The One Child Policy and Persecution

The Federal Court in Yu v. Canada has certified the following question of general importance:

Does the one-child policy, when, in fact, executed by a State qualify as one of “persecution” as interpreted by the Refugee Convention, if, and when, a couple would want to have, have conceived, or have more than one child?

If the Federal Court of Appeal answers in the affirmative, the implications for refugee claimants from the People’s Republic of China will be significant.


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Understanding the Citizenship Revocation Process [Updated Post C-24]

Between 1977 and 2010 only 63 people had their citizenship revoked.  In July, 2011, Jason Kenney, the Minister of Citizenship and Immigration (“Minister Kenney“), announced that as many as 1,800  Canadians could be stripped of their citizenship because they obtained their citizenship fraudulently. The 1,800 individuals were identified following a three-year investigation by the RCMP, other police forces and Citizenship and Immigration Canada.

On September 9, 2012, Minister Kenney announced that the number of people who would likely have their citizenship revoked had risen to 3,100, with an additional 11,000 people under investigation.  An Access to Information Act request revealed that most of the Canadian citizens who were the subject of investigations were originally from the following countries.

A201211322_2013-04-25_14-15-40-citizenshipfraud

By the end of 2012, the process of revoking these peoples’ citizenship has already begun, with several Canadians receiving letters stating the following:

The potential citizenship revocation of 11,000 Canadians generated considerable media and political attention, including this Twitter exchange between Jason Kenney and Jinny Sims, the New Democratic Party Immigration Critic.

While what Minister Kenney said was at the time true, one of the consequences of Bill C-24, the Strengthening of Canadian Citizenship Act, is that there are no longer the same procedural safeguards for those who face citizenship revocation proceedings for misrepresentation.

Section 10 of the Citizenship Act – Then and Now

The authority of the Government of Canada to strip people of their citizenship is legally provided for by s. 10 of the Citizenship Act, which previously stated that:

Order in cases of fraud

10. (1) Subject to section 18 but notwithstanding any other section of this Act, where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances,

(a) the person ceases to be a citizen, or

(b) the renunciation of citizenship by the person shall be deemed to have had no effect,

as of such date as may be fixed by order of the Governor in Council with respect thereto.

[Emphasis Added]

Section 10 of the Citizenship Act now states that:

Revocation by Minister — fraud, false representation, etc.

10. (1) Subject to subsection 10.1(1), the Minister may revoke a person’s citizenship or renunciation of citizenship if the Minister is satisfied on a balance of probabilities that the person has obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances.

Revocation for fraud — declaration of Court

10.1 (1) If the Minister has reasonable grounds to believe that a person obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances, with respect to a fact described in section 34, 35 or 37 of the Immigration and Refugee Protection Act other than a fact that is also described in paragraph 36(1)(a) or (b) or (2)(a) or (b) of that Act, the person’s citizenship or renunciation of citizenship may be revoked only if the Minister seeks a declaration, in an action that the Minister commences, that the person has obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances and the Court makes such a declaration.

Some individuals think that they can misrepresent their way to permanent residency, tell the truth when applying for citizenship, obtain citizenship, and then never have to worry about the consequences of the misrepresentations that led to them obtaining permanent residence.  Section 10.2 of the Citizenship Act makes it clear that this is not the case, and states that:

Presumption

10.2 For the purposes of subsections 10(1) and 10.1(1), a person has obtained or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances if the person became a permanent resident, within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, by false representation or fraud or by knowingly concealing material circumstances and, because of having acquired that status, the person subsequently obtained or resumed citizenship.

[Emphasis Added]

The burden of proof on the Government of Canada to establish fraud under s. 10 of the Citizenship Act is a “high degree of probability.”  In other words, it is higher than the “balance of probabilities” standard in civil cases, but lower than the “beyond a reasonable doubt” standard in criminal law.

The test for establishing fraud under s. 10 of the Citizenship Act is similar to that of misrepresentation for permanent residency.  The Government of Canada does not have to prove that had an individual been truthful during the application process then his citizenship application would have been rejected.  Rather, as the Supreme Court of Canada confirmed in Brooks, 1974 S.C.R. 850, the government only has to show that an individual gained entry to Canada or obtained Canadian citizenship by knowingly concealing material circumstances which had the affect of foreclosing further inquiry.

A misrepresentation of a material fact amounting to fraud under the Citizenship Act includes stating an untruth, withholding of material information, or providing a misleading answer.  In assessing the materiality of the information concealed, regard is held to the significance of the undisclosed information.  Unlike with misrepresentations in acquiring permanent residency, fraud will not result where there is merely a technical transgression of Canada’s immigration laws.  Furthermore, innocent misrepresentations will not result in the revocation of citizenship (unlike in permanent residency, a hotly contested area).  Willful blindness, however, can result in fraud under the Citizenship Act (Phan, 2003 FC 1194).

The Role of Federal Court

As noted in the letter that the Government of Canada is sending people suspected of fraud, also known as a “Section 18 Letter”, individuals whose citizenship the Government of Canada intends to revoke have the ability to have their case reviewed by the Federal Court.

Section 18 of the Citizenship Act provides that certain procedures must be followed before the Government of Canada revokes a person’s citizenship.  It states:

Notice to person in respect of revocation

18. (1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and

(a) that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or

(b) that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances.

