Ezokola and the Test For Complicity

In 2013, the Supreme Court of Canada in Ezokola v. Canada (Citizenship and Immigration) created a new test for determining complicity in Article 1F(a) exclusion cases.

Article 1F(a) of the 1951 Refugee Convention provides that:

The provisions of this Convention shall not apply to any person with respect to whom there  are serious reasons for considering that:

(a)  He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

The issue that Ezokola addressed is how broad Article 1F(a) is.  It if it interpreted too narrowly, then Canada risks creating safe havens for perpetrators of international crimes.  If it is read too broadly, then the humanitarian aims of the 1951 Refugee Convention would be imperilled.

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Section 7 of the Charter and Canadian Immigration Law

Section 7 of the Canadian Charter of Rights and Freedoms (the “Charter“) provides that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

There have been several Supreme Court of Canada (the “Supreme Court“) and Federal Court of Appeal decisions involving s. 7 of the Charter and Canadian immigration law.

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Ministerial Relief Exemption Requests

Foreign nationals who are found to be inadmissible to Canada on the basis of security (including espionage, subversion, engaging in terrorism, or being a member of a group that engages in terrorism), certain human and international rights violations, or organised crime can still visit or immigrate to Canada despite being inadmissible for such serious reasons if they satisfy the Minister of Public Safety and Emergency Preparedness (the “Minister“) that their entry to Canada is not contrary to Canada’s national interest.  Such applications are referred to as “Ministerial Relief applications.”

In assessing a Ministerial Relief application, Canadian immigration law somewhat confusingly provides that the Minister “may only take into account national security and public safety considerations, but, in his or her analysis, is not limited to considering the danger that the foreign national presents to the public or the security of Canada.”

Ministerial Relief applications, previously done under ss. 34(2), 35(2), and 37(2)(a) of Canada’s Immigration and Refugee Protection Act, and now s. 42.1, have long been problematic. As the Government of Canada noted when it introduced a standardised process on March 10, 2017:

A number of issues have contributed to inefficiencies in terms of processing requests for Ministerial relief. These include the lack of a formalized application process, the inability to close applications as appropriate in the absence of a declaration by the Minister, and voluminous applicant submissions of varying degrees of relevance to the ministerial decision-making process. Currently, there is no standardized application form and applicants may seek Ministerial relief at any time. For instance, applicants may simply indicate that they wish to be considered for Ministerial relief, providing little or no supporting explanation or documentation. This means that resources are allocated to processing applications from individuals who may not be found inadmissible and thereby not require Ministerial relief (e.g. they have been granted permanent resident status). Until recently, approximately 50% of the inventory of applications comprised cases pending a final decision on inadmissibility. This has contributed to a significant backlog of cases, all of which must be personally decided upon by the Minister.

How to Submit a Ministerial Relief Application

As of March 10, 2017 Ministerial Relief applications must be made in writing.  An inadmissible individual can only submit a Ministerial Relief application after their application to travel to Canada is refused / they are issued a removal order, their inadmissibility affirmed and then only when either they have decided to not challenge the decision in court or after they have already lost in court.

The Ministerial Relief application must include:

(a) their place of birth, gender and marital status and the names of any former spouses or common-law partners;

(b) their telephone number and email address, if any;

(c) their former countries of citizenship or former countries of nationality;

(d) their education, including the name and address of all elementary and secondary schools and post-secondary, technical and vocational institutions attended and the start and end dates for the periods during which they attended each school or institution;

(e) their work history, including volunteer work, from the age of 16 years, including start and end dates for each period of work, their job title and job description and the employer’s name and address;

(f) their international travel history from the age of 16 years, including a list of the countries visited, the purpose of the visits, the dates and duration of the visits and any immigration status sought from or granted by any country visited; and

(g) why their application was refused.

Incomplete Ministerial Relief application will be returned.  Interestingly, the Government of Canada when it announced that it would return incomplete applications determined that each returned application saves the taxpayer $25,444.00.

The Canada Border Services Agency assesses requests for Ministerial relief and develops a recommendation for the Minister.

Upon being granted relief by the Minister, the matters which had led to a finding of inadmissibility under the above-listed provisions no longer constitute inadmissibility.

A person who has been granted relief may then make applications for temporary or permanent resident status without the applications being rejected on the basis of the grounds of inadmissibility for which relief was granted.

Processing Times

While the above changes are mostly welcome (there is some controversy in requiring that a permanent residence application be refused before one can apply for Ministerial Relief, especially given how long permanent residence applications can take to process) the fact remains that the biggest issue in Ministerial Relief applications is the processing times.  The biggest obstacle appears to be the requirement that the Minister personally sign off on granting Ministerial Relief.

Previously, the Government of Canada has taken the position that because of the Minister’s many duties and responsibilities, the Minister should not be subject to any timeline whatsoever in rendering determinations in respect of such requests.  In Tameh v. Canada (Public Safety and Emergency Preparedness), however, the Chief Justice of the Federal Court strongly disagreed, and opened his decision by writing that:

Ministers of the Crown are typically very busy people. But they are not so busy that they can take as many years as they see fit to respond to requests made pursuant to validly enacted legislation, by persons seeking determinations that are important to them. At some point, they will have an obligation to provide a response.

