Singh v. Canada: The Charter Applies to Refugee Claimants

Singh v. Minister of Employment and Immigration was a 1985 Supreme Court of Canada decision that is to this day arguably the most significant decision that the Court has made impacting Canadian immigration and refugee law.

The Facts

The Appellants were a mixture of Sikh and Guyanese individuals who sought refugee status in Canada during the late 1970s and early 1980s. At the time, the Immigration and Refugee Board did not yet exist.  Rather, asylum claimants submitted refugee claims directly to Canada’s immigration department.


When Procedural Fairness Requires a Fairness Letter

One of the most complicated topics in immigration law is determining when procedural fairness will require an immigration officer who is assessing an application to seek clarification in the form of a fairness letter or interview.

As the Supreme Court of Canada noted in Baker v. Canada (Minister of Citizenship and Immigration) the the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case. When a visa officer does not rely on third party extrinsic evidence to make a decision it can often appear unclear when exactly it is necessary for an officer to afford an applicant an interview or a right to respond to the officer’s concerns.  However, there will be a right  to respond under certain circumstances.

Requirement to Provide Complete Applications

Visa officers do not have any legal responsibility to advise applicants of incomplete or inadequate applications.

In Kaur v. Canada (Citizenship and Immigration), 2010 FC 758, for example, the Federal Court dismissed a judicial review application of a visa officer’s refusal of an applicant under the Federal Skilled Worker Program. A visa officer determined that the application was deficient as it failed to include required information regarding the applicant’s salary and benefits. The applicant argued that the Canadian embassy should have told the applicant that this information was missing, and given her a chance to provide what was missing. However, the Court noted that there is no duty to advise an applicant of a deficient application. As Justice Mandamin noted, the process is clear. An applicant must provide a complete application.

As such, and to reiterate, visa officers do not have the obligation to notify applicants of inadequacies in their applications nor in the supporting documents. They do not have to seek clarification or additional documentation, nor provide an applicant with an opportunity to address concerns, when the material provided in support of an application is unclear, incomplete or insufficient to show that someone meets legislative program requirements.

Credibility Concerns

A duty may exist, however, to provide an applicant with the opportunity to respond to a visa officer’s concerns when the officer is concerned with the credibility, the veracity, or the authenticity of the documentation provided by an applicant as opposed to the sufficiency of the evidence provided.

In Sandhu v. Canada (Citizenship and Immigration), 2010 FC 759,  for example, an application was complete.  However, the visa officer rejected the application because he did not believe the genuineness of one of the applicant’s answers on the application. The Court acknowledged that the duty of procedural fairness in the decisions of visa officers [is] at the low end of the spectrum. However, Justice Mandamin, the same Justice as above, also noted that where the application is adequate, but the officer nevertheless entertains a doubt on the evidence, there remains a duty to clarify the information. The judge thus allowed the judicial review.

Grewal v. Canada (Citizenship and Immigration), 2011 FC 167 provides another example of this principle. There, an application was rejected because of a poor IELTs score.  In brief, the applicant had arranged employment in Canada as a Retail Trade Manager, but the visa officer determined that she would be unable to perform the required duties  of the arranged employment because of her poor IELTS marks. The visa officer refused the application without providing the applicant with an opportunity to respond to this concern.

Justice Noel noted numerous factors that resulted in the officer having a duty to seek additional information from the applicant, including 1) that immigration guidelines specified that additional information would be required for doubts over Arranged Employment Offers, 2) that the language proficiency concern derailed the individual’s entire claim for permanent residence, and 3) that the applicant’s consultant had thoroughly explained the reason for the poor test and had stated that another would be forthcoming.  Accordingly, Justice Noel determined that procedural fairness dictated that a fairness letter or interview be provided.

Singh v. Canada, 2010 FC 1306 is a final example.  There, an officer rejected a work permit application because the only documents which the applicant provided to support her claimed employment experience as a Ragi were reference letters.  The officer stated that she saw “many such letters which turn out to be fictitious”, and that she required “more than letters, for instance, newspaper cut outs, photos of them practicing or letters of reference, to properly corroborate claims of training, knowledge, and experience.”  The Federal Court, however, overturned this decision, noting that the applicant was not put on notice that the officer was concerned with the veracity of letters, and did not request further documentation.


