Stateless People in Canada

Justice Diner in Canada (Public Safety and Emergency Preparedness) v. Rooney discussed the issue of the lack of legislation dealing with stateless people in Canada. The relevant portions of his decision provide interesting commentary, and reads (citations removed for ease of reading):

Imposing an obligation to prove a negative in these circumstances may give rise to a Catch-22 situation for the stateless, nameless, mentally ill, and other vulnerable individuals who may not be able to establish identity. While I do not contest the Member’s finding that the Respondent may not be de jure stateless as understood by international instruments, the issue of statelessness and persons unable to establish nationality merits comment.

In a 2010 paper on de facto statelessness, Senior Legal Adviser to the United Nations High Commissioner for Refugees Hugh Massey explains that the inability to prove nationality may be linked to a number of causes, including the fact that “[s]ome people may have never been registered in the civil registration system of the country of their nationality.” Mr. Massey further notes the difficulty to establish nationality in the case of unaccompanied children, especially if the “child is so young as to be unable to provide any information at all about his or her origins, e.g. if the child is a foundling”.

And in a 2012 discussion paper written for UNHCR, referenced at pages 543-544 of the Respondent’s Record, author Andrew Brouwer highlights the consequent difficulties created by the dilemma:

In Canada, as elsewhere, stateless persons who do not have authorization to stay in the country live in a condition of legal limbo. Some stateless persons are refugees and, once recognized as such, enjoy the full set of rights which attach to refugee status. However, non-refugee stateless persons are in an extremely precarious situation. These are persons who are not recognized as nationals by any country but also do not have a well-founded fear of persecution in any country […] Whether they were stateless before arrival or lost their nationality while in Canada […], it is this group of individuals, albeit small, who face the greatest problems in Canada and elsewhere. They are vulnerable and marginalized. [emphasis added]

Mr. Brouwer goes on to explain at page 14 of his paper the impact of being caught in this “legal limbo” on persons unable to establish nationality, which, as the Respondent’s case demonstrates, is so intimately linked to identity:

[…] non-refugee stateless persons in Canada who cannot acquire a legal status are subject to removal from the country, and may be detained pending removal. However, because removal is often impossible what should be short-term detention in preparation for removal may become long-term or even indefinite, as Canadian officials try to convince another country to accept a non-national. The issue of lengthy detention, particularly for administrative reasons is a key concern for UNHCR, which could be avoided if alternative protection mechanisms for this group were to be put in place.

Under subsection 2(1) of IRPA, a “foreign national means a person who is not a Canadian citizen or a permanent resident, and includes a stateless person.” This is the only mention of the word “stateless” in the Act; the Regulations also offer few provisions addressing the notion, without any definition of statelessness. There is an equal dearth of guidance in the jurisprudence regarding stateless persons or persons such as the Respondent, who are unable to establish nationality or are of undetermined nationality, whether found to be stateless in fact (de facto) or in law (de jure).

As currently constructed, Canada’s immigration framework provides minimal, if any, legal guidance for those who are in Canada, but do not know who they are or where they come from. This legislative void can result in what has happened in the Respondent’s case, namely a reality where someone unable to prove legal status is told that he does not belong in Canada, but is also unwanted abroad, and as a result remains in detention for a prolonged period. Neither the Act nor Regulations assist in a situation akin to the Respondent’s, who finds himself betwixt and between Canadian and foreign nationality, caught by the factual and legal complexities of his situation.


Borderlines Podcast Episode 6 – Dani Willetts on the Transition from Working for CIC to being an Immigration Consultant

On the 6th podcast episode, Dani Willetts joins Peter Edelmann and I to discuss the decision making process at Canada’s immigration department, her experience transitioning from a career working for CIC to being an immigration consultant, some recent cases impacting international graduates in particular with regards to the Post-Graduate Work Permit program, a recent Parliamentary report on the Temporary Foreign Worker Program, and the discovery that Canada has started negotiating an extradition treaty with China.

Dani Willetts is an immigration consultant at TDWImmigration. From 1989 – 2012 she worked in numerous capacities with Canada’s immigration department, including as a Supervisor in Vancouver.

First, using three recent cases as examples we discussed how Immigration, Refugees and Citizenship Canada officers view themselves. Do they see themselves as administering the Immigration and Refugee Protection Act or as administering Canadian immigration programs.  Three recent cases from the Federal Court were used to guide our discussion.

