Inadequacy of State Protection

Many refugee claimants are not based on situations where the state is the agent of persecution. Rather, the source of risk is a quasi-governmental authority or private actors. In such cases, the issue turns to one of the adequacy of state protection.

Ward v. Canada

The leading decision on the issue of state protection in the context of refugee and pre-removal risk assessment decisions is the Supreme Court of Canada decision Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.  There, the Supreme Court of Canada held that a state’s inability to protect its citizens is the crucial element in determining whether a claimant’s fear of persecution is well-founded as it determines the reasonableness of his or her unwillingness to seek the protection of his or her state of nationality.

Specifically, the Court noted that:

Having established that the claimant has a fear, the Board is, in my view, entitled to presume that persecution will be likely, and the fear well-founded, if there is an absence of state protection. The presumption goes to the heart of the inquiry, which is whether there is a likelihood of persecution. But I see nothing wrong with this, if the Board is satisfied that there is a legitimate fear, and an established inability of the state to assuage those fears through effective protection

The Court went on to note that:

Only situations in which state protection “might reasonably have been forthcoming”, will the claimant’s failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of “Convention refugee” where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state. [My emphasis]

The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state’s inability to protect its nationals as well as the reasonable nature of the claimant’s refusal actually to seek out this protection.

Ward involved a somewhat unique case where the refugee claimant’s home state conceded that it could not protect the claimant. However, for cases where such an admission was not forthcoming, the Supreme Court noted that:

Where such an admission is not available, however, clear and convincing confirmation of a state’s inability to protect must be provided For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant’s testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.

Is there a Subjective Fear of Persecution?

Before the Refugee Protection Division can engage in a state protection analysis, it must first analyze whether a refugee claimant has a subjective fear, and what that fear is.  Thus, in Cobian Flores v. Canada (Citizenship and Immigration), 2010 FC 503, the Federal Court noted that:

[S]ave in exceptional cases, the analysis of the availability of state protection should not be carried out without first establishing the existence of a subjective fear of persecution. The panel responsible for questions of fact should therefore analyze the issue of the subjective fear of persecution, or, in other words, should make a finding as to the refugee claimant’s credibility and the plausibility of his or her account, before addressing the objective fear component which includes an analysis of the availability of state protection.

The reason that it is necessary to analyze whether and what the subjective fear of persecution is before analyzing whether there is adequate state protection is because one has to determine exactly what the state is trying to protect an individual from in order to determine whether that protection is adequate.  As noted by the Court in Velasco Moreno v. Canada (Minister of Citizenship and Immigration), 2010 FC 993:

In my view, a negative determination of the Refugee Protection Division which turns on the issue of state protection must be scrutinized with particular care where the member chooses to make no credibility finding concerning the applicant’s allegations of a subjective fear.

However, the judge sitting in judicial review must be satisfied that the applicant’s allegations, usually in the personal information form and the transcript of the refugee hearing, were treated as true by the decision-maker.Only then can a proper review be made of the member’s state protection analysis. The state protection issue should not be a means of avoiding a clear determination

Effort vs. Results

In Galogaza v. Canada (Citizenship and Immigration), 2015 FC 407, the Federal Court noted that:

A state’s efforts, on their own, do not establish that protection was actually available to the claimant:
[E]vidence of a state’s efforts does not help answer the main question that arises in cases of state protection – that is, looking at the evidence as a whole, including the evidence relating to the state’s capacity to protect its citizens, has the claimant shown that he or she likely faces a reasonable chance of persecution in the country of origin? To answer that question, the Board has to decide whether the evidence relating to the state resources actually available to the applicants indicated that they would probably not encounter a reasonable chance of persecution if they returned to [their country of origin] (Moczo v Canada (Minister of Citizenship and Immigration), 2013 FC 734, at para 10; Beri v Canada (Minister of Citizenship and Immigration), 2013 FC 854, at para 46).

There is some uncertainty on this issue, and in Mudrak v. Canada (Citizenship and Immigration), 2015 FC 188, the Federal Court certified the following question:

Whether the Refugee Protection Board commits a reviewable error if it fails to determine whether protection measures introduced in a democratic state to protect minorities have been demonstrated to provide operational adequacy of state protection in order to conclude that adequate state protection exists?

In the same decision, the Court also certified:

Whether refugee protection claimants are required to complain to policing oversight agencies in a democratic state as a requirement of accessing state protection, when no risk of harm arises from doing so?

