The Minimum Necessary Income and Family Class Sponsorships

One of the requirements to being a sponsor in both the Family Class and the Spouse or Common-Law Partner in Canada Class is that the sponsor must on the day that the application is submitted and until the application is assessed have a minimum necessary income.

For most types of family sponsorships, the income must be equal to the minimum necessary income, which is statutorily defined as being equal to Statistics Canada Low Income Cutoff (“LICO“). The current LICO requirements are as follows:

Size of Family Unit Minimum necessary income
1 person (the sponsor) $24,600
2 persons $30,625
3 persons $37,650
4 persons $45,712
5 persons $51,846
6 persons $58,473
7 persons $65,101
More than 7 persons, for each additional person, add $6,628

For sponsors seeking to sponsor their parents and/or grandparents, the income must be equal to the minimum necessary income plus 30% for each of the three consecutive taxation years immediately preceding the date of filing of the sponsorship application. The current requirements are as follows:

Federal Income Table for Parents and Grandparents Sponsorship
Size of Family Unit Minimum Income
2015
Minimum Income
2014
Minimum Income
2013
2 persons $38,618 $38,272 $37,708
3 persons $47,476 $47,051 $46,354
4 persons $57,642 $57,125 $56,280
5 persons $65,377 $64,791 $63,833
6 persons $73,733 $73,072 $71,991
7 persons $82,091 $81,355 $80,153
If more than 7 persons, for each additional person, add $8,358 $8,271 $8,148

Canadians seeking to sponsor their spouses or common-law partners do not need to have a minimum necessary income.

 

Looking Beyond the Notices of Assessment

Visa officers must accept Canada Revenue Agency Notices of Assessment as proof of income when a sponsorship application is filed.

However, the Immigration Appeal Division (the “IAD”) can look beyond the Notice of Assessment.  In Motala v. Canada (Citizenship and Immigration), 2012 FC 123, the Federal Court stated that:

… the IAD has, as a consequence of its discretionary power to consider whether the grounds of inadmissibility had been overcome and hence whether special relief should be granted, the authority to require evidence corroborative of the income reported in the Notice of Assessment. The IAD is permitted to question the accuracy and veracity of certain financial documents submitted in support of sponsorship applications and to assign relative and proportionate evidentiary weight to them. I would observe, in closing, that this interpretation of the scope of the IAD jurisdiction is consistent with the objective of the Regulations as a whole, which are designed to ensure that those sponsored to come to Canada can in fact be provided for, and that the integrity of the sponsorship provisions of the IRPA is not eroded through inaccurate statements of income, whether deliberate or accidental.

In Dhaliwal v. Canada (Citizenship and Immigration), 2017 FC 191, the Federal Court affirmed a decision of the IAD where the IAD refused to accept as legitimate the income declared in a re-assessment that occurred between the visa office’s refusal of an application and the IAD hearing.


Procedural Fairness Where Credibility is an Issue

In any application to Immigration, Refugees and Citizenship Canada (“IRCC“), the burden is on the applicant to put forward a complete, convincing and unambiguous application which provides sufficient evidence to establish that the requirements of Canadian immigration legislation have been met.  Visa officers are under no obligation to ask for additional information where the submitted material is insufficient.   However, where there is a concern regarding the credibility or the genuineness of the evidence submitted, as opposed to the sufficiency of or weight to be given to that information, then the duty of fairness generally requires that the applicant be given the opportunity to address the concern.

In Farooq v. Canada, 2013 FC 164 (“Farooq“), for example, IRCC’s refusal letter stated:

He claims he worked from January 2005 to August 2006 as software developer and from 2006 to present as manager (software development) for Tricastmedia PVT Ltd in Lahore Pakistan. Such rapid promotion is not credible as computer and information systems managers normally require several years of experience in systems analysis, data administration software engineering, network design or computer programming, including supervisory experience. Some of the duties in his employment letter repeat verbatim the duties of NOC 0213 which raises the question of the credibility of that employment letter. The other duties are similar to those of information systems analysts and consultants (NOC Code 2171).

Although the NOC Code 0213 corresponds to an occupation specified in the instructions, the information submitted to support this application is insufficient to substantiate that applicant meets the occupational description and/or a substantial number of the main duties of NOC 0213.

