Citizenship and Immigration Committee on June 7th, 2022

[Jenny Kwan, NDP, Vancouver East, BC]

Instead of making people go to Federal Court for the appeal, which would be very onerous and expensive, if the government set up a system so that the officer can reconsider or even the minister can reconsider the application, that would be a cheaper way. If you make a person reapply again only to be rejected again, what is the point?

I'd like to come back to Mr. Ramos before I run out of time on that front. Should we have an appeal system that is simpler and less onerous so that people have a chance to appeal their case to consider extenuating circumstances?

[Dr. Howard Ramos]

Thank you for that clarification. I would agree that it would be a viable solution and something to consider with adequate checks and balances so it doesn't hinge on just one officer or the minister, but maybe have a review by another officer. I think that would be an effective way to create that wiggle room.

[Jenny Kwan, NDP, Vancouver East, BC]

Mr. Sweetman, you have 10 seconds on that answer I'm told.

[Prof. Arthur Sweetman]

My sense is that you're asking two questions in one. There is an appeal process where the same criteria are imposed and we are only looking for mistakes by the officer who made the decision, and then there is a compassionate appeal where we are looking for someone to make an exception to the current criteria, to let someone in despite the current criteria. I think you lean towards the second of the two, which is a very different process than a judicial type of review, which imposes the same criteria. I think your fundamental concern is with the criteria for admission.

I'm not saying you don't want an appeal. Appeals are useful, but I think your fundamental concern is with the criteria rather than the appeal itself.

[Jenny Kwan, NDP, Vancouver East, BC]

There's that, but then there should be a provision to consider extenuating circumstances, which there isn't right now.

[The Chair, Liberal, Salma Zahid]

Thank you. Time is up.

With that, our panel comes to an end. On behalf of all the members of the committee, I want to take this opportunity to thank both witnesses for appearing before this committee and providing important testimony towards Bill C-242.

This panel comes to an end. We will suspend the meeting for a few minutes to allow the witnesses for the second panel to come in.

Thank you.

[The Chair, Liberal, Salma Zahid]

I call the meeting to order.

Pursuant to Standing Order 108(2) and the motion adopted by the committee on Tuesday, February 1, 2022, we will resume the study of application backlogs and processing times.

We have three witnesses for this panel today. We have Mr. Ravi Jain, steering committee member for the Canadian Immigration Lawyers Association, who is joining us virtually. We have Saeeq Shajjan, founder and lawyer from Shajjan & Associates, who is here with us in person. He has travelled all the way from Toronto. We are also joined by Kyle Hyndman, chair, immigration law section, from the Canadian Bar Association.

Thank you to all the witnesses for appearing before the committee. All the witnesses will have five minutes for their opening remarks and then we will go into our rounds of questioning.

I would start with Mr. Jain.

The floor is yours. You can begin, please.

[Ravi Jain, Steering Committee Member, Canadian Immigration Lawyers Association]

It's nice to see you again.

Thank you, Madam Chair and the clerk of the committee, for inviting the Canadian Immigration Lawyers Association to appear before you. We comprise over 400 members of the bar from across Canada. One of our mandates is to improve immigration legislation, policy and operations.

I want to first acknowledge and thank my CILA colleague, Betsy Kane, who was initially scheduled to attend, for sharing her initial notes with me.

The backlog is having an enormous effect. First, it makes it difficult for Canada to bring people in based on humanitarian reasons. Family class and economic immigrants are also in dire need of attention. Prepandemic, I had family class cases going in as little as four months, but the current state of processing time is 12 months. It's actually closer to 20. For spouses and common-law partners, a week can feel like an eternity.

Many Canadian companies are not operating at capacity, as they don't have the human resources they need. The unemployment rate's extremely low, with 800,000 vacancies, yet the backlog includes 189,000 work permits and 235,000 economic category PRs as of April 29, which are just waiting to be processed.

