The Right of Permanent Resident Visa Holders to Appeal to the IAD

On June 5, 2015, the appellants in Elham Fathy Elsayed Ismail et al v. Minister of Citizenship and Immigration, A-203-15, discontinued their appeal of the Federal Court’s decision in Ismail v. Canada (Citizenship and Immigration), 2015 FC 338 (“Ismail“).  This is unfortunate because the question that Justice de Montigny certified needs to be answered.  That question was:

For the purposes of determining its jurisdiction to hear an appeal pursuant to subsection 63(2) of the IRPA, shall the validity of the permanent resident visa be assessed by the IAD at the time of arrival in Canada or at the time the exclusion order is made?

The question is important because it addresses a growing tendency of the Canada Border Services Agency (“CBSA“) to defer the examination of foreign nationals possessing permanent resident visas seeking to become permanent residents where CBSA suspects that the foreign nationals may not be admissible to Canada, rather than preparing an inadmissibility report.  During the deferral period, the CBSA will then contact Citizenship and Immigration Canada (“CIC”), who, often without providing the prospective permanent resident with any notice, cancel the permanent resident visa.  CBSA can then deny entry to Canada on the basis that the person does not have a valid permanent resident visa rather than for the underlying possible inadmissibility.  Many immigration practitioners have suspected that the reason for this is to prevent the prospective permanent resident from having a right of appeal to the Immigration Appeal Division (the “IAD“).

The Federal Court’s decision in Ismail in my opinion raised more questions than it answered, and it is unfortunate that the question will remain murky until the question is again certified in the future.

Continue reading “The Right of Permanent Resident Visa Holders to Appeal to the IAD”


Same-sex sponsorship: apply as a spouse, common-law or conjugal partner

The following article appeared in the August edition of The Canadian Immigrant.

In June 2015, the United States Supreme Court in Obergefell v. Hodges required that all U.S. states license marriages between two people of the same sex, essentially legalizing same-sex marriage in America. Two years before, the United States Supreme Court in United States v. Windsor ended the disparate treatment of same-sex and opposite-sex couples in matters of immigration.

The two United States Supreme Court decisions will likely result in American immigration policy more closely resembling that in Canada, where same-sex marriage has been legal since July 20, 2005.

In Canada, people in same-sex and opposite-sex relationships have three options to sponsor their partner from abroad; they can either apply as spouses, common-law partners or conjugal partners.

 Three partnership options

The spouse category is straightforward, and applies to anyone who was legally married, provided that both parties to the marriage are over the age of 16, and that both parties voluntarily entered the marriage and had the capacity to do so. There are specific exceptions to this, including marriages conducted through proxy, telephone, internet and fax, as well as polygamous and bigamous marriages.

The common-law partner category requires people in relationships who have not married to have cohabited together for at least one year in a conjugal relationship. It requires continuous cohabitation for one year, not intermittent cohabitation adding up to one year. While cohabitation means living together continuously, short periods of separation due to work, business travel, family obligations, etc., are permitted. After the one-year period of cohabitation has been established, the partners may live apart for periods of time without legally breaking the cohabitation, provided that there is evidence that both parties are continuing the relationship.

The conjugal partner category is for individuals who have been in a relationship for at least one year and who are not married nor have been able to cohabit for one year. The reason for not living together must be exceptional, and the conjugal partner category is typically used by people in same-sex relationships in countries where such relationships can lead to persecution, which for the purpose of this category includes ostracism, loss of employment, inability to find shelter or other sanctions. Typically, there also must be a Canadian immigration impediment to the foreign national partner living in Canada as a visitor, including the inability or unlikelihood of obtaining a visa.

Canada does not have a fiancé or an intended common-law partner category.

A genuine relationship

Regardless of which category is used, all applicants must demonstrate that their relationship is genuine and that the primary purpose is not simply to immigrate to Canada.

To establish genuineness, couples must show that they share a mutual commitment to a shared life to the exclusion of all others. It includes the requirement of monogamy, and applicants are required to demonstrate that they are interdependent physically, emotionally, financially and socially. (On a side note, persons who are married can be in a common-law partnership or a conjugal partnership with someone else, provided that their marriage has broken down and a physical separation has occurred.)

Establishing the primary purpose of a relationship is similar to establishing genuineness. However, while the genuineness analysis is based on the present, the primary purpose test looks at the intentions of both parties to the relationship at the time the relationship began.

All couples equal

At this point, the existence of same-sex relationships has become so ingrained in Canadian immigration policy that in the context of sponsorship applications, most practitioners and visa officers probably don’t distinguish whatsoever in how they assess couples in same-sex relationships as opposed to opposite-sex ones. As a Canadian, that makes me proud.


