Standard of Review in Refugee Appeal Division Hearings

On December 15, 2012, the Refugee Appeal Division (“RAD”) began considering appeals against decisions from the Refugee Projection Division (“RPD”) to allow or reject refugee claims.  According to the Immigration and Refugee Board of Canada’s website, the steps to a RAD appeal are:

  • Once you receive the written reasons for the decision from the Refugee Protection Division, you have 15 days to file a Notice of Appeal.
  • You have 30 days from the day you received your written reasons for the RPD decision to perfect your appeal by filing an Appellants Record.
  • The Minister may choose to intervene at any point in the appeal.
  • The RAD Member makes a decision on your appeal. In most cases, this decision will be provided to you no later than 90 days after you have perfected your appeal, unless an oral hearing is held.

Almost immediately there was uncertainty over what the role of the RAD was.  The RAD began operating under the assumption that it would review RPD decisions using the reasonableness standard, and its members began stating that the following principles governed its appeals:

  • that deference is owed to RPD findings of fact and questions of mixed law and fact;
  • that deference is owed to the RPD where the issue in a claim is factual;
  • that the role of the RAD was to ensure a fair and efficient adjudication and that refugee protection be granted where appropriate. As such, the RAD can substitute the RPD’s determination with its own;
  • that in some cases the RAD, in order to bring finality to the refugee process, may be entitled to show less deference to the RPD;
  • that while both the RPD and the RAD are specialized tribunals, the RPD had advantages in fact finding (particularly on credibility) which suggests deference; and
  • that the failure to show deference to the RPD would undermine the RPD’s process.

In Huruglica v. Canada (Citizenship and Immigration Canada), the Federal Court determined that this was an incorrect approach.

Continue reading “Standard of Review in Refugee Appeal Division Hearings”

Who Can Be Sponsored

One of the questions that we are most frequently asked is which family members can be sponsored under Canada’s family reunification programs.  Most people rightly assume that Canadian citizens and/or permanent residents can sponsor their spouses, children, and parents.  However, many also wonder about sponsoring siblings, cousins, nieces, nephews, etc.

Canada’s Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRPR“), provide that a Canadian citizen / permanent resident (the “Sponsor“) may sponsor the Sponsor’s spouse, common-law partner or conjugal partner.  A “spouse” is the Sponsor’s husband or wife.  A “common-law partner” is someone who the Sponsor has cohabited with in a conjugal relationship for a period of at least one year. A “conjugal partner” is someone who the Sponsor has been in a conjugal relationship with for a period of at least one year, but who for exceptional circumstances the Sponsor has neither been able to marry nor cohabit with.  It most commonly applies to same-sex relationships where the couple is unable to cohabit or marry due to fear of persecution or penal control.

IRPR also provides that a Sponsor may sponsor the Sponsor’s dependent child.  A “dependent child” is a child who is the biological or adopted child of the Sponsor, and who is under the age of 19 and is not married or in a common-law partnership.  If the child is over 19, then the child must have depended substantially on the financial support of the parent since before the age of 19, and be unable to be financially self-supporting due to a physical or mental condition.

A Sponsor may also sponsor his/her mother, father, grandfather, or grandmother.

While the above three scenarios are commonly well known, there are other family relationships that are eligible for sponsorship.

Continue reading “Who Can Be Sponsored”

ETA Regulations Announced

On August 1, 2015, Canada will adopt an Electronic Travel Authorization (“eTA“) program that is similar to the Electronic System for Travel Authorization (“ESTA“) that the United States currently has, and the Electronic Travel Authority that Australia has.  In order to minimize impacts on the travelling public and Canadian travel and tourism industries, eTA-required travellers will be exempted from this new entry requirement until March 15, 2016.

The eTA will impact nearly all travellers to Canada who do not have to apply for Temporary Resident Visas (“TRV“) to visit Canada.  According to the Gazette, TRV-exempt foreign nationals, excluding U.S. citizens, represent approximately 74% of foreign nationals who arrive by air in Canada. Citizenship and Immigration Canada (“CIC“) does not currently screen these individuals for admissibility until they arrive at a Canadian port of entry (“POE“). Rather, TRV-exempt nationals are examined by the Canada Border Services Agency (“CBSA“) only upon arrival at a POE .  As noted in the The Canadian Immigrant excerpt above, the eTA will change this. 

However, on June 21, 2014, the Government of Canada (“GoC“) in the Canada Gazette (the “Gazette“) published proposed amendments to the Immigration and Refugee Protection Regulations (“IRPR“) pertaining to the eTA. On April 22, 2015, the final version of the IRPR amendments were published

The proposed amendments to IRPR:

  • create the regulatory requirement for the eTA;
  • establish the eTA application procedures;
  • specify when an eTA expires and when it can be cancelled;
  • set the fee that is payable for the processing of an eTA application; and
  • create exemptions from the requirement to obtain an eTA.