The last census tells us that we're not so much an aging population—we're aged. Over 40% of Canadians are now old or getting there with 19% aged 65 or older and 22% between 55 and 64. The fertility rate is 1.4 children per woman, yet the replacement rate is 2.1. Bringing in people efficiently is critical to our economic recovery, but it was already the case that we needed immigrants for Canada's long-term economic survival. We just need more working-age people to pay tax.

The other problem with delayed applications is that the greater the backlog, the harder it is to climb out of it. We now write demand letters, followed 30 days later by Federal Court applications. People are resubmitting applications, which was encouraged at the Delhi office.

I believe the government must answer for this backlog of two million. When I was in Kyle's chair—that's chair of the CBA immigration section during the pandemic—I asked a rather impolite question. It was this: How many officers are actually working and are they finding solutions so that people could work from home? I got a vague answer. It was revealed later that 80% were on leave at major case processing centres for extended periods.

We need to know exactly what the productivity was year by year, prepandemic, during the pandemic and now. Why did the TR to PR pathway, for instance, result in more applications than intended? Why didn't the cap work? Now it's cannibalizing express entry spots for this year and next. We should analyze whether it's wise to even have cap-free programs like for the Ukrainians, though I understand the instinct.

The 2021 economic and fiscal update proposed $85 million. In the most recent federal budget, it was $2.1 billion and $376 million more and ongoing. How will this address backlogs? Where are the priorities? We need a detailed plan for scrutiny. We need greater transparency on processing times, stages of applications and reasons for refusals.

IRCC could invest in emergency preparedness so that we can respond to the next war or natural disaster and so that officers need not be redeployed away from programs we need.

Accountability is key. Look at the Service Fees Act, which exempted all PR and most TR applications. We need accountability. It's unacceptable to shut down communication with applicants, their lawyers and MPs even, as was done with the excuses of Afghanistan and Ukraine.

The program manager in Delhi currently replies with an email saying to use the web form to ensure there's no “false impression of privileged access” and that any further emails sent to them will be deleted with no response. We've also been excluded altogether from new digital platforms developed by IRCC, with the excuse that they need to be rolled out quickly.

Immigration lawyers are treated very poorly in this country. I've heard from top managers at visa posts and PNPs about high levels of fraud and negligence by consultants. This has led to reps being shut out generally. The website of IRCC lumps us in with non-lawyer consultants, with a warning to the public about fraudulent reps. Denying access to proper counsel prejudices many of those who don't have the sophistication, technological know-how or access to the Internet. It's counter to the rule of law and our Canadian culture, where people regularly hire lawyers and similar professionals such as accountants, given what's at stake.

Immigration lawyers are best able to strategize and provide complete applications that are often time-sensitive, such that a returned application will mean the applicant no longer qualifies. Many of us volunteer significant time and effort to assist the department generally, as well as provide pro bono services to the vulnerable public. We deserve more respect.

Finally, IRCC should have designated officers as essential workers during the pandemic so that this backlog was not allowed to develop. I'll speak about that later.

Those are my opening comments. Thank you.

[The Chair, Liberal, Salma Zahid]

Thank you, Mr. Jain.

We will now proceed to Mr. Shajjan, founder and lawyer from Shajjan & Associates.

You will have five minutes. You can please begin.

[Saeeq Shajjan, Founder and Lawyer, Shajjan & Associates]

Thank you.

Honourable Chair, honourable vice-chairs, honourable members of the committee, thank you so much for allowing me this opportunity to be here and share my struggles of the past 10 months with you.

I would also like to take the opportunity to appreciate and thank the Canadian government and the Canadian people for opening their arms and receiving us with such warmth and love, for which we are all very grateful.

I would like to begin by telling you a little bit about myself and what I was doing in Afghanistan.

In 2010, when I finished studying at Harvard Law School, I had the opportunity to stay in the States, but I thought that in Afghanistan I could be more useful. I could make a difference to the lives of many people. I decided to go back to Afghanistan.

After some time I started my law practice. Very soon the firm that I started by myself was established as one of the best in the country. It was ranked internationally as the best law firm in Afghanistan.