Certified Questions on Cessation

Section 108 of the Immigration and Refugee Protection Act states that a person’s refugee protection chall cease when:

Rejection

108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances:

(a) the person has voluntarily reavailed themself of the protection of their country of nationality;

(b) the person has voluntarily reacquired their nationality;

(c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality;

(d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or

(e) the reasons for which the person sought refugee protection have ceased to exist.

Cessation of refugee protection

(2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1).

Effect of decision

(3) If the application is allowed, the claim of the person is deemed to be rejected.

Exception

(4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.

As previously noted on this blog:

Traditionally, the CBSA rarely initiated cessation proceedings because the loss of refugee status did not also lead to a loss of permanent residence status.  However, as a result of changes to Canada’s refugee system in 2012, when the RPD ceases a permanent resident’s refugee status for any of the first four reasons above, then the individual also automatically loses their permanent resident status, and is inadmissible to Canada. (Note: a permanent resident who loses his or her refugee protection for the fifth reason will not lose his or her permanent residence status.)

There is no time limit on when the CBSA can initiate cessation proceedings, and there have been cases where cessation proceedings occurred 14 years after the refugee became a permanent resident.

It is important to note that cessation is not based on fraud on the part of the refugee; it is based on a change in circumstances or decision by the refugee to travel.  One simply has to question the fairness of this, especially in light of the fact that the CBSA has a quota to initiate cessation and vacating proceedings.

Advice to refugees

The resolute manner with which CBSA is initiating refugee cessation applications means that there are several things that refugees should note.  First, it is important that refugees apply for and acquire permanent residency so that a change in conditions in their home country will not result in them losing their refugee status and being removed.

There have been numerous Federal Court decisions on the issue of cessation, many of which have led to certified questions.  In this post I hope to reproduce all of the questions and answers as they become available in this extremely contentious area of immigration law.

Continue reading “Certified Questions on Cessation”



The Cost of Escorted Removals and Detentions

In May 2011, the Government Consulting Services prepared a report for the Canada Border Services Agency titled Identification and Assessment of Options for the Escort Program (Project Number: 520-1412).

This blog post is a summary of that report.  As the report is over 30 pages, please contact me if you want me to e-mail you a copy of the entire report.

In brief, in 2010/11 the cost of escorted removals was $7.5-million dollars, with an average cost per escorted removal at $13,933.00.  The estimated total time spent by the CBSA to complete escorted removals during this time was 78,160 hours.

As noted in the report,

the decision as to whether a foreign national’s removal will be escorted or not lies with the Inland Enforcement regional managers or supervisors who oversee removals.  The assessment focuses on many factors related to determining the level of risk likely to be present during the removal such as: the person’s comportment, anticipated reaction to their return to the country of destination, the length of the trip, and/or the transit point(s), the person’s past criminal behaviour, their physical and psychological condition, and more.  In some cases, a medical escort may also be provided by the CBSA.

The cost of removals was broken down as follows:

Costs and Hours Estimated Annual Total Costs
Flight Costs for CBSA Escort Officers $3,784,908.00
Flight Costs for Foreign Nationals $773,782.00
Expenses (Accommodation, Other) $884,718.00
Cost of Regular Working Hours $821,311.00
Cost of Overtime $1,428,804.00
Total Costs $7,495,935.00

The reason that the Flight Costs for CBSA Escort Officers is so much greater than the Flight Costs for Foreign Nationals is because CBSA officers must also pay for their flight to return to Canada.  As well, for long distance flights, the CBSA policy is for officers to return to Canada by flying business class.

I have attached a page from the report which I found to be particularly interesting and informative, as it provides a breakdown of removal issues by region.

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The costs of to the taxpayer of administering the Canada Border Services Agency detention programs are also high, and from 2005-2014 costs around $442,000,000.00, and can be seen here: https://s3.amazonaws.com/cdn.stevenmeurrens.com/docs/A-2014-13107-costs+of+detentions.PDF


Joseph v. Canada and the Difficulty of H&C Assessments

I have previously written about the upcoming Supreme Court of Canada decision in Jeyakannan Kanthasamy v. Minister of Citizenship and Immigration in which the Supreme Court will address the following question:

What is the scope of the humanitarian & compassionate discretion in s. 25 of theImmigration and Refugee Protection Act: is it limited to cases of “unusual and undeserved, or disproportionate hardship”, reserved for exceptional cases, and restricted by requiring that the hardship be ‘personalized’ or that the person’s establishment be greater than what would ordinarily be expected?