The first was Zhang v. Canada (Citizenship and Immigration), 2016 FC 964, where the Federal Court determined that a visa officer was correct when it determined that a person  had engaged in unauthorized study in Canada while in Canada as a visitor.  Ms. Zhang had arrived in Canada on a visitor’s visa on August 23, 2014, which was valid until February 23, 2015. On January 16, 2015, she applied for, and was eventually granted an extension of that visa, until August 30, 2015. On January 5, 2015, she began a 14-week English as a Second Language [ESL] program.  The Officer determined that the study was unauthorized because Ms. Zhang did not complete the studies within the initial period authorized by her stay.  When Ms. Zhang argued that this was unfair because the IRCC said that she could study, Justice Bell said:

I cannot accept Ms. Zhang’s contention regarding the interpretation of paragraph 188(1)(c) of the Immigration and Refugee Protection Regulations (the “IRPR”). Indeed, the Officer’s conclusions cannot be based upon information found on websites. He or she is required to interpret the Act and the IRPR.

The second case was Zhang v. Canada (Citizenship and Immigration), 2016 FC 1057 .  There, the Federal Court found that it was for immigration officers, and not post-secondary institutions, to determine what constituted full-time studies for the purpose of eligibility to the Post-Graduate Work Permit Program. Once again, this seemed to contradict information that was on the IRCC website, and once again the Federal Court found that it was reasonable.

The third case was Nookala v. Canada (Citizenship and Immigration), 2016 FC 1019. Once again, the Federal Court determined that it was reasonable for an officer to determine that it was not possible for an applicant to restore his status from student to post-graduate work permit holder, despite language on the IRCC website that indicated the contrary.  When confronted with the inconsistency between the officer’s decision and the website, Madam Justice Mactavish noted that:

After these reasons had been completed, but before they were signed, the applicant provided the Court with a portion of a guideline published on a Departmental website. The operative position of the guideline states that “the phrase ‘initial requirements for their stay’ should not be read too literally when it is being applied in the context of a restoration application”. The guideline goes on to state that “the preferred interpretation in this context would be that the person seeking restoration must meet the requirements of the class under which they are currently applying to be restored as a temporary resident”.

According to Mr. Nookala, this means that an individual who has previously held a study permit can have their status “restored” to a work permit, including a Post‑Graduation Work Permit.

I do not need to decide in this case whether this interpretation suggested by the Departmental guideline is a reasonable one. The decision to refuse Mr. Nookala’s restoration request was one that accorded with the express language of section 182 of the Regulations. It was, therefore, well within the range of possible, acceptable outcomes which are defensible in respect of the facts and law. In other words, it was reasonable.

Given these numerous decisions in which officers seemingly ignored the IRCC website I asked Dani whether IRCC officers view themselves as implementing Canadian immigration law or Canadian immigration programs? What does the Department do when officers deviate from the website? Her answers were fascinating.

Dani then provided a summary of her experience transitioning from a career at Canada’s immigration department to being an immigration consultant.

The topic then shifted to a discussion of three recommendations from the Huma Committee. These were (1) whether work permits should not be limited to specific employers, (2) whether there should be a trusted employer program within the Labour Market Impact Assessment program, and (3) whether specific industries should get preferential treatment in the Temporary Foreign Worker Program.

Finally, Peter provided an overview on Canadian extradition law.

All in all a great episode, if I may say so myself.

Best Interests of the Child can Be Considered in Detention Reviews

The Canadian Council for Refugees (the “CCR“) has just distributed the following two PDFs to its followers.  In brief, the Federal Court has issued an order saying that the best
interests of non-detained children can be considered in detention reviews (e.g. of a parent who is accompanied in detention by a child who is in detention, but not legally detained).


As copied from the CCR e-mail, the Order confirms that:

  1. the factors to be considered by the Immigration Division when deciding whether to detain or release are not limited to those enumerated under R. 248 of the Regulations;
  2. the Immigration Division has the jurisdiction to consider the interests of a child who is a Canadian at an immigration holding centre (i.e. residing there with her detained parent) even if that child is not under a detention order herself and therefore not directly subject to the Immigration Division’s jurisdiction; and
  3. the interests of a child may be taken into account (but are not a primary consideration) when determining whether a person is a flight risk.

Also, according to the CCR, Canada Border Services Agency Hearings Officers have been instructed to bring this Order to the attention of Immigration Division members.  The following instructions have also been provided to officers.

Borderlines Podcast Episode 5 – Marilyn Sanford

On the 5th podcast episode, Marilyn Sanford joins Peter Edelmann and I to discuss whether the Canada Border Services Agency can search people’s electronic devices.

In addition, we discussed the recent stay of proceedings in the Nuttall decision, a well publicised case in which two individuals were charged with attempting to blow up the BC legislature. Marilyn was counsel to Mr. Nuttall, and provided her insights on the case.

