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 It also predates the Charter of Rights and Freedoms, which has largely superseded the Bill of Rights in importance.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.


When an Administrative Delay is an Abuse of Process

The subject of an unreasonable delay often arises in the immigration context.  In one case that I was previously involved with, an individual was in Canada for 11-years before the Canada Border Services Agency expressed concerns that he might be inadmissible to Canada for previous involvement in a group accused of terrorism.  In another case, an individual who had been in and out of Canada numerous times was suddenly denied entry to Canada because of a criminal conviction that occurred eight years ago.  In both cases, the client asked whether the delay amounted to an abuse of process.

Blencoe v. British Columbia

The leading Supreme Court of Canada decision on this issue is Blencoe v. British Columbia, 2000 SCC 44.  There, three women filed complaints of sexual harassment to the British Columbia Human Rights Council.  Due to delays the tribunal hearings were not resolved for 30 months after the first filing.  The accused challenged that the 30 month delay was an abuse of process, an argument which the Supreme Court of Canada ultimately rejected, and also found that the Charter was not engaged.  Importantly, the Supreme Court found that a state caused delay, without more, does not warrant a stay as an abuse of process at common law, and that there must be significant prejudice to the individual as a result of the delay.

The following principles emerged from Blencoe:

  • The administrative process must be conducted in a manner entirely consistent with the principles of natural justice and procedural fairness.
  • Unreasonable delay is a possible basis on which to raise questions of natural justice, procedural fairness, abuse of process and abuse of discretion.
  • Delay, without more, will not warrant a stay of proceedings as an abuse of process.
  • Administrative delay may impugn the validity of the proceedings where it impairs a party’s ability to answer the complaint against him or her – where memories have faded, essential witnesses are unavailable, or evidence has been lost.
  • Where the fairness of the hearing has not been compromised, delay may nevertheless amount to an abuse of process, but few lengthy delays will meet this threshold.
  • The court must be satisfied that, “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted.
  • If the delay has directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the [administrative] system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process.
  • Determination of whether the delay is unreasonable is, in part, a relative exercise in which one compares the length of delay in the case at bar with the length of time normally taken for processing in the same jurisdiction and in other jurisdictions in Canada.

Unreasonable Delays Immigration Context

Beltran v. Canada (2011 FC 516) provides an example of the application of Blencoe in the immigration context.  There, the Canadian Security Intelligence Services determined that an individual was not a threat to Canada’s national interest.  Fourteen years later, without any explanation, and without any explanation, a new security officer expressed concerns, causing further delays in inadmissibility proceedings being commenced.  The court also found that a new investigation caused undue prejudice to Mr. Blencoe.  The Court was also critical of the government’s decision not to reveal certain information that it had kept confidential for twenty years, only to use it later.

In Torre v Canada ( Citizenship and Immigration), 2015 FC 591, the applicant was a permanent resident in Canada, arrested for drug trafficking in 1996. Seventeen years later, in 2013, two inadmissibility reports were prepared and referred to the Immigration Division for an admissibility hearing, which could lead to his removal. The Immigration Division refused to hear the applicant’s motion for a stay of proceedings for unreasonable delay, holding that it lacked jurisdiction to do so.

Upon judicial review, the Federal Court found that the Immigration Division has little discretion to determine whether there was an abuse of process because the Immigration and Refugee Protection Act and jurisprudence provide that the Immigration Division hold an admissibility hearing quickly, and if it finds the person inadmissible, it must make a removal order.

In Hassouna v. Canada (Citizenship and Immigration), 2017 FC 473 the Federal Court determined that when applying Blencoe to citizenship revocation courts should consider (1) the time taken compared to inherent time requirements, (2) the causes of the delay beyond the inherent time requirements of a matter, and (3) the impact of the delay, including prejudice and other harms.  There, the strain on resources that a 700% increase in citizenship revocation proceedings caused resulted in a delay not being an abuse of process.

S. 11(b) of the Charter

Section 11 of the Canadian Charter of Rights and Freedoms provides that any person charged with an offence has the right to be tried within a reasonable time. The Federal Court has ruled, however, that this does not apply to immigration proceedings, and in Montoya v. Canada even ruled that it does not apply to citizenship revocation.


Borderlines Podcast Episode 8 – Lobat Sadrehashemi on Citizenship Revocation for Misrepresentation

On the 8th podcast episode, Lobat Sadrehashemi joins Peter Edelmann, Deanna Okun-Nachoff and I to discuss issues in Canada’s citizenship revocation and refugee determination processes.  The recent controversy around Maryam Monsef guides our discussion.

Lobat Sadrehashemi is an Associate Counsel at Embarkation Law Corporation.  She is also the Vice President of the Canadian Association of Refugee Lawyers (“CARL“).

CARL’s reform proposals for Canada’s inland refugee determination system and other aspects of the immigration system, which we recently submitted to the Ministers, their staff, IRCC, and the Immigration and Refugee Board can be found here.