Justice Roy’s reasons in determining that the failure of the visa officer to provide the applicant with an opportunity to respond to his concerns about credibility provide a comprehensive summary of the law on this issue, and I have reproduced them in full:

Justice O’Keefe was confronted to the same kind of situation in the case of Patelsupra. (“Patel“) Paragraphs 24 to 27 seem to me to apply squarely to the situation at hand. They read:

Regulation 75 clearly indicates that a foreign national is only a skilled worker if he can show one year of full time employment where he performed the actions in the lead statement of the NOC and a substantial number of the main duties.

As such, if the visa officer was concerned only that the employment letter was insufficient proof that the principal applicant met the requirements of Regulation 75, then she would not have been required to conduct an interview.

However, the officer states that her concern is that the duties in the employment letter have been copied directly from the NOC description and that the duties in the experience letter are identical to the letter of employment. I agree with the principal applicant that the officer’s reasons are inadequate to explain why this was problematic. I find that the implication from these concerns is that the officer considered the experience letter to be fraudulent.

Consequently, by viewing the letter as fraudulent, the officer ought to have convoked an interview of the principal applicant based on the jurisprudence above. As such, the officer denied the principal applicant procedural fairness and the judicial review must be allowed.

The narrow issue that needs to be decided here is whether or not this is a case regarding the sufficiency of the evidence, in the sense that, in the words of Justice Richard Mosley in Hassani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2007] 3 FCR 501:

… there is no obligation on the part of the visa officer to apprise an applicant of her concerns that arise directly from the requirements of the former Act or Regulations …

It is also certainly true that a visa officer does not have an obligation to provide a “running score” of the weaknesses in an application. However, where the issue is credibility, “the duty of fairness may require immigration officials to inform applicants of their concerns with applications so that an applicant may have a chance to “disabuse” an officer of such concerns, even where such concerns arise from evidence tendered by the applicant” (Rukmangathan, above, at paragraph 22). Justice de Montigny, in Talpursupra, finding support inHassani, summarized clearly what I believe is the state of the law:

It is by now well established that the duty of fairness, even if it is at the low end of the spectrum in the context of visa applications … require visa officers to inform applicants of their concerns so that an applicant may have an opportunity to disabuse an officer of such concerns. This will be the case, in particular, where such concern arises not so much from the legal requirements but from the authenticity or credibility of the evidence provided by the applicant.

Here, the visa officer indicates clearly that the credibility of the applicant, or lack thereof, is the fundamental concern he has. Contrary to other cases where an opportunity is given to the applicant to address the concerns, there is nothing of the sort in this case. It would seem to me that both Patel and Rukmangathanare dispositive of the issue and that the matter should be remitted to a different visa officer for the purpose of a re-determination of the matter.

Another example of this principle can be found in Madadi v. Canada, 2013 FC 176.  There, in determining that an applicant did not perform a substantial number of the Main Duties in NOC 0711, IRCC did not consider any duties in the applicant’s confirmation of employment which either copied the NOC descriptions or closely paraphrased them.  After not considering those job duties, the officer found that the applicant did not perform a substantial number of the duties listed in NOC 0711.  The Court determined that procedural fairness was breached, because the visa officer’s concerns related to the genuineness of the confirmation of employment.

Examining Whether Credibility is an Issue

When reviewing refusal reasons it is accordingly important to examine whether credibility may have been an issue leading to refusal.   In doing so, it is important to note that credibility assessments are often implicit, rather than explicit. In Khodchenko v. Canada (Citizenship and Immigration), IRCC’s refusal reasons in part stated that:

REVIEWED INFO SUBMITTED FOR THE FILE. PI’S EXPENCES WILL BE PAID BY MR. NAZAREVICH – FAMILY FRIEND. IT IS NOT CLEAR WHY HE WOULD PAY SUCH AMOUNT OF MONEY FOR PI. NOT SATISFIED PI IS FORTHCOMING ABOUT THE PURPOSE OF THE TRIP. TIES TO UKRAINE ARE WEAK. REFUSED. (sic) [emphasis added]

The Federal Court found that the officer made a veiled credibility assessment of the benefactor and the applicant in questioning that the employment arrangement was what they said it was, and that the officer accordingly owed a duty of fairness to the applicant to put his concerns directly and explicitly and give her an opportunity to respond.

