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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When an Administrative Delay is an Abuse of Process

The subject of an unreasonable delay often arises in the immigration context.  In one case that I am involved with, an individual was in Canada for 11-years before the Canada Border Services Agency expressed concerns that the might be inadmissible to Canada for previous involvement in a group accused of terrorism.  In another case, an individual who had been in and out of Canada numerous times was suddenly denied entry to Canada because of a criminal conviction that occurred eight years ago.  In both cases, the client asked whether the delay amounted to an abuse of process.

Blencoe

The leading court decision on this issue is Blencoe v. British Columbia (Supreme Court of Canada, 2000).  There, three women filed complaints of sexual harassment to the British Columbia Human Rights Council.  Due to delays the tribunal hearings were not resolved for 30 months after the first filing.  The Cabinet Minister challenged that the 30 month delay was an abuse of process, an argument which the Supreme Court of Canada ultimately rejected and that the Charter was not engaged.  Importantly, the Court found that a state caused delay, without more, does not warrant a stay as an abuse of process at common law, and that there must be significant prejudice.

The following principles emerged from that decision:

  • The administrative process must be conducted in a manner entirely consistent with the principles of natural justice and procedural fairness.
  • Unreasonable delay is a possible basis on which to raise questions of natural justice, procedural fairness, abuse of process and abuse of discretion.
  • Delay, without more, will not warrant a stay of proceedings as an abuse of process.
  • Administrative delay may impugn the validity of the proceedings where it impairs a party’s ability to answer the complaint against him or her – where memories have faded, essential witnesses are unavailable, or evidence has been lost.
  • Where the fairness of the hearing has not been compromised, delay may nevertheless amount to an abuse of process, but few lengthy delays will meet this threshold.
  • The court must be satisfied that, “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted.
  • If the delay has directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the [administrative] system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process.
  • Determination of whether the delay is unreasonable is, in part, a relative exercise in which one compares the length of delay in the case at bar with the length of time normally taken for processing in the same jurisdiction and in other jurisdictions in Canada.

The Immigration Context

Beltran v. Canada (2011 FC 516) provides an example of the application of Blencoe in the immigration context.  There, the Canadian Security Intelligence Services had determined that an individual was not a threat to Canada’s national interest.  Fourteen years later, without any explanation, and without any explanation, a new individual expressed concerns, causing delays.  The court also found that a new investigation caused undue prejudice to Mr. Blencoe.  The Court was also critical of the government’s decision not to reveal certain information that it had kept confidential for twenty years, only to use it later.

S. 11(b) of the Charter

Section 11 of the Canadian Charter of Rights and Freedoms provides that any person charged with an offence has the right to be tried within a reasonable time. The Federal Court has ruled, however, that this does not apply to immigration proceedings, and in Montoya v. Canada even ruled that it does not apply to citizenship revocation.


Borderlines Podcast Episode 4 – Jenny Kwan

On the fourth episode of the Borderlines Podcast our guest is Jenny Kwan. Ms. Kwan is the Member of Parliament for Vancouver East and is the New Democratic Party of Canada’s Immigration Critic.  Prior to being elected a Member of Parliament, Ms. Kwan was a Member of the Legislative Assembly (MLA) of British Columbia for the riding of Vancouver-Mount Pleasant, and a senior member of the provincial caucus of the New Democratic Party.

2:30 – 16:13 – We talk about Bill C-6, the Liberal Government of Canada’s reforms to Canada’s Citizenship Act. Ms. Kwan both talked about what she likes and dislikes about Bill C-6.  A specific concern that she has includes the procedural fairness afforded to those facing citizenship revocation due to misrepresentation.  The current process, which is the subject of numerous court challenges, is that an individual’s Canadian citizenship can be revoked by a bureaucrat if the bureaucrat determines that the Canadian citizen obtained their citizenship as a result of fraud. Humanitarian & compassionate concerns are not considered, and the only recourse that a former citizen has once their citizenship is stripped is to seek judicial review in Federal Court.   During this portion of the discussion we also briefly discuss the topic of language testing requirements for grants of citizenship, which Ms. Kwan believes is too stringent.

16:13 – 31:48 – Ms. Kwan explains that one thing that she hopes is urgently changed in Canadian immigration law is the current situation involving the cessation of refugee status. Ms. Kwan has introduced into Parliament Bill C-294, which calls on the government to end the automatic loss of permanent resident status when a refugee’s status as a protected person is revoked.

31:48 – 40:37 – Another topic that Ms. Kwan is passionate about is whether the Canadian government should let American war resisters / dodgers / conscientious objectors remain in Canada. Jenny believes that they should. A specific question that I asked Jenny was whether she is concerned that Canada being too accepting of war resisters in this regard would open the floodgates such that anyone from Russia, South Korea, Taiwan, etc. where the draft exists, could come to Canada and get permanent resident status as a way to avoid serving in their country’s military.

40:37 – 55:23 – As a member of the House of Commons Standing Committee of Citizenship and Immigration, Ms. Kwan shared her thoughts on whether certain vulnerable groups should be given immediate, and some would say preferential, access to refugee resettlement in Canada. Jenny proposed five actions that she believes Canada can immediately take. The first is to work with organisations that deal with the world’s most vulnerable people and give them a pathway to resettlement in Canada. The second is to work with the LGBTQI community to help resettle members of that community in Canada. The third suggestion was to help immediately resettle individuals from northern Iraq using the UNHCR to process these cases. The fourth was to look at reintroducing the source country of origin class completely, and in particular for the LGBTQI community. Finally, the fifth was increase humanitarian aid to vulnerable groups.