Nature of notice

(2) The notice referred to in subsection (1) shall state that the person in respect of whom the report is to be made may, within thirty days after the day on which the notice is sent to him, request that the Minister refer the case to the Court, and such notice is sufficient if it is sent by registered mail to the person at his latest known address.

Decision final

(3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.

The role of the Federal Court in a citizenship revocation proceeding is not to determine whether an individual’s citizenship should be revoked.  Rather, as the Federal Court noted in Canada (Minister of Citizenship and Immigration) v. Obodzinsky, it is to engage in an investigative proceeding to collect evidence of facts surrounding the acquisition of citizenship, so as to determine whether it was obtained by fraudulent means.

For example, in the high profile case of Canada (Citizenship and Immigration) v. Rogan, the first citizenship revocation case involving post World War II war crimes, the Federal Court’s role was to determine whether Mr. Rogan had either engaged in or was complicit in war crimes, and, if so, whether or not he misrepresented this information when he immigrated to Canada.  The determination of whether the misrepresentation and fraud should lead to the revocation of citizenship remained with the Government of Canada.

The same will be true for individuals involved in the current investigation.  The Federal Court will not state whether the Government of Canada should revoke the citizenship of someone encompassed by s. 10 of the Citizenship Act.  It will simply determine whether there was fraud.

Then What Happens?

The revocation of Canadian citizenship does not lead to automatic deportation.  If an individual’s entry to Canada was lawful, but the person obtained citizenship unlawfully, then revocation causes the person to revert to permanent resident status.  It does not specifically jeopardize the right of the person to remain in Canada.

However, if a person’s citizenship is revoked because the person entered Canada by false representation, fraud, or knowingly concealing material circumstances, then the individual will be reportable under section 44(1) of the Immigration and Refugee Protection Act and may be removed from Canada without a right of appeal to the Immigration Appeal Division.



DCO Refugee Claimants and Access to the RAD

The Federal Court in Y.Z. and the Canadian Association of Refugee Lawyers v. The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, 2015 FC 892, has certified the following two questions:

Does paragraph 110(2)(d.1) of the Immigration and Refugee Protection Act (“IRPA”) comply with subsection 15(1) of the Charter?

If not, is paragraph 110(2)(d.1) of the IRPA a reasonable limit on Charter rights that is prescribed by law and can be demonstrably justified under section 1 of the Charter?

It also announced that effective immediately, refugee claimants from designated countries of origin can access the Refugee Appeal Division.

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Canada’s Interpretation of Article 1F(b) of the 1951 Refugee Convention

On October 30, 2014, the Supreme Court of Canada (the “SCC“) rendered its decision in Febles v. Canada (Citizenship and Immigration Canada), 2014 SCC 68 (“Febles“).  This was the first time to my knowledge that the SCC has addressed Canada’s interpretation of Article 1F(b) of the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (the “1951 Refugee Convention“), incorporated into s. 98 of the Immigration and Refugee Protection Act (“IRPA“) (other than in obiter).

Febles provides an opportune time to both summarize the principles articulated in it, as well as other significant Federal Court and Federal Court of Appeal (the “FCA“) cases involving Article 1F(b) of the 1951 Refugee Protection.

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Does Refugee Protection Cease when a Convention Refugee Becomes a Canadian Citizen?

The Federal Court in Canada (Public Safety and Emergency Preparedness) v. Zaric, 2015 FC 837, has certified the following question:

Does refugee protection conferred pursuant to s 95(1) of the Immigration and Refugee Protection Act automatically cease by operation of s 108(1)(c) when a Convention refugee becomes a Canadian citizen, thereby preventing the Minister of Public Safety and Emergency Preparedness from applying to the Immigration and Refugee Board pursuant to s 109(1) to vacate the Board’s previous decision to confer refugee protection?

When the Federal Court of Appeal answers the question, it shall be posted here.


Distance Learning and Post-Graduate Work Permits

The media has recently been covering Citizenship and Immigration Canada’s (“CIC“) refusal of most Post-Graduate Work Permit (“PGWP“) applicants from Niagara College who had completed a distance learning program.  As Global News reported:

According to Nicholas Keung of the Toronto Star:

Although the Immigration department states on [Niagara College’s] website that distance learning is ineligible for post-graduation work permits, it does not define what constitutes distance learning. Complaining students said the Niagara College program delivered three-quarters of its course work online, but they had to attend the program in-class at least once a week.

The entirety of CIC’s guidance to officers who process PGWPs is:

Distance learning

Students who complete a program of study by distance learning (from outside or inside Canada) are not eligible for the PGWPP.

CIC’s policy is extremely vague.  What percent of the course can be distance learning before it constitutes “completing a program of study by distance learning?” Is it percentage of courses that were distant learning or percentage of total time? What if one course is online and the rest are in person?

Guidance is definitely needed, and I hope that someone takes the matter forward.


Asking the Embassy to Re-Consider an Application

Once a decision has been rendered in relation to an application for a humanitarian and compassionate exemption, is the ability of the decision-maker to reopen or reconsider the application on the basis of further evidence provided by an applicant limited by the doctrine of functus officio?
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