In Rani v. Canada (Citizenship and Immigration), meanwhile, Madam Justice Strickland found that a visa officer’s  statement that “evidence of [the applicant’s] involvement with spouse’s business comes only from her own statements and that of her supporting relative in Canada. It is therefore not clear to what extent the context of English language use…could be considered familiar” to also be an implicit credibility assessment, and ordered the matter re-decided.

Another Helpful Summary of this Principle

Bajwa v. Canada (Immigration, Refugees, and Citizenship) contains another helpful summary of the distinction between credibility and insufficient evidence. There, Justice Russel wrote:

These words give rise to a familiar dispute in the jurisprudence as to whether the Visa Officer is questioning the credibility of the Applicants or simply deciding that the evidence is not sufficient to support the criteria that must be established in order to qualify for the status applied for. Justice Kane provided a summary of the Court’s approach to this issue in Ansari v Canada (Citizenship and Immigration), 2013 FC 849:

If the concern is truly about credibility, the case law has established that a duty of procedural fairness may arise [Hassani]. However, if the concern is about the sufficiency of evidence, given that the applicant is clearly directed to provide a complete application with supporting documents, no such duty arises. Distinguishing between concerns about sufficiency of evidence and credibility is not a simple task as both issues may be related.

The case law has established that each case must be assessed to determine if the concern does in fact relate to credibility. In several of the cases referred to, although the duties were copied or paraphrased from the NOC, there were additional factors confirming that the concern of the officer was about the authenticity or veracity of the document or the credibility of the author of the document. Simply using the term credibility is not determinative of whether the concern is about credibility, though the use of the term cannot be ignored.

Applicants often find it very difficult to understand this distinction. They reason that if their own representations are not accepted then they are not believed, so the officer concerned must be questioning their credibility and this requires an interview or an adequate opportunity to address credibility on grounds of procedural fairness.

I think the issue is best explained in lay terms by recognizing that applicants have a double obligation. First of all, they are under a duty of candor to tell the truth and not to conceal relevant facts. If an officer suspects that the duty of candour is not being met, then he or she must put the matter to the applicant and provide a reasonable opportunity – either in writing or in person – for the applicant to address the officer’s concerns. Where misrepresentation or breach of the duty of candor is the issue, then an application is usually refused on the basis of misrepresentation and s 40 of the Act.

But applicants also have an obligation – over and above the duty of candor – to support their applications with documentation that confirms their positions. Documentation is required by the legislation in all applications and a failure to provide adequate documentation can result in a refusal that is not based upon credibility. If this were not the case, then all applications would have to be accepted upon their own unsupported assertions. There will be situations where documentation is not available and the Act makes adequate allowances for this. Applicants are permitted to explain why they cannot provide documents that are required and/or expected in their particular situations.

In the present case, the treatment of the two letters from Mr. Singh has to be read in the context of the Decision as a whole in order to determine what the Visa Officer means by “satisfied.” Does she mean that the evidence is inadequate to support the application or does she mean that she questions the veracity of that evidence when she says that “I am not satisfied that the client is a bona fide worker under R 205 (D) or will leave after her authorized stay.”

In all work permit applications and extension applications, the officer has to decide on the evidence whether the applicant is likely to leave at the end of the period requested. And interviews and/or fairness letters are not required in most situations. As the Respondent points out, it is generally not a procedural fairness requirement that work permit applicants be granted an opportunity to respond to the concerns of officers. However, there have been situations in the context of work permit applications where officers have been required for reasons of procedural fairness to seek further clarification for credibility concerns in particular.

In Hamza v Canada (Citizenship and Immigration), 2013 FC 264, the application was rejected on the basis that the work experience letter mirrored the job duties of the NOC description, which the visa officer described as “self-serving.” Justice Bédard found that by stating the letter was self-serving, the officer was saying that he or she doubted the veracity of its content. It was thus distinguished from Kaur, above, because the applicant had provided sufficient evidence and a duty to provide the applicant an opportunity to respond was found. The decision quoted Justice Snider in Perez Enriquez v Canada (Citizenship and Immigration), 2012 FC 1091:

The first duty raised by the Applicant is the duty to seek clarification. When an Applicant puts his or her best foot forward by submitting complete evidence and a visa officer doubts that evidence, the officer has a duty to seek clarification (Sandhu, above at paras 32-33). Although this duty is not triggered in situations where an applicant simply presents insufficient evidence, it will arise if the officer entertains concerns regarding the veracity of evidence; for example, if the officer questions the credibility, accuracy or genuine nature of the information provided (Olorunshola, above at paras 32-35). On the facts of this case, a duty to clarify may have arisen but was discharged by the Officer’s questions to the Applicant during the interview. There was no breach of fairness.