The Federal Court recently certified a question of general importance which shows both how restrictive the current principles of humanitarian & compassionate considerations can be, as well as why the Federal Court feels that such an approach is necessary.

Joseph v. Canada

In Joseph v. Canada (Citizenship and Immigration), 2015 FC 661, the Federal court certified the following three questions:

1) Is evidence of kidnapping and similar violent criminal conduct relevant to a hardship analysis under section 25 of the Immigration and Refugee Protection Act?

2) Is it incorrect or unreasonable to require, as part of an H&C, analysis that an applicant establish that the circumstances of hardship that he or she will face on removal are not those generally faced by others in their country of origin?

3) If the answer to question 2) is no, can the conditions in the country of origin support a reasoned inference as to the challenges any applicant would face on return to his or her country of origin, and thereby provide an evidentiary foundation for a meaningful, individualized analysis of hardships that will affect the applicant personally and directly as required by Kanthasamy v Canada (Citizenship and Immigration), 2014 FCA 113, 459 NR 367, leave to appeal to the SCC granted, [2014] SCCA No 309?

The issue essentially boils down to whether the personalized vs. generalized risk determination that is determinative in protected persons applications is also a factor to consider in humanitarian & compassionate consideration requests.  There has been some divergence on the matter. In Diabate v Canada (Citizenship and Immigration), 2013 FC 129, for example, Justice Gleason stated:

The officer’s role in an H&C analysis is to assess whether an individual would face “unusual and undeserved or disproportionate hardship” if required to apply for permanent residence outside of Canada. It is both incorrect and unreasonable to require, as part of that analysis, that an applicant establish that the circumstances he or she will face are not generally faced by others in their country of origin. Rather, the frame of analysis for H&C consideration has to be that of the individual him or herself, which involves consideration of whether the hardship of leaving Canada and returning to the country of origin would be undue, undeserved or disproportionate.

While claims for humanitarian and compassionate relief under section 25 must be supported by evidence, there are circumstances where the conditions in the country of origin are such that they support a reasoned inference as to the challenges a particular applicant would face on return to Niger. This is not speculation, rather it is a reasoned inference, of a non – speculative nature, as to the hardship an individual would face, and thus provides an evidentiary foundation for a meaningful, individualized analysis as required by [Kanthasamy].

However, as Justice Annis noted in Joseph, this can create a scenario in which every H&C application from a country in which there is a generalized likelihood of hardship must succeed. He wrote:

As I understand Justice Shore’s reasons, there is a general policy that prevents entire populations of foreign nationals, or large groups of them, from claiming permanent residency in Canada as a right. Logically, because general country conditions by definition apply to all members (or subsets of members) of society, it is not enough to rely simply on being a member of society, all of whom are subject to a risk of unusual hardship from these conditions. If this were the case, “every H&C application made by a national of a country with problems would have to be assessed positively”

Accordingly, the principle has been adopted that permanent residency may only be granted to individuals based on their personal circumstances, and not based simply on the evidence of those conditions generally faced by all the population in their country of origin.  If, as in this case, only evidence of general conditions is put forward, the claim will be defeated for lack of sufficient evidence demonstrating exceptional personal circumstances that cause those conditions to directly affect the applicant.

I recognize that this requirement is similar to the requirement under section 97 for an applicant to demonstrate personalized targeting where her or relies on general country conditions, as described above in Guerrero (see also: Wan v Canada (Citizenship and Immigration), 2014 FC 124,243 ACWS (3d) 955; Gomez v Canada (Citizenship and Immigration), 2011 FC 1093, 397 FTR 170; Guifarro v Canada (Citizenship and Immigration), 2011 FC 182, 198 ACWS (3d) 470; Pineda v Canada (Citizenship and Immigration), 2007 FC 365, 65 Imm LR (3d) 275). However, I do not see how any allegation of a generalized risk that meets the requirement to apply personally, directly and exceptionally to the applicant can be otherwise construed without avoiding the result that “every H&C application made by a national of a country with problems would have to be assessed positively” (Lalane at para 1).

Given the divergent Federal Court decisions on the matter, it is now up to the Federal Court of Appeal to decide.

Of course, by the time it does so, the Supreme Court of Canada’s decision in Kanthasamy may change the H&C factors and principles entirely.

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Awaiting Kanthasamy – And the Possible ReWriting of H&C Considerations

On April 16, 2015, the Supreme Court of Canada announced that it was reserving its decision in Jeyakannan Kanthasamy v. Minister of Citizenship and Immigration (“Kanthasamy”). When it is released, Kanthasamy may be the most significant immigration decision since Baker v. Canada (Minister of Citizenship and Immigration).

