyle: Yeah, absolutely. Making immigrant selection dependent on employers and schools and communities, but especially employers, it adds a layer of legal vulnerability. because if your whole status in Canada and your path to permanent residence depend on your employer, you're not going to assert your rights against that employer, even your employment law rights, and you're not going to seek redress for mistreatment. And we see this all the time, especially in lower wage occupations. You know, while the courts can intervene on employment law issues that arise, they can't really get rid of that structural vulnerability. So we have this underclass of workers who technically have all kinds of legal rights, but in practical terms aren't able to exercise them because of that vulnerability.
Julia: So you've been in this profession for a long time now. And could you tell us what are some of the most creative solutions to A to J issues that you have seen in this profession and across the country?
Kyle: Yeah. So there are people doing some interesting things to try to promote access to justice. They're the sort of traditional ways of doing pro bono work and working through non-profits. And there's lots of that happening. But there are also people who are, you know, are working to unbundle legal services to make them more affordable to people, working with self-represented applicants in different ways, doing self help courses, and things like that to support people who maybe need a little bit of support but don't necessarily need full representation. So there's all kinds of different models like that that people are experimenting with.
My predecessor, as chair of the section, Mark Holthe, and his firm. They're a great example of trying to do things differently. And so they run sort of almost like a training school for express entry, which is one of the major immigration processing systems that people have to interact with. And so they run courses, and they have self help guides. And then they'll let people go and do it themselves and come back and then review their applications. They're not the only people doing innovative things, but they're a great example of someone doing things really differently. And so I think, I hope that people continue to experiment with things like that.
Julia: I'm sure you didn't say it because you're shy, but I mean, also looking at what the CBA Immigration Law Section is doing, I think is also a good idea to, if like our listeners want to stay tuned on what is happening and what, because I know you write often letters, you are very active. So I think if our listeners can have a look at what is happening on the Immigration Law Section of the CBA is also a good way to stay tuned and to be — to monitor what's happening in Canada regarding access to justice.
Kyle: Absolutely. We've been pretty, we've been pretty active for a long time on advocating for legal aid, advocating for, you know, for accountability, all of these things are things that are very top of mind for the CBA.
Julia: We hope you've enjoyed this episode of The Every Lawyer on access to justice. Please feel free to hit subscribe and share it with your friends and colleagues. If you would like to comment on anything you've heard in this podcast, please contact us directly via cba.org. And don't forget to look at the Immigration Law Section page on CBA. Also, please know that this episode was recorded in DRC. So I apologize if there has been some internet connection that was bad, or if you've heard some noises on the background.
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