Borderlines #16 – The History of the Immigration Consultant Profession in Canada

Ron McKay is a past Chair of the Immigration Consultants of Canada Regulatory Council’s (“ICCRC”) Board of Directors. He is a former Immigration Officer who spent ten years at the Canadian Embassy in Tokyo, Japan. He is also a past National President of the Canadian Association of Professional Immigration Consultants.

In this episode we discuss the history of the immigration consultant profession in Vancouver and current issues that it faces.

Topics

3:30 – We discuss the history of immigration consultants in Canada, including an in depth discussion of the Mangat case, in which the Supreme Court of Canada determined that the federal government could allow non-lawyers to practice immigration law. We also discussed the Canadian Society of Immigration Consultants (“CSIC”), the first regulatory body of immigration consultants in Canada.

24:00 – We get into governance issues at regulatory oversight issues at both CSIC and the ICCRC.

38:30 – We talk about ghost consultants and what the immigration consultancy profession can do about it.

50:00 – We discuss how the immigration consulting profession needs to be regulated yet at the same time be independent of the government.

53:00 – Steven asks how the ICCRC determines how many consultants there should be. Are we reaching a saturation point? Should there be limits as to which aspects of immigration law they can practice?

 

 

 


Weeding Out Crooked Immigration Consultants

The following is an article that I wrote for Policy Options.

The first paper that I wrote in law school was about legal ethics. I submitted a seven-page essay arguing that restricting the practice of law to graduates of law school was unethical, given the crisis of access to justice that so many face, and that the free market should instead regulate who can and cannot charge fees to provide legal representation. I got my lowest mark in law school.

The study and practice of law moderated many of my views, and my opinion on who should be able to practise law has been adjusted accordingly. It has become clear to me that those who receive fees in exchange for the provision of legal advice must be regulated, and that in an era of easy Internet marketing, paid-for reviews and fake news, the free market is incapable of performing this role. However, I still believe that access to the ability to practise law should be extended beyond those who have completed three years of law school.

It may not be surprising then that, unlike many immigration lawyers, I do not consider the existence of immigration consultants to be inherently problematic. When I started practising immigration law, a local immigration consultant was an important mentor to me, and some of the most passionate people I know who are advocating for greater justice and fairness in Canada’s immigration system are consultants.

Unfortunately, it is not possible to practise immigration law for long before encountering people who have been the victims of immigration consultants who provided extremely bad representation, ranging from sheer incompetence to fraud. In many other cases, the prospective immigrants were not victims of fraudulent consultants but willing participants in their schemes. What’s more, it is also apparent that many unscrupulous immigration consultants do not fear any consequences from their regulator and seemingly act with impunity.

I do empathize with their regulator, the Immigration Consultants of Canada Regulatory Council (ICCRC). In 2003, the Canadian Society of Immigration Consultants (CSIC) was established as the first independent governing body of the immigration consulting profession. In 2008, the House of Commons Standing Committee on Citizenship and Immigration determined that the CSIC was not providing adequate regulation, and in 2011 the CSIC was replaced by the ICCRC. Now, in June 2017, the same parliamentary committee has determined that the ICCRC is not doing a sufficient job of regulating consultants and protecting the public, and has again recommended that a new regulatory body be created. It is not difficult to envision this cycle repeating itself every five years.

The deficiencies of the ICCRC are constantly contrasted with the strengths of provincial law societies, which hardly seems fair given that most provincial law societies are over a hundred years old, while the ICCRC has existed for only six. Perhaps the best approach that the government could take to the regulation of immigration consultants is to allow the consultants’ regulatory body time to gain experience and mature.

However, until the immigration consulting profession demonstrates that it can be effectively self-regulated, the government must act to protect the public from unscrupulous and incompetent consultants. The people who would benefit most are the many hard-working immigration consultants who constantly see their profession’s reputation dragged through the mud.