Ultimately, however, the Federal Court of Appeal refused to certify these two questions as it found that they were improperly certified.

Other Cases Interpreting Ward

The level of state protection that must be available is “adequate”. (Carillo, 2008 FCA 94)

In Da Souza v. Canada (Citizenship and Immigration), the claimant was a woman from St. Vincent. Her claim was based on her abusive ex-partner. She produced a letter from a police sergeant in St. Vincents. In the letter, this officer noted that Sonia did not ever report incidents to the police. The PRRA officer thus rejected her claim on the basis that the claimant never sought police protection. The Court, however, rejected this decision, noting that the fact that a claimant did not approach the state for protection will not automatically defeat a claim. The Officer was required to analyze whether the state would be able to protect effectively. The Court noted that if it was not objectively unreasonable for the claimant to not seek state protection, then she did not need to go to the authorities.

Where a refugee claimant provides evidence that contradicts the presumption of state protection, then the Refugee Protection Division must consider this evidence.  If it discounts contradictory evidence, then it must explain why (Flores Alcazar v. Canada, 2011 FC 173).  However, the onus remains on the applicant to rebut the presumption of adequate state protection, on a balance of probabilities (Carillo v. Canada, above).

Agencies other than Police

The Federal Court has repeatedly emphasized that the police force is presumed to be the main institution responsible for providing state protection.  Shelters, counsellors and hotlines may be of assistance, but they have neither the mandate nor the capacity to provide protection (Aurelien v. Canada, 2013 FC 707).

Mandamus Orders

Photo by Travis Nep Smith.
Photo by Travis Nep Smith.

In a previous post I touched upon mandamus orders, and have since gotten numerous e-mails inquiring as to whether or not their case warranted the filing of an Application for a Mandamus Order.

What is a Mandamus Order?

mandamus order is a judicial command to a government body to do or forbear from doing a specific act which it is obligated in law to do.

The Federal Court’s decision in Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159, is probably the most cited case in the immigration context for setting forth the test for when a mandamus order will be given.  There, Justice Snider stated:

The equitable remedy of mandamus lies to compel the performance of a public legal duty that a public authority refuses or neglects to carry out when called upon to do so. Mandamus can be used to control procedural delays (Blencoe v. British Columbia (Human Rights Commission) [2000] 2 S.C.R. 307 at para. 149). The test for mandamus is set out in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.), aff’d [1994] 3 S.C.R. 1100 (and, more recently, discussed in the immigration context in Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189 (T.D.), aff’d [2003] F.C.J. No. 813, 2003 FCA 233,). The eight factors are:

(i)  There must be a public legal duty to act;

(ii)  The duty must be owed to the Applicants;

(iii)  There must be a clear right to the performance of that duty, meaning that:

a.  The Applicants have satisfied all conditions precedent; and

b.  There must have been:

I.  A prior demand for performance;

II.  A reasonable time to comply with the demand, unless there was outright refusal; and

III. An express refusal, or an implied refusal through unreasonable delay;

(iv)  No other adequate remedy is available to the Applicants;

(v)  The Order sought must be of some practical value or effect;

(vi)  There is no equitable bar to the relief sought;

(vii)  On a balance of convenience, mandamus should lie.

Generally, all eight of the above factors must be met before a court will issue an order mandamus.  Prior to filing one of our last mandamus application, we made three written requests for the performance of what we considered to be the legal duty of the Canada Border Services Agency to act immediately.  We also filed a lengthy memorandum of law articulating what the legal duty was, why it was owed, and that the balance of convenience favored our client.  The Canada Border Services Agency ultimately performed that duty after being recommended to do so by their lawyer prior to us proceeding to a full hearing.

Mandamus in Permanent Resident Applications

In the Vaziri decision, recently affirmed in  Abdalla v. Canada (Citizenship and Immigration), 2011 FC 988, the Federal Court noted that mandamus would generally not be issued to process permanent residence applications because of the alternative remedy of the applicant obtaining a visitor visa.  The court stated that:

The Applicants contend that the only way for them to have “secure immigration status” is to have their applications finalized. The Respondent argues that the Applicants may take advantage of Temporary Resident Visas (TRVs) in order to reunite family members while the PR assessment process continues. These visas (often referred to as visitor visas) are obtained quickly and easily, they can be valid for fixed periods of time and they may be renewed. Our Court has found in past cases that temporary resident status, or its analogue under the repealed Immigration Act, can fulfil the objective of IRPA to reunite families (see Gupta v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1099 at para. 11 (T.D.) (QL); Zhang v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 529, 2005 FC 427, at para. 8).

