Retrospective Legislation

In a recent Borderlines episode, Garth Barriere, Eric Purtzki, Peter Edelmann and I discussed the constitutionality of laws that are retroactive or retrospective.  This episode can be found here:

A link to this episode’s synopsis can be found here.

The following post provides a more detailed written summary of retroactive and retrospective legislation in the immigration context.

Continue reading “Retrospective Legislation”


Immigration Detainees Granted Access to Habeas Corpus

On October 20, 2015, the Court of Appeal for Ontario (the “ONCA”) released its decision in Chaudhary v. Canada (Public Safety and Emergency Preparedness) (“Chaudhary”).  The ONCA has ruled that the immigration detention review system provided for in the Immigration and Refugee Protection Act (“IRPA”) does not provide an effective forum for detainees to challenge their continued detention. Effective immediately, detainees will be able to apply to the Ontario Superior Court of Justice for habeas corpus to challenge their continued detentions.

Habeas Corpus

Habeas Corpus, latin for “you shall have the body,” is a recourse in law whereby a detained individual can apply to a court for a determination on whether their detention or imprisonment is unlawful.  If the court rules that the detaining entity is acting beyond its authority, then it must release the detainee.   Habeas Corpus is commonly regarded as a cornerstone of liberty.  It is enshrined by s. 10(c) of the Canadian Charter of Rights and freedoms, which provides that “everyone has the right on arrest or detention to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Under what is known as the “Peiroo exception,” the Supreme Court of Canada in May v. Ferndale Institution stated that in immigration matters habeas corpus is precluded where federal legislation provides a complete, comprehensive and expert statutory scheme which contains a review process that is at least as broad as and no less advantageous than habeas corpus.

The ONCA in Chaudhary determined that the immigration detention review system provided for in the IRPA does not meet these requirements.

Canada’s Immigration Detention System

The IRPA contains a comprehensive scheme for detention review.  To detain someone there must be reasonable grounds to believe that the individual is inadmissible to Canada and is a danger to the public, or is unlikely to appear for a future interview, an admissibility hearing, removal, or a proceeding that could lead to a removal order.  Detention may also be ordered if the authorities are not satisfied as to the identity of the individual.  Finally, a permanent resident or foreign national can be detained when they are entering Canada if an immigration officer considers it necessary to do so for the examination of the individual to be completed, or if the officer has reasonable grounds to suspect that the individual is inadmissible to Canada on grounds of security, violation of human rights,  or criminality.

After a person is detained, the Immigration Division of the Immigration and Refugee Board will automatically review their detention.  The Immigration Division must hold its first detention review within 48 hours after the individual has been detained, or without delay afterwards.  If continued detention is ordered, then the Immigration Division must then conduct a second review of the reasons for continued detention within seven days of the first review.  If it then orders continued detention, it must review the reasons for continued detention at least once during each 30-day period following each previous detention review.

The Immigration Division must order that a detainee be released unless the Immigration Division is satisfied that:

  • the detainee is a danger to the public,
  • the detainee unlikely to appear for further examination, an admissibility hearing, removal from Canada, or a proceeding that could lead to the making of a removal order;
  • the government is taking necessary steps to inquire into a reasonable suspicion that the detainee is inadmissible on grounds of security, violating human or international rights, or criminality; or
  • the government believes that the detainee’s identity has not been, but may be, established, and the detainee has not reasonably cooperated with the government to help it establish his/her identity.

The Immigration and Refugee Protection Regulations (“IRPR”) further provide that if one of the above grounds for continued detention is identified, then before ordering continued detention the Immigration Division must also consider:

  • the reason for detention;
  • the length of time in detention;
  • whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time;
  • any unexplained delays or unexplained lack of diligence caused by the government or the person concerned; and
  • the existence of alternatives to detention.

A detainee can apply for leave to the Federal Court for judicial review of the Immigration Division’s decisions on continued detention.  The Federal Court will only consider whether the Immigration Division’s decision was reasonable based on the information before it, or whether there was a breach of procedural fairness.  The Federal Court will be very deferential to the Division.