In 2011, Justice O’Keefe in Kaur v. Canada, 2011 FC 219 provided  an excellent articulation of the current jurisprudence, and what should be the starting basis for any analysis of whether procedural fairness required the providing of the applicant with an opportunity to respond to a given concern.  The Court stated that:

An officer is not under a duty to inform the applicant about any concerns regarding the application which arise directly from the requirements of the legislation or regulations (see Hassani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2007] 3 F.C.R. 501 at paragraphs 23 and 24).

The onus was on the applicant to satisfy the officer of all parts of her application and the officer was under no obligation to ask for additional information where the applicant’s material was insufficient (see Madan v. Canada (Minister of Citizenship and Immigration) (1999), 172 F.T.R. 262 (F.C.T.D.), [1999] F.C.J. No. 1198 (QL) at paragraph 6).

However, the officer was obligated to inform the applicant of any concerns related to the veracity of documents that formed part of the application and the officer was required to make further inquires in such a situation (see Hassani above, at paragraph 24).

The message from the courts seems clear. Visa applicants have one shot, and they should ensure that the effort that they put forward is their best, because if they do, procedural fairness will require that immigration officers provide them with the opportunity to address concerns.

If they don’t put their best foot forward, however, then their applications will be rejected outright.

Espionage and Immigrating to Canada

Section 34(1) of Canada’s Immigration and Refugee Protection Act provides, amongst other things, that a foreign national or Canadian permanent resident is inadmissible to Canada for engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests, or being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in espionage against Canada or that is contrary to Canada’s interests.  It is one of the most serious inadmissibilities in Canadian immigration law.


Immigration, Refugees and Citizenship Canada’s (“IRCC”) Enforcement Manual 2 – Inadmissibilities contains the following definitions and guidance to officers regarding how immigration officials are to determine whether someone is inadmisisble to Canada for espionage.

Espionage is defined as a method of information gathering by spying; that is, the gathering of information in a surreptitious manner, secretly seeking out information usually from a hostile country to benefit one’s own country.

Paragraph A34(1)(a) contains two possible allegations that could render a permanent resident or foreign national inadmissible to Canada for acts of espionage:

1. if the act of espionage is against Canada, or

2. if the act of espionage is contrary to Canada’s interests.

Espionage “against Canada” means espionage activities conducted by a foreign state or organization in Canada and/or abroad against any Canadian public or private sector entity on behalf of a foreign government. It may also include activities of a foreign nonstate organization against the Government of Canada, but does not include acts of industrial spying between private entities where no government is involved.

The following is a non-exhaustive list of activities that may constitute espionage that is “contrary to Canada’s interests”:

 Espionage activity committed inside or outside Canada that would have a negative impact on the safety, security or prosperity of Canada. Prosperity of Canada includes but is not limited to the following factors: financial, economic, social, and cultural.

 The espionage activity does not need to be against the state. It could also be against Canadian commercial or other private interests.

 The use of Canadian territory to carry out espionage activities may be contrary to Canada’s national security and public safety and therefore contrary to Canada’s interests.

 Espionage activity directed against Canada’s allies as it may also be contrary to Canada’s interests.

Note: These guidelines are intented to be dynamic as the concept of what is contrary to Canada’s interest may evolve or change over time.

Spying on Campus Organizations, Churches, Schools, etc. 

Qu v. Canada (Minister of Citizenship and Immigration) is the leading Federal Court of Appeal decision regarding what constitutes espionage under Canadian immigration legislation.

Mr. Qu was a citizen of the People’s Republic of China studying at Concordia University in Montreal.  He was active in the Chinese Students and Scholars Association, a campus group, and regularly reported on that group’s activities to officials at the Chinese Embassy in Ottawa.  The Federal Court of Appeal had to determine whether spying on a campus organization, as opposed to a formal institution of democratic government or process, constituted espionage under Canadian immigration legislation.

The Federal Court of Appeal determined that it did, and that the definition of espionage should be interpreted broadly, and that the ability of individuals to freely belong to associations was integral to the democratic process in Canada. The Court went on to state that:

In Canada, a democratic institution is not limited to a political institution, it includes organized groups who seek through democratic means to influence government policies and decisions.

Canada is a pluralistic society with a variety of autonomous organizations independent of the government and to one and other.

As a free and democratic society, Canada values and protects democratic non-governmental institutions which enhance the participation of individuals and groups in society.

The Federal Court of Appeal accordingly went on to note that an individual could be inadmissible to Canada for espionage if they engaged in spying against an organization that was engaged in lawful activities in Canada of a political, religious, social or economic nature, and as such that this was not limited to trade unions, professional associations and political parties.

