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by the claimant was determined to be ineligible to be referred to the Refugee Protection Division, or to have been withdrawn or abandoned;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.

Canadian Immigration Law and International Law

Section 3(f) of Canada’s Immigration and Refugee Protection Act states that Canadian immigration law is to be construed and applied in a manner which complies with international human rights instruments to which Canada is a signatory.

In de Guzman v. Canada (Minister of Citizenship and Immigration)the Federal Court of Appeal articulated the following principles for what this means:

  • While previously international conventions to which Canada was party to did not give rise to rights and duties enforceable in Canadian courts, this is no longer the case.
  • The values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.
  • Canadian immigration law does not incorporate into it “international human rights instruments to which Canada is signatory” but merely directs that the law be construed and applies in a manner that complies with them.
  • The words “shall be construed and applied in a manner that complies with” are mandatory and appear to direct courts to give the international human rights instruments in question more than persuasive or contextual significance in the interpretation of the Canadian immigration legislation.
  • Canadian immigration law must only be construed and applied in a manner that complies with international law where Canada has signed the international instrument creating it.
  • It is not necessary that each and every provision of Canadian immigration legislation comply with international law.  Rather, the question is whether an impugned statutory provision, when considered holistically with others, results in the law complying with international law.
  • A legally binding international human rights instrument to which Canada is signatory is determinative of how Canadian immigration legislation must be interpreted and applied, in the absence of a contrary legislative intention.
  • If a provision of immigration legislation contravenes international laws to which Canada has agreed to, then a clear enabling provision by Parliament authorizing the departure is required.

Addressing IRPR r. 117(9)(d)

Regulation 117(9)(d) of the Immigration and Refugee Protection Regulations provides that a foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined. An exception exists where the foreign national was not examined because an immigration officer determined that they did not need to be.  Regulation 117(9)(d) typically arises where a person immigrates to Canada, does not disclose that they are either married or have children, and then attempt to sponsor for immigration the people that they did not disclose.

The Charter

If one has a regulation 117(9)(d) refusal and wishes to make a Charter challenge, they should know that the Federal Court of Appeal has already held that the law is constitutional.

In de Guzman v. Canada (Minister of Citizenship and Immigration), [2006] 3 FCR 655, 2005 FCA 436, Ms. de Guzman’s counsel argued that by preventing her from sponsoring her children, and keeping her apart from them, regulation 117(9)(d) deprived her of the Charter’s right to liberty because it restricted her right to make fundamental personal choices, and also that regulation 117(9)(d) deprived her of her Charter right to security of the person by subjecting her to the psychological stress of being separated from close family members.

The Federal Court of Appeal disagreed, and found that s. 7 of the Charter was not engaged because regulation 117(9)(d) was not the cause of Ms. de Guzman’s 12 year separation from her children. Rather, her decision to immigrate to Canada without them, and to lie during her immigration process, was the cause.  In sum, Ms. de Guzman had not established that she was the victim of the “serious state-imposed psychological stress” to which s. 7 of the Charter applies.

Furthermore, the court held that the children were free to make H&C applications.

Withdrawing and Reinstating IRB Proceedings

Sections 5 and 6 of the Immigration Division Rules, SOR/2002-229 state:

Withdrawing a Request by the Minister for an Admissibility Hearing

Abuse of process

5 (1) Withdrawal of a request for an admissibility hearing is an abuse of process if withdrawal would likely have a negative effect on the integrity of the Division. If no substantive evidence has been accepted in the proceedings, withdrawal of a request is not an abuse of process.

Withdrawal if no evidence has been accepted

(2) If no substantive evidence has been accepted in the proceedings, the Minister may withdraw a request by notifying the Division orally at a proceeding or in writing. If the Minister notifies in writing, the Minister must provide a copy of the notice to the other party.

Withdrawal if evidence has been accepted

(3) If substantive evidence has been accepted in the proceedings, the Minister must make a written application to the Division in order to withdraw a request.

Reinstating a Request by the Minister for an Admissibility Hearing

Application for reinstatement of withdrawn request

6 (1) The Minister may make a written application to the Division to reinstate a request for an admissibility hearing that was withdrawn.


(2) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice or if it is otherwise in the interests of justice to allow the application.