The ONCA found the IRPA detention review scheme lacking for several reasons, including that the federal legislation provides that the length of detention is but one factor to be considered,  that continued detention can often be justified simply by relying on the reasons given at prior detention proceedings (as the Federal Court of Appeal affirmed in Thanabalasingham), and that neither the Immigration Division nor the courts are tasked with the question of determining whether the detention violates the Charter or other human rights principles, and rarely do.

As a result, the ONCA ruled that immigration detainees will now have access to habeas corpus.

The Habeas Corpus Alternative

If a detainee wishes to challenge their continued detention in superior or provincial court, the test will be much different from the one contained in IRPA.  As the ONCA stated (modified for ease of reading and clarity):

On their habeas corpus applications, the [detainees] would have to show that reasonable and probable grounds exist for their complaints [to the court that their continued detention has become unconstitutional]. The grounds will be the exceptional length of their detentions and their uncertain continued duration. The question the court will then have to address is whether, because of their length and the uncertainty as to their continued duration, the detentions have become illegal, in violation of the detainees’ ss. 7 and 9 Charter rights [which provide for the right to life, liberty, and security of the person, and the right to not be arbitrarily detained] and international instruments to which Canada is a signatory. A detention cannot be justified if it is no longer reasonably necessary to further the machinery of immigration control. Where there is no reasonable prospect that the detention’s immigration-related purposes will be achieved within a reasonable time (with what is reasonable depending on the circumstances), a continued detention will violate the detainee’s ss. 7 and 9 Charter rights and no longer be legal. In responding to the application, the Minister must satisfy a court that, despite its length and uncertain duration, the continued detention is still justified.

Habeas corpus is non-discretionary.  There is no requirement that leave be obtained.  As well, unlike with a judicial review where the applicant must show that the Immigration Division made an error, on an application for habeas corprus the legal burden rests with the detaining authorities once the detainee has established a deprivation of liberty and raised a legitimate ground upon which to challenge its legality.

Depending on the province, a hearing on a habeas corpus application in a superior court will likely obtained more rapidly than a federal court judicial review.

 

Habeas Corpus and House Arrest

In Wang et al. v Canada (Attorney General), 2017 ONSC 2841 the Ontario Superior Court of Justice answered the question of whether habeas corpus applied to individuals under house arrest. It found that it did not, stating that:

Upon request by an applicant, the Immigration Division may order the applicant’s release on any terms or conditions that the Immigration Division considers necessary, which would include house arrest.  When the applicants in the case before me were released from custody on terms and conditions that included house arrest, they were no longer detained for the purpose of a writ of habeas corpus.

The Federal Court Addresses Chaudhary

In Warssama v. Canada (Citizenship and Immigration)Justice Harrington issued a strongly worded decision in which he ordered that the Immigration Division consider alternatives to detention if the Canada Border Services Agency (“CBSA“) could not explain why an individual could not be removed to Somalia.  It is likely that he had Chaudhary in mind, considering how often he references it throughout the decision.  Indeed, contrary to what the ONCA wrote in Chaudhary, he implied that the Federal Court could hear Habeas Corpus, without explicitly ruling so.

It seems somewhat peculiar that the Federal Court has exclusive jurisdiction to grant a writ of habeas corpus with respect to members of the Armed Forces serving outside Canada, but otherwise cannot issue a writ of habeas corpus at all, notwithstanding that it is dealing with detention in immigration and penitentiary matters day in and day out.

Perhaps the last word has yet to be written, either by the courts or by Parliament.

Indeed, considering that Justice Harrington stopped short of explicitly stating that the Federal Court could hear habeas corpus applications, the last word will have to be written elsewhere.


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 important to examine whether credibility may have been an issue leading to refusal.

Sometimes it is obvious.  For example, in Azizian v. Canada, a visa officer wrote:

 Given the availability of the information [about the CBI], I found it difficult to believe that the applicant has never heard of these concerns during his employment at CBI and since retiring… I do not find credible that the applicant would have not been involved in policy decision making and decisions concerning allocation of funds, especially since the PA held the position of Secretary General of the bank and because he indicated in his affidavit that his duty in 2003-2009 was to develop and supervise the implementation of the by-laws and guidelines for the Iranian banking system.