Intelligence Gathering vs. Espionage

In Peer v. Canada (Citizenship and Immigration), the Federal Court had to answer the following certified question:

Is a person inadmissible to Canada for “engaging in an act of espionage… against a democratic government, institution or process” within the meaning of subsection section 34(1)(a) of the Immigration and Refugee Protection Act, if the person’s activities consist of intelligence gathering activities that are legal in the country where they take place, do not violate international law and where there is no evidence of hostile intent against the persons who are being observed?

Mr. Peer was a member of Pakistan’s Corps of Military Intelligence and its Inter-Services Intelligence Directorate.  They would monitor individuals, including those from democratic countries, when they were in Pakistan.  Mr. Peer argued that his gathering of intelligence on the activities of foreign nationals was simply intelligence gathering and as it was on domestic soil did not constitute espionage against Canada.

Both the Federal Court and the Federal Court of Appeal disagreed. While the Federal Court of Appeal did not provide any reasoning, Justice Zinn at the Federal Court level wrote:

I have no doubt that many centuries ago one could not easily engage in espionage unless one travelled to a foreign land to gather the relevant information because there was no other way the information could be obtained.  That is quite simply not the case now, if it ever was.  If I were to accept the submission of the applicant that one cannot engage in espionage while remaining in one’s own country, I would have to accept that intelligence agents who monitor telephone and internet communications from the safety of their country are engaged only in “intelligence gathering” and not in espionage, even when the information they gather relates to sensitive state secrets.

The applicant might suggest that those agents are engaged in an illegal activity and thus fall outside his proposed definition of espionage.  However, while the interception of these communications may be an offence in the country from whence the communications originate, I have no doubt that the actions of these interceptors will be perfectly legal and, in fact, are sanctioned in their own country.


What matters in this case is the applicant’s surreptitious gathering of information, or spying, on foreign nationals in Pakistan.  The applicant’s motive or his location when doing this spying is entirely irrelevant in determining that his activities on behalf of Pakistan intelligence constituted “espionage.”

Self Employed Class – What Are Cultural and Athletic Activities?

Canada’s Self-Employed Program seeks to attract to Canada individuals who have the intention and ability to become self-employed in Canada. Self-employed persons are required to have either:

  • relevant experience that will make a significant contribution to the cultural or athletic life of Canada or
  • experience in farm management and the intention and ability to purchase and manage a farm in Canada.

The farm management component of the program closed on March 10, 2018.

Eligibility – Athletics and Cultural Experience

The Immigration, Refugees and Citizenship Canada (“IRCC”) website states that to qualify for the Self-Employed Program applicants must show that they:

  • have relevant experience;
  • intend and be able to be self-employed in Canada; and
  • can contribute to Canada’s economy in one of the required areas.

“Relevant experience” under the Self-Employed Program means at least two years of experience during the period starting five years before a person applies for permanent residence and ending by the time the visa is issued. The experience must be:

  • for cultural activities:
    1. two one-year periods being self-employed in cultural activities, or
    2. two one-year periods participating at a world-class level in cultural activities, or
    3. a combination of a one-year period described in (1.) above, and a one-year period described in (2.) above.
  • for athletics:
    1. two one-year periods being self-employed in athletics, or
    2. two one-year periods participating at a world class level in athletics, or
    3. a combination of a one-year period described in (1.) above, and a one-year period described in (2.) above.

What Are Cultural Activities? 

According to the IRCC website, “cultural activities” include jobs generally seen as part of Canada’s artistic and cultural fields. Examples include:

  • authors and writers,
  • creative and performing artists,
  • musicians,
  • painters,
  • sculptors and other visual artists,
  • technical support and other jobs in motion pictures,
  • creative designers and
  • craftspeople.

The IRCC website further states that a full-list of qualifying activities can be found here.

Would someone who has practiced Chinese medicine and intends to practice Chinese medicine in Canada have the relevant experience under the program?

No. In Ding v. Canada (Citizenship and Immigration), 2010 FC 764, Justice Beaudry noted that cultural activities are meant to be those as ordinarily understood to be part of the arts.  Thus, the Court ruled that there is no basis on which to conclude that experience in a Chinese therapeutic massage clinic and training center falls within the meaning of cultural activities.

What Are Athletics? 

The IRCC website does not give examples of what “athletics” are, however, the Employment and Social Development Canada (“ESDC”) website lists the following National Occupational Classification codes as being under minor group “Athletes, Coaches, Sports officials and referees, and Program Leaders and Instructors in Recreation, Sport and Fitness.”