In addition to the routine legal services that we were providing, we were doing so many wonderful things, because we believed in a better future for all Afghans. We were providing pro bono legal services to indigent people. At the same time my colleagues and I were very much focused on helping the next generation of lawyers, because we believed that a strong and better pool of educated lawyers would definitely make a difference in the country. That's why we were involved in so much training, by ourselves, to lawyers and to law schools. We were sponsoring different events. We were providing opportunities to the students in Afghanistan, and at the same time we were providing some internship opportunities for both female and male lawyers in the country.

Then there was a time when we saw that our dreams for a better Afghanistan were shattered. We saw that there was no hope. Not only that, but we found ourselves to be in danger. That is the time I heard about Canada's evacuation plan.

I got in touch with several people I used to work with. They were all very kind and supportive. They said that yes, of course, I and my people would fall under the definition of an “enduring relationship with the Government of Canada”, and I should apply as soon as I can.

We asked for the necessary recommendation letters. We got them very soon. I believe I applied around July 29, but I did not hear anything until we had this very dark day in the history of Afghanistan, August 15, where we could literally see that everyone could be persecuted by the Taliban in Afghanistan.

I started calling everyone I knew, but unfortunately no one was really in a position to do something. They were saying that they had done what they could. They had referred the issue to the relevant authorities, and hopefully we'd hear soon from them.

I was lucky that I had some very good friends in the United States who got me out of Afghanistan, for which I am grateful. Otherwise, I'm sure I would not be here today. They got me out with my extended family. We made it to Doha, and then from Doha we started again getting in touch with different embassies of Canada, and we made it on September 3 to Canada.

From the time I have been here I thought I could do what I really needed to do to save the lives of those who served in the Canadian mission in Afghanistan with me from 2013 until this very moment. Even as of now I receive emails from different vendors, landlords asking about different issues they have with the Embassy of Canada to Afghanistan. To this date, there is no progress from the government side.

In October I decided that I should take this issue to the media, so hopefully I could have some sort of attention and would get the desired results. I had an interview with Matt Galloway on CBC, which was heard by many people. Lots of people called me. They offered to help me in different ways—to a lot of them I say thanks.

Out of this, Kristin Taylor, from Cassels Brock & Blackwell LLP, heard it and she invited me. They offered to support me. I thank them, and I have been struggling.

I have been writing to many people, including many honourable members on this committee, some of whom have been extremely supportive, trying to raise a voice. The unfortunate thing is that, despite the fact that we have the best enduring relationship with the Government of Canada and we were publicly known for our relationship with the Government of Canada, my colleagues are still in danger. We have not heard anything from the IRCC.

I think I will stop here. I have a lot to share. I'm sure that during the questions....

[The Chair, Liberal, Salma Zahid]

Thank you, Mr. Shajjan. You will get an opportunity to talk further in your round of questioning.

We will proceed to Mr. Kyle Hyndman, chair, immigration law section, from the Canadian Bar Association.

Mr. Hyndman, you will have five minutes for your opening remarks. Please begin.

[Kyle Hyndman, Chair, Immigration Law Section, The Canadian Bar Association]

Thank you, Madam Chair.

Honourable members of the committee, good morning. I also want to acknowledge the other witnesses. My name is Kyle Hyndman, and I am chair of the Immigration Law Section at the Canadian Bar Association, which brings together more than 36,000 legal experts in the country. The association's main objectives are the improvement of law and the administration of justice.

Thank you for inviting me to speak to you today from Vancouver, the traditional and unceded territory of the Musqueam, Squamish and Tsleil‑Waututh nations.

One of the most important points I'd like to make is that backlogs are about much more than waiting. The impacts of delayed processing are profound, personal and sometimes permanent and unfixable, and they're often about a loss of rights.

Today, I'd like to highlight solutions in three main areas: Number one is completeness checks, number two is transparency and predictability, and number three is equity.

I'll turn first to completeness checks. When anyone files an immigration application, as many of you know, the first step in processing is that IRCC conducts a completeness check under section 10 of the regulations. Applications that are deemed complete are entered into the queue for processing. Those that are deemed incomplete, no matter how trivial the apparent deficiency, are returned unprocessed and are treated in legal terms as though they were never filed. Applicants are then required to start all over again. Completeness checks are only fair and effective when they're done quickly and accurately. When they take up to a year, as they sometimes do now, the impacts can be serious and sometimes permanent.