The leading case on ss. 5 and 6 of the Immigration Division Rules is Canada (Minister of Citizenship and Immigration) v. Sheremetov, 2004 FCA 373.  There, the Federal Court of Appeal determined that the Immigration Division should not consider the merits of the government’s case when considering whether to accept a withdrawal of a request for an admissibility hearing where no substantive evidence has been accepted in the proceeding.  It is only upon reinstatement that the Immigration Division may consider whether the government’s conduct amounts to an abuse of process.

Borderlines #15 – Gordon Maynard on New Can Consulting and the Biggest Immigration Fraud in Vancouver History

Gordon Maynard is a Vancouver based lawyer who practices exclusively in Canadian immigration law.  He is a past Chair of the Canadian Bar Association’s Immigration Section.

In this episode we discuss the biggest immigration scam in Vancouver’s history, which is still unfolding. Xun (Sunny) Wang was a ghost consultant who is estimated to have made $10 million by filing fraudulent immigration applications for clients of his two firms, New Can Consulting and Well Long Enterprises.  Mr. Wang, who is currently serving an eight year jail sentence, and his staff, apparently put fake passport stamps in peoples’ passports in order to lie about having spent sufficient time in Canada to qualify for various immigration programs.  The Canada Border Services Agency is now endeavouring through what the Department is calling Project New Can to remove over 1,500 former clients of his for having committed misrepresentation to obtain Canadian permanent residency and/or maintain it.  All of the lawyers involved in this podcast have and are representing some of his clients in these removal proceedings.


1:39 – Gordon provides an overview of the timeline involved in Sunny Wang’s alleged fraud.

7:50 – What constitutes misrepresentation in Canadian immigration applications?

10:30 – We discuss some of the mechanics of what Sunny Wang is alleged to have done.

12:00 – Many New Can clients are saying that they signed blank forms and did not know that the applications were fake. Is this a defence to misrepresentation in Canadian immigration law?  Plus Steven reads a summary of what a typical Project New Can procedural fairness letter or allegation looks like.

19:30 – What is the process for having a permanent resident or a foreign national removed from Canada for misrepresentation?

23:00 – What sorts of misrepresentations can actually lead to removal from Canada?

28:30 – What sort of flexibility is there amongst enforcement officers once they have found a misrepresentation to still not have someone removed?

34:45 – As a lawyer, if a client comes to you and says “I submitted an immigration application with fake stamps in my passport and I knew they were fake,” what would you recommend? Do they have a chance of staying in Canada?  And other issues representatives need to be aware of.


Borderlines Episode #14 – How to overcome systemic barriers in LGBTQ asylum claims, with Sharalyn Jordan

Sharalyn Jordan is an Assistant Professor in the Faculty of Education at Simon Fraser University.  She works with with community agencies that support LGBTQ and refugee mental health as they develop and assess their counselling practices and programs.

In this episode we discuss how to overcome systemic barriers in LGBTQ asylum claims.  Much of this episode is dedicated to establishing how LGBTQ asylum claimants must prove their sexual identity during their refugee claim.  How does someone from a country where being gay is illegal and who has been a closeted homosexual for their entire life prove that they are gay? What do Immigration and Refugee Board members expect?  How can counsel assist? Finally, we discuss whether LGBTQ asylum claimants should even be required to prove their sexual orientation as part of their asylum claim.


1:13 – Sharalyn provides an overview of the history of how Canada’s immigration and refugee system has restricted the ability of LGBT people to relocate to Canada.

5:12 – Canada’s immigration and refugee system often requires that people prove their sexual orientation. How can LGBT people prove their orientation?

20:00 – Are there circumstances in which an Immigration and Refugee Board member can reject a person’s claimed identity?

34:30 – What degree of membership in a LGBT community is required or the norm for an LGBT refugee claimant?

36:40 – What is the standard of persecution in the LGBT context?

44:10 – What changes does Sharalyn think need to be made to Canada’s refugee system?

53:30 – Steven expresses concerns with the idea of not questioning one’s identity, and has his concerns answered.

Post Show Notes

After listening to this episode one might want to see examples of decisions where the Refugee Protection Division engaged in reasoning that was not sensitive to LGBT issues. Isesele v. Canada (Immigration, Refugees, and Citizenship) is a good example. There, the Federal Court set aside a decision in which the RPD determined that a bisexual woman could avoid persecution if she simply kept a “low profile.”