The Regulatory Requirement for the eTA

IRPR r. 7 currently states that:

Temporary resident

7. (1) A foreign national may not enter Canada to remain on a temporary basis without first obtaining a temporary resident visa.


(2) Subsection (1) does not apply to a foreign national who

(a) is exempted under Division 5 of Part 9 from the requirement to have a temporary resident visa;

(b) holds a temporary resident permit issued under subsection 24(1) of the Act; or

(c) is authorized under the Act or these Regulations to re-enter Canada to remain in Canada.

The GoC’s amendments to IRPR will create a new IRPR r. 7.1 which will state:

Electronic travel authorization

7.1 (1) A foreign national referred to in paragraph 7(2)(a) who is exempt from the requirement to obtain a temporary resident visa and who, on or after March 15, 2016, is seeking to enter Canada by air to remain on a temporary basis is, nevertheless, required to obtain an electronic travel authorization before entering Canada, unless they are exempted by subsection (3) from the requirement to obtain one.

Holder of a temporary resident visa

(2) Subsection (1) does not apply to a foreign national who holds a temporary resident visa.

It is important to note that the eTA will only apply to individuals arriving by air.  This is presumably because foreign nationals who arrive in Canada by land or sea will have already been approved by the United States under ESTA.

eTA Application Procedures

Foreign nationals who are required to apply for a eTA will do so through the CIC web site.  Individuals who are unable to apply online may apply in writing. 

eTA applicants will be required to enter biographic, passport, and background information similar to the personal information that is currently collected by the CBSA at POEs.  Specifically, a new IRPR r. 12.01(4) will provide that an eTA application must contain the following information:

(a) the applicant’s name;

(b) the applicant’s date and place of birth;

(c) the applicant’s gender;

(d) the applicant’s address;

(e) the applicant’s nationality;

(f) the number of the applicant’s passport or other travel document, together with its date of issue and its expiry date and the country or the authority that issued it;

(g) if the applicant is an applicant referred to in any of paragraphs 10(2)(c.1) to (c.4), the information required under that paragraph [this refers to authorized representatives];

(h) if the applicant is making the application by means of the electronic system referred to in subsection (1), the applicant’s email address; and

(i) a declaration that the information provided in the application is complete and accurate.

Presumably as a requirement of stakeholder feedback, the proposed requirement that eTA applicants provide their marital status has been removed.

In reviewing the above application requirements, unless the GoC is about to enter into numerous criminal record database sharing agreements with European nations, Japan, Australia, etc., it is not clear to me how this information will prevent people with criminal records from boarding aircraft bound for Canada.

CIC is estimating that most eTA applications will be approved electronically in minutes.  All refusals will be reviewed by a a human officer.  Highly complex cases will require assessment by senior decision-makers, and may be referred to overseas missions.  Once a case is referred overseas, applicants may be required to submit additional information and/or attend an interview with an officer.  Some cases may also be referred to the CBSA, the Canadian Security Intelligence Services, and the Royal Canadian Mountain Police.  CIC is committing to a 72 hour service standard for complex applications, although this promise has not been codified in IRPR.

eTA Expiry and Cancellation

A new IRPR r. 12.05 and 12.06 will provide that:

12.05 An electronic travel authorization is valid for a period of five years from the day on which it is issued to the applicant or until the earliest of the following days, if they occur before the end of that five-year period:

(a) the day on which the applicant’s passport or other travel document expires,

(b) the day on which the electronic travel authorization is cancelled, or

(c) the day on which a new electronic travel authorization is issued to the applicant.


12.03 An officer may cancel an electronic travel authorization that was issued to a foreign national if

(a) the officer determines that the foreign national is inadmissible; or

(b) the foreign national is the subject of a declaration made under subsection 22.1(1) of the Act.

Cancellation will occur where a foreign national provides false information in the eTA application, where evidence indicates that a foreign national is inadmissible to Canada, or where permitting the foreign national to travel to Canada would pose a security risk. 

The eTA Fee

The eTA will cost applicants a $7 processing fee.  Individuals will have to submit payment electronically with their application. 

As well, a TRV-exempt foreign national’s application for a work permit or a study permit will constitute an application for an eTA.  As the GoC has recently indicated an intention to end POE work permit applications, this may constitute a larger application segment than one would currently think.  

Finally, individuals who are studying or working in Canada and who travel outside Canada when the eTA comes into effect will be required to obtain a eTA prior to reentering Canada.