As noted in the Appellant’s factum, the issue that the Supreme Court of Canada will be addressing is:

What is the scope of the humanitarian & compassionate discretion in s. 25 of the Immigration and Refugee Protection Act: is it limited to cases of “unusual and undeserved, or disproportionate hardship”, reserved for exceptional cases, and restricted by requiring that the hardship be ‘personalized’ or that the person’s establishment be greater than what would ordinarily be expected?

As any immigration practitioner can confirm, if the Supreme Court of Canada broadens the current restrictive interpretation of humanitarian & compassionate considerations under s. 25 of the Immigration and Refugee Protection Act (“IRPA“) it would cause a monumental shift in the processing of immigration applications.

The Federal Court of Appeal Decision 

In Kanthasamy v. Canada (Citizenship and Immigration), 2013 FC 802, the Federal Court certified the following question of general importance.

What is the nature of the risk, if any, to be assessed with respect to humanitarian and compassionate considerations under section 25 of IRPA, as amended by the Balanced Refugee Reform Act?

The Federal Court of Appeal answered as follows:

Matters such as well-founded fear of persecution, risk to life, and risk of cruel and unusual treatment or punishment – factors under sections 96 and 97 – may not be considered under subsection 25(1) by virtue of subsection 25(1.3). However, the facts underlying those factors may nevertheless be relevant insofar as they relate to whether the applicant is directly and personally experiencing unusual and undeserved, or disproportionate hardship.

In its answer, the Federal Court of Appeal stated :

The Federal Court has repeatedly interpreted subsection 25(1) as requiring proof that the applicant will personally suffer unusual and undeserved, or disproportionate hardship arising from the application of what I have called the normal rule: see, e.g., Singh v. Canada (Minister of Citizenship & Immigration), 2009 FC 11. The hardship must be something more than the usual consequences of leaving Canada and applying to immigrate through normal channels: Rizvi v. Canada (Minister of Employment and Immigration), 2009 FC 463.

As a general matter, the consequences are unusual and undeserved, or disproportionate hardship associated with leaving Canada, associated with arriving and staying in the foreign country, or both.

It is these principles about humanitarian & compassionate consideration, which most immigration practitioners almost take for granted, that are up for review by the Supreme Court.

Standard of Review

Kanthasamy will also provide the Supreme Court of Canada with the opportunity to clarify the appropriate standard of review for questions that the Federal Court certifies as being questions of general importance.  As the Federal Court of Appeal noted:

This Court has consistently taken the view that where a certified question asks a question of statutory interpretation, this Court must provide the definitive interpretation without deferring to the administrative decision-maker. Then, this Court must assess whether there are grounds to set aside the outcome reached by the administrative decision-maker on the facts and the law. In a subsection 25(1) matter, that part of the decision – one involving fact-finding and factually-based exercises of discretion – is reviewed on the deferential standard of reasonableness.

Until Agraira, the Supreme Court approached immigration matters in the same way. The Supreme Court assessed whether this Court correctly answered the stated question on statutory interpretation. See e.g., Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706. Then it proceeded to assess, on the basis of the deferential reasonableness standard, whether there were grounds to set aside the outcome reached. On that part of the review, the Supreme Court has emphasized the need for “considerable deference [to] be accorded to immigration officers exercising the powers conferred by the legislation,” given “the fact-specific nature of the inquiry, [subsection 25(1)’s] role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language”: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 62.

In Agraira, the Supreme Court conducted reasonableness review on the administrative decision-maker’s decision on the statutory interpretation issue, ignoring the fact that the case proceeded in this Court in response to a certified question from the Federal Court. It did not vet this Court’s answer to the stated question.

There is nothing in the Supreme Court’s reasons in Agraira to explain this apparent change in approach. For that reason, until some clarification from the Supreme Court is received, it is my view that this Court should continue to follow its practice of providing the definitive answer to a certified question on a point of statutory interpretation. In reaching that conclusion, I note that the Supreme Court in Agraira did not say or suggest that this Court’s practice was wrong.

It will be very interesting to see how the Supreme Court of Canada addresses this issue.  If it holds that the standard of review for questions that the Federal Court certifies as being of general importance, then the purpose of certified questions will be called into questions.  I have previously blogged about the negative consequences of the uncertainty that the reasonableness standard for questions of law presents, and the idea that different visa officers could have different interpretations and answers to questions that even the Federal Court determines are of general importance would even increase the unpredictability and a seemingly increasing arbitrariness in Canadian immigration law.