Finally, Peter and Steve touched on recent developments in Canadian immigration law, including the Owner Operator Labour Market Impact Assessment recruitment exemption, a puzzling case in which the Federal Court upheld an officer’s determination that people who extend their visitor status in Canada cannot complete short term courses during that extension without first leaving Canada, and the Supreme Court of Canada dismissing leave in the Torres case.

Restoration of Status

There are many ways that people who come to Canada legally can suddenly find themselves inside Canada without valid status.  Some may simply forget to submit applications to extend their status prior to the end of the period of their authorized stay.  Others may submit their extension applications on time only to have Immigration, Refugees and Citizenship Canada (“IRCC”) later refuse or reject their applications for being incomplete, leaving them without status in Canada.

While Canadian immigration law provides such foreign nationals with some options to regain valid temporary resident status in Canada, it is important that people understand the risks associated with each.

Leaving Canada and Re-Entering

The first, and arguably the riskiest, way that a foreign national can regain legal status in Canada is to exit Canada and re-enter.  Anyone who does this will need to satisfy the Canada Border Services Agency (“CBSA”) that they will leave Canada by the end of their authorized stay, which can sometimes be tricky if the person has previous overstayed.  As well, if the foreign national wants to work or study, then they will need to demonstrate to CBSA that they are eligible to do so.

Restoration of Status

For many, exiting Canada and re-entering is simply too risky or too expensive if they do not have a US visa.  Luckily, Canada’s Immigration and Refugee Protection Regulations provide that if a visitor, worker, or student loses their status in Canada, then they can apply to restore their status if they do so within 90 days of their status expiring.

Restoration applications must be submitted either online or by mail to IRCC.  Restoration applications cannot be submitted while entering Canada at a Canadian port of entry.

It is vital that foreign nationals submit their restoration applications within the 90 day period after their temporary resident status expires.  The failure to do so will automatically result in the restoration application being refused.

For those who lose status because IRCC refused their temporary residence extension application, the 90 day window to apply for restoration starts on the date that IRCC refuses the extension application, rather than when the foreign national’s work or study permit expired.  The 90 day window does not start on the day that the applicant receives the decision.  Although this may seem very unfair to those who lose time due to postage delays, the Federal Court has held that this rule even applies where there is a 90 day delay between IRCC refusing an application and the applicant receiving the decision.

Finally, it is important to note that students cannot study during the restoration period, nor can foreign workers work.

Removal and Restoration  

Many people are under the mistaken assumption that the 90 day restoration window provides a grace period from removal. This is not the case, as highlighted by a July 2016 Federal Court decision called Ouedraogo v. Canada.  There, the court explicitly determined that removal and restoration can operate in parallel, and that there was nothing prohibiting the CBSA from removing people during the 90 day restoration window if they had not yet applied for restoration.

The issue of whether CBSA can remove people from Canada after they have applied for restoration is more contentious.  Practically speaking, once a restoration application is submitted, it is very rare for CBSA to issue a removal order against a foreign national despite them being in Canada without status.  Where they have done so, the Federal Court has typically quashed the removal order and declared it invalid.  As the Federal Court noted in the case of Yu v. Canada, “ it cannot generally be said that a temporary resident who has applied for the restoration of a permit in a timely manner has failed to comply with immigration legislation.”

In any event, people who wish to apply for restoration of status need to do so with the understanding that at any point during the 90 day window to apply for restoration, or even possibly when their restoration is in process, the possibility exists that they can still be removed from Canada.

Temporary Resident Permits

It is difficult for people who have remained in Canada for more than 90 days beyond the expiry of their temporary resident permits and visas to regain legal status.  Such individuals may apply for permanent residence either by being sponsored by a Canadian through the Spouse or Common-Law Partner in Canada Class, or by submitting an application for permanent residence on humanitarian & compassionate grounds.

It is even more difficult to regain temporary resident status.  In very narrow circumstances, such individuals may apply for a Temporary Resident Permit. However, the situation must be exceptional, and simply remaining in Canada for more than 90 days beyond the expiry of temporary resident status will not automatically lead to such a permit being granted.


Of course, the best option is to simply not lose temporary resident status in the first place.  As such, it is important to keep track of when permits expire, to ensure that extension applications are complete, and to proactively move towards being eligible for any extensions.  The most common reason why people fall out of status is because they start the process too late.

Studying without a Study Permit

Foreign nationals are required to obtain a study permit for engaging in academic, professional, vocational or other education or training that is more than six months in duration at a designated learning institution (“DLI“) in Canada.

So what does this mean, and who doesn’t need a study permit?

