Ministers Instructions Resulting From Changes to s. 25 H&C Applications

On Saturday, August 14, Citizenship and Immigration Canada (“CIC“) released Ministers Instructions regarding proposed changes to the Immigrations and Refugee Protection Regulations (the “Regulations“) that will correspond to changes to humanitarian & compassionate (“H&C“) applications under s. 25 of the Immigration and Refugee Protection Act (“IRPA“) that resulted from the Balanced Refugee Reform Act (“Bill C-11“).

The changes will impact H&C applications under IRPA s. 25, which provides that an individual who does not meet the eligibility requirements to apply within an immigration class may be granted permanent resident status or an exemption from any criteria under humanitarian and compassionate or public policy grounds.  Prior to Bill C-11, s. 25 stated:

25. (1) The Minister shall, upon request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative or on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.

Provincial criteria

(2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.2001, c. 27, s. 25; 2008, c. 28, s. 117.

As a result of Bill C-11, s. 25 will now read:

25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

(1.1) The Minister is seized of a request referred to in subsection (1) only if the applicable fees in respect of that request have been paid.

(1.2) The Minister may not examine the request if the foreign national has already made such a request and the request is pending.

(1.3) In examining the request of a foreign national in Canada, the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national.

25.1 (1) The Minister may, on the Minister’s own initiative, examine the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

(2) The Minister may exempt the foreign national from the payment of any applicable fees in respect of the examination of their circumstances under subsection (1).

(3) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.

25.2 (1) The Minister may, in examining the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act, grant that person permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by public policy considerations.

(2) The Minister may exempt the foreign national from the payment of any applicable fees in respect of the examination of their circumstances under subsection (1).

(3) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.

The proposed changes to the Regulations are largely technical, and designed to ensure that the “splitting” of s. 25 into three sections are reflected in the Regulations.

Thus, s. 233 of the Regulations will now state that:

233. A removal order made against a foreign national, and any family member of the foreign national, is stayed if the Minister is of the opinion that the stay is justified by humanitarian and compassionate considerations, under subsection 25(1) or 25.1(1) of the Act, or by public policy considerations, under subsection 25.2(1) of the Act. The stay is effective until a decision is made to grant, or not grant, permanent resident status.

Section 207 of the Regulations, regarding work permits, contains a similar amendment, and will now state that:

(b) a person in respect of whom an application for a permanent resident visa, an application to remain in Canada as a permanent resident, or an application under subsection 25(1) of the Act is pending, or in respect of whom a decision under subsection 25.1(1) or 25.2(1) of the Act is pending;

These changes also apply to permanent resident visas and processing fees in s. 67-68 of the Regulations, and in s. 298(2)(b) regarding payment of fees.


Military Deserters Immigrating to Canada: New Rule

On July 22, 2010, Citizenship and Immigration Canada released Operational Bulletin 202 – “Instruction to Immigration Officers in Canada on processing cases involving military deserters”.

The timing of the bulletin suggests that it is likely a response to the high profile Hinzman decision, previously commented on in this blog.

According to the bulletin, immigration officers have been instructed to contact their Regional Program Adviser for guidance when processing applications for permanent residence in Canada made by military deserts. They are also instructed to copy the Case Review Division of the CMB on their initial communication with their RPA.

CPC-Vegreville has been asked to transfer applications filed by military deserters to the appropriate inland CIC for processing.

All new claims for refugee status and any updates to existing refugee claims or PRRA applications are to also be provided to CMB.


PRRA Officer Did not Consider Important Country Report

On June 7, the Federal Court released its decision in Ariyaratnam v. Canada (Citizenship and Immigration), 2010 FC 608 (“Ariyaratnam“) The case involved a 28 year old from Sri Lanka whose Pre-Removal Risk Assessment (“PRRA“) and Humanitarian & Compassionate applications were refused.

The appellant argued in Federal Court that the assessing officer (the “Officer“) had a duty to consider a UNHCR report that would have bolstered the applicant’s claim (the “Report“). The Report was released a few weeks before the Officer released her decision, and the Officer did not consider it.

Continue reading “PRRA Officer Did not Consider Important Country Report”


Chinese People in Latin America – Discrimination?

Photo by David Berkowitz

On May 27, 2010, the Federal Court issued its decision in Jiang v. Canada (Citizenship and Immigration), 2010 FC 580. (“Jiang“). Jiang involved an application for permanent residence in Canada on humanitarian and compassionate grounds.  There were numerous aspects to the claim.  The one that I wish to focus on was the applicant’s claim that she faced discriminated in Peru because she was Chinese.

The judgment states:

[5]                B and H owned and operated a restaurant in Peru.  They stated that they were subjected to extortion and harassment.  They also alleged that when they complained to the police, they were told to go back to China.  As a result, the Applicants… closed down their business in 2004, and accompanied their eldest daughter .. to Canada where she had obtained a student visa.  Their son remained in Peru, while their youngest daughter came with them to Canada.