The following TRV-exempt foreign nationals are exempt from the eTA requirement:

  • U.S. nationals;
  • Queen Elizabeth II and members of the Royal Family;
  • accredited diplomats;
  • those seeking to enter and remain in Canada as a member of a flight crew or to become a member of such a crew;
  • those seeking to transit through Canada after working, or to work, as a member of a flight crew if they possess a ticket for departure from Canada within 24 hours after their arrival in Canada;
  • civil aviation inspectors of a national aeronautical authority seeking to enter Canada in order to conduct inspections of the flight operation procedures or cabin safety of a commercial air carrier operating international flights;
  • an accredited represented or advisor to an aviation accident or incident;
  • a citizen of France who is a resident of St. Pierre an Miquelon;
  • visiting forces travelling to Canada to carry out official duties as a member of the armed forces of a country designated under the Visiting Forces Act, unless they have been designated as a civilian component of those armed forces;
  • foreign nationals with status in Canada seeking re-entry to Canada, within their period of authorized stay, following a visit solely to the United States or Saint-Pierre and Miquelon
  • refuelling; and
  • foreign nationals who hold a TRV or permit.

It remains unclear how effective the eTA will be at achieving the GoC’s objective of preventing most inadmissible visa-exempt foreign nationals from arriving at Canadian airports.  In the Gazette, the GoC notes that in 2012-13 some 7,055 visa-exempt foreign nationals (0.24% of visa-exempt travellers) were found inadmissible for various reasons at air ports of entry when they arrived in Canada.  The Gazette did not mention how many of these individuals were American, and the cynic in me wonders if it is because the bulk majority of those found inadmissible were American.

As well, it is my experience that current information sharing between Canada and most of the world except for the United States is such that CIC would not know whether someone has a criminal record.  However, I anticipate that this will soon change as part of a global trend towards increased surveillance, information sharing, and monitoring of civilians by governments.

The Cost and Benefits of the eTA

According to the Gazette:

The total estimated costs for the analysis period (2015–2024) are $167.4 million in present value (PV) dollars. The total benefits resulting from the proposed amendments are estimated to be $167.74 million (PV). The net impact of these Regulations is neutral, thus resulting in no net cost on stakeholders.

In reaching the above figures, the GoC is assuming that it will collect an average of $23.1 million per year in eTA application fees.  As well, the GoC anticipates saving $1.8-million per year in costs associated with processing and removing inadmissible people to Canada.  According to the Gazette, the CBSA has estimated that the cost per inadmissible person ranges from an average of $398.00 – $798.00 depending on how long the individual is in detention. The eTA system will meanwhile cost $23.3-million to establish, and $19.5-million per annum to administer.

Other qualitative costs and benefits listed by the GoC in the Gazette include:


Implementation of the eTA program would achieve Canada’s commitment to the Canada–U.S. shared vision for perimeter security and economic competitiveness, thereby accelerating the free flow of people and goods while maintaining the strength of the Canada–U.S. partnership.

It is expected that the eTA requirement would deter some inadmissible foreign nationals from applying because of the requirement to provide information prior to arrival.

The eTA provides CIC with the ability to gather data and track patterns of visa-exempt foreign nationals. Such tracking is currently not possible because no pre-screening is conducted on visa-exempt foreign nationals.

The eTA program introduces a new tool which could in future permit a more nuanced and individualized risk assessment of foreign nationals than possible through current visa requirements. Having the eTA program in place could be a consideration in future strategic discussions around the visa policy framework and changes in visa requirements.


The tourism industry may choose to incur marketing costs to advise of eTA requirements to those foreign nationals interested in travelling to Canada.

While out of scope for CBA purposes, it is acknowledged that visitors to Canada from visa-exempt countries (exceptions not included) would be required to pay a fee and spend time obtaining an eTA prior to travel to Canada. For the vast majority, the process would take minutes and the fee should not be prohibitive.

It is acknowledged that there may be some short-term impacts on tourism associated with the transition to eTA; however, these impacts are not anticipated to lead to any permanent implications for tourism demand to Canada as potential declines in tourism will be offset by the light-touch nature of the eTA program, including the five-year validity and low $7 fee. Potential declines will be further mitigated through a future more nuanced and individualized risk assessment of foreign nationals than possible through current visa requirements.

Travellers entering Canada at land and sea ports will not require an eTA. It is not anticipated that land and sea ports will experience a surge in demand because communication products will advise that all ports will continue to have a thorough inspection regime. It is not anticipated that travellers will switch their mode of transport to avoid the $7 fee. However, it is acknowledged that there may be an adjustment period as travellers are made aware that inspections will continue to be conducted at all ports of entry irrespective of the eTA requirement.

One cost that the GoC does not appear to have considered in the Gazette is the increased resources that CIC will need to process Temporary Resident Permits (“TRPs“) for inadmissible visa-exempt foreign nationals.  As well, presumably the new eTA regime will put an end to the practice of visa-exempt permanent residents with expired permanent resident cards (“PR Cards“) boarding planes and arriving in Canada without the CBSA discovering that they are permanent residents. While this will increase compliance with Canada’s residency requirement, it will also lead to increased Permanent Resident Travel Documents and Immigration Appeal Division appeals.