It needs to be stressed that while the IRCC website seems to rely on the National Occupational Classification for determining which occupations are eligible for the Self-Employed Program, the Federal Court of Canada has cast some doubt on this. In Tollerene v. Canada (Citizenship and Immigration), 2015 FC 538, Justice Fothergill had to address the reasonableness of a visa officer’s determination that world-class poker experience did not constitute athletics under the Self-Employed Program.  This was actually our firm’s case, which we unfortunately lost.  After noticing that the ESDC listed “poker player” as an example of an “athlete,” we successfully represented several world-class poker players in immigrating to Canada under the Self-Employed Program.

After a visa officer refused the application, we took the decision to Federal Court.  IRCC ultimately prevailed, with Justice Fothergill noting that:

The Applicant referred to CIC’s National Occupational Classification (NOC) for athletes, which specifically contemplates that poker players may fall within this category. However, I agree with the Respondent that this NOC is intended for applications under the federal skilled worker scheme, and not the self-employed class. While it is true that the NOC for federal skilled worker applicants in the athletes category may include “chess players and poker players”, the Regulations, definitions and guidelines that apply to self-employed immigrants are silent on this point.

As such, as Justice Fothergill did not provide any analysis for why “chess players and poker players” should not be considered “athletes,” it appears that it is largely up to the visa officer to determine whether a given activity meets the definition of “athlete” under the Self-Employed Program.


US War Deserters – Immigrating to Canada

Being a war deserter does not in of itself mean that either a refugee claim or an application for permanent residency based on humanitarian & compassionate (“H&C“) grounds will succeed.

On July 6, 2010,the Federal Court of Appeal (the “FCA“) released its decision in Hinzman v. Canada (Citizenship and Immigration), 2010 FCA 177 (“Hinzman“)

Hinzman involved an American soldier who for moral and religious beliefs was against “all participation in war.”  In 2004, upon learning that his unit would be deployed to Iraq, Mr. Hinzman fled the United States for Canada. He was AWOL from the US army since his arrival in Canada.  He originally claimed refugee status, a claim which was unsuccessful.

Mr. Hinzman then filed a Pre-Removal Risk Assessment (“PRRA“) and an application for permanent residence based on H&C grounds.

A Citizenship and Immigration Canada officer (the “Officer“) rejected the PRRA.  She found that:

[t]he possibility of prosecution under a law of general application is not, in and of itself, sufficient evidence that an applicant has a well-founded fear of persecution. The PRRA application is not an avenue to circumvent lawful and legitimate prosecutions commenced by a democratic country.

Mr. Hinzman did not seek leave to apply for judicial review of the PRRA decision.

The Officer also rejected the H&C application.  Mr. Hinzman sought leave to appeal of this decision.  The Federal Court upheld the Appellant’s decision. However, it certified the following question:

Can punishment under a law of general application for desertion, when the desertion was motivated by a sincere an deeply held moral, political and/or religious objection to a particular war, amount to unusual, undeserved or disproportionate hardship in the context of an application for permanent residence on humanitarian and compassionate grounds?

PRRA and H&C Applications Require Different Tests

The FCA answered the question in the affirmative. It is important to note that it did not rule that H&C would always be appropriate for war deserters, nor did it state that Mr. Hinzman’s H&C application should be successful. Rather, the FCA found that punishment for desertion, where the desertion was motivated by a deeply held moral, political and/or religious objection, could amount to unusual, undeserved, or disproportionate hardship. The Court thus remitted the matter to a different Officer with the requirement that the new officer reevaluate the application using this criteria.

This judgment is the latest in a series of decisions reminding immigration officers that PRRA and H&C applications require different tests.

Canada’s Immigration and Refugee Protection Act requires that PRRA officers give consideration to any new, credible, relevant, and material evidence of facts that might have affected the outcome of an appellant’s refugee claim hearing had this evidence been presented, and to assess the risk to the individual if removed.

H&C applications, meanwhile, require officers to regard public policy considerations and humanitarian grounds, including family-related interests.

The Officer did not appear to consider this, instead noting with regards to the H&C application that:

It is important to note that the possibility of prosecution for a law of general application is not, in and of itself, suffiicent evidence that an applicant will face unusual and undeserved, or disporporitionate hardship. The H&C application is not an avenue to circumvent lawful and legitimate prosecutions commenced by a democratic country.

As the FCA noted, this standard of analysis is generally used for PRRA applications. It is not the test for H&C applications.

