SETTLEMENT

Preparing a strong application

Key advice and tips

As the immigration implications of COVID-19 continue through It is important that applicants provide corroborative evidence for the summer and into autumn, the Immigration, Refugees and statements that they make in their application. The evidence that they Citizenship Canada (IRCC) website changes daily. These frequent provide should be relevant. It should also be probative, which is another changes have generally left most people confused. However, what has way of saying persuasive. The evidence included in a visa application remained remarkably steady are the principles behind what makes an should strongly lead the officer to the conclusion that an aspect of program application strong, and what to do if an application is refused. eligibility is met.

Preparing a complete application

Before getting to what makes an application strong, it is important to understand that applications need to be complete. Canadian immigration legislation provides that visa officers shall return incomplete applications to applicants.

There are many things that can cause an application to be incomplete, including a missing fee payment, a missing signature on a form, or a missing document. The jurisprudence and principles of procedural fairness are still developing regarding how material the information must be that is missing in order for an application to be returned, whether the missing information must be specifically listed in an application checklist and whether it matters how readily the missing information can be provided. Until these principles are finalized, applicants must carefully review their applications to make sure that it contains all the requirements listed in the application checklist as well as the application online instructions and any links to pages contained within.

Because of COVID-19, there is currently a public policy to not return incomplete applications; however, applicants must specify which documents they were unable to provide because of COVID-19. The public policy does not appear to extend to inadvertent mistakes, and applicants must continue to carefully review their applications. Preparing a strong application

In a visa application, the applicant has the burden of proof to show that they meet program criteria. What this means is that the applicant is responsible for providing sufficient evidence to satisfy the decision-maker that they will leave by the end of their authorized stay, are eligible for a work permit, are in a genuine relationship with a Canadian, etc. Immigration law provides that visa officers should be able to make a decision based on the information available on the file. They should not have to “fill in the blanks” or “make the case” for the applicant.

During COVID-19, the most common example of applications that have been refused due to insufficient evidence has been applications by Canadian common-law partners to enter Canada. Many people have arrived at a Canadian port of entry without documents to confirm that they have lived together in a conjugal relationship with their Canadian partner for one year or more, and accordingly been denied entry because there was no documentary evidence to corroborate their oral statements.

Two other common examples of evidence that are not probative include bank statements which don’t have the applicant’s name on it (and so it is impossible to determine who they belong to) and photos to demonstrate the genuineness of a marriage that don’t actually have the applicant or their spouse in the photo. In both examples the documents do not actually establish anything.

As well, the documents that are provided should be reliable. In assessing

reliability, a multitude of factors are considered, including: the source of the document; whether the author has an interest in the outcome; whether the document is on letterhead with contact information; whether the document is dated and signed; whether the document is an original document; whether it was produced for the sole purpose of supporting the application; whether it comes from an expert; whether the person is speculating; and whether better evidence could have been provided and whether there is a reason why it was not provided.

A frequent mistake that immigration lawyers and consultants make is including subjective statements about their clients in their cover letters. In one Federal Court case, a lawyer who was asked to demonstrate that their client spoke English included a letter which stated that the lawyer could

This is not to say that applicants or their representatives should not provide explanations where appropriate. For example, if a couple is trying to show that they are common-law and do not have a joint lease it would be helpful to explain why. It is always better to explain a possible concern for the officer up front rather than to leave the officer guessing.

Extrinsic evidence

Of course, it might not be possible for an applicant to anticipate every concern that a visa officer has.

Where a visa officer has a concern that does not automatically arise from the legislation or a document checklist then the officer has a legal obligation to put this concern to the applicant.

As well, where a visa officer relies on evidence that was obtained from a source other than the applicant (a relative, an employer, an ex-spouse, another government) and where that information is not publicly available, they will put the concern to the applicant.

Finally, where the veracity or credibility of a document is questioned, the applicant will be given the opportunity to respond. It can sometimes be unclear where insufficient evidence becomes a credibility concern, and applicants should err on the side of providing more supporting documentation rather than relying on the opportunity to respond to a credibility concern.

Challenging refusals

Contrary to public perception, the approval rates for most immigration programs are high, especially for those who follow the advice above. Due to a variety of factors, there are, however, a lot of refusals which are unreasonable.

There is, unfortunately, no straightforward process to challenge a refusal. The biggest barrier, as I have written about previously, is that IRCC does not provide the full reasons for the refusal in their refusal letters. Refused applicants must first apply for and obtain the internal refusal reasons, either through a Federal Court judicial review or an Access to Information Act request.

While there are no statistics available on this, I believe that the most common reason for a refusal being set aside is because an officer didn’t consider a key piece of evidence.