The Royal Canadian Mounted Police and the Canada Border Services Agency are both responsible for investigating licensed immigration consultants who engage in fraud. A representative of the CBSA recently told the House of Commons Standing Committee on Citizenship and Immigration:

We have just over 200 criminal investigators across Canada who are responsible for investigating an array of crimes under IRPA [Immigration and Refugee Protection Act], as well as under the Customs Act. As a result, we use a tiered process with respect to issues that involve consultants. Generally, we go after individuals, or investigate individuals, who are the organizers of, let’s say, mass misrepresentation or mass fraud, rather than the one-offs. In terms of how we’re approaching this, we are looking at where the greatest deterrent could occur. We are looking at the big organizers, rather than the individual who may have provided information for profit in one case, and so forth. I do believe that we are using the resources that we have to the best of our ability, based on a risk profile.

It is understandable that the CBSA would want to pursue the most flagrant ethical breaches, such as the misdeeds of a Vancouver “ghost” (unlicensed) consultant who recently went to jail for eight years after putting fraudulent passport stamps in people’s passports. But the cumulative effect of the everyday misrepresentations — including, as recently reported by the CBC, consultants facilitating the illegal charging of fees by employers to employees for jobs — is just as great a threat to the integrity of Canada’s immigration system.

Criminal prosecutions require a high level of proof, and the criminal justice system has limited investigatory and prosecutorial resources. In any case, incompetent (as opposed to fraudulent) representation would not result in criminal charges. So, in seeking ways to protect the public, Immigration, Refugees and Citizenship Canada (IRCC) and the Immigration and Refugee Board (IRB) must look beyond the criminal justice system.

There are several other measures that IRCC and the IRB can take.

First, the government should amend the Immigration and Refugee Protection Regulations to provide IRCC with the power to temporarily refuse to process applications submitted by people represented by consultants whom IRCC has previously determined to be unscrupulous. Prospective immigrants should be advised that the processing of their applications will not continue until they retain new representatives. IRCC should also be allowed to charge fines. IRCC has already implemented both bans and fines to penalize employers who misrepresent themselves in applications to hire foreign workers. These have proven to be excellent deterrents, and the same principles and techniques could be utilized to deter fraud by consultants.

This is not to suggest that IRCC should become a permanent regulatory body for consultants, as some people have suggested. It is crucial that immigration consultants be able to be passionate advocates for their clients, including those accused by the government of being inadmissible to Canada and those who are clearly being deliberately blocked by the bureaucracy even though they are legally qualified to immigrate. If IRCC becomes both the visa adjudicator and the regulator of consultants, many consultants would likely be wary of aggressively challenging it. However, until immigration consultants fear crossing their regulator as much as lawyers fear breaching the rules of their respective law societies, the IRCC should have the ability to refuse to interact with known unscrupulous consultants.

Second, the IRB should be given the power to refuse to allow certain consultants to appear before it. An IRB official recently told the Standing Committee on Citizenship and Immigration:

Board members use a kind of compensatory mechanism in a hearing room. If they’re dealing with a consultant who is not able to present the client’s case, they get drawn into the arena and they have to start eliciting the evidence. It’s not something a lot of members like to do, but sometimes they feel they have to do that in order for the case to go ahead that day and for there not to be a miscarriage of justice.

This is a tremendous waste of scarce resources. The Immigration and Refugee Board should be able to simply refuse to allow incompetent consultants to represent clients before it. The IRB should work with the regulator to develop appropriate standards and testing that any consultants who wish to appear before it must pass.

Third, a significant obstacle to combatting fraud by consultants is that prospective immigrants who learn that they committed misrepresentation in an application because of poor advice fear lodging complaints against their representatives; they believe, often accurately, that they may be considered complicit in misrepresentation and could be removed from Canada or barred from entering. IRCC should allow such persons to correct their applications without fear of being barred from Canada for five years, which is the current penalty for any misrepresentation. While granting entry to someone who misstated a fact in an application may leave a bad taste in IRCC’s mouth, making progress against fraud by consultants should provide some satisfaction in compensation.