The  Immigration and Refugee Protection Act (the “Act“) provides that every minor child in Canada, other than a child of a temporary resident not authorized to work or study, is authorized to study at the pre-school, primary or secondary level.

The Immigration and Refugee Protection Regulations (“IRPR“) further provide that a foreign national does not need a study permit to study in the following circumstances:

(a) if they are a family member or a member of the private staff of a foreign representative who is properly accredited by the Department of Foreign Affairs and International Trade and who is in Canada to carry out official duties as a diplomatic agent, consular officer, representative or official of a country other than Canada, of the United Nations or any of its agencies or of any international organization of which Canada is a member;

(b) as a member of the armed forces of a country that is a designated state for the purposes of the Visiting Forces Act, including a person who has been designated as a civilian component of those armed forces;

(c) if the duration of their course or program of studies is six months or less and will be completed within the period for their stay authorized upon entry into Canada; or

(d) if they are an Indian.

Short-Term Courses 

There is alot of confusion regarding whether people can complete short-term courses in Canada without a study permit.  The Immigration, Refugees and Citizenship Canada website states that foreign nationals may enter Canada or remain in Canada without a study permit to attend a course or program of study of six months’ duration or less.  This, however, does not provide the whole story. As noted above, IRPR also requires that the course or program of studies be completed within the period authorized to the foreign national upon entry to Canada.

In Zhang v. Canada (Citizenship and Immigration), 2016 FC 964, a Chinese national arrived in Canada on a visitor visa on August 23, 2014. The period authorized for her stay was six months, or February 23, 2015. In January 16, 2015, Ms. Zhang applied for and obtained an extension of her visa until August 30, 2015.

On January 5, 2015, Ms. Zhang began a 3 month ESL course.

In a subsequent application, IRCC determined that Ms. Zhang had studied without authorization, and the Federal Court agreed.  Her lawyer argued that this was unfair, especially since the IRCC website stated:

You can study in Canada without a study permit if: the duration of your course of program of study is six months or less and you will complete your course or studies within the time you are allowed to stay in Canada. [My emphasis]

However, Justice Bell disagreed, and stated:

I cannot accept Ms. Zhang’s contention regarding the interpretation of paragraph 188(1)(c) of the IRPR. Indeed, the Officer’s conclusions cannot be based upon information found on websites. He or she is required to interpret the Act and the IRPR. The words “upon entry into Canada” as found in paragraph 188(1)(c) are unambiguous. It is common ground that words in a statute are to be given their plain meaning unless the context requires otherwise: see, Ruth Sullivan, Statutory Interpretation, 2d ed (Toronto: Irwin Law, 2007) at 49-50. Upon entry into Canada Ms. Zhang was authorized to remain until February 23, 2015. I find it reasonable to conclude that that is the date by which she was required to complete any study, pursuant to paragraph 188(1)(c), for which she did not have a study permit. Even if I were to hold the view that the Officer was incorrect in his interpretation of the relevant provisions, he or she must be afforded deference when interpreting his or her home statute. Reasonableness, not correctness, is the standard of review to be applied.


Religious Workers and Work Permits

There are generally two types of religious workers who seek entry to Canada to work. The first are clergy (which includes Buddhist monks, Sikh granthis, rabbis, priests, preachers, pastors, etc.) whose employment in Canada will consist mainly of preaching doctrine, presiding at religious functions, or providing spiritual counselling.  Section 186(l) of the Immigration and Refugee Protection Regulations (“IRPR“) provides that such people may work in Canada without a work permit.  IRPR r. 186(l) states:

186. A foreign national may work in Canada without a work permit

(l) as a person who is responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties are to preach doctrine, perform functions related to gatherings of the congregation or group or provide spiritual counselling;

Generally, applicants applying to work in Canada without a work permit under IRPR r. 186(l) need to demonstrate that they have a genuine offer of employment from the religious denomination that seeks to employ them, that the organization employing them can provide for their care and support, and that they are able to minister to a congregation under the auspices of that congregation’s denomination.

To demonstrate this, applicants should provide the following documents, where applicable:

  • Certificate of Incorporation of the employer;
  • Proof of registration as a charity or non-profit;
  • Statement from the religious organization showing:
    • the date and place of founding of the religious organization;
    • length of time in continuous operation in the province or territory of destination;
    • description of the structure of the organization;
    • copies of relevant corporate and society documents;
    • financial statements;
    • copy of residential lease if a residence is not supplied to the foreign national; and
    • other documents which establish the relationship between the religious denomination and the religious worker.

