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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The Return of Incomplete Applications

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 Immigration, Refugees and Citizenship Canada (“IRCC“) months to return an incomplete application, and applicants have to then start over.  While the practice of returning incomplete applications was originally limited to IRCC, 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.”

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How many Judicial Reviews?

One of the confusing aspects of a judicial review practice is determining how many applications are needed.

In Chambers v. Canada (Citizenship and Immigration), for example, the applicant filed one judicial review to seek review of i) an immigration Officer’s decision to prepare a report pursuant to subsection 44(1) of the Immigration and Refugee Protection Act (the “IRPA“) to the Minister of Public Safety and Emergency Preparedness’ delegate, (ii) the decision of the Minister’s delegate pursuant subsection 44(2) of the IRPA to refer the applicant, to an admissibility hearing before the Immigration Division of the Immigration and Refugee Board, and (iii) the decision of the Immigration and Refugee Board to order the applicant’s removal from Canada.

The Department of Justice argued that this was improper. However, Justice Bell disagreed, writing that:

The Applicant counters that this same issue was raised in Clare v Minister of Citizenship and Immigration, 2016 FC 545, [2016] FCJ no 513 [Clare]. In Clare, O’Reilly, J. disagreed with the Minister’s contention. He concluded that, “[w]hile it was open to Mr. Clare to seek judicial review of those other decisions, it was not necessary to do so in order to challenge the [Immigration Division’s] decision on admissibility”. While O’Reilly, J. acknowledged that in some cases applicants had challenged multiple decisions through separate applications, he did not interpret them as “requiring applicants to do so in order to challenge the ID’s decision on admissibility”.

Mr. Chambers contends this issue has already been disposed of by the judge who granted leave. I agree. Leave was granted on the application as filed, without any limitation. The question is therefore moot. However, by way of obiter, I would state that I agree with the approach adopted by O’Reilly, J. in Clare. Only one application for judicial review of the three section 44 decisions is necessary, because an applicant will not know of the need to challenge the decisions until a removal order has been made by the ID. Also, one application results in significant savings in time, litigation costs and judicial resources.


Deferring Removal

People who either face removal or who have received a removal order should contact a lawyer immediately to determine what their options are. The purpose of this post is to provide an overview of the legislative scheme for deferring removal orders. It provides a general framework, and cannot substitute the advice that a lawyer can give when he applies these facts to your situation.
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Innocent Mistakes, Misunderstandings, and Misrepresentation

Flickr photo by Deniz Ozuygur

One of the most difficult issues to resolve when an individual is immigrating to Canada are allegations from the Government of Canada about misrepresentation.

Section 40(1)(a) of Canada’s Immigration and Refugee Protection Act states provides that a permanent resident or a foreign national is inadmissible to Canada for misrepresentation for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of Canadian immigration law.

A significant issue that often arises is whether or not a misrepresentation has to be intentional.  The jurisprudence consistently provides that in order for a finding of misrepresentation to be made an applicant doe not have to intend to misrepresent themselves: Chen v. Canada, 2005 FC 678.   IRCC officers do, however, have to be satisfied that the person was subjectively aware of the information that they allegedly misrepresented, and that a party cannot be faulted for failing to impart information which is unknown to him/her: Jean-Jacques v. Canada, 2005 FC 104.

But what about where there is an innocent mistake or misunderstanding?  If an officer is satisfied that an individual has innocently misrepresenting something, can the fact that the misrepresentation was innocently made be an exception to misrepresentation?

In Berlin v. Canada (2011), the Court explored in detail whether such an exception exists.  There, an immigration officer determined that Mr. B had committed misrepresentation because Mr. B failed to declare his relationship as the adoptive father of two children from a previous marriage.  When the immigration officer asked why he did not declare them, Mr. B indicated that he did not believe them to be dependants for the purpose of Canadian immigration purposes.

In analysing the issue of whether innocent mistake was an exception to misrepresentation, the Court first noted that the Immigration, Refugees and Citizenship Canada’s Enforcement Manual seemed to provide for such an exception.  The relevant sections include ENF02 s. 9.3, which informs immigration officers that:

It must be recognised that honest errors and misunderstandings sometimes occur in completing application forms and responding to questions. While in many cases it may be argued that a misrepresentation has technically been made, reasonableness and fairness are to be applied in assessing these situations.

As well, ENF02 s. 9.10 states that the following situation would not generally constitute misrepresentation:

It must be recognised that honest errors and misunderstandings sometimes occur in completing application forms and responding to questions. While in many cases it may be argued that a misrepresentation has technically been made, reasonableness and fairness are to be applied in assessing these situations.

The Court also cited numerous other decisions which support the notion of an exception for innocent misrepresentation, including Medel v. Canada (MEI), [1990] 2 FC 345, Baro v. Canada (MCI), 2007 FC 1299, Merion-Borrego v. Canada (MCI), 2010 FC 631, and Koo v. Canada (MCI), 2008 FC 931.