Finally, one of the principal reasons that people hire third-party representatives is language barriers. Most applicants in Canada’s economic-immigration programs must demonstrate a certain level of fluency in English or French, but this is not the case in Canada’s family reunification programs. People applying to immigrate under family reunification who do not speak either language are especially vulnerable to receiving bad advice, because they often do not understand the forms they must fill out. IRCC should provide as many of its forms as possible in the greatest number of languages possible. Any online forms should be able to connect to free translating services like Google Translate. When applicants can communicate with IRCC in their own language, unscrupulous consultants will be much less able to provide information on forms that does not reflect what their clients told them, and applicants will be less able to claim that they did not know what an immigration consultant wrote on their behalf.

In my experience, the majority of immigration consultants are ethical and provide very valuable services. It is they, frankly, who have been let down by both the government and their regulator. They deserve better, and well-considered actions are needed to remove the bad individuals who are ruining their profession’s reputation.


The Bill of Rights and Canadian Immigration

The Canadian Bill of Rights, S.C. 1960, c. 44 (the “Bill of Rights“) is a Canadian federal statute that was enacted in August 1960. It is quasi-constitutional in nature. As it is an Act of Parliament it applies only to federal law. It also predates the Charter of Rights and Freedoms, which has largely superseded the Bill of Rights in importance.

However, not all of the provisions of the Bill of Rights were reproduced in the Charter of Rights and Freedoms.

Section 2(e) of the Bill of Rights provides:

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to […]

(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.

In Canadian National Railway Company, the Federal Court established that four basic conditions must be met in order for paragraph 2(e) of the Bill of Rights to be engaged:

  1. The applicant must be a “person” within the meaning of paragraph 2(e);
  2. The arbitration process must constitute a “hearing […] for the determination of [the applicant’s] rights and obligations”;
  3. The arbitration process must be found to violate “the principles of fundamental justice”; and
  4. The alleged defect in the arbitration process must arise as a result of a “law of Canada” which has not been expressly declared to operate notwithstanding the Canadian Bill of Rights.

Hassouna v. Canada

In Hassouna v. Canada (Citizenship and Immigration), the Federal Court addressed whether the citizenship revocation procedures for misrepresentation contained in Stephen Harper’s Conservative Government of Canada’s Bill C-24 constituted a hearing for the determination of the applicant’s rights and obligations.  In determining that it did, the Court also ruled that while acquiring Canadian citizenship is a privilege, once a person becomes a citizen their citizenship is a right.

The Federal Court also found that in order for Canada’s citizenship revocation process to be procedurally fair, people need to be entitled to: (1) an oral hearing before a court, or before an independent administrative tribunal, where there is a serious issue of credibility; (2) a fair opportunity to state the case and know the case to be met, (3) the right to an impartial and independent decision-maker, and (4) that all factors of their case, including humanitarian & compassionate considerations, be considered.

The Federal Court also determined, however, that there is no expertise threshold required for a tribunal to determine whether a person’s citizenship should be revoked.


The Global Skills Strategy

On June 12, 2017 Canada launched the Global Skills Strategy. The Global Skills Strategy introduces new work permit programs and work permit exemptions at both Immigration, Refugees and Citizenship Canada (“IRCC”) and the Department of Employment and Social Development Canada (“ESDC”).

Specifically, the Global Skills Strategy includes:

  • ESDC introducing the Global Talent Stream to its Labour Market Impact Assessment (“LMIA”) program;
  • IRCC committing to processing certain work permit applications within 10 days;
  • IRCC introducing a new work permit exemption for short-term work in certain occupations; and
  • IRCC introducing a new work permit exemption for certain researchers.

All employers of prospective foreign workers, and especially those in technology related industries, should familiarize themselves with the Global Skills Strategy.