The Interactive Advance Passenger Information System

As noted in the Gazette, the CBSA is still developing its Interactive Advance Passenger Information (“IAPI”) system which will create the capacity to provide air carriers with a “board/no board” message on all travellers.  The eTA will be an electronic document issued to the traveller. No printed paper documents would be issued and a copy of the eTA would not be provided to air carriers. Therefore, the airlines will have to rely on the IAPI to enforce the eTA regime.  


The eTA represents an unfortunate continued trend since 9/11 towards increased borders and reduced mobility.  However, it will bring Canada into harmony with many other developed countries, including the United States.

It is imperative that the GoC increases CIC’s resources in order to prevent significant delays.  The current norm is that applications submitted at POEs take minutes to process, while applications submitted to CIC take anywhere from daysto months.  The current processing time for CIC to process a TRP application exceeds one year at many visa posts, while CBSA is generally able to issue one in under an hour.  Given that the eTA will likely result in an increase in TRP applications submitted to visa posts abroad, more resources are definitely needed.  

The Beyond the Border Initiative – ETA, Information Sharing, Tracking Exits

[The following is a slightly edited (to include links) version of an article that I wrote for The Canadian Immigrant.]

In February 2011, Canada and the United States agreed to the Beyond the Border: A Shared Vision for Perimeter Security and Economic Competiveness. More commonly known as the Beyond the Border Action Plan, the effect of the agreement was to strengthen co-operation and, in some cases, harmonize Canadian and American immigration practices.

The Government of Canada has begun enthusiastically implementing the terms of the Beyond the Border Action Plan, and will in 2014-2015 introduce three significant changes to Canadian immigration legislation that will impact almost everyone who enters Canada.

Electronic travel authorization

People who wish to visit Canada generally fall into one of two categories:  those who need to apply for and obtain temporary resident visas prior to arriving in Canada; and those who can arrive at Canadian ports of entry without first obtaining a visa. This will change in April 2015, when Canada implements the electronic travel authorization (“eTA”) system.

All foreign nationals who are exempt from the requirement to obtain a temporary resident visa will instead need to obtain online authorization before they fly to Canada.  This includes Europeans, Australians, Japanese, Koreans, etc. Citizens from the United States, however, are exempt.

The eTA application process will be online via the Citizenship and Immigration Canada (CIC) website. Applicants will be required to enter biographic, passport and background information, which may affect admissibility to Canada. An electronic system will then perform an examination that includes a risk assessment and a verification of the information provided in the application against enforcement databases. The Government of Canada expects that the majority of applications will be approved within minutes.

Airlines will have to provide passenger information to Canadian immigration authorities prior to boarding. If an individual who has not yet received an eTA attempts to check in, then the airline will be informed that the person is prohibited from travelling to Canada.

Sharing information

As I have previously written in Canadian Immigrant, biometric-based immigration information sharing with the United States will be implemented in 2014.

Canada and the United States will use the shared information to support each government’s assessment of visa applications, examinations of admissibility, and to generally ensure accuracy and reliability. Where a biometric match is established, the information that may be shared includes the immigration status of the individual, reasons for previous refusals, previous admissibility decision and general information relevant to admissibility.

In other words, whenever you apply to enter the United States, you should assume that CIC will know the details.

Tracking exits

Despite having numerous immigration programs that contain residency requirements, Canada has not collected exit information to date. As such, as part of the Beyond the Border Action Plan, Canada has committed that by June 30, 2014, it will systematically collect and reconcile entry and exit information. Airlines will be required to provide passenger information to the Government of Canada. The United States will soon be sharing its entry information with Canada, which will reconcile it to track exits.

Tracking exits will allow CIC to readily identify persons who overstay (and who previously overstayed) their visa. It will allow them to track the departure of persons subject to removal orders. It will immediately verify that residency requirements are being met by permanent residents.

Big impact
These changes are going to impact everyone who enters Canada. The amount of personal information that is going to be collected and shared across governments will be immense. Travellers have frequently liked to compare and contrast the entry and exist procedures of Canada and the United States.  By the end of 2015, they may find that it is almost exactly the same.

Several LMIA Changes Taking Effect April 30, 2015

The Ministry of Employment and Social Development (“ESDC”) has announced that there will be several changes to the Temporary Foreign Worker Program (“TFWP”) that will take effect on April 30, 2015.

The changes are:

  • Implementation of new High and Low-wage Streams
  • Updating the Provincial / Territorial Median Hourly Wages
  • Increasing Worker Protections
  • Modifying the Method for Calculating the Cap on Low Wage Positions
  • Implementing the Labour Market Impact Assessment (“LMIA”) system fully in Quebec
  • Updating Regions of Refusal to Process

Continue reading “Several LMIA Changes Taking Effect April 30, 2015″

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.


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.



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.