Operational Bulletin 202 – War Deserters

As a result of the Hinzman decision, Citizenship and Immigration Canada (“CIC“) released Operational Bulletin 202, which states:

This operational bulletin provides immigration officers in Canada with instructions on processing cases involving military deserters.


Some individuals who may have deserted the military or who may have committed an offence equivalent to desertion of the military in their country of origin have sought refuge in Canada. Desertion is an offence in Canada under the National Defence Act (NDA). The maximum punishment for desertion under section 88 of the NDA is life imprisonment, if the person committed the offence on active service or under orders for active service. Consequently, persons who have deserted the military in their country of origin may be inadmissible to Canada under section 36(1)(b) or 36(1)(c) of the Immigration and Refugee Protection Act.

The current inventory of military deserter cases is comprised primarily of members of the United States armed forces who have claimed refugee protection in Canada. Desertion from the armed forces is described as an offence pursuant to section 85 of the United States Uniform Code of Military Justice.

Many of the persons in our current case inventory have had their refugee claims heard and have subsequently applied for permanent residence in Canada based on humanitarian and compassionate considerations. Some have also applied for permanent residence in Canada as members of the spouse or common-law partner in Canada class. Others have filed Pre-removal Risk Assessment (PRRA) applications when faced with removal from Canada. These applications are at various stages of processing either in the regions or at CPC-Vegreville.

All cases which have come to the attention of the Case Management Branch (CMB) have been identified in FOSS via a non-computer based entry.

General guidelines
Processing applications for permanent residence in Canada

Given the complexity of equating either a conviction for desertion or the commission of an act constituting an offence of desertion under a foreign law with an offence under an Act of Parliament (the National Defence Act), officers are instructed to contact their Regional Program Advisor (RPA) for guidance when processing applications for permanent residence in Canada made by military deserters. Officers are also instructed to copy the Case Review Division of the CMB on their initial communication with their RPA.

Processing claims for refugee protection in Canada

Notification of all new claims for refugee protection by military deserters and any updates to these refugee claims including PRRA applications must be provided to CMB using the existing guidelines on processing high profile, contentious and sensitive cases (OP 1, section 15).


In accordance with current instructions with respect to cases where a personal interview or an in-depth investigation may be required, CPC-Vegreville is asked to transfer applications filed by military deserters to the appropriate inland CIC for processing.

In 2016, Immigration, Refugees and Citizenship Canada removed the reference to the United States from OB 202.

Through Access to Information Act requests we have also obtained what appear to be two internal directives to IRCC officers that will be helpful to anyone with clients whose H&C grounds are at least partially based on desertion.  They include research sources, factors that officers should consider, and possible interview questions.

Spousal Sponsorship and Social Assistance

Photo by George Vnoucek

Section 133 of Canada’s Immigration and Refugee Protection Regulations (the “Regulations“) prohibit a Canadian citizen or permanent resident from sponsoring a foreign family member (generally a spouse, common-law partner, parent or grandparent) if that Canadian is in receipt of social assistance for a reason other than a disability.

The Regulations define social assistance as being any benefit, whether money, goods or services, provided to or on behalf of a person by a province under a program of social assistance. It includes assistance for food, shelter, clothing, fuel, utilities, household supplies, personal requirements and health care not provided by public health care.

Section 133(1)(k) of the Regulations do provide that a person can still sponsor a foreign family member to immigrate to Canada if the sponsor receives the social assistance because of a disability.

Financial Inadmissibility

However, s. 39 of Canada Immigration and Refugee Protection Act provides that a foreign national is inadmissible for financial reasons if they are or will be unable or unwilling to support themselves or any other person who is dependent on them, and have not satisfied a visa officer that adequate arrangements for care and support, other than those that involve social assistance, have been made.

As such, even if a Canadian sponsor is no longer receiving social assistance, or is receiving social assistance because of a disability, they still might be ultimately unable to sponsor their family member to immigrate to Canada.

Minimum Necessary Income

Unlike with the sponsorship of most foreign family members the Regulations provide that there is no minimum necessary income requirement to sponsor a spouse or common-law partner.

However, it is important given s. 39 of the Immigration and Refugee Protection Act that people submitting applications under to sponsor their spouses or common-law partners under either the Family Class or the Spouse or Common-Law Partner in Canada Class ensure that they do not raise any flags regarding a possible financial inadmissibility.

For example, if a Canadian sponsor’s income was below Statistics Canada’s low-income cutoff, then the foreign national should take seriously the question of what their intended occupation will be after they immigrate.   

