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.
Continue reading →


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.

 

 

 




Providing a Right of Appeal to Medically Inadmissible Immigrants

On December 3, 2015, Don Davies, the member of Parliament for Vancouver Kingsway, introduced Bill C-214, An Act to Amend the Immigration and Refugee Protection Act (Appeals) (Bill C-214).  If passed, Bill C-214 would provide a right of appeal to the Immigration Appeal Division (IAD) for prospective immigrants whose applications for permanent residency are refused because Immigration, Refugees and Citizenship Canada (IRCC) determines that they will likely represent an excessive demand on Canada’s health and social services systems.

Because Bill C-214 is a private member’s bill, it is unlikely to become law.  Indeed, Davies has introduced similar bills in previous Parliamentary sessions, to no effect.  However, what he is proposing is certainly worthy of discussion and debate.  I hope that if he reads this post that he will consider my comments, if he ever reintroduces or amends his proposed legislation.  As well, at the end of this article I will discuss another immigration issue that Davies has proposed that I hope he reintroduces soon.

Inadmissibility for Excessive Demand

Canada’s Immigration and Refugee Protection Act provides that foreign nationals are inadmissible to Canada on health grounds if their health conditions might reasonably be expected to cause an excessive demand on Canada’s health or social services.

Health services are any medical services for which the majority of funds are contributed by governments, including the services of family physicians, medical specialists, chiropractors and hospital care.

Social services include home care, residential services, social and vocational rehabilitation services that are intended to assist a person function physically, emotionally, socially, psychologically, or vocationally, and for which the majority of funding is contributed by governments.  It includes special needs education for children.

An excessive demand on health or social services that results in a person being inadmissible to Canada occurs when  the anticipated health and social services costs of that person during the first five (although in some cases it is ten) years  after the person immigrates to Canada would likely exceed the average Canadian per capita costs.  In 2015, the threshold was $6,387 per year.

In the permanent resident context, a family member’s inadmissibility for excessive demand will result in an entire family’s immigration application being denied.  It does not matter if that family member will actually be accompanying the family to Canada.  The reason for this somewhat harsh rule is that foreign nationals who are being sponsored by Canadian family members are exempt from the excessive demand inadmissibility provisions.  It would thus be easy for immigrants to circumvent excessive demand inadmissibility if during the immigration process a family could simply exclude a medically inadmissible family member from the family’s immigration, and then sponsor the excluded family member immediately after immigrating.

IRCC can sometimes be extremely blunt in refusing applications for medical inadmissibility.  In 2014, for example, our office was retained to seek judicial intervention where a refusal letter stated:

Pursuant to subsection 38(1) of the Immigration and Refugee Protection Act, your family member [name withheld], is a person whose health condition of mental retardation might reasonably be expected to cause excessive demand on health or social services.. As a result, your family member is inadmissible to Canada on health grounds.

Subsection 42(a) of the Act states that a foreign national, other than a protected person, is inadmissible on grounds of being an inadmissible family member if their accompanying family member or, in prescribed circumstances, their nonaccompanying family member, is inadmissible. Your accompanying family member is inadmissible to Canada. Consequently, you are also inadmissible.

As a result of the Supreme Court of Canada’s decision in Hilewitz v. Canada (Minister of Citizenship and Immigration), IRCC must provide potential immigrants with advance notice of any concerns about a potential medical inadmissibility after the immigrants undergo their mandatory immigration medical examination, and it must provide applicants with the opportunity to respond.  To provide an example, in the case that I mentioned above, IRCC’s procedural fairness letter stated:

Your family member [name withheld], has the following medical condition or diagnosis: Severe Mental Retardation. In the opinion of the Medical Officer: This applicant born on April 19, 2008 was diagnosed with severe mental retardation. Recent assessment indicated a mean developmental age of 8.75 months and a developmental quotient of 22. There is gross delay in her motor development as well as language development. She has received no adequate special schooling or home training so far. She is deemed totally dependent in all her activities of daily living.  She requires special training including special education and speech therapy for the coming years.

This applicant’s medical condition is ongoing. She requires intervention services and special education services, which are expensive. Based upon my review of the results of this medical examination and all the reports I have received with respect to this applicant’s health condition, I conclude that she has a health condition that might reasonably be expected to cause excessive demand on social services. Specifically, this health condition might reasonably be expected to require services, the costs of which would likely exceed the average Canadian per capita costs over five years.