Ultimately, the Court in Berlin affirmed that there is an exception for innocent mistake which may excuse what might otherwise appear to be a deliberate misrepresentation.  As well, in considering whether a misrepresentation is innocent or deliberate, an almost determinative factor will be whether or not the accurate information was presented in either supporting documentation or other forms.  In Berlin, for example, the applicant had included his adoptive children in a Personal Information Form.  The Court held that this strongly suggested that his failure to include it in his application form was indeed an innocent misrepresentation.

In Punia v. Canada, the Court reiterated that it may be unreasonable for a visa officer to determinate that an applicant has misrepresented themselves if the officer is, or ought to be, aware that the person is confused but trying their best to answer questions. The Court stated that:

In my view then, the Bangalore Decision for the Female Applicant is procedurally unfair and unreasonable. It is procedurally unfair because the Visa Officer knew he was dealing with a self-represented applicant who could not complete the forms correctly, who made it clear she was not sure that she had given him what he wanted, and who suggested he check the record. The Visa Officer could not know that the Female Applicant did not understand that the 2016 CEC permanent residence refusal constituted a visa refusal, but he did know that the Female Applicant was confused and was seeking to clarify with him whether the record contained any other refusals that she needed to address. He also knew that the Female Applicant had lived in Canada for a considerable period of time, had made numerous applications for visas and permits that were granted and had been totally honest with Canadian authorities throughout. In this context, procedural fairness required that the Visa Officer ask the Female Applicant specifically to address the 2016 CEC permanent residence refusal before making a decision, and to consider the obviously innocent mature of the Applicants’ mistakes.

 

 

 


Family Class Undertakings

On June 10, 2011, the Supreme Court of Canada released its decision in Canada (Attorney General) v. Mavi.  The case involved an appeal from numerous Ontario residents regarding relief from the sponsorship undertakings that they had signed to sponsor a family class member.

Potential immigrants under the family class are only eligible to apply for permanent residency once a Canadian citizen’s or permanent resident’s application to sponsor them has been approved.  Family class immigrants are not assessed independently on their ability to support themselves, as is the case with other immigrants.  The burden of showing sufficiently financial wherewithal lies with the sponsor.

I have yet to witness a case where a client showed concern about the sponsorship undertaking.  Usually the undertaking is treated as a joke, and sponsors normally tease their spouses / family members about not becoming “welfare bums”.  However, as the cases of the individuals in Mavi show, breaches of the sponsorship undertaking can often lead to huge debts.  Mavi involved individuals in the following circumstances:

  • Mr. D sponsored his fiancee in 2002.  When she arrived in Canada she refused to live with him or marry him.  Mr. D tried to have his former fiance deported, however, her appeal was successful.  Unbeknown to him, she later went on social assistance.  In 2007, the Ontario government informed him that he owed $10,510.65 for breach of the undertaking.
  • Ms. E sponsored her father, mothers, and two brothers in 1995.  Her husband was a co-signatory.  She later left him because of abuse.  She went on social assistance afterward, as did her father, and one brother.  In 2006 she was informed that she owed the Ontario government $94,242.16 for breach of the undertaking.
  • Mr. G sponsored his mother in 1999.  He subsequently lost his job.  His mother applied for social assistance.  In June 2007 he was informed that he owed $54,426.39.
  • Mr. H’s wife arrived in Canada in 2006.  She briefly lived with him, then cut off contact.  Unbeknown to him, she later remarried, and then went on welfare.  In 2007, he was informed that he owed the Ontario government $10,547.65 for breach of the undertaking.
  • Ms. H sponsored her mother, who shortly after had a stroke.  She applied for benefits for her mother’s institutional care.  She later learned that she owed the government $54,559.99.
  • Mr. M sponsored his father in 1996.  After his father arrived, they had a falling out.  In 2005 he learned that his dad had gone on social assistance.  He owed the Ontario government $17,818.08.
  • Mr. Z’s spouse arrived in Canada in 2000, only to leave a few weeks later and remarry.  In 2007, Mr. Z found out that she had gone on welfare, and that he owed the Ontario government $22,158.02.

The provincial governments are generally very strict about enforcing these obligations, and the courts too have not been very forgiving.  In paragraph 41 of the Mavi decision, Justice Binnie noted that:

Family reunification is based on the essential condition that in exchange for admission to this country the needs of the immigrant will be looked after by the sponsor, not by the public purse.  Sponsors undertake these obligations in writing.  They understand or ought to understand from the outset that default may have serious financial consequences for them.