The second duty raised by the Applicant is a duty to provide an opportunity to respond. When an applicant submits information that, if accepted, supports the application, he or she should be given an opportunity to respond to the officer’s concerns if the officer wishes to make a decision based on those concerns (Kumar, above at paras 30-31). Procedural fairness may require an interview; for example, if a visa officer believes an applicant’s documents may be fraudulent (Patel, above at paras 24-27). (…)

(some references omitted)

Justice Zinn’s decision in Madadi v Canada (Minister of Citizenship and Immigration), 2013 FC 716 at para 6 provides a succinct summary:

The jurisprudence of this Court on procedural fairness in this area is clear: Where an applicant provides evidence sufficient to establish that they meet the requirements of the Act or regulations, as the case may be, and the officer doubts the “credibility, accuracy or genuine nature of the information provided” and wishes to deny the application based on those concerns, the duty of fairness is invoked[.]

(references omitted)



Inadmissibility for Violating Human Rights

Section 35 of the Immigration and Refugee Protection Act (the “IRPA“) provides that:

Human or international rights violations

35 (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for

(a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;

(b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act; or

(c) being a person, other than a permanent resident, whose entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a country against which Canada has imposed or has agreed to impose sanctions in concert with that organization or association.

In order for Immigration, Refugees and Citizenship Canada (“IRCC“) to establish that someone is inadmissible to Canada for human or international rights violations, the standard of proof required is more than a flimsy suspicion, but less than the civil test of balance of probabilities. It is much lower threshold than the criminal standard of “beyond a reasonable doubt”.

Pursuant to the Federal Court decision in Andeel v. Canada (Minister of Citizenship and Immigration), it is also necessary for officers to explicitly state why an action constitutes a crime against humanity according to international law, conventional international law or by virtue of its being criminal according to the general principles of law recognised by the international community.


Borderlines Episode #12 – Tips on making written and oral arguments in court, with Justice Alan Diner

The Honourable Alan S. Diner is a judge with the Federal Court of Canada.   Prior to his appointment, Justice Diner headed Baker & McKenzie LLP’s immigration practice.  He was also involved with managing the establishment and implementation of Ontario’s Provincial Nominee Program for the Ministry of Citizenship and Immigration.

We are grateful to Justice Diner for the time that he took in preparing for this podcast about tips and best practices in appearing before the Federal Court of Canada, including in providing a customised powerpoint, which can be found on our website at http://www.borderlines.ca.  As Justice Diner notes, many of the tips and strategies contained in this episode are applicable beyond judicial review, and will be beneficial to anyone preparing written submissions or making oral presentations.

A review of what we discussed is as follows:

1:18 – Justice Diner describes his history going from being an immigrant in Canada to leading a corporate immigration law practice to becoming a judge with the Federal Court of Canada.

14:30 – We discuss how the practice of immigration law is changing as larger firms and global accounting firms enter the practice area.

18:30 – Justice Diner provides his first three tips to lawyers appearing  in Federal Court, which are to treat everyone with respect, to prepare your case and arguments properly, and to respect timelines.

23:10 – Peter asks Justice Diner whether immigration representatives should consider preparing visa applications with possible litigation in mind and how long judicial review applicant records should be.

28:00 – How many arguments should someone make in a judicial review application?  If one thinks that an immigration officer made 10 mistakes, should the lawyer in a judicial review application list all 10?

35:00 – Given that there is a chance that the judge reading judicial review submissions could be a new judge, how much should lawyers explain what the law is in their legal submissions?

42:30 – When should counsel propose certified questions?

46:00 – Tips for citing cases.

49:30 – Is the increased number of sources of immigration law (legislation, Ministerial Instructions, guidelines, the immigration website, etc.) complicating the Federal Court’s ability to determine whether a decision was reasonable, and counsel’s ability to make arguments?

