Certified Questions on Cessation

Section 108 of the Immigration and Refugee Protection Act states that a person’s refugee protection chall cease when:

Rejection

108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances:

(a) the person has voluntarily reavailed themself of the protection of their country of nationality;

(b) the person has voluntarily reacquired their nationality;

(c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality;

(d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or

(e) the reasons for which the person sought refugee protection have ceased to exist.

Cessation of refugee protection

(2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1).

Effect of decision

(3) If the application is allowed, the claim of the person is deemed to be rejected.

Exception

(4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.

As previously noted on this blog:

Traditionally, the CBSA rarely initiated cessation proceedings because the loss of refugee status did not also lead to a loss of permanent residence status.  However, as a result of changes to Canada’s refugee system in 2012, when the RPD ceases a permanent resident’s refugee status for any of the first four reasons above, then the individual also automatically loses their permanent resident status, and is inadmissible to Canada. (Note: a permanent resident who loses his or her refugee protection for the fifth reason will not lose his or her permanent residence status.)

There is no time limit on when the CBSA can initiate cessation proceedings, and there have been cases where cessation proceedings occurred 14 years after the refugee became a permanent resident.

It is important to note that cessation is not based on fraud on the part of the refugee; it is based on a change in circumstances or decision by the refugee to travel.  One simply has to question the fairness of this, especially in light of the fact that the CBSA has a quota to initiate cessation and vacating proceedings.

Advice to refugees

The resolute manner with which CBSA is initiating refugee cessation applications means that there are several things that refugees should note.  First, it is important that refugees apply for and acquire permanent residency so that a change in conditions in their home country will not result in them losing their refugee status and being removed.

There have been numerous Federal Court decisions on the issue of cessation, many of which have led to certified questions.  In this post I hope to reproduce all of the questions and answers as they become available in this extremely contentious area of immigration law.

Continue reading “Certified Questions on Cessation”


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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Religious Workers and Work Permits

There are generally two types of religious workers who seek entry to Canada to work. The first are clergy (which includes Buddhist monks, Sikh granthis, rabbis, priests, preachers, pastors, etc.) whose employment in Canada will consist mainly of preaching doctrine, presiding at religious functions, or providing spiritual counselling.  Section 186(l) of the Immigration and Refugee Protection Regulations (“IRPR“) provides that such people may work in Canada without a work permit.  IRPR r. 186(l) states:

186. A foreign national may work in Canada without a work permit

(l) as a person who is responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties are to preach doctrine, perform functions related to gatherings of the congregation or group or provide spiritual counselling;

Generally, applicants applying to work in Canada without a work permit under IRPR r. 186(l) need to demonstrate that they have a genuine offer of employment from the religious denomination that seeks to employ them, that the organization employing them can provide for their care and support, and that they are able to minister to a congregation under the auspices of that congregation’s denomination.

To demonstrate this, applicants should provide the following documents, where applicable:

  • Certificate of Incorporation of the employer;
  • Proof of registration as a charity or non-profit;
  • Statement from the religious organization showing:
    • the date and place of founding of the religious organization;
    • length of time in continuous operation in the province or territory of destination;
    • description of the structure of the organization;
    • copies of relevant corporate and society documents;
    • financial statements;
    • copy of residential lease if a residence is not supplied to the foreign national; and
    • other documents which establish the relationship between the religious denomination and the religious worker.

The second type of religious workers are people who are entering Canada to perform charitable or religious work.  Depending on the circumstances, such individuals may be exempt from the Labour Market Impact Assessment (“LMIA“) process, if they are carrying out duties for a Canadian religious or charitable organization and the duties themselves are of a charitable or religious nature (e.g., teachers assistants supplied by a charitable organization to a school because funds were not available to the school to hire).  These individuals can apply for a work permit pursuant to IRPR r. 205(d), which provides that:

205. A work permit may be issued under section 200 to a foreign national who intends to perform work that

(d) is of a religious or charitable nature.