ESDC’s Global Talent Stream

Employers of foreign workers for positions that are eligible for ESDC’s Global Talent Stream will need to decide whether they want to submit their LMIA application(s) under the normal LMIA streams or under the Global Talent Stream.

There are two main benefits of participating in the Global Talent Stream.  First, ESDC is committing to processing LMIA applications submitted under the Global Talent Stream within 10 business days.  Second, LMIA applications submitted under the Global Talent Stream will not have a minimum recruitment requirement, although employers will still have to list their recruitment efforts.

The Global Talent Stream consists of two eligibility categories.

Category A

A company will be eligible for Category A if they are hiring unique and specialized talent and if that talent has been referred to the Global Talent Stream by one of ESDC’s designated partners. As of June 12, 2017 the designated partners are the:

  • Atlantic Canada Opportunities Agency
  • BC Tech Association
  • Business Development Bank of Canada
  • Communitech Corporation
  • Council of Canadian Innovators
  • Federal Economic Development Agency for Southern Ontario
  • Global Affairs Canada’s Trade Commissioner Service
  • ICT Manitoba (ICTAM)
  • Innovation, Science and Economic Development Canada – Accelerated Growth Service
  • MaRS Discovery District
  • National Research Council – Industrial Research Assistance Program
  • Ontario Ministry of Citizenship and Immigration
  • Ontario Ministry of Economic Growth and Development
  • VENN Innovation

ESDC will consider a prospective foreign worker to have unique and specialized talent if:

  • they have advanced knowledge in the industry;
  • they have an advanced degree in an area of specialization of interest to the employer and/or they have a minimum of five years experience in the field of specialized experience; and
  • the position pays a salary of $80,000.00 or more.

Category B

An employer will be eligible for Category B if they are seeking to hire highly-skilled foreign workers to fill positions in the Global Talent occupations list.

The list of eligible occupations, and, where applicable, the minimum occupation for that occupation, is:

  • NOC 0213 – Computer and information systems managers
  • NOC 2147 – Computer engineers (except software engineers and designers)
  • NOC 2171 – Information systems analysts and consultants
  • NOC 2172 – Database analysts and data administrators
  • NOC 2173 – Software engineers and designers
  • NOC 2174 – Computer programmers and interactive media developers
  • NOC 2175 – Web designers and developers
  • NOC 2241 – Electrical and electronics engineering technologists and technicians (minimum salary $81,000)
  • NOC 2283 – Information systems testing technicians (minimum salary $78,000)
  • NOC 5241 – Digital Media and Design where the position requires a minimum of five years industry experience and specified skills (minimum salary $80,000)

Labour Market Benefits Plan

Employers in the Global Talent Stream must develop a Labour Market Benefits Plan which demonstrates the employer’s commitment to activities that will have a positive impact on the Canadian labour market.  Commitments are divided into mandatory commitments and complementary benefits.

All employers in Category A must commit to creating jobs, either directly or indirectly for Canadians and permanent residents.

All employers in Category B must commit to increasing skills and training investments for Canadians and permanent residents.

Employers in both categories must also commit to achieving a minimum of two complementary benefits with at least one activity for each benefit. The complementary benefit cannot be the same as the mandatory benefit.

Complementary benefits could include, but are not limited to:

  • job creation;
  • investment in skills and training;
  • transferring knowledge to Canadians and permanent residents;
  • enhanced company performance; and
  • implementing best practices or policies as an employer for a company’s workforce.

Activities to support mandatory and complementary benefits could include, but are not limited to:

  • increasing the number of Canadians or permanent residents employed full-time and part-time by the firm;
  • establishing educational partnerships with local or regional post-secondary institutes or with other organizations that are supporting skills and  training;
  • paid co-op or internship programs;
  • developing and implementing policies to support the hiring of underrepresented groups;
  • directly training Canadians or permanent residents;
  • directly supervising and mentoring Canadians or permanent residents;
  • increasing growth of revenue, employment or investment; and
  • developing/enhancing partnerships with organizations that assist with the identification of top domestic capital.