He went on to state that the Minister must process Ministerial Relief applications “within a reasonable period of time.” What constitutes a “reasonable amount of time” will depend on the actual matrix of a case.

Even in Tameh, the Federal Court accepted that taking several years to process Ministerial Relief applications could be reasonable.  In light of the fact that people who receive Ministerial Relief essentially need to apply for permanent residency twice, and given that the Government of Canada has now standardized the process, processing times will hopefully come down dramatically.

 



When You’ve Worked for a Government that Violated Human Rights

Are you an individual who has served in the government, the public service, the military, or the judiciary of a government that might have engaged in human rights or international rights obligations? Are you considering traveling to, working in, or immigrating to Canada? If you answer yes to either of these questions, you will definitely want to read on to determine whether your application could be in jeopardy.
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Deferring Removal

People who either face removal or who have received a removal order should contact a lawyer immediately to determine what their options are. The purpose of this post is to provide an overview of the legislative scheme for deferring removal orders. It provides a general framework, and cannot substitute the advice that a lawyer can give when he applies these facts to your situation.
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Innocent Mistakes, Misunderstandings, and Misrepresentation

Flickr photo by Deniz Ozuygur

One of the most difficult issues to resolve when an individual is immigrating to Canada are allegations from the Government of Canada about misrepresentation.

Section 40(1)(a) of Canada’s Immigration and Refugee Protection Act states provides that a permanent resident or a foreign national is inadmissible to Canada for misrepresentation for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of Canadian immigration law.

A significant issue that often arises is whether or not a misrepresentation has to be intentional.  The jurisprudence consistently provides that in order for a finding of misrepresentation to be made an applicant doe not have to intend to misrepresent themselves: Chen v. Canada, 2005 FC 678.   IRCC officers do, however, have to be satisfied that the person was subjectively aware of the information that they allegedly misrepresented, and that a party cannot be faulted for failing to impart information which is unknown to him/her: Jean-Jacques v. Canada, 2005 FC 104.

But what about where there is an innocent mistake or misunderstanding?  If an officer is satisfied that an individual has innocently misrepresenting something, can the fact that the misrepresentation was innocently made be an exception to misrepresentation?

In Berlin v. Canada (2011), the Court explored in detail whether such an exception exists.  There, an immigration officer determined that Mr. B had committed misrepresentation because Mr. B failed to declare his relationship as the adoptive father of two children from a previous marriage.  When the immigration officer asked why he did not declare them, Mr. B indicated that he did not believe them to be dependants for the purpose of Canadian immigration purposes.

In analysing the issue of whether innocent mistake was an exception to misrepresentation, the Court first noted that the Immigration, Refugees and Citizenship Canada’s Enforcement Manual seemed to provide for such an exception.  The relevant sections include ENF02 s. 9.3, which informs immigration officers that:

It must be recognised that honest errors and misunderstandings sometimes occur in completing application forms and responding to questions. While in many cases it may be argued that a misrepresentation has technically been made, reasonableness and fairness are to be applied in assessing these situations.

As well, ENF02 s. 9.10 states that the following situation would not generally constitute misrepresentation:

It must be recognised that honest errors and misunderstandings sometimes occur in completing application forms and responding to questions. While in many cases it may be argued that a misrepresentation has technically been made, reasonableness and fairness are to be applied in assessing these situations.

The Court also cited numerous other decisions which support the notion of an exception for innocent misrepresentation, including Medel v. Canada (MEI), [1990] 2 FC 345, Baro v. Canada (MCI), 2007 FC 1299, Merion-Borrego v. Canada (MCI), 2010 FC 631, and Koo v. Canada (MCI), 2008 FC 931.

Ultimately, the Court in Berlin affirmed that there is an exception for innocent mistake which may excuse what might otherwise appear to be a deliberate misrepresentation.  As well, in considering whether a misrepresentation is innocent or deliberate, an almost determinative factor will be whether or not the accurate information was presented in either supporting documentation or other forms.  In Berlin, for example, the applicant had included his adoptive children in a Personal Information Form.  The Court held that this strongly suggested that his failure to include it in his application form was indeed an innocent misrepresentation.

In Punia v. Canada, the Court reiterated that it may be unreasonable for a visa officer to determinate that an applicant has misrepresented themselves if the officer is, or ought to be, aware that the person is confused but trying their best to answer questions. The Court stated that:

In my view then, the Bangalore Decision for the Female Applicant is procedurally unfair and unreasonable. It is procedurally unfair because the Visa Officer knew he was dealing with a self-represented applicant who could not complete the forms correctly, who made it clear she was not sure that she had given him what he wanted, and who suggested he check the record. The Visa Officer could not know that the Female Applicant did not understand that the 2016 CEC permanent residence refusal constituted a visa refusal, but he did know that the Female Applicant was confused and was seeking to clarify with him whether the record contained any other refusals that she needed to address. He also knew that the Female Applicant had lived in Canada for a considerable period of time, had made numerous applications for visas and permits that were granted and had been totally honest with Canadian authorities throughout. In this context, procedural fairness required that the Visa Officer ask the Female Applicant specifically to address the 2016 CEC permanent residence refusal before making a decision, and to consider the obviously innocent mature of the Applicants’ mistakes.