The Temporary Foreign Worker Guidelines (“TFWG“) provide that an individual may be considered to be engaging in charitable or religious work if they meet the following conditions:

  • the duties performed by the individual must be of a charitable or religious nature that help to relieve poverty, or benefit the community, educational or religious institutions. As well, IRCC has updated its manual to specifically include camps that provide programs and services to children and youth who have physical or mental disabilities or who are economically disadvantaged;
  • the organization or institution which is sponsoring the foreign worker will not, itself, receive direct remuneration from any source on behalf of, or for, the services rendered by the foreign worker; and
  • the work goes above and beyond normal work in the labour market, whether remunerated in some manner or not, for example: organizations which gather volunteer workers to paint or repair the houses of the poor may qualify, provided that the work would not otherwise be done, i.e. if the recipients of this work are not able to hire a professional or do the work themselves. L’Arche, which relies on people to live full-time in a group home with people who have developmental disabilities; (workers in the homes are remunerated, but they are committed to taking care of the disabled people on almost a 24-hour basis.) persons who are giving their time to community or religious organizations in a position which would not represent a real employment opportunity for Canadians or permanent residents. (Though it is not mandatory, such work normally entails a requirement for the foreign national to be part of or share the beliefs of the particular religious community where they will work, or to have the ability to teach or share other religious beliefs, as required by the employer..)

The following is an example of an approval under IRPR r. 205(d).  I note that this was not one of my files, as it is not my practice to post my files on this blog.  Rather, this example of an approval was obtained through an Access to Information Act request.

charitablework

It is important to note that a non-profit organization is not necessarily a charitable one.  A charitable organization has a mandate to relieve poverty, or benefit the community, educational, or religious institutions.  While most of these cases are linked to registered charities, being a registered charity with the Canada Revenue Agency is not a mandatory requirement.  Such organizations will face greater scrutiny, however, in determining whether their mandate is to help relieve poverty, benefit the community, educational, or religious institutions.

Of course, foreign nationals seeking to enter Canada to perform religious work may also apply for a Labour Market Impact Assessment if they do not meet one of the above two requirements.

Tips

The following are 6 useful tips for foreign nationals who are considering entering Canada to perform religious work.

  • When you are applying make it clear that you are applying under either IRPR r. 186 or under IRPR r. 205.  Even if you are eligible for Permit A, but you request Permit B, then Immigration, Refugees and Citizenship Canada is not under any duty to provide you with Permit A: Sharma v. Canada (Citizenship and Immigration), 2014 FC 786
  • While religious workers from visa-exempt foreign countries do not need to apply for a visa from outside Canada to work in Canada without a work permit under R186L, they do need to satisfy Port of Entry officers that they meet the requirements of R186L.
  • One of the larger issues that applicants face is whether the employer can support them in Canada.  If the religious organization is small, it is not uncommon for officers to request supporting financial documents.
  • Even if you are eligible to work in Canada without a work permit pursuant to IRPR r. 186(l) you may want to obtain one nonetheless.  Some advantages of having a work permit include the possibility of open work permits for spouses and children, access to provincial health care, dependent children being exempted from having to obtain a study permits, and more.
  • There are several documents which can be useful to show the genuineness of the job offer, including a certificate of incorporation, proof of registration as a charity under the Income Tax Act, copies of the Constitution, financial statements, and proof of ordination.
  • I always recommend that people at least provide a letter from the Canadian religious organization.  Statements from the religious organization should mention the date and place of founding of the religious organization, the length of time in continuous operation in the province, a description of the structure of the organization, the size of the adult congreation, the number of clery employed, the address of the regularl emeting place, schedule fo worship

The Constitutionality of the PRRA Bar

The Federal Court has certified numerous questions regarding the constitutionality of  s. 112(2)(b.1) of the Immigration and Refugee Protection Act, which in essence provides that a person may not apply for a Pre-Removal Risk Assessment (“PRRA”) if they were previously a refugee claimant until 12 months have passed since their refugee hearing, or 36 months in the case of people from designated countries of origin.

In Peter v. Canada (Public Safety and Emergency Preparedness), 2014 FC 1073, Justice Annis certified the following two questions:

Does the prohibition contained in section 112(2)(b.1) of the Immigration and Refugee Protection Act against bringing a Pre-Removal Risk Assessment application until 12 months have passed since the claim for refugee protection was last rejected infringe section 7 of the Charter?