As evidenced by the affidavits filed by the Applicants, the Applicants appear to premise their arguments on the desire to be reunited after many years apart. Through the use of TRVs, the father and son have at least one other way of being united. While the PR applications are being assessed, TRVs may provide interim relief

While I appreciate that the Applicants live with uncertainty while the PR applications are being resolved, and that TRVs do not provide the same security or rights as permanent resident status, the use of TRVs is an alternative that is adequate — albeit not perfect. There is no pressing need in this case that the rights vested by PR status be acquired as soon as possible.

(There are of course exceptions to the above which are beyond the scope of this post.)

Lengthy Wait Times and Queue Jumping

Another, and probably the most significant, reason for mandamus applications being rejected is because of how accepted long wait-times are in immigration law.  Hence my previous post titled “A Two Year Delay will Not Necessarily Result in an Order Mandamus.”

As well, as recently confirmed by the Federal Court in Mersad v. Canada (Citizenship and Immigration), 2014 FC 543, mandamus will generally not be ordered where the effect of such an order would be to simply favour one application over others.

Nonetheless, while mandamus should never be used as a first resort, it is an extremely effective last one, and when used properly can be very effective at moving a file along.

Specific Results

It is also important to note that an application for mandamus is to require that the administrative tribunal make a decision.  As the Federal Court of Appeal noted in Dass v. Canada (Minister of Employment and Immigration), it is not the purpose of mandamus “to require a specific decision but rather to require that a decision be taken.”  For example, if there is an unreasonable CIC delay in processing an application, the Federal Court will not order that CIC process and approve the application, only that they process it.

The Right of Permanent Resident Visa Holders to Appeal to the IAD

On June 5, 2015, the appellants in Elham Fathy Elsayed Ismail et al v. Minister of Citizenship and Immigration, A-203-15, discontinued their appeal of the Federal Court’s decision in Ismail v. Canada (Citizenship and Immigration), 2015 FC 338 (“Ismail“).  This is unfortunate because the question that Justice de Montigny certified needs to be answered.  That question was:

For the purposes of determining its jurisdiction to hear an appeal pursuant to subsection 63(2) of the IRPA, shall the validity of the permanent resident visa be assessed by the IAD at the time of arrival in Canada or at the time the exclusion order is made?

The question is important because it addresses a growing tendency of the Canada Border Services Agency (“CBSA“) to defer the examination of foreign nationals possessing permanent resident visas seeking to become permanent residents where CBSA suspects that the foreign nationals may not be admissible to Canada, rather than preparing an inadmissibility report.  During the deferral period, the CBSA will then contact Citizenship and Immigration Canada (“CIC”), who, often without providing the prospective permanent resident with any notice, cancel the permanent resident visa.  CBSA can then deny entry to Canada on the basis that the person does not have a valid permanent resident visa rather than for the underlying possible inadmissibility.  Many immigration practitioners have suspected that the reason for this is to prevent the prospective permanent resident from having a right of appeal to the Immigration Appeal Division (the “IAD“).

The Federal Court’s decision in Ismail in my opinion raised more questions than it answered, and it is unfortunate that the question will remain murky until the question is again certified in the future.

Continue reading “The Right of Permanent Resident Visa Holders to Appeal to the IAD”

Evidence that Can be Used at a PRRA

A Pre-Removal Risk Assessment (“PRRA“) application by a refused refugee claimant is not an appeal or reconsideration of the decision of the Refugee Protection Division to the failed refugee claim.

Section 113(a) of the Immigration and Refugee Protection Act (“IRPA“) provides that an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the failed refugee claimant could not reasonably have been expected in the circumstances of the refugee claim to have presented.  Specifically, IRPA s. 113(a) states:

 Consideration of an application for [a PRRA] shall be as follows:

(a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection;

Accordingly, as the Federal Court of Appeal noted in Raza v. Canada (Citizenship and Immigration), PRRA officers must respect the negative refugee determination unless there is new evidence of facts that might have affected the outcome of the Refugee Protection Division hearing.