In consultation with the Health Management Branch of Citizenship and Immigration Canada, I have determined that the following social services would be required: early childhood education services in British Columbia, which range from $6,000 to $24,000;  special education, which from grade 1 onward costs $16,000 or more; family support for children with disability, which, based on information from the provincial and territorial funding programs for children with mental retardation, is $40,000 per year per child in British Columbia.

Before I make a final decision, a person has the opportunity to submit additional information that addresses any or all of the following:

  • The medical condition(s) identified
  • Social services required in Canada for the period indicated above
  • His or her individualized plan to ensure that no excessive demand will be imposed on Canadian social services for the entire period indicated above and their signed Declaration of Ability and Intent.

They must provide any additional information within 60 days of this letter.

Responding to such letters within such a short time period is a daunting and challenging task.  Immigration applicants are expected to obtain independent medical advice, familiarize themselves with the health and social services available in a province, and determine what alternatives to public services exist.  This can be difficult for someone who lives in Canada.  It can be almost impossible for someone who lives half-way across the world, and IRCC frequently refuses immigration applications when it determines that an applicant’s Declaration of Ability and Intent is vague or insufficient.

What is especially galling for many applicants is their belief that if they could only speak to an IRCC officer in person they could satisfy the Canadian government that they or their family member will not be a burden on Canada, and/or of why there may be sufficient humanitarian and compassionate grounds to overcome the inadmissibility.  However, Canada’s permanent resident visa application process is currently almost exclusively paper-based, and unless applicants are being sponsored by a Canadian family member, refused visa applicants do not have the right to an in-person appeal.

Mr. Davies hopes to change this.

The Immigration Appeal Division and Judicial Review

Currently, the only recourse for permanent resident applicants who are refused for excessive demand is to file applications for leave to commence judicial review in the Federal Court of Canada.  This process can take as little time as a few weeks if IRCC immediately recognizes that it made an unreasonable or procedurally unfair decision, or as long as several months to almost a year if a full hearing before a judge is required to determine the outcome.  Applicants cannot raise new evidence during the judicial review, nor can they participate in the hearing, where, essentially, two lawyers discuss before a judge as to whether IRCC erred.

An appeal to the IAD would be very different. The IAD is a hearing de novo, which means that appellants can introduce new evidence to the IAD that they did not previously provide to IRCC. As well, appellants can argue their case at a hearing in person or via teleconference.  They can also call witnesses.  In addition to determining whether IRCC was factually or legally incorrect in refusing an application, the IAD can rule that notwithstanding the inadmissibility, there are sufficient humanitarian and compassionate grounds to override the inadmissibility. If the IAD allows the appeal, the matter is referred back to IRCC for continued processing.  The visa office is then prohibited from overruling the IAD on the matter that was appealed.  In the context that Davies’ legislation addresses, IRCC would be prohibited from again refusing the application due to a person’s inadmissibility for excessive demand.  The entire process typically takes several months to almost two years.

Issues with Providing a Right of Appeal to the IAD

When Mr. Davies introduced Bill C-214 he stated in the House of Commons that “the principles of justice include a substantive right to appeal” and that “people who are seeking to obtain permanent residence in this country often have their decisions decided in a very impersonal administrative manner, with no real right of appeal.”

This is certainly true. There would obviously be many refused applicants, perhaps most of them, who would benefit from being able to go to the IAD if their application was refused.

However, there are two aspects of the IAD process that should give Davies pause, and he should consider amending his legislation if his aim is for all visa applicants to benefit from his proposed changes.  First, he may wish to consider providing refused applicants with the option of either seeking judicial review or appealing to the IAD.  Section 72(2)(a) of the Immigration and Refugee Protection Act provides that a refused visa applicant cannot seek judicial review unless all administrative appeals have been exhausted.  Given how long it can take for the IAD to hear and decide appeals, if IRCC’s refusal was unreasonable (instead of simply being based on insufficient evidence), then the judicial review process would likely be much faster and more efficient. In the case our office handled that I described above, the refusal was set aside in a matter of weeks. If the matter had proceeded to the IAD, it would have likely taken at least one year.  Ironically, Bill C-214, if passed, would make the process much slower.

The second issue that Davies may want to address is the application of res judicata, which is the principal that a matter that has been decided by a competent court or administrative tribunal cannot be relitigated.  In the spousal sponsorship context, for example, it is sometimes advisable to not appeal, but simply reapply.  The reason is that if the IAD were to dismiss the appeal, then IRCC could in the future simply automatically refuse any applications on the basis of res judicata.    In the context of excessive demand, it is not difficult to envision the IAD dismissing an appeal for someone with a severe medical condition, and then IRCC refusing subsequent immigration applications by that person even if that person’s health improves, simply because of res judicata.   While res judicata is a complicated legal principal that has numerous rules and exceptions that are beyond the scope of this post, Davies should consider explicitly excluding the application of res judicata from his proposed appeal right.