Lobat’s paper on Refugee Reform and Access to Counsel in British Columbia can be found here.

 

 


Work Permits for Camp Counsellors

As of March 1, 2017, camp counsellors going to residential camps during the summer season are exempt from the Labour Market Impact Assessment (“LMIA“) requirement.  They can apply for work permits once their employers submit their online offers of employment into the employer compliance portal.

Religious Camp Counsellors

Religious camp counsellors should note that they should not be indicating in their online offer of employment offers that the LMIA exemption code is religious or charitable work under LMIA exemption code C50.  Immigration, Refugees and Citizenship Canada (“IRCC”) has determined that the normal work of a camp counsellor (whose primary duties consist of supervising children and leading sports, crafts, games and other recreational activities) is not considered religious in nature. Rather, LMIA exemption code C20 should be used.

In the case of a counsellor who is unpaid and who works for a charitable or religious organization, an employer compliance fee fee exemption may apply. To be fee-exempt, the foreign national cannot receive remuneration other than a stipend for living expenses, which, if monetary, should be below the prevailing minimum wage. Otherwise, the foreign national should receive only non-monetary benefits (e.g., accommodation and health care). It is the responsibility of the organization to prove that they are charitable or religious.

More information about this can be found here.


The Canadian Visa Requirement for Mexican Citizens – A Policy which is No Longer Needed

During Canada’s 2015 federal election, the Liberal Party of Canada, led by Justin Trudeau, promised that if they were elected government that Canada would lift its visa requirement on Mexico.  This campaign promise is reflected in now Prime Minister Trudeau’s mandate letter to John McCallum, the Minister of Immigration, Refugees, and Citizenship, which states that one of Minister McCallum’s top priorities will be to lift the visa requirement on Mexico.

The decision by the previous Conservative Government of Canada in 2009 to implement a visa requirement for Mexican citizens was extremely controversial.  It is difficult to determine whether it was a good public policy decision because of the numerous factors involved, each with corresponding benefits and costs.  It is clear, however, that the implementation of the visa requirement did achieve the government’s primary objective, which was to dramatically reduce refugee claims from Mexican citizens in Canada.  However, subsequent changes to Canada’s immigration refugee system, likely mean that the visa requirement is no longer necessary to achieve this objective.

The Visa Requirement

Canada imposed a visa requirement on Mexican citizens on July 14, 2009.  The Canadian government stated that it did so to dramatically reduce the number of unfounded refugee claims made by Mexican nationals due to their visa-free access to Canada.  Mexico was at the time the top source country for asylum claimants in Canada, and had been so since 2005.

The imposition of the visa requirement imposed a significant burden on Mexican citizens wishing to travel to Canada.  Instead of being able to simply board an airplane and travel to Canada, Mexican citizens now prior to travel have to apply for a temporary resident visa at a Canadian consulate, or online.  In addition to completing numerous forms, as of writing Mexican nationals are required to provide proof of financial support, including copies of bank statements for three months, employment verification, and other proof of connections to Mexico. Where a Canadian invitee will be paying for the trip, that individual is required to provide proof of funds.

Many individuals and organizations, including the Canadian government, predicted that the imposition of the visa requirement would result in a dramatic decrease in the number of Mexicans who travelled to Canada.  In 2008, there were over 270,000 entries by Mexican citizens into Canada.  When the Canadian government imposed the visa requirement, it stated that it anticipated that approximately 150,000 Mexican citizens would apply for temporary resident visas annually.  According to the Tourism Industry Association of Canada (the “TIAC”), the number of Mexicans visiting Canada plummeted by 50% after the implementation of the visa requirement, although the number of Mexicans visiting Canada has now reached pre-2009 levels.  The TIAC estimates that an additional 320,000 Mexicans would have visited Canada and spent over $465,000,000.00 from 2009-2014 were it not for the visa requirement.  The impact on trade has been forecasted to be in the billions.

However, if the Government of Canada’s primary objective in imposing the visa requirement was to reduce the number of Mexican refugee claims in Canada, then the decision was a resounding success.  In 2009 there were 7,592 asylum claims from Mexican nationals.  By 2012, this number had fallen to 321.  Mexico during this period went from being the highest source country for asylum claims in Canada to the 22nd highest country in 2012.  At the same time, the percentage of Mexican claims that were approved increased from 11% in 2010 to around 20% in 2013.

CIC data shows:

Year

Intake Finalizations Acceptance Rate (%) Rejection Rate (%) Abandon Rate (%)

Withdrawn / Other Rate (%)

2007

7,162 3,662 11 59 8 23

2008

9,472 5,707 11 60 6 24

2009

7,592 6,097 8 56 7 29

2010

1,202 5,880 11 59 6

24

2011 651 6,099 17 69 5

10

2012 321 3,041 19 71 4

7

2013 (Jan – Jun) 36 682 20 67 5

9

 

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Indeed, by 2013-2014 Mexico was a minuscule percentage of Canadian refugee claims.