There are numerous factors that PRRA officers must consider when determining whether to admit new evidence.  These include:

  1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered.
  2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered.
  3. Newness: Is the evidence new in the sense that it is capable of:
    1. proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the Refugee Protection Division, or
    2. proving a fact that was unknown to the refugee claimant at the time of the Refugee Protection Division hearing, or
    3. contradicting a finding of fact by the Refugee Protection Division (including a credibility finding)? If not, the evidence need not be considered.
  4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the Refugee Protection Division? If not, the evidence need not be considered.
  5. Express statutory conditions:
    1. If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the Refugee Protection Division hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the Refugee Protection Division hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the Refugee Protection Division hearing? If not, the evidence need not be considered.
    2. If the evidence is capable of proving an event that occurred or circumstances that arose after the Refugee Protection Division hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material).

PRRA officer must consider all evidence that is presented, unless it is excluded on one of the grounds above.

US War Deserters – Immigrating to Canada

In a decision that has received much media attention, the Federal Court of Appeal (“FCA“) on July 6, 2010, 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 has been AWOL from the US army since his arrival in Canada.  He originally claimed refugee status, a claim which was unsuccessful.

He then filed a Pre-Removal Risk Assessment (“PRRA“), and an application for permanent residence based on Humanitarian & Compassionate (“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.

The appellant did not seek leave to apply for judicial review of the PRRA decision.

The Officer also rejected the H&C application.  The appellant 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.

The 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.

Once again, the FCA stressed that it was not altering the discretion of officers, nor that it was giving Mr. Hinzman a right to a particular outcome. Rather, it found that the  Officer had to apply the appropriate test.

Operational Bulletin 202

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.

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

The Beyond the Border Initiative – ETA, Information Sharing, Tracking Exits

[The following is a slightly edited (to include links) version of an article that I wrote for The Canadian Immigrant.]

In February 2011, Canada and the United States agreed to the Beyond the Border: A Shared Vision for Perimeter Security and Economic Competiveness. More commonly known as the Beyond the Border Action Plan, the effect of the agreement was to strengthen co-operation and, in some cases, harmonize Canadian and American immigration practices.

The Government of Canada has begun enthusiastically implementing the terms of the Beyond the Border Action Plan, and will in 2014-2015 introduce three significant changes to Canadian immigration legislation that will impact almost everyone who enters Canada.

Electronic travel authorization

People who wish to visit Canada generally fall into one of two categories:  those who need to apply for and obtain temporary resident visas prior to arriving in Canada; and those who can arrive at Canadian ports of entry without first obtaining a visa. This will change in April 2015, when Canada implements the electronic travel authorization (“eTA”) system.

All foreign nationals who are exempt from the requirement to obtain a temporary resident visa will instead need to obtain online authorization before they fly to Canada.  This includes Europeans, Australians, Japanese, Koreans, etc. Citizens from the United States, however, are exempt.

The eTA application process will be online via the Citizenship and Immigration Canada (CIC) website. Applicants will be required to enter biographic, passport and background information, which may affect admissibility to Canada. An electronic system will then perform an examination that includes a risk assessment and a verification of the information provided in the application against enforcement databases. The Government of Canada expects that the majority of applications will be approved within minutes.

Airlines will have to provide passenger information to Canadian immigration authorities prior to boarding. If an individual who has not yet received an eTA attempts to check in, then the airline will be informed that the person is prohibited from travelling to Canada.

Sharing information

As I have previously written in Canadian Immigrant, biometric-based immigration information sharing with the United States will be implemented in 2014.

Canada and the United States will use the shared information to support each government’s assessment of visa applications, examinations of admissibility, and to generally ensure accuracy and reliability. Where a biometric match is established, the information that may be shared includes the immigration status of the individual, reasons for previous refusals, previous admissibility decision and general information relevant to admissibility.

In other words, whenever you apply to enter the United States, you should assume that CIC will know the details.

Tracking exits

Despite having numerous immigration programs that contain residency requirements, Canada has not collected exit information to date. As such, as part of the Beyond the Border Action Plan, Canada has committed that by June 30, 2014, it will systematically collect and reconcile entry and exit information. Airlines will be required to provide passenger information to the Government of Canada. The United States will soon be sharing its entry information with Canada, which will reconcile it to track exits.

Tracking exits will allow CIC to readily identify persons who overstay (and who previously overstayed) their visa. It will allow them to track the departure of persons subject to removal orders. It will immediately verify that residency requirements are being met by permanent residents.