Government of Canada Commits to Initiating Removal Against 875 Refugees Per Year

The following is an article that I wrote for the May edition of The Canadian Immigrant.

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In January 2014, the Canada Border Services Agency (CBSA) released Operational Bulletin: PRG-2013-59, which states that the CBSA has committed to referring a minimum of 875 refugee vacation or cessation cases per year to the Refugee Protection Division (RPD).

News of this bulletin, and the apparent resolve of CBSA to reach its quota, puts many in the refugee community at risk. It is important that all refugees who became permanent residents, and refugees who are not yet permanent residents, understand its implications.

Vacating versus cessation

The “vacating” of refugee status occurs when the RPD determines that a refugee claim was successful as a result of the claimant misrepresenting or withholding material facts. A person whose refugee status is vacated loses both their permanent resident status and their protected person status.

In contrast to vacating, “cessation” of a refugee’s status can occur without fraud, which is why it has attracted criticism. The RPD may determine that a person’s refugee status has ceased if:

  1. the person has voluntarily re-availed himself or herself of the protection of their country of nationality
  2. the person has voluntarily reacquired their nationality
  3. the person has acquired a new nationality and enjoys the protection of that new nationality
  4. the person has voluntarily become re-established in the country that the person left before claiming refugee status in Canada
  5. the reasons for which the person sought asylum in Canada have ceased to exist (for example, a country that previously persecuted an ethnic minority that a refugee belongs to no longer does)

The first four examples can include refugees who return to their country of origin for extended periods to visit relatives or establish business relations, or refugees who acquire or renew a passport from their home country. The CBSA will normally initiate cessation proceedings when it discovers that a refugee has returned to their country of origin for an extended period of time.

Traditionally, the CBSA rarely initiated cessation proceedings because the loss of refugee status did not also lead to a loss of permanent residence status.  However, as a result of changes to Canada’s refugee system in 2012, when the RPD ceases a permanent resident’s refugee status for any of the first four reasons above, then the individual also automatically loses their permanent resident status, and is inadmissible to Canada. (Note: a permanent resident who loses his or her refugee protection for the fifth reason will not lose his or her permanent residence status.)

There is no time limit on when the CBSA can initiate cessation proceedings, and there have been cases where cessation proceedings occurred 14 years after the refugee became a permanent resident.

It is important to note that cessation is not based on fraud on the part of the refugee; it is based on a change in circumstances or decision by the refugee to travel.  One simply has to question the fairness of this, especially in light of the fact that the CBSA has a quota to initiate cessation and vacating proceedings.

Advice to refugees

The resolute manner with which CBSA is initiating refugee cessation applications means that there are several things that refugees should note.  First, it is important that refugees apply for and acquire permanent residency so that a change in conditions in their home country will not result in them losing their refugee status and being removed.

Second, refugees who are permanent residents should apply for citizenship if eligible. If the refugee has spent extended periods of time in their country of nationality, they should seek advice before doing so.

Third, if a refugee does travel, they should use a Canadian Refugee Travel Document and not apply for a passport from their country of nationality. Finally, if a refugee must travel to their country of origin, they should ensure that it is for a short duration, and document their reasons.

As long as cessation and vacation proceedings are being driven by arbitrary quotas, it is important that all refugees understand their choices and the potential consequences.

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Post-Hoc

As the Federal Court noted in Li v. Canada, 2015 FC 459, in a cessation hearing:

The Minister has the burden of proving re-availment on the balance of probabilities. In doing so, the Minister is entitled to rely on the presumption of re-availment by proving that the refugee obtained or renewed a passport from his or her country of origin. Once that has been proved, the refugee has the burden of showing that that he or she did not actually seek re-availment. As stated in the UNHCR Handbook, where there is proof that a refugee has obtained or renewed a passport “[i]t will, in the absence of proof to the contrary, be presumed that he intends to avail himself of the protection of the country of his nationality” (para 121).

The Minister of Public Safety and Emergency Preparedness (the “Minister”) starts cessation hearings by providing written notice to the individual, and the written notice must set out the reasons for cessation.  In situations where the claimant cannot be contacted the Immigration and Refugee Board has a rule for substituted service.  Generally, what will happen is that the Member will ensure that the Minister has made all efforts to contact the person.  As such, counsel should ensure that the Minister made all efforts to contact someone.

On March 17, 2015, Justice Noel certified the following question:

In a cessation application pursuant to paragraph 108(1)(a) of IRPA, do the same or substantially the same legal considerations, precedents, and analysis apply to persons found to be Convention refugees as to persons found to be in need of protection as members of the Country of asylum class?