Court Discusses Hybrid Offenses in the Refugee Context

The Federal Court recently released an interesting case discussing the effect of a criminal charge or conviction abroad on an individual’s ability to claim refugee status in Canada.

In the non-refugee context, a foreign national is inadmissible to Canada if he has been convicted abroad of, or if he has committed abroad, an offense whose equivalent in Canada would be an indictable offense under an Act of Parliament.

As anyone who is familiar with Canada’s Criminal Code is aware, many criminal offenses are hybrid offenses, and the Crown can elect to proceed by summary trial or by way of indictment.

For example, s. 271 of the Criminal Code states that:

(1) Every one who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Section 36(3)(2) of the Immigration and Refugee Protection Act addresses hybrid offenses.  It provides that for the purpose of determining inadmissibility to Canada an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offense.  The result is that people who are convicted abroad of minor offenses in their countries of origin are inadmissible to Canada because their offense is deemed to be indictable for the purpose of determining inadmissibility, even if it virtually impossible that the same offense if committed in Canada would actually be prosecuted by way of indictment.

Until recently, there was uncertainty if the same held true for excluding people from refugee protection pursuant to Article 1Fb, which provides that:

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

( b ) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

Neither the 1951 Refugee Convention nor Canadian immigration legislation address how hybrid offenses are to be treated for the purpose of Article 1Fb analysis.

What do you think?  Should different standards for determining inadmissibility apply for refugee claimants and other foreign nationals?  Should hybrid offenses be deemed to be indictable for the purpose of determining inadmissibility?


When You’ve Worked for a Government that Violated Human Rights

Are you an individual who has served in the government, the public service, the military, or the judiciary of a government that might have engaged in human rights or international rights obligations? Are you considering traveling to, working in, or immigrating to Canada? If you answer yes to either of these questions, you will definitely want to read on to determine whether your application could be in jeopardy.
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Work Experience Under the FSWP and the CEC

Subsections 87.1(2)(b) and (c) of the Immigration and Refugee Protection Regulations set out the job duties that applicants must perform in order to meet the requirements of having experience in an eligible NOC.

Subsection 87.1(2)(b) provides that an applicant must have performed the “actions described in the lead statement for the occupation as set out [in the NOC]”, while subsection 87.1(2)(c) provides that an applicant also must have performed a “substantial number of the main duties of the occupation as set out in the NOC, including all of the essential duties.”

In Benoit v. Canada (Citizenship and Immigration), 2013 FC 185, the Court allowed the appeal where an officer rejected an application because the applicant did not perform two of the eight main duties for NOC 6211.  The Court stated:

The officer was therefore required to determine if Ms. Benoit “performed a substantial number of the main duties.”  However, the officer’s decision as disclosed by the CAIPS notes is merely the following:  “Duties listed in job letter do not match duties in NOC description; ordering and scheduling is done by manager with PA’s assistance.”  “Ordering” and “scheduling” are no more than mere components of the main duties listed in NOC 6211.  Thus, it is not clear if the officer at any point turned his or her mind to the real question, which was whether – on the whole – the duties were a substantial match.[1]

Another case worth noting is Ye v. Canada (Citizenship and Immigration Canada), 2012 FC 652.  There, an officer refused an application under NOC 6221 because the officer felt that NOC 6421 was more appropriate. The officer did this not withstanding that NOC 6221 contained the following example titles “technical support specialist”, “telecommunications sales representative”, and “telecommunications salesperson.”  Accordingly, the court noted that the Officer erred by failing to address the evidence before her that the Applicant’s responsibilities and work experience were described in terms of one of the example titles in the NOC 6221 category.


A44 Reports

Section 44 of the Immigration and Refugee Protection Act states:

Preparation of report

44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.

Referral or removal order

(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.

Conditions

(3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order.

 


Court Reminder that Humanitarian & Compassionate Requests have to be in Writing

In Uddin v. Canada (Citizenship and Immigration), 2011 FC 1260, Justice Harrington rejected a judicial review of an immigration officer’s inside Canada spousal sponsorship.  While part of the decision dealt with procedural fairness, and the following interesting quote

One might wonder what duty one owes to a scofflaw who deliberately flaunts our laws and wallows back through the big muddy,

Justice Harrington also noted that the officer was not obligated to consider humanitarian & compassionate considerations because the applicant never requested that H&C considerations be considered in writing.