[7]               Moreover, the Board found that the documentary evidence failed to show that Chinese nationals living in Peru faced persecution, torture or cruel or unusual treatment or punishment because of their race.  It was the Board’s conclusion that the Applicants’ allegations of repeated victimization was, on a balance of probability, a product of their status as business owners, and as such, could be remedied by a change in occupation.

[8]               The Board also found that there was no persuasive evidence that the principal Applicant’s daughter, Xie Moy Ly Jiang, who is a citizen of Peru, faced a well-founded fear of persecution in Peru, or that she was a person in need of protection.  It was the tribunal’s conclusion that the Applicants’ allegation, that she would be targeted in the future by criminals because of her race, was speculative and not grounded in facts or in any of the documentary evidence.

[37]           The Applicants also alleged that the officer selectively used the documentary evidence, by taking information out of context and by ignoring contradictory evidence.  The Applicants explained that the officer cited out of context the 2008 U.S. Department of State Country Report on Human Rights Practices, Peru, dated February 25, 2009 (the “Report”) by stating that “there were no reports of societal abuses, or discrimination”.  It is true that this exact same wording exists in the Report in the section dealing with freedom of religion and anti-Semitic acts.  However, there is no indication that the officer quoted this passage verbatim from the Report.  Despite a general statement that although the law prohibits discrimination, discrimination persisted, found under the heading “Discrimination, Societal Abuses, and Trafficking in Persons”, the Report notes that the only incidents of discrimination against national, racial or ethnic minorities pertain to Afro-Peruvians and indigenous people.  There is no report of discrimination or societal abuses against people of Chinese ethnicity or of Asian descent. In this light, I do not believe the officer selectively used the Report.

If you’ve been to Latin America, or if you know any Asians living in Latin America, I am curious to hear your anecdotal stories.  How are overseas Chinese treated in Latin America?


What is a Child?

Almost two years ago I did a post on whether a disabled adult who is dependent on his parents can be considered a child for the “best interest of the child” analysis in H&C applications.  At the time, I wrote that:

[Saporsantos Leobrera v. Canada (Citizenship and Immigration), 2010 FC 587] holds that an adult with a disability remains an adult with a disability, and ought not to be deemed a “child” for the purposes of the Convention on the Rights of the Child, or section 25 of the Immigration and Refugee Protection Act.

It is important to note that this is only the most recent case in a string of decisions on this issue. Given the conflicting preceding decisions on the matter, the issue is by no means settled.

It took longer for this issue to re-emerge in the jurisprudence than I thought it would, but the issue of what the definition of a “child” is for the “best interest of the child” analysis was front and centre in the recent decision of Dugly Medina Moya v. The Minister of Citizenship and Immigration, 2012 FC 971.

In Moya, Justice Hughes agreed with and re-printed much of the judgement in Saporsantos Leobrera, writing that:

The courts have a specific role to play in the Canadian system of constitutional supremacy. Acknowledging the roles of the executive branch, the legislative branch and recognizing the judiciary’s role as one of interpretation of the law. It is, thus, incumbent on the Federal Court to follow the interpretation of the legislation in jurisprudence issued by the Federal Court of Appeal and the Supreme Court.

It is the Court’s conclusion that the definition of “dependent child” is not determinative of whether a person is deserving of a best interests of the child analysis. The Court finds, based on the entirety of section 2 of the IRPR, that the definition of “dependent child” was not intended to apply to the IRPA.

As has been shown, the definition of “child” is undefined in the IRPA and the jurisprudence makes it clear that the best interests of the child analysis has a special relationship with the Convention on the Rights of the Child. Therefore, the Court is of the opinion, based on the above reasoning, that the importance that the Convention on the Rights of the Child has been unduly minimized by the earlier jurisprudence on this matter.

 Although the Court is sympathetic to the position of the Applicant, as the policy behind analyzing the best interests of the child is, as recognized by the Convention on the Rights of the Child, partially based on the physical and mental vulnerabilities of children; and it also recognizes that persons with disabilities may also be vulnerable, to varying degrees, the Court cannot agree that dependency and vulnerability are the defining characteristics of “childhood” for the purposes of section 25. The Court consequently finds that dependent adults should not be included in the analysis of the best interests of the child.

The Convention on the Rights of the Child, Article 1, states:

For the purposes of the present Convention, a child means every human being below the age of eighteen years, unless under the law applicable to the child, majority is earlier attained.

Unlike in Saporsantos Leobrera, however, Justice Hughes acknowledged that there is uncertainty on the issue, and certified the following question:

“Is the ‘child’ spoken of in section 25 of IRPA restricted to a person under the age of 18 years?”

The issue is now on its way to the Federal Court of Appeal, and we should see a definitive answer on this soon.


