When can military deserters can claim refugee status?
The Federal Court of Appeal has answered a question regarding inadmissibility under s. 34 of IRPA.
Continue reading →
On April 13, 2017 the Government of Canada introduced several regulatory amendments to the Electronic Travel Authorization (“eTA”) regime. The changes to the eTA program came into effect on May 3, 2017. Before reading about the changes, those who are unfamiliar with the eTA should read my previous posts on this topic titled ETA Regulations Announced and Electronic Travel Authorizations.
In brief, the eTA is an electronic document requirement for visa-exempt air travellers to Canada, excluding citizens of the United States. Travellers who are visa-exempt must apply online for an eTA by providing basic biographical, passport and personal information. An automated system then compares this information against immigration and enforcement databases to determine if the traveller is admissible to Canada. The vast majority of applications are approved automatically, with a small percentage referred to an officer for review.
It is similar to ESTA in the United States.
Brazil, Bulgaria and Romania
Effective immediately, citizens of Brazil, Bulgaria, and Romania no longer need to apply for temporary resident visas to visit Canada and can instead apply for eTAs if they have held a temporary resident visa at any time during the 10-year period immediately preceding the day on which they make their application or hold a valid United States nonimmigrant visa on the day on which they make their application.
However, Brazilians, Bulgarians and Romanians will still generally need a visitor visa if driving to Canada from the U.S. or arriving by bus, train or boat, including a cruise ship from Alaska (even if someone is not leaving the ship).
This requirement for a visa will be lifted for Bulgarians and Romanians on December 1, 2017.
There is no indication when it will be lifted for Brazilians.
As remains the case for all people who require visas to visit Canada, Brazilians, Bulgarians and Romanians will not need a visa to return to Canada by land if they travel to the United States, and only the United States, and return to Canada within the period authorized by their initial entry into Canada, which is typically six months but can be longer or shorter in certain circumstances.
Automatic eTA Applications
The regulatory amendments also clarify that work and study permit applications, and work and study permit renewal applications, will also be considered eTA applications. This will save many foreign nationals from having to submit a separate eTA application.
Previously, an officer could only cancel an eTA if the officer determined that a person was inadmissible to Canada or part of an irregular arrival to Canada.
Now, a foreign national who holds an eTA becomes ineligible to hold such an authorization to enter Canada if, following its issuance, the person either:
- becomes the subject of a declaration that they were part of an irregular arrival to Canada;
- is issued a Temporary Resident Permit to overcome an inadmissibility to Canada;
- becomes the subject of an admissibility report;
- becomes the subject of a removal order;
- withdraws an application to enter Canada at a port of entry;
- is refused a temporary resident visa becomes it is determined that they are unlikely to leave Canada by the end of their authorized stay;
- is refused a work permit because it is determined that they are unlikely to leave Canada by the end of their authorized stay;
- is refused a study permit because it is determined that they are unlikely to leave Canada by the end of their authorized stay;
- for citizens of Brazil, Bulgaria and Romania it is discovered that they did not actually hold an American visa or that they had a previous Canadian visa.
In any of these circumstances, an officer may cancel the person’s eTA.
In Chung v. Canada (Citizenship and Immigration), 2015 FC 1329, the Federal Court certified the following rather interesting question of general importance:
Does the Immigration Appeal Division of the Immigration and Refugee Board, in the exercise of its humanitarian jurisdiction, err in law in considering adverse to an appellant lack of remorse for an offence for which the appellant has pled not guilty but was convicted?
The issue of whether one should express remorse for a crime that they are adamant they did not commit frequently arises in the rehabilitation and humanitarian & compassionate context. Applicants who have criminal records frequently deny guilt, even when convicted, and even including when they entered into a plea bargain (which is perhaps not surprising given the leverage that the state has during plea bargaining).
In Chung v. Canada (Citizenship and Immigration), 2015 FC 1329, the applicant argued that when an accused pleads not guilty, it is an error of law to consider lack of remorse as an aggravating factor for the purpose of sentencing, and that this principle should be extended to the immigration context.