As well, although it is not typically mandatory in a spousal or common-law partnership application, if the foreign national is the principle breadwinner in the family then they should indicate this in the application, and provide proof of the foreign spouse’s or common-law partner’s earnings.

Examples of Financial Inadmissibility

Elayathamby Rasu v Canada (Citizenship and Immigration) is a good example of how financial inadmissibility can work. There, the Canadian sponsor in the years leading up to the sponsorship of his wife earned around an average of $10,000.00 per year. In her application form, her wife, who spoke neither English or French, stated that she planned on being a housewife after she immigrated.  The visa office refused their application, a decision which the Immigration Appeal Division upheld.

Another impediment for Canadians whose income is well below to Statistics Canada’s low income cutoff for a region is where their foreign family members do not speak English or French and where their credentials may not be recognized in Canada. In Cheung v. Canada (Citizenship and Immigration)a Canadian sponsor tried to argue to the Immigration Appeal Division that his wife, who was a nurse in her country of origin, had transferrable skills. However, the Immigration Appeal Division noted that her lack of English and the fact that it was not clear that she could actually work as a nurse in Canada meant that it was not clear that the family would not need social assistance.

Finally, as the Immigration Appeal Division noted in Phuoc v. Canada (Citizenship and Immigration)it is open to immigration authorities to not consider, or at least give very weight to, evidence of Canadian income which has not been declared to the Canada Revenue Agency.

Other Disqualifications

Other things that can disqualify an otherwise eligible sponsor from sponsoring someone include:

  • The sponsor being subject to a removal order;
  • The sponsor being detained in any penitentiary, jail, reformatory, or prison;
  • The sponsor have previously been convicted of a specified offence (such as a sexual offense);
  • The sponsor being in default of spousal or child support payments;
  • The sponsor being in default of a debt owed under Canada’s Immigration and Refugee Protection Act;
  • The sponsor being an undischarged bankrupt;
  • The sponsor being in receipt of social assistance other than for reasons of a disability; and
  • The sponsor being in default of a of a previous sponsorship undertaking.

Humanitarian & Compassionate

A family that might not be able to reunify in Canada, either because the Canadian receives social assistance or because there is a probability that they will be found to be financially inadmissible to Canada, should not give up.

As with all immigration applications, it is possible that there could be sufficient humanitarian & compassionate factors to supersede the inadmissibility.

Do Cruise Ship Employees Need Work Permits?


Attributed to mjb84 on Flickr.

Regulation 186(s) of Canada’s Immigration and Refugee Protection Regulations (the “Regulations“) regulates when crew members are permitted to work in Canada without first obtaining a work permit.  The Regulations state:

R186(s). A foreign national may work in Canada without a work permit as a member of a crew who is employed by a foreign company aboard a means of transportation that

(i) is foreign-owned and not registered in Canada, and

(ii) is engaged primarily in international transportation

Immigration, Refugees and Citizenship Canada (“IRCC“) has published helpful guidance as to how this Regulation is to be interpreted (the “Guidelines“).

What is a Member of a Crew

As per the Guidelines, on a cruise ship, crew members include:

  • licensed officers: master, first officer, chief officer or chief mate, first engineer or chief engineer, and subordinate officers and engineers;
  • non-licensed crew: ordinary seamen, able-bodied seamen, bosun (deck crew foreman), engine- room crew (oilers and fitters), and kitchen and mess-room staff (cooks, stewards and messmen); and
  • the hotel manager, cruise director, purser, medical staff, managers and staff of the ship’s bars, restaurants, boutiques and casino, as well as house-cleaning staff and entertainers.

Crew members do not include:

  • supernumeraries: spouses, children and other dependants of crew members;
  • foreign contractors and shipping company technicians: foreign nationals temporarily assigned to a vessel for the sole purpose of making repairs;
  • shipping company superintendents, including persons referred to as supercargo, superintendent engineers, or port captains;
  • employees or executives of a marine transportation company who travel aboard or who visit ships to monitor or supervise operations such as maintenance and repairs, preparation of cargo holds, preparation for inspection, and the loading or unloading of cargo; and
  • insurance company representatives who travel on vessels to familiarize themselves with shipboard operations on behalf of ship-owners’ insurers.

“Engaged Primarily in International Transportation”

IRCC’s Guidelines state in order to determine whether a means of transportation is “engaged primarily in international transportation” that an officer should consider whether the transportation falls under the definition of “coasting trade” in Canada’s Coasting Trade Act.  If the transportation does fall under the definition of “coasting trade” in the Coasting Trade Act, then a work permit will be required.