This was found to clearly be a credibility concern.

Credibility assessments are often implicit, however, 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 the applicants 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)


The Parent & Grandparent Sponsorship Program

With the incoming Liberal government of Canada promising to double the number of applications in the Parent & Grandparent Sponsorship Program (the “PGSP“) there will likely be renewed interest in the program.

Under the PGSP, Canadian citizens and permanent residents can sponsor their foreign national parents and grandparents.  Sponsors must sign an undertaking with the Minister of Citizenship and Immigration (“CIC“) or with the Ministère de l’Immigration, de la Diversité et de l’Inclusion for those in Quebec.  The undertaking ensures that the sponsored individuals and their family members do not have to apply for social assistance. The length of undertaking in the PGSP is 20 years.

As per the CIC website, sponsors must:

  • be 18 years of age or older;
  • be a Canadian citizen, Registered Indian or permanent resident;
  • be sponsoring their parents or grandparents;
  • live in Canada;
  • sign an undertaking promising to provide for the basic requirements of the person being sponsored;
  • sign an agreement with the person theyare sponsoring; and
  • prove that they have sufficient income.  Co-signers are permissible.

In 2015, the minimum income requirements were.

Federal Income Table for Parents and Grandparents Sponsorship
Size of Family Unit Minimum Income
2013
Minimum Income
2012
Minimum Income
2011
2 persons $37,708 $36,637  $35,976
3 persons $46,354 $45,040  $44,229
4 persons $56,280 $54,685  $53,699
5 persons $63,833 $62,023  $60,905
6 persons $71,991 $69,950  $68,689
7 persons $80,153 $77,879  $76,475
If more than 7 persons, for each additional person, add $8,148 $7,929  $ 7,786

Excluded from these amounts include, amongst other things, any amounts paid to the sponsor under the Employment Insurance Act, other than special benefits.

A Canadian citizen or permanent resident cannot be a sponsor if they:

  • are in receipt of social assistance for a reason other than disability;
  • are in default of an undertaking, an immigration loan, a performance bond, or family support payments;
  • are an undischarged bankrupt;
  • were convicted of an offence of a sexual nature, a violent criminal offence, an offence against a relative that results in bodily harm or an attempt or threat to commit any such offences—depending on circumstances such as the nature of the offence, how long ago it occurred and whether a pardon was issued;
  • are under a removal order; or
  • are detained in a penitentiary, jail, reformatory or prison.

Additional information on the PGSP can be found in the CIC internal processing instructions below.  Please note that these instructions were obtained through an Access to Information Act request, and their reproduction has not occurred with the affiliation of the federal government.  As well, they are current as of February 2014, although except for the minimum necessary income requirements were substantially accurate for 2015 as well.  The instructions include the following topics:

  • Duration of Undertakings
  • Co-Signers
  • Eligible Applicants and Dependants
  • Ineligible Dependants
  • Document Requirements
  • Document Deficiencies
  • Lock-in Dates
  • Visa Office Destination
  • Quebec Cases
  • Switching Principal Applicants
  • Settlement Arrangements
  • Calculating the Size of the Family Unit
  • Financial Assessment
  • Ineligible Types of Income
  • Notice of Assessment
  • Reassessments
  • Referrals to the Special Unit

 

 


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.

Excluded from these amounts include, amongst other things, any amounts paid to the sponsor under the Employment Insurance Act, other than special benefits.

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.


Ineligibility to Make a Refugee Claim

Section 101(d) of the Immigration and Refugee Protection Act states:

101. (1) A claim is ineligible to be referred to the Refugee Protection Division if

(a) refugee protection has been conferred on the claimant under this Act;

(b) a claim for refugee protection by the claimant has been rejected by the Board;

(c) a prior claim by the claimant was determined to be ineligible to be referred to the Refugee Protection Division, or to have been withdrawn or abandoned;

(d) the claimant has been recognized as a Convention refugee by a country other than Canada and can be sent or returned to that country;

(e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence; or

(f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c).