The two issues above are essentially the same shortcomings I see with Davies proposal to allow refused temporary resident applicants access to the IAD.  For most of these individuals, the ability to immediately apply again or seek judicial review is more than sufficient recourse. The IAD process would be lengthy, and if the IAD were to dismiss the appeal then the application of res judicata could theoretically permanently prohibit a person from visiting Canada if they wished to apply in the future.

The Full Reasons for Refusal

In October 2015, I wrote an article for Policy Options predicting what the impact of various election outcomes would be on Canada’s immigration system.  In contemplating what an NDP government could mean, I wrote:

While in opposition, the NDP, and especially its British Columbia Member of Parliament Don Davies, has consistently criticized CIC’s practice of issuing minimal reasons in visa refusal letters. CIC got away with doing this under both the Liberals and the Conservatives, and if the NDP fulfilled its promise to require immigration officers to provide the full reasons for refusal, it would be a subtle, simple change that would dramatically increase the fairness of Canada’s immigration system.

Davies has not yet introduced such legislation in this Parliamentary session. I hope that he does so soon.

Final Thoughts

I would like make a final note on excessive demand inadmissibility.  Terence Corcoran recently published an article in the National Post lambasting inadmissibility for excessive demand.  His entire article is worth reading, and I particularly enjoyed these two paragraphs:

Not much logical room for Down syndrome in that rundown of good reasons for sending people back from whence they came. To get to the immigration rules related to Down syndrome, it is necessary to dig through to a sub-clause of a sub-clause of a clause in the immigration protection act. Under section 38(1)(c): “A foreign national is inadmissible on health grounds if their health condition…might reasonably be expected to cause excessive demand on health or social services.”

Only a welfare state blindly enamoured with its monopoly health-care system would find this to be a reasonable justification for ruling Felipe Montoya and his family inadmissible as permanent residents. What kind of bureaucratic regime is this that looks at a healthy and productive man, his beautiful wife and their daughter, and then turns to see 13-year-old Nico and says: “Oh. That’s not good. He has something wrong with him. Looks like Down syndrome. He is a 13-year-old functioning at a three-year-old level. Inadmissible!

It is safe to state that Davies and Corcoran are on opposite ends of the political spectrum.  Both clearly see a desperate need to reform this area of Canadian immigration law. Hopefully, as awareness spreads more voices join theirs.

At a minimum, no parent should receive a letter from the Government of Canada curtly stating that their immigration application is refused because their child has Down Syndrome, or, as they told my client, mental retardation.

 



Electronic Travel Authorization

On August 1, 2015, the Government of Canada launched the Electronic Travel Authorization (“eTA”) program.  The program is similar to the United States of America’s Electronic System for Travel Authorization. Implementation of the eTA program will allow Canada to pre-screen eTA-required travellers to ensure that they are admissible to Canada.

As of March 15, 2016, most foreign nationals who are exempt from the requirement to obtain a Temporary Resident Visa (“TRV“) to enter Canada will be required to obtain an eTA before they travel to Canada by air.  A list of countries and territories whose citizens will need an eTA to travel to Canada can be found here.  As such, it will no longer be the case that residents of these countries can simply purchase tickets and board planes to travel to Canada.  Rather, an individual will be unable to board a commercial airline to Canada unless the airline first confirms that the individual possesses an eTA through the Canada Border Services Agency’s new Interactive Advance Passenger Information system.

Americans are exempted from the requirement to obtain an eTA.

The eTA is an online application on the Citizenship and Immigration Canada (“CIC“) website.  Applicants will need to provide their passport details, personal details, contact information, and answer background questions regarding their health, criminal history, and travel history. CIC anticipates that it will automatically process most eTA applications within minutes. When an eTA application cannot be automatically approved, it will be referred to a CIC officer for a manual review.  Officers can request additional documents, and, where required, further the application to a Canadian visa office abroad for further processing, including a possible interview.

The eTA will be valid for five years or until the applicant’s passport expires, whichever occurs sooner. The cost to apply is $7.00.

The process can be summarized in this internal CIC chart below, obtained through an Access to Information request.

A201511338