The Coasting Trade Act defines “coasting trade” as (definition simplified for ease of reading):

(a) the carriage of goods by ship from one place in Canada to any other place in Canada, either directly or by way of a place outside Canada;

(b) subject to paragraph (c), the carriage of passengers by ship from any place in Canada situated on a lake or river to the same place, or to any other place in Canada, either directly or by way of a place outside Canada;

(c) the carriage of passengers by ship from any place situated on the St. Lawrence River northeast of the Saint Lambert lock or on the Fraser River west of the Mission Bridge

(i) to the same place, without any call at any port outside Canada, other than one or more technical or emergency calls, or

(ii) to any other place in Canada, other than as an in-transit call, either directly or by way of a place outside Canada,

(d) the carriage of passengers by ship from any place in Canada other than from a place to which paragraph (b) or (c) applies

(i) to the same place, without any call at any port outside Canada, other than one or more technical or emergency calls, or

(ii) to any other place in Canada, other than as an in-transit call, either directly or by way of a place outside Canada,

(e) the carriage of passengers by ship

(i) from any place in Canada to any place above the continental shelf of Canada,

(ii) from any place above the continental shelf of Canada to any place in Canada, or

(iii) from any place above the continental shelf of Canada to the same place or to any other place above the continental shelf of Canada;

where the carriage of the passengers is in relation to the exploration, exploitation or transportation of the mineral or non-living natural resources of the continental shelf of Canada, and

(f) the engaging, by ship, in any other marine activity of a commercial nature in Canadian waters and, with respect to waters above the continental shelf of Canada, in such other marine activities of a commercial nature that are in relation to the exploration, exploitation or transportation of the mineral or non-living natural resources of the continental shelf of Canada; (cabotage)

Given how complicated the definition of coastal trading is, the following should provide a useful summary of when crew members do and don’t need work permits.
Foreign National Crew Will Need a Work Permit When

A work permit may be required if a cruise ship embarks passengers at a Canadian port and disembarks any of these passengers permanently at another Canadian port. For example, if a cruise ship embarks all passengers in Montreal, disembarks some passengers in Charlottetown, and continues to New York where the remaining passengers disembark, then foreign crew members will require a work permit.

Foreign crew members will also typically require a work permit if the ship embarks passengers at one Canadian port and then ends the cruise and disembarks passengers at another Canadian port. For example, if passengers embark in Victoria, make a stop in Anchorage, Alaska, and end their cruise in Vancouver, then the foreign national crew will likely need require a work permit.

Foreign National Crew May Be Exempt When

Foreign crew will typically be exempt from the requirement to obtain a work permit when a cruise ship embarks and disembarks at the same destination within Canada, even if it makes stops in foreign jurisdictions. For example, if a cruise ship embarks passengers in Halifax, makes a stop in Boston, and then returns to Halifax then a work permit may not be required.  If this seems odd given that the start and end destinations are in Canada, it is simply because of how the Coastal Trading Act defines coastal trading.

Foreign workers may also be exempted if a cruise ship starts at a Canadian port of call, and ends its itinerary at a foreign port of call, so long as passengers do not disembark elsewhere in Canada. For example, if a cruise ship embarks in Vancouver, and disembarks in Portland, then foreign crew will likely be exempt.

Continue reading “Do Cruise Ship Employees Need Work Permits?”

Showing that the Visa Officer or IRB Member or CBSA Officer Was Biased

Many individuals think that either a visa officer, a Canada Border Services Agency (“CBSA”) officer or an Immigration and Refugee Board member is biased against them.

This is not an argument to make lightly.

The Supreme Court of Canada has held that in order for an individual to demonstrate that a government decision maker is biased, then:

the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. [T]hat test is “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude.  Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.

As well, the Supreme Court of Canada has also noted that:

Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly.

As the Supreme Court of Canada stated, an accusation of bias is not something that should be undertaken lightly, and in the overwhelming majority of cases the Federal Court of Canada has dismissed such accusations.  The most common accusation that individuals often make is that an individual is biased because of their race.  The Federal Court of Canada has categorically rejected such race based allegations, and held that individuals are not entitled to decide who adjudicates their matter, but can only expect that they will be treated fairly.  In my experience, the race and gender of an adjudicator is completely, and thankfully, irrelevant in Canada’s immigration system.

There are, however, instances where the Federal Court did find that a reasonable apprehension of bias existed.