Serious criminality

(2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless

(a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years and for which a sentence of at least two years was imposed; or

(b) in the case of inadmissibility by reason of a conviction outside Canada, the Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years.

Fear of Being Returned to Country of Asylum

In Farah v. Canada the Federal Court certified the following question of general importance.

As a matter of statutory interpretation, does ineligibility under s.101(1)(d) of IRPA include those who are making a refugee claim against the country that has recognized them as refugees?

The Federal Court answered that people who are making a refugee claim against the country that has recognized them as refugees are still ineligible to make a claim to the Refugee Protection Division.

It will be interesting to see how the Federal Court of Appeal rules.


10 Pieces of Advice Before Entering First Year

Half way through my second year of law school I drafted a list of 10 pieces of advice that I would give to anyone entering their first year.  I passed this list on to between 5-10 people, and everyone seemed to appreciate it.  After not having thought about the list for a few years someone who had heard of it recently asked me for a copy.  It took me a fair bit of time searching through old Facebook messages to find it.  I accordingly decided to publish the list here so that if I was ever asked again I could easily find my recommendations rather then spend time during a sunny Sunday looking for it.

Remarkably, while I have updated the rationale behind each suggestion, my recommendations for people entering first year law remain the same now as they did when I was a second year law student.

So here they are.

1) You Control How Intense Law School Is

First year law school is intense.  There are typically mandatory year long courses, most of which are graded almost exclusively on a final exam.  You will be surrounded by some of the smartest people that you have ever met and will (depending on the school) be graded on a curve against them.  There will be a flurry of electives that you can choose from and if you’ve gone abroad for school it could be difficult to not become fully immersed in the study of law.

However, law school is only as intense as you want it to be. You could spend thirty hours a week in the library or just use other people’s summaries. For every student spending their weekend reading dozens of cases there is another student probably doing just as well who is rock climbing having just read a ten sentence summary of each case.

I am not recommending one approach or the other.  All I am saying is that you have a choice.  You control how intense law school is.

2) Be Prepared for Class

Most law school classes are taught by incredibly engaged and smart individuals.  I cannot remember having had any bad professors at either the University of Toronto (where I graduated from), the University of British Columbia (where I did a letter of permission for a semester), or Central European University (where I did an exchange).

Assuming that you enjoy learning about the law, and you probably should question why you are in law school if you aren’t interested in the law (but that’s a separate topic about whether you should go to law school, not advice for your first year there), then you will enjoy your classes even more if you are prepared for them.

The importance of being prepared is not only to avoid looking foolish if your professor uses the Socratic method.  You will get more out of class discussions if you know what is being discussed.

If you are not going to read a case before class, then you should at least read a summary of it.  At every law school that I went to senior students were always happy to pass along USBs with case summaries and notes from previous classes. I imagine that such information is now even available online.

3) Don’t Ask People What they Got on the LSAT

Never ask someone what score they got on the LSAT or what their mark was in a course.  It’s super annoying.

4) Don’t Give Legal Advice…

As soon as you are in law school people are likely going to come to you for legal advice.  When I was in first year law school friends and family approached me with questions on topics ranging from basic criminal stuff, landlord issues, pre-nups, vehicle accidents and even on setting up tax minimization schemes.

At the time I did my best to provide whatever assistance I could, always with the caveat that I was only a law student and probably didn’t know what I was talking about.  Having now taken and taught legal ethics I now realize what a bad idea even this was.

Put simply, if you don’t understand how confidentiality works in joint representation scenarios for people who haven’t signed retainer agreements then you shouldn’t be giving legal advice.

5) … But Do Fight Injustice

Having said that, within a few weeks or months after starting first year law school you will also start to realize how ignorant many laypeople are of how the law, and how others (sometimes innocently) take advantage of this ignorance.

You will look start looking at agreements between people differently.  If you rent, or have friends who do, then you will likely be especially stunned with what some landlords attempt to get away with.