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It is important to note that CIC data also shows that 57% of Mexican asylum claims made in the first quarter of 2010-2012 were made by individuals who entered Canada prior to the visa imposition.

Indeed, based on the previous refugee acceptance rates prior to the imposition of the visa requirement for Mexicans, in June 2013 CIC estimated that without the visa requirement, Canada would have received an additional 19,895 asylum claimants from July 2009 through December 14th, 2012, of which 2,493 claims would have been accepted, 12,331 rejected, and 5,081 abandoned or withdrawn.  The cost to Canada would have been immense.

When Minister McCallum lifts Canada’s visa requirement against Mexico there will likely be those who suggest that it was never necessary, or, as the Globe and Mail did in 2014, that it was other changes to Canada’s immigration and refugee system that actually caused the drop in Mexican asylum claims.  These changes, however, happened after the steep decline occurred.  Having said that, while a review of the above data makes it clear that it was the imposition of the visa requirement that led to the steep decline in Mexican refugee claims, the previous government’s subsequent changes will hopefully ensure that the lifting of the visa requirement does not cause the situation to revert back to what it was in 2008.

Changes to the Immigration and Refugee System

After the imposition of the visa requirement the Canadian government made several changes to Canada’s immigration and refugee system which will likely ensure that the number of unfounded asylum claims by Mexicans in Canada does not revert to 2008 levels.  These are the decision to shorten the time that refugee claims make, the prohibition on submitting permanent residence applications based on humanitarian & compassionate grounds within one year of the refusal of a refugee claim, the designation of Mexico as a safe country of origin, and the upcoming implementation of the Electronic Travel Authorization.

On June 28, 2012, Bill C-31, the Protecting Canada’s Immigration Act, received Royal Assent.  Prior to the implementation of Bill C-31, the average Mexican refugee claim that was not withdrawn or abandoned took over eighteen months to process.  During this time the claimants would be allowed to work anywhere in Canada, and if their claim was refused they could submit an application for permanent resident status on humanitarian & compassionate grounds, citing their establishment in Canada as a positive factor in the application.  As a result of Bill C-31, the amount of time that it took was reduced to sixty days. As well, most asylum seekers became prohibited from submitting humanitarian & compassionate permanent residence applications.

Then, on February 13, 2013, the Canadian government designated Mexico as being a safe country of origin. This designation further reduced the amount of time that it takes to process a Mexican refugee claim to 45 days for those who make a refugee claim at a port of entry, and 30 days after referral for those who make a claim at an inland immigration office. As well, Mexican refugee claimants became ineligible to apply for work permits.  (The decision to designate Mexico as being a safe country was also controversial, and the Liberal government may eventually remove Mexico from the designated list.  Prime Minister Trudeau’s mandate letter to Minister McCallum states that he is to “establish an expert human rights panel to help you determine designated countries of origin,” and it may mean that this is a hint that Mexico may soon be removed.)

Finally, as of March 15, 2016, most foreign nationals who are exempt from the requirement to obtain a temporary resident visa to enter Canada will be required to obtain an Electronic Travel Authorization before they travel to Canada by air.  As such, even without the visa requirement, it will no longer be the case that Mexican nationals will simply be able to purchase tickets and board planes to travel to Canada.  Rather, they will be unable to board commercial airlines to Canada unless the airlines first confirm that they have permission to enter Canada.  Having said that, the requirements will be much less onerous than they are currently.

Although it is impossible to be 100% certain, the above changes should prevent a spike in the number of unfounded refugee claims by Mexican nationals in Canada when Canada lifts the visa requirement.

What About Brazil, Romania, and Bulgaria?

If Prime Minister Trudeau fulfils his campaign promise, his decision to lift the visa requirement against Mexico should not turn into a partisan affair.  In fact, the previous Conservative Government of Canada’s 2015 Economic Action Plan, the Conservatives promised that in 2015-16 that Canada would lift the visa requirement against Mexico, Brazil, Romania, and Bulgaria.

Indeed, if Prime Minister only lifts the visa requirement against Mexico, and not against Brazil, Romania, and Bulgaria, the question should be why just Mexico.


Canadian Immigration Embassy Interview Strategies and Tips

When visa officers have concerns regarding a completed application, they often convoke interviews. The interview provides the applicants to address these concerns. In this post I hope to convey to applicants the basic procedural fairness rules that they can expect.
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Digital Signatures in the Temporary Foreign Worker Program

One of the more frustrating aspects of the Temporary Foreign Worker Program from an application procedure angle can be determining whether ESDC accepts digital signatures, and whether an individual other than the 3rd party representative can sign for the person named as the third party representatives.

Helpfully, the Temporary Foreign Worker Program Wiki appears to answer that digital signatures are accepted in the TFWP, and that if there is no doubt that an individual works in the same law firm as an authorized third party then it is reasonable to accept that this individual can sign as an authorized representative.

TFWDigitalSignature