In Guemache v. Canada (Minister of Citizenship and Immigration), the allegation of bias involved the following exchanges and statements between an Immigration and Refugee Board member and an appellant:

Chairperson: I don’t put anybody in jail, I don’t condemn anyone to death, so rest assured, that’s already settled.

Chairperson: You see, I speak quite loudly – not in an attempt to intimidate you, Sir, but so that you understand me . . .

Chairperson.             Okay. And what happened?

R.             I came out to go take the bus, on my way, the distance . . . between the police station . . . the bus stop was . . . is a little bit far from . . . the police station. I was walking on my way and suddenly a car stopped, four people got out from . . . the vehicle, they came toward me, they insulted me, they hit me on the head, they told me that I was . . . what do you call it, a informant for the police.

Q.             And these people, did you know them?

A.             No.

Q.             Had you seen them before?

A.             No.

Q.             Did they say anything to you other than that you were a police informant?

A.             They said to me “You must stop doing this work.”

Q.             Did they . . .

A.             “And don’t think that we’ll . . .we’ll leave you in peace, we’ll get you.

BY THE CHAIRPERSON (addressing the claimant)

Q.             Why did . . . why didn’t they kill you right away, Sir?

A.             I don’t know, maybe I was . . . I was lucky.

. . .

BY THE COUNSELOR (addressing the Chairperson)

Q.             And can I ask a question?

A.             Yes, yes, yes.

BY THE COUNSELOR (addressing the claimant)

Q.             Why did you stay home?


Excellent question.

So, Sir, if you gave your passport to your brother on February 7, 8 or 10, 2002, to get a visa, can you explain to me how your brother gave this to someone, then, at some point, the visa was issued on January 28, 2002. So, if it’s a genuine visa, then, there’s like a problem, Sir. How can you give a passport to your brother without a visa on February 7, 8 or 10 and have a visa in your passport dated January 28, 2002

. . .

BY THE CHAIRPERSON (addressing the claimant)

Q.             Sir, does . . . “internal asylum” ring a bell?

The Federal Court ruled that the Member completely overstepped his boundaries, and that the applicant was denied the ability to present his case.  It described the member’s comments as  “gratuitous and uncalled for”.

In Kalkat v. Canada (Citizenship and Immigration Canada), a Citizenship Judge made the following comments to an individual who was requesting a language waiver:

Somebody who does not speak English or French will never be Canadian.

Tomorrow, I will grant citizenship to 800 people who all speak French or English; they all passed the test! Your lawyer has written to us that you cannot be able to learn about our country and language. Unfortunately, we receive this argument from hundreds and thousands of people.

The medical opinion on record was just an opinion of a person not as a doctor because doctors are not linguistic experts.

I am a judge and I apply the law, my first wife was Russian and my second wife was Romanian; they came as immigrants and learned.

During the hearing, I observed that you seem to understand all my questions and that you were able to converse fluently with your interpreter.

Many other people have trouble learning; some work harder at learning and some don’t and you should have learnt with the help of your husband and children.

If a negative decision is rendered, you can go to the Federal Court of Appeal and get an audition.

The Court found that this demonstrated bias, especially the reference to the Citizenship Judge’s ex-wife.

In Dena Hernandez v. Canada (Citizenship and Immigration), Justice Martineau determined that an Immigration and Refugee Board member demonstrated bias through aggressive questioning, and also by implying that twins were not normal.

In Kalombo Kabongo v. Canada (Citizenship and Immigration)Justice Martineau also determined that an Immigration and Refugee Board member demonstrated bias when the member acknowledged that he had pre-written a decision (which the member stressed wasn’t final) so that the member could issue the final written decision quickly.

As is hopefully shown, these examples are particularly blatant and egregious.  Most allegations of bias are unsuccessful because in almost every instance a visa officer, CBSA officer, or IRB member does do their best to maintain impartiality.

Finally, the Federal Court in Delos Santos v. Canada (Citizenship and Immigration) has also ruled that it is not a breach of procedural fairness for the same officer to determine both an applicant’s humanitarian & compassionate (“H&C“) application as well as an applicant’s Pre-Removal Risk Assessment (“PRRA“), and that there was no inherent bias arising from the same officer dealing with both a H&C application and a PRRA application for the same individual.

This decision was based on the Federal Court of Appeal’s (the “FCA“) decision in Oshurova v. Canada (Minister of Citizenship and Immigration) where the FCA answered the following certified question in the negative:

Is there an appearance of bias, in this case, because the same officer decided the application for a visa exemption on humanitarian and compassionate grounds as well as the Pre-Removal Risk Assessment?