I'll give you an example of a spousal sponsorship filed from within Canada where the applicant has a work permit that's expiring soon and, let's say, a 21-year-old son overseas. Filing her permanent residence application along with an open work application allows her to remain in Canada and keep working, and it also locks in her son as a dependant. The cut-off is his 22nd birthday.

If this applicant's PR application were returned for incompleteness a week later, she could simply correct any deficiencies and refile the application. The consequences would be relatively minimal, but if it were returned after seven months, let's say, the consequences could be very serious and very permanent.

First of all, because her application has been returned, her work permit application is also refused and she is now out of status and well beyond the 90-day restoration period. Her options are to leave Canada and be separated from her spouse, remain in Canada illegally or apply for a temporary resident permit, which is a highly discretionary application with a low approval rate.

In the meantime, many of her documents have expired. More seriously, her son has now turned 22 and is permanently excluded from the family unit. She can never sponsor him to come to Canada and she'll have to make the impossible choice between permanent separation from her spouse or from her son.

This situation may also lead to a cascade of resource-intensive applications to try to fix the situation, creating more work for IRCC, the courts, the CBSA and other departments.

There are two main recommendations on this point. One is to allocate more resources—whether electronic or human—specifically to reviewing applications for completeness, opening files and assigning file numbers quickly. Number two is giving applicants the opportunity to correct minor deficiencies rather than returning applications. The second point is about transparency and predictability for applicants.

We have three recommendations that we believe will help lower anxiety, increase confidence in the immigration system and reduce follow-up communications that consume IRCC resources. Number one, set reasonable service standards for responding to inquiries and ensure that they're met. Number two, inform applicants or their counsel where their applications are being processed and post information about the circumstances in which applications are transferred. Number three, provide accurate individualized information about the progress of applications.

The final point is about equity. We need an immigration system that both meets Canada's economic, demographic and humanitarian needs but is also administered in a way that reflects Canadian values of equity and fairness. Our current system fails to do this consistently, particularly when it comes to processing times, which vary wildly across IRCC's international network.

We've made three recommendations to address this. Number one, allocate more resources to offices that face unusually long processing times, such as New Delhi and Abu Dhabi. Number two, make better use of IRCC's global delivery network to reallocate files to other offices. Number three, post more accurate processing times online.

Those are my introductory remarks. I would welcome any questions from members of the committee.

Thank you.

[The Chair, Liberal, Salma Zahid]

Thank you.

We will proceed to our first round of questioning, beginning with Mr. Hallan.

Mr. Hallan, you will have six minutes for your round of questioning. Please begin.

[Jasraj Singh Hallan, Conservative, Calgary Forest Lawn, AB]

Thank you, Madam Chair.

Thank you to the witnesses for being here.

Mr. Shajjan, you worked for the embassy. Is that correct?

[Saeeq Shajjan]

Yes. My law firm had an agreement, in fact several, from 2015 until December 2021.

[Jasraj Singh Hallan, Conservative, Calgary Forest Lawn, AB]

What was your experience during that time? Can you explain a little bit about when Kabul was falling? Perhaps we can get a little bit more information on what your experience was dealing with IRCC before the fall and then after the fall.

[Saeeq Shajjan]

Honestly, I have no words to describe that. All I would say is that there was no transparency and there was no clarity in the process. I know the country very well. I know who was working with the embassy in Afghanistan. I could literally see people or organizations that were established as early as two years back from the time of collapse, or even less than that, who got out on those evacuation flights from Afghanistan.

[Jasraj Singh Hallan, Conservative, Calgary Forest Lawn, AB]

When was that?

[Saeeq Shajjan]

This was happening right from the beginning of August until I believe August 27. People who had received a small amount of donation or funding from the Government of Canada and Afghanistan back in 2008 or 2012, they were getting out. For us, we were publicly known. I have the reference letters that would confirm that we were publicly known for our affiliation and representation of the Embassy of Canada. To this date we have not heard anything from the IRCC.

