Court Discusses Hybrid Offenses in the Refugee Context

The Federal Court recently released an interesting case discussing the effect of a criminal charge or conviction abroad on an individual’s ability to claim refugee status in Canada.

In the non-refugee context, a foreign national is inadmissible to Canada if he has been convicted abroad of, or if he has committed abroad, an offense whose equivalent in Canada would be an indictable offense under an Act of Parliament.

As anyone who is familiar with Canada’s Criminal Code is aware, many criminal offenses are hybrid offenses, and the Crown can elect to proceed by summary trial or by way of indictment.

For example, s. 271 of the Criminal Code states that:

(1) Every one who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Section 36(3)(2) of the Immigration and Refugee Protection Act addresses hybrid offenses.  It provides that for the purpose of determining inadmissibility to Canada an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offense.  The result is that people who are convicted abroad of minor offenses in their countries of origin are inadmissible to Canada because their offense is deemed to be indictable for the purpose of determining inadmissibility, even if it virtually impossible that the same offense if committed in Canada would actually be prosecuted by way of indictment.

Until recently, there was uncertainty if the same held true for excluding people from refugee protection pursuant to Article 1Fb, which provides that:

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

( b ) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

Neither the 1951 Refugee Convention nor Canadian immigration legislation address how hybrid offenses are to be treated for the purpose of Article 1Fb analysis.

What do you think?  Should different standards for determining inadmissibility apply for refugee claimants and other foreign nationals?  Should hybrid offenses be deemed to be indictable for the purpose of determining inadmissibility?


Data on Ministerial Relief Applications

The Federal Court just released a decision which contains the following useful information on Ministerial Relief applications.  As you can see, these applications are not processed particularly fast, and their chance of success is increasingly diminishing.

Request – Documents relating to: Section 34(2) of the IRPA and comparable Section 19(1)(f) (iii)(B) of the former Immigration Act, R.S.C. 1985 Section 35(2) of the IRPA and comparable section 19(1)(l) of the former Immigration Act, R.S.C. 1985 Section 37(2) of the IRPA and comparable section 19(1)(c.2) of the former Immigration Act, R.S.C. 1985

1

The number of Ministerial Relief applications that have been submitted to date since the Immigration and Refugee Protection Act (IRPA) was enacted

247

18

11

2

The number of Ministerial relief applications that have been granted to date

24

3

0

3.

The number of Ministerial relief applications that have been submitted from 1992 up until when the IRPA was enacted 

(Information on record with the CBSA includes the timeframe from 1996 until IRPA was enacted)

37

3

1

4

The number of IRPA Ministerial relief applications that have been granted in this time frame 

(Information on record with the CBSA includes the timeframe from 1996 until IRPA was enacted)

115

0

0

5

The number of IRPA Ministerial relief applications that have been submitted in this time frame 

(Information on record with the CBSA includes the timeframe from 1996 until IRPA was enacted)

2002 – 20

2003 – 34

2004 – 32

2005 – 25

2006 – 20

2007 – 15

2008 – 16

2009 – 37

2010 –  37

2011 – 11

2002 – 0

2003 – 3

2004 – 1

2005 – 1

2006 – 2

2007 – 0

2008 – 4

2009 – 2

2010 – 5

2011 – 0

2002 – 0

2003 – 1

2004 – 1

2005 – 0

2006 – 0

2007 – 0

2008 – 1

2009 – 4

2010 – 2

2011 – 2

6

The number of Ministerial relief requests granted by the Minster PER year since the IRPA was enacted up to the present day

2002 – 0

2003 – 0

2004 – 0

2005 – 2

2006 – 5

2007 – 8

2008 – 7

2009 – 0

2010 – 1

2011 – 1

2002 – 0

2003 – 0

2004 – 1

2005 – 0

2006 – 0

2007 – 0

2008 – 1

2009 – 0

2010 – 0

2011 – 1

0

7

The number of Ministerial relief claims currently pending

223

15

12


Canada Closes Tokyo Immigration Services

The Canadian embassy in Tokyo will no longer be processing immigration applications.  All applications which would have previously been sent to Tokyo must now be sent to Manila.

Considering the difference in processing times as shown below, I am sure many potential Japanese visa applicants are probably saying  しまった.

Type of Application Tokyo Processing Time Manila Processing Time
Study Permits 3 13
Work Permits 1 15
Skilled Workers (2008-10) 17 18
Provincial Nominees 5 11
Investors 27 55
Spousal-Sponsorship 6 9

Canadian Immigration Permanent Resident Application Approval Rates

From the Standing Committee on Citizenship and Immigration Report.  I assume the Applications Processed (excluding withdrawals) should read 336,407.

 

2006

2007

2008

2009

2010

Average

Rounded

Applications received

424,265

458,175

452,874

421,442

424,282

436,208

435,000

Applications processed (excluding withdrawals)

352,571

36,407

339,659

437,278

408,366

374,856

375,000

Applications withdrawn

30,986

23,104

27,870

50,964

41,285

34,842

35,000

Applications approved

258,755

252,387

249,606

267,015

281,087

261,770

260,000

Applications denied

93,816

84,020

90,053

170,263

127,279

113,086

115,000

Approval rate

73%

75%

73%

61%

69%

70%

70%

 


Impact on 2012 National Occupation Classification List on the Federal Skilled Worker Program

Many people have been wondering whether the release of the new National Occupational Classification (“NOC”) will have an impact on future Federal Skilled Worker Program (“FSWP”) applications.  One of the FSWP streams provides that someone can immigrate to Canada if they have experience in one of 29 occupations under the 2006 NOC list.  Now that the 2006 NOC list has been replaced with the 2011 NOC list, with occupations being added, removed, and edited, the inevitable question of how this would impact the FSWP arose.