57:00 – Who makes a better litigator? Someone who is also a solicitor or someone who practices exclusively in judicial reviews and appeals?

1:01:00 – Tips for oral advocacy.

1:12:00 – Justice Diner reminds counsel on the need to balance strong representation of a client with being an officer of the court.

1:17:00 – We end with what might be the most important tip of all – the importance of not procrastinating.


John McCallum – The Good, the Bad, and the Ugly

(As published in Policy Options)

On January 10, 2017, Prime Minister Justin Trudeau appointed Ahmed Hussen as the minister of immigration, refugees and citizenship. Hussen replaced John McCallum, who had been the minister since November 4, 2015.

This is the third time that I am weighing the good, the bad and the ugly about a Canadian immigration minister. It is in some ways the most difficult time, given that McCallum’s tenure was so short. My first assessment of an immigration minister was about Jason Kenney, who remains Canada’s longest-serving immigration minister, having held the role for 1,719 days. His successor, Chris Alexander, whom I also wrote about, led Canada’s immigration department for 826 days. John McCallum was Canada’s immigration minister for only 433 days.

To some extent, the busy nature of McCallum’s tenure made up for its short duration. He was the first immigration minister in Trudeau’s Liberal majority government, which assumed power after an election campaign in which refugee and citizenship issues were prominent. Because McCallum had also been the Liberal immigration critic during Canada’s previous Conservative government, and had also served as a cabinet minister in previous Liberal governments, he was able to hit the ground running in implementing his mandate. Nonetheless, the comparative lack of material to write about was noticeable as I prepared this article.

The Good

John McCallum’s biggest accomplishment as Canada’s immigration minister, and the one that he will definitely be most remembered for, was presiding over the resettlement of over 39,000 Syrian refugees in Canada. Given the numerous significant challenges associated with such a grand endeavour, it is doubtful that someone without McCallum’s previous cabinet experience would have been able to achieve what he did in such a short period. While some may quibble that he technically did not fulfill the Liberal Party of Canada’s even more ambitious campaign promises, history will remember that during a period when the United Kingdom voted to leave the European Union, at least partially due to xenophobia, and Donald Trump was elected US president after stoking anti-immigrant and anti-Islamic sentiments, Canada welcomed 39,000 predominantly Muslim refugees.   

Indeed, the change in tone emanating from Canada’s immigration department under McCallum, compared with the tone under the Conservatives, was striking. I have previously written that if the only changes the Liberals made were to stop denying certain refugee claimants access to health care and to stop prohibiting Muslim women from wearing face veils at citizenship ceremonies, the 2015 federal election would be significant. McCallum reversed both these Conservative policies, and he publicly and repeatedly espoused the principles of inclusiveness and “welcoming,” often with the use of hashtags on Twitter.

As of this writing, the only bill that McCallum introduced as immigration minister is still before the Senate. Bill C-6, An Act to Amend the Citizenship Act and to Make Consequential Amendments to Another Act, contains several agreeable provisions; one lets permanent residents count the time that they resided in Canada before they became a permanent resident toward their citizenship residency requirement; another removes the bizarre requirement that people applying for Canadian citizenship have to intend to always reside in Canada after becoming citizens.

More controversially, Bill C-6 also fulfills the Liberal campaign promise to repeal the federal government’s power to revoke the Canadian citizenship of individuals who the government determines pose national security risks. While my thoughts on the philosophical arguments for and against such a power remain fluid, the wording of the existing legislation was so overbroad, vague and lacking in procedural fairness that its immediate repeal was necessary.

McCallum also introduced regulatory changes to repeal “conditional permanent residency,” a status assigned to people in new relationships who were sponsored by their spouses to immigrate to Canada; they would lose their permanent residency if the relationship broke down within two years. Although the Liberals disingenuously presented the repeal as facilitating family reunification — when in fact conditional permanent residency never changed the process of people actually entering Canada — the prospect of deportation following a marital breakdown led to some recent immigrants remaining in abusive relationships to avoid deportation and others falsely alleging abuse by their Canadian sponsors in order to stay in the country. While I understand the motives behind the previous Conservative government’s introduction of conditional permanent residency, the enforcement headache and unintended consequences it created simply outweighed its benefits.