55:23 –   1:03:08 – Peter and I discuss about Ouedraogo v. Canada (Public Safety and Emergency Preparedness), 2016 FC 810. In this case the Federal Court determined that an individual can be removed from Canada both during the 90 day restoration period and that they could be removed even after they have applied for restoration. The court’s approach is even stricter than current CBSA policy on the matter, which I have reproduced below.

restoration

1:03:08 – 1:05:51 – Peter briefly mentions the BC Supreme Court decision in R v. Nuttal, 2016 BCSC 1404, and mentions that we plan on having Marilyn Sandford, counsel for John Stuart Nuttall on in a future podcast. For those who do not know, this case involves a stay of proceedings being ordered after the court determined that police had entrapped two individuals into attempting to bomb the BC legislature.

1:04:41 – Finally, we wrap up by briefly talking about Pokemon Go.

 




Suspending Citizenship Applications Due to Cessation Hearings

As previously noted on this blog, the Government of Canada has adopted a very aggressive approach regarding the initiation of cessation applications against permanent residents who are protected persons. The reason is because since 2012 people who lose their protected person status for any of the following reasons also lose their permanent resident status:

  1. the person has voluntarily re-availed himself or herself of the protection of their country of nationality;
  2. the person has voluntarily reacquired their nationality;
  3. the person has acquired a new nationality and enjoys the protection of that new nationality; and
  4. the person has voluntarily become re-established in the country that the person left before claiming refugee status in Canada.

Several permanent residents with citizenship applications in processing have been affected by cessation applications, and in Godinez Ovalle v. Canada (Citizenship and Immigration), the Federal Court rather bluntly told both Citizenship and Immigration Canada (“CIC”) and the Canada Border Services Agency (“CBSA”) that they were out of line, and even called their approach “inhumane.”

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Complicity in Article 1FA Cases

In 2013, the Supreme Court of Canada in Ezokola v. Canada (Citizenship and Immigration) created a new test for determining Article 1F(a) exclusions.

Article 1F(a) of the 1951 Refugee Convention provides that:

The provisions of this Convention shall not apply to any person with respect to whom there  are serious reasons for considering that:

(a)  He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

The issue that Ezokola addressed is how broad Article 1F(a) is.  It if it interpreted too narrowly, then Canada risks creating safe havens for perpetrators of international crimes.  If it is read too broadly, then the humanitarian aims of the 1951 Refugee Convention would be imperilled.

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Borderlines Podcast Episode 3 – Raj Sharma on Marriage Fraud

In the 3rd episode of Borderlines, Raj Sharma joined Peter Edelmann and I to discuss marriage fraud.

Raj Sharma is the managing partner of Stewart Sharma Harsanyi.  He is a well known commentator on immigration law. In addition to his active blog and numerous presentations that he has given at immigration conferences and seminars, he has written numerous op-eds on immigration, diversity and multi-culturalism that have been published in many manjor Canadian newspapers. He has debated Martin Collacott of the Fraser Institute and Centre for Immigration Reform on whether Canada accepts too many immigrants; Deepak Obhrai (MP and Parliamentary Secretary) on additional and stricter language requirements for citizens; David Seymour of the Manning Centre on whether Canada’s new immigration policy is too exclusionary; Imam Syed Soharwardy on honour crimes in Canada; and a CSIS agent on the profiling of Muslims.

2:33 – 44:20 – We discuss marriage fraud, and how the previous government introduced several measures to try and prevent it. These measures included introducing a disjunctive test in which a marriage would not facilitate immigration if the marriage was not genuine or if the marriage had been entered into primarily for the purpose of immigration. It also included the introduction of conditional permanent residency, in which immigrants who immigrate to Canada as a result of a marriage or common-law relationship would lose their permanent resident status if the relationship broke down within 2 years of immigrating. Finally, the previous Conservative Government of Canada also introduced a five year spousal sponsorship bar, in which a permanent resident who immigrated after marrying a Canadian could not sponsor a new spouse or common-law partner for five years after immigrating.

Raj was a fantastic guest to have for this topic, given that he represented a Canadian citizen who sued the Canada Border Services Agency to compel them to complete an investigation into whether that person had been the victim of a marriage fraud. Raj during the podcast provided an overview of this case, Zaghbib v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 182. Peter then raised the difficult question of “where do you draw the line?” If a Canadian can compel CBSA to remove someone from Canada for marriage fraud, can a company compel CBSA to do the same for a competitor where the Canadian company knows that that the competitor has engaged in foreign worker fraud? What about an average citizen trying to compel the Vancouver Police Department for visiting the Amsterdam Café and smoking marijuana?

I know I’m biased, but when listening to this podcast after it was recorded I was struck by how this may have been the best and most comprehensive 40 minute discussion on the topic of marriage fraud in the Canadian immigration landscape that I have heard.

44:20 – 49:30 – Peter discusses the ongoing detention situation in Canada, where immigration detainees are often held in provincial prisons. Minister Goodale recently wrote an article in the Huffington Post in which he set out a number of goals in immigration detention, but at the same time also provided justification for the ongoing detention. Peter also showed us a recent tender that CBSA has put out in which they are seeking feedback on alternatives to detention. After providing a brief overview of why people would be detained in Canada, we discuss what possible alternatives there could be. The word “Kafkaesque” makes its first appearance in the podcast, although I’m sure not it’s last.

49:30 – 55:13 Continuing with the theme of detention, we discuss the Federal Court’s recently certified question in Canada (Public Safety and Emergency Preparedness) v. Lunyamila, 2016 FC 324, in which the Federal Court asked whether it can usurp the powers of the Immigration Division to either order release or continue detention.

51:13 – 56:00 – Finally, we conclude by providing a statistic of how what percentage of people who submitted applications to Immigration, Refugees and Citizenship Canada had representatives.

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