It was not only me, but so many of my colleagues were representing the embassy before different ministries, including the Ministry of Foreign Affairs, the Ministry of Interior, the Presidential Palace, National Security Council, and local courts and municipalities in Afghanistan, dealing with landlords, local vendors. We are all publicly known. This is a time where you cannot really trust anyone. They can go to the Taliban and report you, say that they know this guy and he was working with the Canadian embassy in Afghanistan.

Here we are. As I said, there are people who had no ties with the Canadian government in Afghanistan, and they're already out, or at least they've received G numbers. In our case, there are those poor people who are still in hiding, and it's been 10 months. I'm not talking about normal routine immigration things, which I understand are time-consuming and need a lot of work. People's lives are at risk. They're in danger, and they've been in hiding for 10 months. I'm afraid they will not be able to do this for too much longer.

As I said, honestly, I have no words. How it is done, who is getting out based on what, what is really the criteria, how the decisions are made—I have no answers for that.

[Jasraj Singh Hallan, Conservative, Calgary Forest Lawn, AB]

Thank you for that.

That's something that we keep hearing. You mentioned about no transparency. This is a huge issue for the translators and the people who served Canada—the Afghans who served Canada. This is what we keep hearing.

We know through testimony in the Afghan committee that UNHCR had prepped or at least told the government that the fall was imminent, that it was going to happen, and the government didn't take any steps towards that. Did you hear about anything in your time there before August about any type of an evacuation, or if something was going to happen? Did you see any preparations being done by the government there, the embassy, for an evacuation?

[Saeeq Shajjan]

I found out about that late. I think it was in July when I heard from different colleagues who we were working within the Canadian embassy that this was what the Government of Canada was doing. This is the time that I inquired from different contacts we were working with whether we would be eligible or not under this.

I understand that there was this evacuation going.... Again, I don't have the answer to what the definition is of “enduring relationship”. That was relayed so many times by two different ministers—that priority would be given to those who had an “enduring relationship with the Government of Canada”. I thought that we would be the best people under that category, because oftentimes we were representing the embassy more than the local staff and even, at times, more than the diplomats. For security reasons often they would not go out, so it was us who went to engage with different municipalities, with local courts and local offices within the Government of Afghanistan.

We are publicly known, so I thought that we would be the right people under this definition. Again, here it is 10 months, and I'm asking you people to be my voice. Let's get these people who really served the Canadian mission in Afghanistan and bring them to safety.

[Jasraj Singh Hallan, Conservative, Calgary Forest Lawn, AB]

I think you raised a really good point. That's why I asked in the beginning if you worked for the embassy. In my opinion, you're clearly someone who should have fallen under that program.

In your opinion, given the timeline and now the record of this government, do you see that there is a timeline or a hope for the other people who are stuck? We see that only about 36% of the people who they promised are here. We see the immigration minister patting himself on the back for that, but we hear different stories from the people who are stuck there or running from the Taliban.

In your opinion, what do you say about the timeline of people getting here? Do you see hope for the rest of the people?

[Saeeq Shajjan]

I'm afraid I am losing my hope for the rest of the people right now.

With regard to the timeline, there was a time when I saw many people, who shared their documents with me, submit their application on, let's say, August 17 and they got their G number and everything on August 19 or 20—within two or three days. Within a week or so they were on their way out of Afghanistan. I can tell that they did not have the kind of relationship than we have had with the Embassy of Canada. They were out within two weeks maximum during August.

Certain cases like ours, we are still waiting and it has been 10 months.

[Jasraj Singh Hallan, Conservative, Calgary Forest Lawn, AB]

We, and certain veterans groups, have been calling on single-journey documents for people to help speed up this process, because we know there's a bureaucratic mess right now in IRCC, caused by the government.

Do you think it would help for people to get here?

[The Chair, Liberal, Salma Zahid]

I'm sorry for interrupting.

Your time is up, Mr. Hallan.