You may not be a lawyer yet. But that doesn’t mean that where you do know what you’re talking about and understand legal ethics that you should let yourself or others be taken advantage of.

The help that you give can be as simple as spotting an issue and referring someone to the appropriate person who can help.

6) First Year Exams

Don’t make any vacation plans for the last two weeks of March and first two weeks of April during your first year of law school. Those weeks may be the worst and most boring weeks of your life.

Having said that, many years later the only thing that I remember about first year exams was that I preferred the three hour exams to twenty-four hour ones, and that an impromptu dance party broke out in my residency quad while we were studying on a Saturday night. It didn’t impact my mark.

7) You’ll get a Job

The profession of law breeds career insecurity, much of it pushed down from the top.

First year law school comes with a bizarre obsession and pressure about getting a job.  Whether it is from your school or the firms that dominate the private practice recruitment process, you will start feeling pressure to find summer job(s) and articles within the first few months of your first year.  I do not think that there is any other profession in the world that pushes such uncertainty and insecurity about getting a job to people almost immediately after they start an educational program.

When I first wrote this list of recommendations getting a job as a lawyer was admittedly easier then than it seems to be now. I am not going to pretend that everyone who graduates from law school will get a job in law as soon as they graduate.

At the same time, having seen how fulfilling the careers are for my former law school colleagues who either left the practice of law or never started in it, I believe more than ever that law students should not let the pressure to find articles plunge them into depression.

8) Determine the Kind of Person You Want to Be

You should determine early on what kind of person you want to be both in law school and after.

Are you willing to say “no” to something you really want to do in order to study for a few more hours? If you decide that you will put off doing what you like and missing important events while you are in law school, then you are laying the mental groundwork for doing the same thing during your career, and are setting yourself up for a solitary and lonely adulthood.

9) Keep an open mind

Some people go into law school knowing exactly what type of law they want to practice.

Others don’t have a clue.

Then there are people who thought they knew what area they wanted to work in without actually having a clue what the day to day practice of that area is like.

When I went to law school I thought I wanted to be a prosecutor.  Volunteering at a criminal defence clinic turned me off criminal law (although as an immigration lawyer I sometimes feel like I am practicing quasi-criminal law in a regulatory regime with far less procedural safeguards). At the start of second year law school I had no clue what I wanted to do. I then took a course on insolvency law. Then an advanced course. I even won the Insolvency Institute of Canada’s annual student writing competition and had a paper published in a law journal. By the time that I started articles I was sure that I was going to be an insolvency lawyer.  But then I did a tax evasion file. Boom. Now I knew what I really wanted to do.  Then the tax litigator that I was working for said that given my interests in certain files that I should consider immigration law.

And now I’m a partner at one of Vancouver’s largest immigration law firms. I have a blog and a podcast on the topic, and will soon be wrapping up a two year stint as the Chair of the Canadian Bar Association of British Columbia’s Immigration Section.

If you had told me when I started law school that this is what I would be doing I wouldn’t have believed you.

So if you’re unsure of what type of lawyer you want to be, don’t worry.  Most of those who say that they do probably will be as surprised as I was where their career took them.

10) Appreciate How Fortunate You are to be Studying Law

We live in a society where ignorance of the law is no excuse for breaking it.  Yet, there are not any real opportunities to study law unless you first complete an undergraduate degree and do very well on a standardized logic test.

For me the study of law was an exercise in unlearning alot of my previously held assumptions about the world.  My staunchly held but undeveloped opinions were replaced by a greater understanding of how complicated most issues are.

Concurrent with your textbook studies you will have the opportunity to participate in fascinating extracurricular programs. During my first year of law school I represented someone charged with domestic assault in criminal court, wrote briefs on behalf of injured workers seeking compensation, and facilitated legal workshops in high schools.

It still seems remarkable that I was able to do any of the things at the age of 22, just because I was in first year law.

 


Remorse in the Rehabilitation Context

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.

The Federal Court of Appeal took the matter even further.

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.