Big impact
These changes are going to impact everyone who enters Canada. The amount of personal information that is going to be collected and shared across governments will be immense. Travellers have frequently liked to compare and contrast the entry and exist procedures of Canada and the United States.  By the end of 2015, they may find that it is almost exactly the same.

Introducing a Residency Requirement for Social Transfers

The Federal-Provincial Fiscal Arrangements Act (the “FPFAA“) establishes the Canada Social Transfer, a federal block transfer to provinces and territories to support post-secondary education, social assistance, social services, early childhood development, and early learning.   In 2014-15 the total Canada Social Transfer transferred to all provinces and territories will be almost $12.6 billion.

The FPFAA stipulates that one of the objectives of the Canada Social Transfer is to maintain a national standard in which no period of minimum residency is required or allowed for an individual to receive social assistance, and the current version of s. 25.1 of the FPFAA achieves this by stipulating that:

Criteria for eligibility — Canada Social Transfer

25.1 In order that a province may qualify for a full cash contribution under [the Canada Social Transfer] for a fiscal year, the laws of the province must not

(a) require or allow a period of residence in the province or Canada to be set as a condition of eligibility for social assistance or for the receipt or continued receipt of social assistance; or

(b) make or allow the amount, form or manner of social assistance to be contingent on a period of such residence.

In other words, provinces and territories cannot currently impose a minimum period of residence on the receipt of social assistance without a reduction in their Canada Social Transfer payments.

One of the measures in the Conservative Government of Canada’s second Omnibus Bill titled “A Second Act to Implement Certain Provisions of the Budget Tabled in Parliament on February 11, 2014 and other measures” (the “Budget Implementation Act“) would modify this national standard to clarify that provinces only cannot impose residency requirements on the following people:

  1. Canadian citizens;
  2. Permanent residents;
  3. Persons who have been determined to be victims of human trafficking and who hold Temporary Resident Permits; and
  4. Convention refugees and people who are persons in need of protection.

The consequence of the Budget Implementation Act is accordingly that some provinces may introduce residency requirements for foreign nationals, including refugee claimants, before they can receive social assistance.

Continue reading “Introducing a Residency Requirement for Social Transfers”

Court Certifies Numerous Questions in Dismissal of Skilled Worker Class Action [Updated – Federal Court of Appeal Dismisses Appeal]

In Tabingo c. Canada (Citizenship and Immigration), 2013 FC 377, the Federal Court (the “Court“) certified three questions when it dismissed the class action lawsuit launched by people whose permanent residence applications were terminated by Bill C-38, the Jobs Growth and Long-term Prosperity Act (“Bill C-38“).  Bill C-38 introduced a new s. 87.4(1) (“Section 87.4(1)“)to the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA“) ,which terminated Federal Skilled Worker Class applications made before February 27, 2008 unless an officer had made a selection decision before March 29, 2012.

Section 87.4(1) reads:

87.4 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class.

(2) Subsection (1) does not apply to an application in respect of which a superior court has made a final determination unless the determination is made on or after March 29, 2012.

(3) The fact that an application is terminated under subsection (1) does not constitute a decision not to issue a permanent resident visa.

(4) Any fees paid to the Minister in respect of the application referred to in subsection (1) — including for the acquisition of permanent resident status — must be returned, without interest, to the person who paid them. The amounts payable may be paid out of the Consolidated Revenue Fund.

(5) No person has a right of recourse or indemnity against Her Majesty in connection with an application that is terminated under subsection (1).

The Court’s certified questions are:

  1. Does subsection 87.4(1) of the IRPA terminate by operation of law the applications described in that subsection upon its coming into force, and if not, are the applicants entitled to mandamus?
  2. Does the Canadian Bill of Rights mandate notice and an opportunity to make submissions prior to termination of an application under subsection 87.4(1) of the IRPA?
  3. Is section 87.4 of the IRPA unconstitutional, being contrary to the rule of law or sections 7 and 15 the Canadian Charter of Rights and Freedoms?

Does subsection 87.4(1) of the IRPA terminate by operation of law the applications described in that subsection upon its coming into force, and if not, are the applicants entitled to mandamus?

The applicants argued that Section 87.4 did not apply retrospectively to interfere with vested rights, and that it did not operate to terminate the applications as a matter of law.  Rather, they argued that individualized adjudication must follow to determine which applications were encompassed.

