Was not Continuously Engaged

The word “continuously” appears in several immigration requirements.  It is not often not defined, and its interpretation has largely been left to immigration officers and the courts.

 

Definitions

Black’s Law Dictionary defines the word “continuously” to mean:

Uninterruptedly; in unbroken sequence; without intermission or cessation; without intervening time; with continuity or continuation.”

The Oxford English Dictionary defines the word “continuously” as being:

“in a continuous manner; uninterruptedly, without a break”.

The Canadian Oxford Dictionary defines “continuous” as meaning “unbroken, uninterrupted.”

Webster’s Third New International Dictionary defines “continuously” as being “in a continuous manner” and “continuous” as “characterized by uninterrupted extension in time or sequence.”

 

Dependent Child Jurisprudence

Much of the jurisprudence on the matter involves the definition of “dependent child” before the Conservative Government of Canada changes in 2014.

Previously, a “dependent child” was defined as:

“dependent child”, in respect of a parent, means a child who

(a) has one of the following relationships with the parent, namely,

(i) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent, or

(ii) is the adopted child of the parent; and

(b) is in one of the following situations of dependency, namely,

(i) is less than 22 years of age and not a spouse or common-law partner,

(ii) has depended substantially on the financial support of the parent since before the age of 22 — or if the child became a spouse or common-law partner before the age of 22, since becoming a spouse or common-law partner — and, since before the age of 22 or since becoming a spouse or common-law partner, as the case may be, has been a student

(A) continuously enrolled in and attending a post-secondary institution that is accredited by the relevant government authority, and

(B) actively pursuing a course of academic, professional or vocational training on a full-time basis, or

(iii) is 22 years of age or older and has depended substantially on the financial support of the parent since before the age of 22 and is unable to be financially self-supporting due to a physical or mental condition.

How this section is interpreted is very fact specific.

In Singh Gill v. Canada (Citizenship and Immigration), 2008 FC 365, the Federal Court of Canada determined that an applicant’s two absences from school, one for four months to care for her ailing grandmother and another for ten days to attend and assist with her sister’s wedding, did not constitute a sufficient period of time to abandon her studies and not meet the definition of “dependent child.” The Federal Court determined that the individual was still continuously enrolled, because:

These leaves or absences from studies… did not, in and of themselves, constitute a sufficient period of time for her to abandon her studies. As [her] school transcripts and certificates attest, she continued with her studies, uninterrupted; neither of the educational institutions… considered that she had either withdrawn or abandoned her studies for any given year.

However, in Shomali v. Canada (Citizenship and Immigration), an applicant’s studies were interrupted during the period of a military service where the individual was afforded an educational leave of absence.  The Federal Court found that this did not meet the requirement of “continuous,” with the deciding factor seeming to be that in one case an individual simply did not attend class to attend an ailing grandmother, while in the other case the educational institution actually granted a leave of absence.

 


The Right to Counsel at the Port of Entry

Section 10(b) of the Canadian Charter of Rights and Freedoms provides that:

10. Everyone has the right on arrest or detention

(b) to retain and instruct counsel without delay and to be informed of that right; and

In the immigration context, the right to counsel does not arise at most secondary examinations, unless the person is actually arrested or retained.

As such, the Canada Border Services Agency’s (“CBSA“) general policy is not to permit counsel at examination if detention has not occurred. In practice, officers will often waive this policy if they are satisfied that legal representatives will not interfere with the examination process.

Continue reading “The Right to Counsel at the Port of Entry”


When Visa Officers Contradict the Immigration Website

Towards the end of 2016 the Canadian government made many changes to Canada’s immigration programs.  The parents and grandparents sponsorship program went from being first-come, first-serve to a lottery system, arranged employment through a Labour Market Impact Assessment went from guaranteeing someone an invitation to apply for Canadian permanent residency to only being a factor slightly more significant than the newly introduced factor of Canadian post-secondary education, and Canada lifted the visa requirement against Mexican nationals.

The rate of change will continue to be fast in 2017.  Already, the government has announced that it will lift the visa requirement against Brazil, Bulgaria, and Romania, that it would introduce a work permit program for highly skilled foreign workers, that having relatives in Canada will increase one’s chances of being issued an invitation to apply for permanent residency, and that Canada will ratify the Comprehensive Economic Trade Agreement between Canada and the European Union, which will make it easier for Europeans to work in Canada.

At the same time that the rate of the pace of changes is increasing, the Canadian government has also expanded the number of ways in which it publicizes these announcements.  Many have been introduced through legislative amendments.  Others are simply posted on the Immigration, Refugees and Citizenship Canada (“IRCC”) website, where changes and updates are frequently posted as Program Delivery Updates, Operational Bulletins, Notices, and the IRCC website’s ever growing Help Section.   Often times, there is no formal announcement of a change. Rather, a page on the IRCC website is simply updated.

Given the simultaneous increase in the number of changes and the increase in the ways in which these changes are disseminated to the public, it is perhaps not surprising that on occasion visa officers make decisions which contradict the IRCC website.

The Law Trumps the Website

Although one might think that one could always rely on the IRCC website when preparing visa applications, people submitting applications to IRCC need to understand two key aspects of Canadian immigration law prior to applying.

First, Canadian immigration legislation is not nearly as comprehensive as the IRCC website.  The IRCC website is massive, and it is growing.

Second, information which is found on the IRCC website that is not found in Canadian immigration legislation is considered under Canadian immigration law to be guidance which influences the decisions of visa officers. The IRCC website is not binding on decision makers.