Citizenship and Immigration Canada has posted the following its website:

On January 31, 2012, Human Resources and Skills Development Canada (HRSDC) and Statistics Canada replaced the 2006 edition of the National Occupation Classification (NOC) with a 2011 version. For the purposes of the Federal Skilled Worker Program list of eligible occupations, new applicants are advised to refer to the HRSDC website for the latest job descriptions and duties for each NOC.

 

CIC will assess FSW applications received at the Centralized Intake Office before January 31, 2012 according to the old NOC system as they were the conditions under which the candidate applied.

 

CIC is examining the impact the NOC changes will have on immigration programs and will publish updates as soon as they become available.

So as of writing the answer is clear: no one knows yet.


Who Can Help You with Immigration Matters

The following article appeared in the November issue of Canadian immigrant magazine:

Who Can Help You with Immigration Matters
Understanding the New Regulations   

I frequently receive e-mails from individuals asking if it is true that it is either illegal or impossible to immigrate toCanadawithout hiring a lawyer or a paid consultant.  Some people appear to be under the mistaken impression that the Government of Canada recently enacted regulations to this affect.  I am not sure what the source of this misinformation is, but hopefully by the end of this article I will have dispelled these myths.

Bill C-35

The first misconception that needs to be clarified is the substance of Bill C-35, which came into force on June 31, 2011.  Bill C-35 changed many rules pertaining to immigration representatives, however, not one of them made it mandatory to hire a paid representative.

Amongst other things, Bill C-35 makes it an offence for anyone other an authorized representative to conduct business, for a fee or other benefit, at any stage of an immigration application or proceeding.  Authorized representatives include lawyers, paralegals in certain provinces, and members of the Immigration Consultants of Canada Regulatory Council (“ICCRC”).  The penalty for providing paid advice despite being unauthorized to do so is up to a $100,000 fine and/or two years imprisonment for up to two years.

Importantly, unpaid third parties, such as friends and family, do not have to be authorized representatives to act on behalf of potential immigrants.

Even more importantly, most of Bill C-35’s provisions pertain to the regulation of who can and cannot provide paid advice to potential immigrants.  It does not require individuals to hire a paid representative.

The Risks of Hiring an Unauthorized Representative

If you have an immigration issue and are considering hiring someone to assist you on a paid basis, then it is important to note that the onus is on you to determine whether the individual is authorized to do so.  You can determine this by consulting either your respective province’s Law Society website, or the ICCRC website, to determine whether the person you are considering to represent you is a member in good standing.

If you are considering hiring someone that is not authorized, it is important to understand some of the consequences of doing so.

If you submit an application and disclose that you have retained an individual who is not an authorized representative to help you then your application is likely to be returned to you.  The result of this is simply wasted time.

If you try to hide the fact that you have hired a paid representative, and Citizenship and Immigration Canada discovers this, then you may be accused of misrepresentation.  Bill C-35 requires that applicants be honest in disclosing who assisted them with their applications.  The consequence of being determined to have committed misrepresentation is a two year ban on enteringCanada.

(As an aside, our office routinely represents people in court, or before the Immigration and Refugee Board, who have been banned from Canada for two years because they listened to someone whispering sweet nothings about how they had “secret connections in the government” or how “CIC is scared of how good I am so don’t disclose that I am on the file.”  Please don’t believe this stuff.)

Is it Impossible?

Hopefully I have dispelled the myth that you have to hire a paid representative in order to immigrate toCanada.  However, even if it is not illegal to apply without paid representation, is it impossible to succeed without it?  Once again, the answer is of course not.

Whether or not you choose to hire a paid representative to help you with your immigration matter will depend on numerous factors, including your individual circumstances, whether there are complex issues with your application, your comfort level, and the opportunity cost of you spending numerous hours preparing paperwork.

You should consider the above factors before making a decision on whether to hire a paid representative.  However, you should not base your decision on the misconception that it is either illegal or impossible to immigrate without a paid representative.


Sensible Move Allows Parental Sponsorship Applications to Continue If Principal Applicant Dies

Canadian citizens and permanent residents who currently have applications to sponsor their parents and grandparents to immigrate to Canada in processing used to face uncertainty if the parent who was the principal applicant on the immigration application passed away.  Would Citizenship and Immigration Canada continue to process the application for the principal applicant’s spouse?  Or would CIC make the spouse re-apply and start over?

Previously, the answer was the latter.  The Citizenship and Immigration Canada manual provided that principal applicants could not be alternated after the processing of an application began.  If applicants wished to have their spouse or common-law partners considered as the principal applicants, then the original application had to be closed, and a new application, with all assorted wait times and fees, was required.

Effective immediately, however, visa officers may replace the principal applicant with the individual’s spouse or common-law partner if they were included in the original application.  While some new forms are required, no additional fees are necessary.  As well, the lock-in date for the age of dependent children will not change.

A very sensible change, and one that should be reassuring to people with sponsorship applications currently processing.  Of course, it is of little relevance to people who want to sponsor their parents / grandparents but have not yet applied.  The program remains closed to new applications.