The court then went on to articulate some principles that underlie sponsorship undertaking debt collections.  Before signing the sponsorship undertaking, sponsors should therefore be aware of the following principles which I have pulled out from the judgement:

  • The government has the ability to delay enforcement action having regrading to the sponsor’s circumstances and to enter into agreements respecting terms of payment.  As the court noted in paragraph 59, “the amount and terms of repayment are within the discretion of the government decision maker. An agreement requiring a sponsor to pay $20 a month on a $20,000 debt may never result in the full amount being paid, but it would nonetheless be an agreement which the government is authorized to make”.
  • The government does not, however, have the ability to simply forgive the debt.  Section 135 of the Immigration and Refugee Protection Regulations simply does not allow for write-offs, but only “deferred enforcement” along the lines of the above point.
  • The deferral of enforcement can be ended if the sponsor’s financial circumstances change.  The decision notes the example of a sponsor winning the lottery.
  • Prior to filing a certificate of debt with the Federal Court, the government must notify the sponsor of its claim, provide the sponsor with an opportunity to explain in writing his or her relevant personal and financial circumstances that are said to mitigate against immediate collection, to consider any relevant circumstances brought to its attention (while keeping in mind that the undertaking was the essential condition precedent to allowing the sponsored immigrant to become a permanent resident), and to notify the sponsor of the government’s decision regarding how it is going to collect the debt.
  • In carrying out the obligations above, the government does not have an obligation to provide written reasons.
  • There is no hearing, and no appeal procedure.
  • In the case of “rogue family members”, or family-class immigrants that have cut off contact with their sponsors, the government does not have a duty to advise sponsors that the rogue family member has started to receive social assistance.  Pursuant to paragraph 76, “the risk of a rogue relative properly lies on the sponsor, not the taxpayer”.

British Columbia and Sponsorship Default Debts

In British Columbia, the Ministry of Finance, Non-Tax Collections collects unpaid sponsorship default debts on behalf of the Ministry of Social Development. I have had experience contacting them on behalf of individuals before, and my experience has been that they already follow the principles articulated in Mavi.  They are quite flexible when it comes to scheduling payments over a period of time, however, they are unwilling / unable to simply forgive amounts owed.  When I advised one representative that my client simply could not pay, the respond was not surprising: “declare bankruptcy”.

Individuals that are contacted by the Ministry of Finance are provided with the opportunity to explain their financial circumstances, and to arrange a payment schedule.

If payments are not made, then the Ministry may take the following actions:

  • place a notice of Crown Debt on your property;
  • issue a demand on your wages, bank account or other accounts;
  • set off funds owed to you by the provincial or federal government;
  • issue a Small Claims Action (less than $25,000) or a Supreme Court Action (over $25,000);
  • file a Payment Order or Default Order in Small Claims Court or Supreme Court; and/or
  • seize and sell your assets.

Illegally Obtained Welfare

Finally, as the Ontario Superior Court of Justice found in Wright v. Wright, it is important to note that a sponsor will need to repay a provincial government even if the permanent resident obtained the welfare payment through fraud.

 


Borderlines Episode #13 – Efrat Arbel on Problems with the Safe Third Country Agreement and Interdiction

Efrat Arbel is Assistant Professor at the Allard School of Law at the University of British Columbia.  She is an executive member of the Canadian Association of Refugee Lawyers.  A list of Dr. Arbel’s recent publications can be found here.

During this podcast we talk about three areas that Dr. Arbel has recently focused her research on.  These include the distinction between physical borders and legal borders in the refugee context, how interdiction works, and the Safe Third Country Agreement.

The Safe Third Country Agreement between Canada and the United States requires that persons seeking refugee protection must make a claim in the first country they arrive in unless they qualify for an exception to the Agreement.  In other words, an asylum seeker who wishes to seek refugee status in Canada will typically be denied the ability to do so if they attempt to enter Canada by land from the United States.

This episode was recorded before President Trump’s recent Executive Order imposed a moratorium on asylum claims in the United States. President Trump’s decision has only intensified and magnified many of the issues that Dr. Arbel discusses in this podcast.

 

 

1:43 – Dr. Arbel explains different concepts of what a country’s border is, and the distinction between the physical border and the legal border.

 

4:10 – We discuss the Canada Border Services Agency’s multiple border strategy, the role of Canada Border Services Agency liaison officers, and interdiction.

mbs

 

16:15 – We briefly summarize Canada’s new Electronic Travel Authorisation.

 

19:00 – Dr. Arbel provides an overview of global refugee flows.

 

22:50 – Can claim asylum at a Canadian embassy abroad.

 

28:30 – Peter Edelmann addresses how the previous government tried to address the supply and demand of refugee intake.

 

33:20 – Steven asks Dr. Arbel what she thinks about the Government of Canada’s recent announcement that if a certain number of Mexicans claim asylum then the visa requirement against Mexico will be re-imposed.

 

41:00 – We introduce the Safe Third Country Agreement.

 

44:00 – Why someone would prefer to claim refugee status in Canada rather than the United States.

 

51:40 – What are the exceptions to the Safe Third Country Agreement?