Justice Russell disagreed, stating that in the immigration context, the lack of remorse and failure to take responsibility for past crimes goes to rehabilitation and the likelihood of reoffending, and that adjudicators can assume that where a court issues a “beyond a reasonable doubt” conviction that the events arose.
This was not completely satisfactory answer, especially in light of recently, well publicized incidents of how plea bargaining and biased systems work in certain jurisdiction.
It found that while a criminal court may not treat a plea of not guilty and lack of remorse as an aggravating factor during sentencing as this would undercut the presumption of innocence, the presumption of innocence does not exist in immigration proceedings. Indeed, the Court added that where the civil inquiry is conducted after the criminal proceedings are completed, it is difficult to see how the inquiry could have any bearing whatsoever on the presumption of innocence.
As such, and as frustrating as it may be for people who maintain their innocence, it will be open to visa officers to determine that a person maintaining their innocence for a crime that they were convicted of lacks remorse, which would be a very negative factor to showing that they were rehabilitated and admissible to Canada.
In 2013, the Supreme Court of Canada in Ezokola v. Canada (Citizenship and Immigration) created a new test for determining complicity in Article 1F(a) exclusion cases.
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.
Yesterday, an individual called wanting to know if the fact that she was pregnant would guarantee a successful H&C application because of the duty to consider the “best interests of the child.” The father is Canadian.
Continue reading →
Section 3(f) of Canada’s Immigration and Refugee Protection Act states that Canadian immigration law is to be construed and applied in a manner which complies with international human rights instruments to which Canada is a signatory.
In de Guzman v. Canada (Minister of Citizenship and Immigration), the Federal Court of Appeal articulated the following principles for what this means:
- While previously international conventions to which Canada was party to did not give rise to rights and duties enforceable in Canadian courts, this is no longer the case.
- The values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.
- Canadian immigration law does not incorporate into it “international human rights instruments to which Canada is signatory” but merely directs that the law be construed and applies in a manner that complies with them.
- The words “shall be construed and applied in a manner that complies with” are mandatory and appear to direct courts to give the international human rights instruments in question more than persuasive or contextual significance in the interpretation of the Canadian immigration legislation.
- Canadian immigration law must only be construed and applied in a manner that complies with international law where Canada has signed the international instrument creating it.
- It is not necessary that each and every provision of Canadian immigration legislation comply with international law. Rather, the question is whether an impugned statutory provision, when considered holistically with others, results in the law complying with international law.
- A legally binding international human rights instrument to which Canada is signatory is determinative of how Canadian immigration legislation must be interpreted and applied, in the absence of a contrary legislative intention.
- If a provision of immigration legislation contravenes international laws to which Canada has agreed to, then a clear enabling provision by Parliament authorizing the departure is required.
Regulation 117(9)(d) of the Immigration and Refugee Protection Regulations provides that a foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined. An exception exists where the foreign national was not examined because an immigration officer determined that they did not need to be. Regulation 117(9)(d) typically arises where a person immigrates to Canada, does not disclose that they are either married or have children, and then attempt to sponsor for immigration the people that they did not disclose.
If one has a regulation 117(9)(d) refusal and wishes to make a Charter challenge, they should know that the Federal Court of Appeal has already held that the law is constitutional.
In de Guzman v. Canada (Minister of Citizenship and Immigration),  3 FCR 655, 2005 FCA 436, Ms. de Guzman’s counsel argued that by preventing her from sponsoring her children, and keeping her apart from them, regulation 117(9)(d) deprived her of the Charter’s right to liberty because it restricted her right to make fundamental personal choices, and also that regulation 117(9)(d) deprived her of her Charter right to security of the person by subjecting her to the psychological stress of being separated from close family members.
The Federal Court of Appeal disagreed, and found that s. 7 of the Charter was not engaged because regulation 117(9)(d) was not the cause of Ms. de Guzman’s 12 year separation from her children. Rather, her decision to immigrate to Canada without them, and to lie during her immigration process, was the cause. In sum, Ms. de Guzman had not established that she was the victim of the “serious state-imposed psychological stress” to which s. 7 of the Charter applies.
Furthermore, the court held that the children were free to make H&C applications.