Marrying an Inadmissible Spouse

By Hammer51012

Sometimes, the Immigration and Refugee Protection Act and its regulations can force individuals to make really difficult choices.  I recently encountered this when a client presented issues raising a refugee claim based on sexual orientation, an inadmissible spouse who had been working with a work permit, potential misrepresentation based on a misunderstanding of the law, and really difficult choices.  

Because I for obvious reasons cannot get into any details on my own clients, I’m going to present the “inadmissible spouse issue” by summarizing a recent Federal Court case: Abalos v. Canada (Citizenship and Immigration).

In Abalos, the Applicant was a live-in caregiver living in Canada whose application for permanent residence was approved-in-principle.  As there was nothing to suggest that she was medically or criminally inadmissible, the coast was essentially clear for her to become a permanent resident. 

Prior to the Applicant’s application being approved in principle, the Applicant married a refugee claimant in Canada.  The man was from the same country that she was.

Shortly after learning that her application was approved-in-principle, the Applicant sent a letter to Citizenship and Immigration Canada informing them that she had gotten married.  

One month later, the Applicant’s husband’s refugee claim was rejected.  The rejection of the refugee claim resulted in the husband being the subject of an unenforceable removal order.

This, unfortunately, triggered the application of s. 113(1)(e) of the Regulations, which provide that:

Permanent residence

113. (1) A foreign national becomes a member of the live-in caregiver class if

(e) they are not, and none of their family members are, the subject of an enforceable removal order or an admissibility hearing under the Act or an appeal or application for judicial review arising from such a hearing;

Accordingly, an immigration officer rejected her application for permanent residence, a decision which the court upheld.

A Note on H&C Submissions

It is worth noting that the applicant did ask the Officer to consider humanitarian & compassionate considerations after the officer informed the applicant of his concerns regarding s. 113(1).  However, as noted in the decision, the applicant did not state what the humanitarian & compassionate grounds should have been.


The Best Interests of the Child and Misrepresentation

One of the challenges in immigration law is determining the appropriate balance between the understandable necessity of ensuring that visa applicants are upfront and honest and humanitarian & compassionate considerations (“H&C considerations”).

No where is this challenge more pronounced then when there are children involved.  In Baker v. Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada stated that H&C considerations require that immigration officers consider the best interests of a child when there are children involved.

As I have previously discussed on this blog, this principle has created a bit of a myth that the bests interests of a child will be determinative in any application.  This is simply not the case.  For example, in Canadian Foundation for Children, Youth, and the Law , the Supreme Court declared that:

It follows that the legal principle of the “best interests of the child” may be subordinated to other concerns in appropriate contexts. For example, a person convicted of a crime may be sentenced to prison even where it may not be in his or her child’s best interests. Society does not always deem it essential that the “best interests of the child” trump all other concerns in the administration of justice. The “best interests of the child”, while an important legal principle and a factor for consideration in many contexts, is not vital or fundamental to our societal notion of justice, and hence is not a principle of fundamental justice.

Recently, in Moore v. Canada, the Federal Court had the opportunity to analyze the relationship between the bests interests of the child analysis and misrepresentation.   Misrepresentation is considered to be an extremely serious breach of the Immigration and Refugee Protection Act.  The consequence is a two-year ban on entering Canada.

In Moore, Justice Scott cited Ebebe v Canada (Minister of Citizenship and Immigration), 2009 FC 936, and noted that:

In Ebebe, Justice Barnes mentions that the officer was alert, alive and sensitive to the best interests of the child. After reviewing the conclusions of the officer in this regard, he concludes at para 21, that:

All of the above confirms that the Officer carried out a thorough and thoughtful assessment of the best interests of the child. What is essentially being advanced on behalf of Mr. Ebebe is that this decision must be irrational because, in the end, the Officer’s concerns about Mr. Ebebe’s misconduct overwhelmed the evidence supportive of maintaining family unity. While a different decision could certainly have been reached on this record, it was not an error to give great and, indeed, overriding weight to Mr. Ebebe’s misconduct. This was, after all, a case of serious and prolonged misrepresentation of the sort that was of concern to the Court in Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 FC 358 at paragraph 19:

In short, the Immigration Act and the Canadian immigration policy are founded on the idea that whoever comes to Canada with the intention of settling must be of good faith and comply to the letter with the requirements both in form and substance of the Act. Whoever enters Canada illegally contributes to falsifying the immigration plan and policy and gives himself priority over those who do respect the requirements of the Act. The Minister, who is responsible for the application of the policy and the Act, is definitely authorised to refuse the exception requested by a person who has established the existence of humanitarian and compassionate grounds, if he believes, for example, that the circumstances surrounding his entry and stay in Canada discredit him or create a precedent susceptible of encouraging illegal entry in Canada. In this sense, the Minister is at liberty to take into consideration the fact that the humanitarian and compassionate grounds that a person claims are the result of his own actions.

Justice Scott similarly found that the bests interests of the child do not necessarily trump misrepresentation.

The case is a useful reminder of both the severity of misrepresentation, as well as that the best interests of the child are not determinative.