The distinction between the IRCC website and immigration legislation can have significant consequences for applicants. For example, Canadian’s immigration regulations state that a person who is without status can apply to restore their temporary resident status if they met the initial requirements of their authorized stay in Canada.  It is silent on whether an individual whose post-graduate work permit application was refused can restore their status from student to foreign worker.  There is one webpage on the IRCC website which strongly suggests that this can be done.   However, on several occasions in 2016 visa officers determines that was not possible to do this. When their decisions were challenged, the Federal Court of Canada ruled that the visa officers had acted reasonably and upheld their decisions.  The Court explicitly noted that the website is not binding on officers.

In a recent episode of the Borderlines Podcast, which I co-host and can be found here, we interviewed Dani Willetz, a former Supervisor at Canada’s immigration department.  She confirmed that she always taught her visa officers to follow the law first and to only treat material that IRCC published on its website as guidance.

How to Prevent Decisions which Contradict the IRCC Website

Although the IRCC website is not binding on visa officers, I do not believe that most immigration officers would make a decision that contradicts the IRCC website if they were aware of the information on it.

This is not to suggest that Canadian visa officer’s do not know what the law is.  However, as noted earlier, the sheer volume of information on the IRCC website, and the decentralised manner in which this information is updated, makes it inevitable that there will wording on the IRCC website which an officer may not be aware of, especially if it was recently updated.

The way to avoid inconsistent decisions should thus be obvious.  At our office, we routinely link to and include copies of the IRCC website in our visa applications, especially when we are relying on something which seems like it may be obscure or unique.  It has been our experience that visa officers never make decisions which contradict the IRCC website when we do this.

In 2016 my hope was that more refused applicants would start applying for the internal reasons for refusal.  Based on the e-mails that I received from readers, my wish came true.  In 2017 my hope is that more individuals will start copying and pasting the webpages on the IRCC website that they are relying on in their visa applications, and that the number of refusals based on reasoning which is inconsistent with the IRCC website dramatically decreases.



Borderlines Episode #11 – Dean Sossin on the tension between ensuring political oversight without politicising officer decision making.

Lorne Sossin is the Dean of Osgoode Hall Law School.   Prior to his appointment, he was a Professor with the Faculty of Law at the University of Toronto. Dean Sossin also serves on the Boards of the National Judicial Institute and the Law Commission of Ontario. He has also acted as Research Director for the Law Society of Upper Canada’s Task Force on the Independence of the Bar.

We discuss three topics. The first is the oversight of CBSA and immigration officers in Canada. How do we ensure that there is political oversight and accountability without politicising the day to day operations and decisions of individual officers? The second topic is a discussion of Charter rights and Charter values in the immigration context.  Finally, we discuss whether it is OK that in Canada individual immigration officers can create an apply their own standards of the law.

A review of what we discussed is as follows:

00:00 – Introduction

00:51 – Steve Meurrens says what one of his favorite things about law school is.

01:14 – Overview of topics

02:55 – The role of federalism in police oversight.

06:30 – Is criminal law local or is it national?

09:09 – What are the mechanisms which limit executive oversight and police accountability in Canada and how can this be balanced for the need to avoid political interference in day-to-day police activity. Who decides on the operational day to day activities of police?

13:30 – Can a cabinet minister issue an edict directing police not to arrest people? For example, the Trudeau government wants to legalize marijuana, so can they just issue an edict stating that arrests should stop. Who should make the decision?

17:40 –   If individual decision makers or police units drive decisions there will be inconsistencies. What methods exist for people to address inconsistencies?

19:45    Many jurisdictions are creating independent oversight offices. What is the success of these? As well, what role does prosecutorial discretion play in both insulating decisions and providing oversight?

25:00    What role do departmental guidelines play in decision making?

27:30    In immigration law the Minister can make decisions that differ from visa officers. Indeed, the Immigration Minister has an office to receive applications and intervene in applications. Is this appropriate?

30:30    What is the Charter? What is an administrative tribunal?

34:20    Immigration officers are considered to be administrative tribunals, Should visa officers, IRB members, etc. consider the Charter when making decisions.

37:00    When is the distinction between Charter rights and Charter values?

42:10    Do Charter rights and/or Charter values apply outside of Canada?

43:15    Are Charter values arguable before visa officers or at the IRB?

48:20    Is it a breach of the rule of law that different visa officers can develop different tests for immigration?

57:30    How is standard of review jurisprudence likely to develop/


Excessive Demand on Health and Social Services

People applying for a Canadian permanent resident visa are regarded to undergo medical examinations. Many people with certain conditions are understandably apprehensive about how these examinations will impact their ability to immigrate. In this post, I hope to provide an overview about the issue of “excessive demand on health or social services,” which is probably the medical evaluation component that causes the most misconceptions.
Continue reading →


Fettering Discretion

In Gabriel v. Canada (Citizenship and Immigration), the officer stated:

Unfortunately, the regulations are silent regarding medical conditions of dependent children and determining their eligibility as dependents. Since there is no mention of [ ] medical condition exceptions Michael is not considered a dependent. While I empathize with Michael and his mother I am not satisfied that an exception should be made in this case. The decision to remove Michael from the application stands.

The Federal Court noted that this amounted to fettering discretion, stating that:

In my view the Decision shows that the Officer believed that, because the Regulations did not mention the possibility of an exception from the requirement for continuous study for students who became ill, she could not give Michael the benefit of such an exception and include him in Rose’s application for permanent residence as a dependent child notwithstanding the Absence.


Retrospective Legislation

In a recent Borderlines episode, Garth Barriere, Eric Purtzki, Peter Edelmann and I discussed the constitutionality of laws that are retroactive or retrospective.  This episode can be found here:

A link to this episode’s synopsis can be found here.

The following post provides a more detailed written summary of retroactive and retrospective legislation in the immigration context.

Continue reading “Retrospective Legislation”