If not, does the present removals process, employed within 12 months of a refugee claim being last rejected, when determining whether to defer removal at the request of an unsuccessful refugee claimant for the purpose of permitting a Pre-Removal Risk Assessment application to be advanced, infringe section 7 of the Charter?

In  Atawnah v. Canada (Public Safety and Emergency Preparedness), 2015 FC 774, Madam Justice Mactavish certified the following additional question:

Does the prohibition contained in section 112(2)(b.1) of the Immigration and Refugee Protection Act against bringing a Pre-Removal Risk Assessment application until 36 months have passed since the claim for refugee protection was abandoned, violate section 7 of the Charter?

Section 7 of the Canadian Charter of Rights and Freedoms, s. 7, Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 states that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In both instances the Federal Court found that it does not.  As soon as the Federal Court of Appeal decides on the matter, I shall post its decision here.

[UPDATE] – May 9, 2016

The Federal Court of Appeal has agreed with the Federal Court.

The main issues that the appellants raised was the possibility of removal. However, the Federal Court of Appeal noted that refused applicants  may challenge an enforcement officer’s refusal to defer removal by way of an application for leave and judicial review in the Federal Court, and may bring a motion for a stay of removal pending the outcome of their application for judicial review. It cited several cases where stays of removal were given so that the applicants would remain in Canada until they could submit their Pre-Removal Risk Assessments.  As such, Justice Dawson wrote:

In my view, this jurisprudence demonstrates that the supervisory role of the Federal Court, together with the ability of the Minister to exempt an applicant from the application of paragraph 112(2)(b.1) of the Act, acts as a “safety valve” such that the PRRA bar under review is not overbroad, arbitrary or grossly disproportionate.


No Credible Basis in Refugee Claims

The Immigration and Refugee Protection Act provides:

No credible basis

(2) If the Refugee Protection Division is of the opinion, in rejecting a claim, that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its reasons for the decision that there is no credible basis for the claim.

Manifestly unfounded

107.1 If the Refugee Protection Division rejects a claim for refugee protection, it must state in its reasons for the decision that the claim is manifestly unfounded if it is of the opinion that the claim is clearly fraudulent.

A finding of “no credible basis” may only be made where there is no credible or trustworthy evidence on which the Refugee Protection Division could make a positive finding. It is a high threshold that limits an applicant’s subsequent procedural rights.  Before determining that an applicant’s refugee claim has no credible basis, the Refugee Protection Division must look to the objective documentary evidence for any trustworthy or credible support for an Applicant’s claim.

As well, a lack of credibility is not the same as saying that a claim has no credible basis.


LMO Exemption for Francophones (Coming Back June 1, 2016)

[Update – October 2, 2014 – Please note that CIC has terminated the LMIA exemption for Francophones]

On June 1, 2012, Citizenship and Immigration Canada (“CIC“) released Operational Bulletin 429 (“OB 429“).  OB 429 provides that francophones destined to a province other than Quebec who will be working in a high skilled occupation can receive two year significant benefit work permits.  The benefit of a significant benefit work permit is that no Labour Market Opinion (as of June 20, 2014, referred to as a Labour Market Impact Assessment (“LMIA“)) is required.

To qualify for the LMIA exemption, applicants must:

  • apply at a visa office outside Canada;
  • have been recruited through Destination Canada or other events coordinated with the federal government and francophone minority communities;
  • be going to work in an occupation which falls under National Occupation Classification 0, A or B;
  • have French as his/her habitual language; and
  • be destined to a province other than Quebec.
Importantly, the job itself does not have to require French.

Continue reading “LMO Exemption for Francophones (Coming Back June 1, 2016)”


The Return of Incomplete Applications [Last Edited December 24, 2015]

One of the most frustrating experiences for people applying for visas is to have an application returned due to incompleteness.  Because of processing delays, it often takes  Citizenship and Immigration Canada (“CIC“) months to return an incomplete application, and applicants have to then start over.  While the practice of returning incomplete applications was originally limited to CIC, on June 20, 2014, the Ministry of Economic and Skills Development Canada (“ESDC“) released a Temporary Foreign Worker Program Bulletin titled “How to Handle Incomplete Applications.”

Continue reading “The Return of Incomplete Applications [Last Edited December 24, 2015]”