ESDC will monitor the progress of an employer’s Labour Market Benefits Plan at regular intervals to allow ESDC to assess the employer’s performance in the Global Talent Stream and to determine an employer’s continuing eligibility.

Two-Week Work Permit Processing

As part of the Global Skills Strategy, IRCC is committing to two-week work permit processing for applicants who:

  • are going to be working in LMIA exempt positions and are (a) applying from outside Canada, (b) are going to be working in a NOC 0 or A position, and (c) have applied online; or
  • have a positive LMIA that was obtained through ESDC’s Global Talent Stream.

New Work Permit Exemption for Short-Term Work

Prospective foreign workers in Canada will no longer need work permits if they will be working in an occupation under National Occupational Classification 0 or A and the worker is coming to either:

  • perform work for 15 consecutive calendar days or less and six months have passed since the first day of work under the previous use of this exemption
  • for 30 days or less (16-30 days) and 12 months have passed since the first day of work under the previous use of this exemption.

Work Permit Exemption for Researchers

Finally, under the Global Skills Strategy researchers will be eligible for a work permit exemption for 120 days if they:

  • are coming to perform work for 120 consecutive calendar days or less and 12 months have passed since the first day of work under the previous use of this exemption;
  • will be engaged primarily in research activities;
  • are coming to work at a publicly funded, degree-granting institution at the college or university level or affiliated research institution; and
  • have a letter from the receiving institution attesting to the details of the work as being primarily research and outlining the period of employment.

More information about the two-week processing standard can be found here.

More information about the short-term work permit exemption can be found here.

More information about researchers can be found here.


Don’t misrepresent: honesty is the best policy when filling out applications

The following is an article that I wrote for The Canadian Immigrant magazine.

Prospective immigrants committing misrepresentation in their applications is becoming an increasingly big problem in Canada. In Vancouver, an individual was recently sentenced to eight years imprisonment for helping around 1,500 people lie in everything from permanent residency applications to permanent resident card renewals, including the use of fake passport stamps.

As well, thousands of Canadians across the country are embroiled in citizenship revocation proceedings.

Meanwhile, increased information sharing between government agencies, and improvements in the collection and analysis of data are resulting in a huge increase in immigration officials detecting everything from little white lies to complex fraud.

What is misrepresentation?

Canadian immigration officials interpret the definition of misrepresentation very broadly as the goal is to help maintain the integrity of Canada’s immigration process. The law is clear that the onus is placed on the prospective immigrant (or visitor, worker or student) to ensure the completeness and accuracy of their application.

Not all misstatements or omissions will result in an individual committing misrepresentation. The lie has to be material. In other words, the misstatement or omissions need to be ones that could affect whether someone is eligible for the immigration program that they are applying to, or whether they are inadmissible to Canada.

For example, even though being charged with a criminal offence that is ultimately dismissed does not typically render one inadmissible to Canada, the failure to disclose a dismissed charge would be considered misrepresentation. Not disclosing the charge prevents officials with the opportunity to confirm if and why the charge was, in fact, dismissed. On the other hand, mistyping a postal code is unlikely to result in an immigration official determining that someone committed misrepresentation.

Third parties at fault?

Misrepresentation includes lies and omissions made by other parties, including immigration consultants, lawyers and employers, even if made without the knowledge of the prospective immigrant.

Indeed, a surprisingly common scenario that can result in misrepresentation occurs when prospective immigrants sign blank forms, trust their immigration representative to complete their application honestly, and then do not review their application before it is sent.

While there is an “innocent misrepresentation” exception, it applies only to truly extraordinary circumstances in which a prospective immigrant honestly and reasonably believes that they were not misrepresenting a material fact and that the knowledge of it was beyond their control. An example would be where someone does not declare a child that they did not know about.