In rejecting this argument, the Court reiterated that the principles of statutory interpretation are that courts will not interpret legislation in a manner that removes existing rights or entitlements unless Parliament’s intention to do so is clear.  However, when a statute is unambiguous the courts have to interpret it according to its ordinary meaning.  On the issue of Section 87.4, the Court wrote:

Here, the ordinary meaning of the provision governs.  The meaning and effect of the word “terminated” is clear.  Section 87.4, by its terms, is explicitly designed to apply retrospectively to applications dated before February 27, 2008 and to eliminate the obligation to further process pending applications.  The plain and obvious meaning of section 87.4 requires that the provision be retrospective and interfere with vested rights, regardless of any perceived unfairness.  The three presumptions relied on by the applicants are displaced by the clarity of Parliament’s intention.  Further, to interpret the section otherwise would leave it without any effect beyond refunding the application fee.

The Court further held that Section 87.4 entailed a non-discretionary application of law to verifiable and incontrovertible facts.

Does the Canadian Bill of Rights mandate notice and an opportunity to make submissions prior to termination of an application under subsection 87.4(1) of the IRPA?  

Subsection 1(a) of the Bill of Rights protects the right not to be deprived of property except by due process of law.  Subsection 2(e) guarantees a fair hearing for the determination of rights and obligations.  The applicants argued that Section 87.4(1) of IRPR breached both of these requirements.

On the latter issue, the Court determined that due process protections of the Bill of Rights do not apply to legislative enactments, and that the Bill of Rights only guarantees the fairness of proceedings before a tribunal or administrative body that determines rights and obligations.  In reaching this decision, the Court relied on the following passage from the Supreme Court of Canada’s decision in Authorson v Canada (Attorney General):

Similarly, s. 1(a) may be seen as conferring procedural protections against the deprivation of property that existed in 1960.  Certain procedural rights in this regard have long been recognized.  In Lapointe v. Association de Bienfaisance et de Retraite de la Police de Montréal, [1906] A.C. 535, the Privy Council recognized a right to have notice of accusations made and an opportunity to make a defence where the board of directors of a pension board stripped a police officer, who had resigned, of his pension.  Where the law requires the application of discretion or judgment to specific factual situations, notice and an opportunity to contest may be required.  For example, such rights may exist where the government eliminates a veteran’s benefits because it believes he is no longer disabled, or because it believes he was never a member of the armed forces.  However, notice and an opportunity to make a defence are not required where the government legislates to completely eliminate such benefits.

The Court also found that submitting an economic immigration application did not vest any rights in an applicant, but rather was a mere chance to gain access to economic opportunities in Canada.

Is section 87.4 of the IRPA unconstitutional, being contrary to the rule of law or sections 7 and 15 the Canadian Charter of Rights and Freedoms?

After extensive obiter about whether the applicants could even claim to be entitled to Charter protection, the Court ruled that it did not matter in any event because Section 87.4(1) of IRPA did not breach the Charter.  

Regarding s. 7, the Court found that it was primarily (though not exclusively) concerned with the rights of individuals in the criminal justice context, including rights on search, seizure, detention, arrest, trial and imprisonment, as well as in the non-criminal contexts of the freedom to make fundamental personal choices, and the freedom to physical and pyschological integrity.

The Court further stated, however, that it did not extend to immigration, as the ability to immigrate, particularly as a member of an economic class, is not among the fundamental choices relating to personal autonomy which would engage s. 7 of the Charter.  To paraphrase, while immigration may have life-altering consequences, the possibility of immigrating to Canada as a successful economic applicant does not engage life or liberty interests.

Regarding s. 15, the applicants argued that Section 87.4 codified and legitimized past discrimination on the basis of national origin and country of residence.  The evidence was that approximately 92% of the terminated applications originated in Africa, the Middle East, Asia and the Pacific, while 8% of the terminated applications originated in Europe and the Americas.  However, the Court found that the fact that immigrants arrive from all over the world, that Citizenship and Immigration Canada tried to address backlogs by transferring processing, and that people from all over the world living in Canada could (then) apply to the Canadian Consulate in Buffalo, showed that there was no discrimination.


Considering that around 1,000,000 people were affected by the Tabingo decision, it is not surprising that the Court certified the above three questions.  The matter is now on its way to the Federal Court of Appeal.

[UPDATE – September 17, 2014] 

The FCA has dismissed the appeal. More to follow.