Finally, McCallum also reduced processing times for applicants in the family class, introduced draft regulations to allow young people to be considered dependents for immigration purposes until age 21 and abolished the four-year cap on how long temporary foreign workers can work in Canada. The increase in the age of dependency (the previous cut-off was 18) will ensure that more young people are able to immigrate with their families to an aging Canada, and the removal of a fixed limit on how long foreign nationals can work here empowers employees and employers to make their own decisions about the length of their relationship.

The Bad

While Minister McCallum will be remembered fondly for his commitments to refugee resettlement and family reunification, his decision to cut economic immigration in 2016 without making it easier for current foreign workers to stay in Canada was disastrous, especially for international graduates working in Canada on postgraduate work permits. Changes he made in November 2016 to help international graduates qualify for permanent residency were viewed as insufficient by most observers, and his concurrent decision to reduce the value of working in Canada as a factor in the calculation of eligibility for permanent residency came as a blow to thousands of foreign workers. As immigration critic, McCallum had been vocal about the need to ensure a pathway to permanent residency for all foreign workers, not just high-skilled ones. By the end of his tenure as immigration minister, Canada still did not have a federal pathway to permanent residency for low-skilled foreign workers, and McCallum had closed the door to permanent residency for many high-skilled ones as well.

During the 2015 election campaign the Liberals promised to increase from 5,000 to 10,000 the number of people who could apply to the Parent and Grandparent Program. Under McCallum the government did double the number of applications for sponsorship that would be accepted into processing; however, it did not double the number of applications that would actually be processed. The result was essentially the same as if the number who could apply had not been increased at all, and to those who realized what had happened, the government once again simply looked disingenuous.

Another move of McCallum’s that caused cynicism was his cross-country tour to allegedly learn from Canadians what Canada’s immigration levels should be. The Minister would seemingly ignore poll after poll showing that Canadians did not want a substantial increase in immigration, and instead emerged from meetings with pre-approved stakeholders saying that there was overwhelming support for more immigration. Ultimately, the Liberals appeared to listen to the polls and decided not to substantially increase immigration levels. The shift made the Minister’s statements all the more baffling.

Finally, under the previous Conservative government, Jason Kenney as immigration minister was thought to have great influence over policy development at both the Canada Border Services Agency and Employment and Social Development Canada, which processes Labour Market Impact Assessment applications to allow companies to employ foreign workers and support their existing foreign workers for permanent residency. McCallum did not appear to have similar influence, and while his respect of ministerial boundaries may be lauded by some, the lack of a coherent policy and tone emanating from the different departments involved in managing Canada’s immigration system was frustrating.

The Ugly

One thing that surprised people about Bill C-6 was that McCallum did not change the citizenship revocation process for Canadians who were alleged to have received their citizenship through misrepresentation. The current process is that a Canadian citizen facing such an allegation will typically have only 60 days to respond in writing. There is generally no oral hearing, and no meaningful appeal. As many have noted, Canadians have more procedural fairness in responding to parking tickets than when they risk losing their citizenship. While the House of Commons was debating Bill C-6, McCallum seemed to acknowledge that this was problematic, but he said that any changes to the process would come later.

Then word emerged that fellow cabinet minister Maryam Monsef might have made misrepresentations in her own citizenship application. Although it is not clear whether there actually was misrepresentation that could lead to revocation in the Monsef case, the government immediately announced that it was considering a number of options to change the revocation process; the matter remains unresolved. Any Canadian paying attention could be forgiven for thinking that there is one set of laws for most people and another for elites.

Going Forward

If McCallum will be remembered for his resettling of 39,000 Syrian refugees, his successor, Ahmed Hussen, will likely be judged on how he handles one person: Donald Trump.

In his first month, Hussen had to respond to Trump’s executive order banning certain foreign nationals from entering the United States, a dramatic increase in undocumented border crossings from the United States, and to the resulting calls from human rights organizations for Canada to suspend the Safe Third Country Agreement between Canada and the United States.

Hussen does not have an easy task ahead of him. Luckily, he does not need to look far to find inspiration for how to buck global trends and stand up for the government of Canada’s objectives. He need only look to his predecessor.


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.


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?