The second type of religious workers are people who are entering Canada to perform charitable or religious work.  Depending on the circumstances, such individuals may be exempt from the Labour Market Impact Assessment (“LMIA“) process, if they are carrying out duties for a Canadian religious or charitable organization and the duties themselves are of a charitable or religious nature (e.g., teachers assistants supplied by a charitable organization to a school because funds were not available to the school to hire).  These individuals can apply for a work permit pursuant to IRPR r. 205(d), which provides that:

205. A work permit may be issued under section 200 to a foreign national who intends to perform work that

(d) is of a religious or charitable nature.

The Temporary Foreign Worker Guidelines (“TFWG“) provide that an individual may be considered to be engaging in charitable or religious work if they meet the following conditions:

  • the duties performed by the individual must be of a charitable or religious nature that help to relieve poverty, or benefit the community, educational or religious institutions. As well, IRCC has updated its manual to specifically include camps that provide programs and services to children and youth who have physical or mental disabilities or who are economically disadvantaged;
  • the organization or institution which is sponsoring the foreign worker will not, itself, receive direct remuneration from any source on behalf of, or for, the services rendered by the foreign worker; and
  • the work goes above and beyond normal work in the labour market, whether remunerated in some manner or not, for example: organizations which gather volunteer workers to paint or repair the houses of the poor may qualify, provided that the work would not otherwise be done, i.e. if the recipients of this work are not able to hire a professional or do the work themselves. L’Arche, which relies on people to live full-time in a group home with people who have developmental disabilities; (workers in the homes are remunerated, but they are committed to taking care of the disabled people on almost a 24-hour basis.) persons who are giving their time to community or religious organizations in a position which would not represent a real employment opportunity for Canadians or permanent residents. (Though it is not mandatory, such work normally entails a requirement for the foreign national to be part of or share the beliefs of the particular religious community where they will work, or to have the ability to teach or share other religious beliefs, as required by the employer..)

The following is an example of an approval under IRPR r. 205(d).  I note that this was not one of my files, as it is not my practice to post my files on this blog.  Rather, this example of an approval was obtained through an Access to Information Act request.


It is important to note that a non-profit organization is not necessarily a charitable one.  A charitable organization has a mandate to relieve poverty, or benefit the community, educational, or religious institutions.  While most of these cases are linked to registered charities, being a registered charity with the Canada Revenue Agency is not a mandatory requirement.  Such organizations will face greater scrutiny, however, in determining whether their mandate is to help relieve poverty, benefit the community, educational, or religious institutions.

Of course, foreign nationals seeking to enter Canada to perform religious work may also apply for a Labour Market Impact Assessment if they do not meet one of the above two requirements.


The following are 6 useful tips for foreign nationals who are considering entering Canada to perform religious work.

  • When you are applying make it clear that you are applying under either IRPR r. 186 or under IRPR r. 205.  Even if you are eligible for Permit A, but you request Permit B, then Immigration, Refugees and Citizenship Canada is not under any duty to provide you with Permit A: Sharma v. Canada (Citizenship and Immigration), 2014 FC 786
  • While religious workers from visa-exempt foreign countries do not need to apply for a visa from outside Canada to work in Canada without a work permit under R186L, they do need to satisfy Port of Entry officers that they meet the requirements of R186L.
  • One of the larger issues that applicants face is whether the employer can support them in Canada.  If the religious organization is small, it is not uncommon for officers to request supporting financial documents.
  • Even if you are eligible to work in Canada without a work permit pursuant to IRPR r. 186(l) you may want to obtain one nonetheless.  Some advantages of having a work permit include the possibility of open work permits for spouses and children, access to provincial health care, dependent children being exempted from having to obtain a study permits, and more.
  • There are several documents which can be useful to show the genuineness of the job offer, including a certificate of incorporation, proof of registration as a charity under the Income Tax Act, copies of the Constitution, financial statements, and proof of ordination.
  • I always recommend that people at least provide a letter from the Canadian religious organization.  Statements from the religious organization should mention the date and place of founding of the religious organization, the length of time in continuous operation in the province, a description of the structure of the organization, the size of the adult congreation, the number of clery employed, the address of the regularl emeting place, schedule fo worship.

Permanent Residency

It is important that people who work under IRPR r. 186(l) not exceed the duties described in that section, which are being responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties are to preach doctrine, perform functions related to gatherings of the congregation or group or provide spiritual counselling.  In Kaur v. Canada (Citizenship and Immigration), for example, the Federal Court found that a religious worker who was working in Canada under IRPR r. 186(l) had exceeded her duties by essentially being a religious teacher in a classroom setting at a religious institution. The Federal Court accordingly found that the work experience was unauthorised, and that the foreign national could not count that work experience towards the Canadian Experience Class.