Officers are required to examine and consider all the forms and documents that are provided in an application. While officers do not need to enumerate and comment on each piece of evidence in their decisions, the more important a piece of evidence that is overlooked, the more it needs to be reflected in the decision. If a visa officer skips over an important piece of evidence, then the presumption that they reviewed the application in its entirety is rebutted. I would say that most of the challenges that I file for applicants are successful on this basis, and I am sure that this is the case for most immigration lawyers who file judicial reviews.

That being said, an applicant won’t get to the point of successfully challenging their application due to an officer not considering key evidence if they did not provide it in the first place. Accordingly, applicants need to ensure that their applications are strong and include as much corroborating evidence as necessary.

Steven Meurrens is an immigration lawyer with Larlee Rosenberg in Vancouver. Contact him at 604-681-9887, by email at steven.meurrens@larlee.com, or visit his blog at smeurrens.com.

How do you rate your listening skills?

Learning to listen is an active process that takes work

We have two ears and one tongue for a reason. Most claim it is because we are supposed to listen twice as much as we speak. Others have suggested it is because listening is twice as hard as talking.

Most of us like to think we are good listeners. Most of us aren’t. We have developed and, in some cases, perfected the art of ‘faking attention’, of looking ‘as if’ we are listening but, in reality, we’re probably making lists of things we need to do, judging and silently commenting on what we are hearing, deciding how we will respond, preparing advice based on our own experiences and feelings. We are tuning in and tuning out. We are more interested in talking and looking for an opportunity to do so.

Listening is taken for granted. It is assumed that if you can hear, you can listen. However, hearing and listening are not the same. Hearing is a very passive process. Listening is active and requires effort.

Most of us are waiting for a gap in the conversation, for the speaker to pause so we can jump in. If we can’t wait, we will interrupt. When the goal is to speak, it is hard to be patient and remain silent. When the goal is to understand, or to allow the other person to express their thoughts and feelings, we can be more at ease with waiting.

Why is listening so hard?

One of our innate needs as a human being is to be heard. Who, in your personal or professional life, listens to you? I mean, really listens to you – with patience, genuine interest, and full attention? Why is it so hard? • We listen at a much faster speed than we speak – up to 3-4 times faster. In the time lag, our mind wanders and our interest and attention fades. • Many people believe that if we ‘just listen’ we are somehow doing less. Our ego gets in the way. We want to disclose our wisdom (which is acceptable, if it’s offered at the appropriate time, after you have had a chance to listen and understand) • We don’t know any better. Our role models might not have been good listeners, or didn’t connect well with us as children, so we haven’t been taught the skills. • We assume that if we don’t immediately say what comes to mind, we will forget it. So, we interrupt, talk over, and jump in. • Listening is not valued, in the workplace or at home. At work, we are often most rewarded for leading conversations. We may have to compete to be heard at home.

Thanks to technology and digital communications, we have never been more distracted or occupied. Social media, in particular, is designed for us to share our own narrative.

The stakes are high

In a recent survey by Psychometrics Canada (People Trends 2020), poor communication is identified as the most common pitfall in the workplace.

Listening is how we connect, co-operate, empathize, build, and retain, trust and respect. When we listen, we develop new perspectives and understanding of the world and of others. It’s how we unite and support each other, regardless of our differences. It also helps us move past our unconscious bias. All of which is especially important given the pandemic and the new norms of physical distancing, remote working and hours of online communication and interaction.

Online communication offers a different set of challenges to navigate. It can be harder to be heard unless there are some boundaries and agreements in place to give everyone equal turns to speak. Then there’s the ‘mute microphone’ feature which a host can enable if they don’t want to hear, or invite comments, from participants.

Ease rather than urgency

When we are too busy to listen, we are easily distracted, we jump in too soon with questions and assumptions of our own, we close conversations down, we prevent others from expressing their feelings and thoughts, we throw out solutions and fixes, and minimize problems. People don’t feel heard, valued, or respected.

This is not the way to build rapport and relationships. When we listen, our presence (facial expressions, body language) and, importantly, our environment (the space/room), need to convey a sincere interest to connect with the speaker’s thoughts and ideas. The message from the listener needs to be “you matter to me”.

The power of listening

As Psychotherapist and author Esther Perel has said, “collective trauma requires collective healing”. Listening has the power to heal, to transform, to free the mind of limiting thoughts and assumptions, to ignite creativity and innovation, to find solutions and clarity and to reduce tension.

It takes energy, practice, and discipline. It starts with a commitment to want to listen. It requires that we reframe what it means to listen. It demands that we are at ease when we listen, to silence the internal chatter and manage external distractions.

While listening is the most demanding aspect of communication, it is also one of the most rewarding for our relationships and results, at home and at work. How will you improve your listening skills?

Hazel Morley has worked as a trainer, facilitator and coach for more than 25 years, in England and after immigrating to Canada in 2009. After her own personal health crisis, she shifted gears to focus on strategies for enjoying optimal health.