Severe consequences

The consequences for an individual caught committing misrepresentation are severe. In addition to losing their status in Canada, permanent residents and foreign nationals are both subject to five-year bans on entering Canada. During the duration of this ban, they are prohibited from submitting a new permanent residence application.

In addition to being severe, the consequences can also appear unjust. Consider the case of Nelly Cedana, a former live-in caregiver whose 2016 judicial review application of a removal order against her was unsuccessful. Cedana had come to Canada in 2009 to work as a live-in caregiver. In 2010, her employers, a teacher and a lawyer, terminated her employment. For unknown reasons, her former employers suggested to her that she continue to live with them and that she pay them $1,000 in cash per month. In exchange, they would issue her a cheque for the same amount and they would pretend that she still worked for them. They even issued fake T4 slips to her, claiming the recycled cash as employment income paid to her.

When the fraud was discovered, the Canada Border Services Agency successfully sought to have Cedana removed from Canada for misrepresentation. Her counsel desperately argued that she was a vulnerable person who had been victimized and exploited by her employers, but was unsuccessful. The Federal Court noted that while it was the employers who proposed the illegal route to immigration, Cedana had chosen to accept it.

After her decision, Madam Justice Elliot noted that it would shake public confidence in the administration of Canada’s immigration system if Nelly was removed from Canada yet the government took no actions against her employers, and that the consequences for violating Canada’s immigration laws should not fall solely upon those who lack Canadian citizenship while professionals occupying positions of trust are spared any scrutiny of their actions.

However, anyone who spends a considerable amount of time talking with prospective immigrants, especially those in vulnerable circumstances, will know that the brunt force of the enforcement of Canada’s immigration laws will typically fall on the prospective immigrant, while the consequences for unscrupulous employers or consultants will be minimal, if any.

As unjust as this seems, the reality is that everyone completing an immigration application typically knows what is true and what isn’t. As such, no matter how tempting it is to lie or how powerful the person who is recommending misrepresentation may be, honesty is always the best policy.

As well, it should also reassure many that immigration officials typically provide an applicant the chance to respond to the allegation that they have committed misrepresentation.  Obviously, applicants who have been truthful should take advantage of this opportunity.  Applicants who simply made a mistake should also respond and explain the mistake.  Immigration officers are humans, too, and they often understand that mistakes and misunderstandings can occur.


Information Sharing Between Canadian Immigration Authorities and Other Countries

The Five Country Conference (the “FCC“), commonly referred to as the “Five Eyes” is a forum for cooperation and information sharing between the border and immigration agencies of Canada, Australia, New Zealand, the United Kingdom, and the United States.

Under the FCC, Canada participates in manual case-by-case and automatic information exchanges with other FCC partners.

In 2009, Canada began manually running a small number of fingerprint-based immigration checks with each FCC partner as part of the High Value Data Sharing Protocol, an immigration information-sharing arrangement that was introduced as a pilot for automated information sharing.

In 2011, the members of the FCC agreed to expand and automate the manual, low volume, and case-by-case exchanges.

Since 2013, under the Beyond the Before Initiative, Canada has been automatically sharing immigration information with the United States.  Perhaps the most visible consequence of this information is the dramatically increased number of people who are determined to be inadmissible to Canada for not disclosing their United States visa applications, especially refusals.

In May, 2017, the Trudeau government expanded upon the Harper government’s initiative, and introduced regulatory amendments to the Immigration and Refugee Protection Regulations to allow for the automatic sharing of immigration information with Australia, New Zealand, and the United Kingdom.

Perhaps the most immediate consequence of the new information sharing agreements will be the automatic sharing of information regarding inland asylum claimants, overseas refugee resettlement applicants, and on visa applications for individuals from certain countries that the government has deemed high risk (including Colombia, Iran, and several other Middle Eastern countries that Canada collects biometrics from).

 


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)