Regulation 66 of the Immigration and Refugee Protection Regulations states that:

A request made by a foreign national under subsection 25(1) of the Act must be made as an application in writing accompanied by an application to remain in Canada as a permanent resident or, in the case of a foreign national outside Canada, an application for a permanent resident visa.

As Justice Harrington noted, there was plenty of time for the immigration consultant in this case to submit a request in writing.  As he did not, there was no obligation on the officer to consider them.


Suspending Citizenship Applications Due to Cessation Hearings

Until recently, the Government of Canada adopted a very aggressive approach regarding the initiation of cessation applications against permanent residents who are protected persons. The reason is because since 2012 people who lose their protected person status for any of the following reasons also lose their permanent resident status:

  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; and
  4. the person has voluntarily become re-established in the country that the person left before claiming refugee status in Canada.

Several permanent residents with citizenship applications in processing have been affected by cessation applications.  In Godinez Ovalle v. Canada (Citizenship and Immigration), the Federal Court rather bluntly told both Immigration, Refugees and Citizenship Canada (“IRCC“) and the Canada Border Services Agency (“CBSA“) that they were out of line, and even called their approach “inhumane.”

Ultimately, however, the Federal Court of Appeal in 2017 determined that IRCC can indeed suspend the processing of citizenship applications while cessation proceedings are underway.

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Personalized vs. Generalized Risk

From the Big Picture

As the political situations in several Latin American countries decreases, there has been a steady increase in the number of refugee cases being decided on the issue of personalized vs. generalized risk.

Section 97(1)(b)(ii) of the Immigration and Refugee Protection Act states that a person in need of protection is a person in Canada whose removal to another country would subject them personally to a risk to their life or to a risk of cruel and unusual treatment or punishment if the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country.

The Federal Court has grappled with how to distinguish between personalized and generalized risk.

As noted in Prophète v Canada (Minister of Citizenship and Immigration), 2008 FC 331, the difficulty in analyzing personalized risk in situations of generalized human rights violations, civil war, and failed states lies in determining the dividing line between a risk that is “personalized” and one that is “general”.  What, for example, is the risk to an individual who has been targeted in the past and who may be targeted in the future but whose risk situation is similar to a segment of the larger population?  In Prophète, for example, Madam Justice Tremblay-Lamer, after much deliberation, determined that s. 97 can be interpreted to include a sub-group within the larger one that faces an even more acute risk.

Further complicating the issue is that there are varying definitions of what the word “generalized” means.  In Osorio v Canada (Minister of Citizenship and Immigration), 2005 FC 1459, Justice Snider reiterated that there is nothing which requires the Immigration and Refugee Board to interpret the word “generally” as applying to all citizens.  She added: “The word ‘generally’ is commonly used to mean ‘prevalent’ or ‘widespread’. Parliament deliberately chose to include the word ‘generally’ in subsection 97(1)(b)(ii), thereby leaving to the Board the issue of deciding whether a particular group meets the definition. Provided that its conclusion is reasonable, as it is here, I see no need to intervene.

In Baires Sanchez v. Canada (Citizenship and Immigration), Justice Crampton further tightened the screws when he stated that in order to show that a risk is not generalized applicants must establish that the risk of actual or threatened similar violence is not faced generally by other individuals in or from that country, and that applicants must demonstrate that the respective risks that they face are not prevalent or widespread in their respective countries of origin, in the sense of being a risk faced by a significant subset of the population.

Currently, one of the leading case on the matter is Portillo v Canada (Citizenship and Immigration), 2012 FC 678. There, the Federal Court articulated a two-step test for determining generalized vs. personalized test. The Refugee Protection Division (the “RPD“) must first appropriately determine the nature of the risk faced by the claimant which requires an assessment of whether the claimant faces an ongoing or future risk, what that risk is, whether it is one of cruel and unusual treatment or punishment and the basis for the risk. Second, the correctly described risk faced by the claimant must then be compared to that faced by a significant group in the country at issue to determine whether the risks are of the same nature and degree.  As well, it will typically be the case that where an individual is subject to a personal risk to his life or risks cruel and unusual treatment or punishment, then that risk is no longer general.