RIMbits Revealed (May 2010)

The following are some excerpts from the May 2010 RIMbits.  RIMbits are messages sent from National Headquarters to missions overseas.  The May 2010 RIMbits on admissibility consisted of seven questions and answers.  I have reproduced three of them for free below.

Please note that the questions and answers below should not be viewed as legal advice.  Rather, they are simply reproductions of how CIC senior management answered specific questions from visa offices in May 2010.

Seized Travel Document

Q) We were notified by the authorities that a permanent resident travelling on a Canadian travel document has been charged with: (1) ______ (2) _____ and (3) _____. According to local authorities, the permanent resident has been released on bail with the condition that she surrender her travel document and that “Stop Orders” are placed with the Immigration exit controls at airports.  We have been formally requested not to issue a new travel document to this permanent resident “until the matters have been disposed.”  

As the charged person is not a Canadian, the Consular Section has referred this case to us.  Although she has not done so at this point, it is possible that in the near future, this permanent resident may request from the visa office a Permanent Resident Travel Document or other documents to facilitate her return to Canada.  Would you have any advice on what we may and may not consider if the permanent resident applies for a PRTD before the judicial proceedings have come to a conclusion? 

(A) The permanent resident’s Canadian travel document has been seized by local authorities in connection with a legal matter.  It is not lost or stolen, and she will get it back when the legal process is completed.  Thus, even if Passport Canada issued replacement travel documents overseas, it would not be inclined to do so in this case.

To issue a PRTD, a travel document is required.  Although the permanent resident might meet residency requirements for a PRTD, her circumstances would preclude a Single Journey Travel Document.  Avoiding prosecution is not the exceptional circumstance usually required for issuance of a SJTD.

IAD-granted special relief overcoming the requirement for an ARC

(Q) The subject arrived in Canada and was accepted as a Convention refugee five years later.  His application for landing was later refused, however, due to multiple criminal convictions.  He was ordered deported at his appeal hearing and the IAD concluded that he was a danger to Canadian society. 

The subject submitted an FC1 application to our office; this application was refused for criminal inadmissibility pursuant to paragraphs 36(1)(a) and 36(2)(a) or IRPA.  Subsequently, the subject was given a pardon and the IAD allowed the appeal.  

We would like to confirm that we are not bound by the IAD’s favourable comments to grant an ARC.

(A) Although the IAD does not have the jurisdiction to consider the requirements to obtain an ARC on its own, it does have the jurisdiction through its authority under A65 and A67(3) to consider whether special relief should be granted to members of the family class.  Special relief may overcome the requirement to obtain an ARC.  In this case, the IAD found that the applicant was a member of the family class.  The requirement to obtain an ARC was put before the IAD and consequently, the IAD was required to consider this in rendering its decision.

Hong Kong “Spent” Criminal Convictions

(Q) From time to time we see police certificates which list prior convictions with the note that they are considered spent according to s. 2(1) of the Hong Kong Rehabilitation of Offenders Ordinance.  Does the Hong Kong ordinance have the same effect as the Canadian and UK provisions?

(A) A spent conviction in Hong Kong is not equivalent to a pardon in Canada.  The equivalent offence under the Canadian Criminal Code should be looked at in determining admissibility as usual.

The issue was raised and settled in Federal Court in “Kan v. Canada”.

Briefly, in the Burgon decision (referred to in Kan), the courts ruled that British legislation did create the same condition as a pardon and that individuals rehabilitated under this legislation were not inadmissible.  The argument was made in Kan that the Hong Kong ordinance had the same effect.  However, the Federal Court determined that subsection 2(1) of the Rehabilitation of Offenders Ordinance is not equivalent to a pardon in Canada because it only has effect until the individual is again convicted of an offence in Hong Kong.  Further, subsection 2(1) is subject to numerous specified exceptions and does not have the effect of “cleansing the individual of any stain that the conviction caused” (Burgon).

Applicants may inadvertently incorrectly declare that they do not have any convictions believing that a “spent” convictions means that it no longer exists.


Enforcing Removal Orders and Authorization to Return to Canada: Scenarios, Questions, and Answers

One of the more common questions that I am asked is when people who have been told  by the Government of Canada to leave Canada need to submit an Application for Authorization to Return to Canada (“ARC”) before they return.

I have obtained a copy of internal Citizenship and Immigration Canada material which addresses some of these questions, and which I have adapted and produced below.  Please note that the material below has been adapted from a document dated 2009-10.  It is from an official work by the Government of Canada which was obtained through Access to Information and Privacy Act Request.  I have reviewed it and believe that it is correct and current. However, the scenarios below should only be used for informational purposes.  It is NOT legal advice. As well, the reproduction of the training materials has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.

Scenario 1

Tiger Johnson, a citizen of the USA,was issued a Departure Order on August 4, 2008.  When he left Canada, he did not confirm his departure with the Canada Border Services Agency (“CBSA”).   In 2012, he shows up at the Canadian Consulate in Los Angeles and tells an officer that he now wants to confirm his departure from Canada since he forgot to do it when he left in 2008.

Can the Officer now enforce the removal order?

No. Regulation 240(2) of the Immigration and Refugee Protection Regulations provides that Mr. Johnson must apply for a visa or for an authorization to return to Canada in order for an officer outside Canada to enforce a removal order.

Scenario 1(b)

A week later, Tiger Johnson returns to the LA Consulate and submits a letter explaining that he would like to go to Canada to attend an agricultural fair for work.  He also submits 400$ and a completed ARC application with the required supporting documents.   In addition, he provides evidence of a used boarding pass dated August 30, 2008, for a flight from Toronto to Los Angeles which he had booked himself. He also submits a copy of a signed lease dated Sept. 1, 2008 for his apartment in Los Angeles.

Does he need to apply for ARC even though he has shown that he left Canada within 30 days of the Departure Order being issued? 

Yes.  His departure order became a deportation order because it was not enforced within 30 days.  His failure to attend at CBSA means that he now needs ARC to return to Canada even though he complied with the “spirit” of the Departure Order.

Can the officer at the consulate enforce the removal order? 

Yes.  Since Mr. Johnson did not confirm his departure out of Canada with an officer, and since he has now applied for ARC, the LA Consulate can enforce the removal order.

Scenario 2

Arthur Lagaffe, a French citizen, was issued a Departure Order in 2004.  He never complied with it.  In 2008, he was arrested in Montreal for a speeding ticket and was immediately detained and handed over to CBSA. He was deported on 4 July 2008 on an Air France flight to Paris.  His departure was confirmed by CBSA. His air ticket was paid for by the Department. In Mr. Lagaffe’s letter, he now indicates that he would like to return to Canada since his departure was rushed and he needs to collect some belongings.

Does he need to apply for ARC?

Yes. Because his Departure Order was not enforced within 30 days it became a Deportation Order, and he needs ARC.

Does Mr. Lagaffe need to pay back the government for removal costs?

Yes.   He has to pay 1500$, the amount proscribed by law.  However, he is only legally required to pay this if his ARC application is approved.

Scenario 3

Pablo Rodriguez submits an application for a work permit in 2012.  The reviewing officer sees that he was issued an Exclusion Order on September 4, 2008.  He was issued this removal order because he submitted his application for a work permit extension after his status had already expired.  Pablo’s passport shows that he left Canada on September 11, 2008. However, in his haste to depart Canada he says that he forgot to confirm his departure with CBSA.  Pablo’s representative provided a letter of explanation and indicated that Pablo does not require ARC since more than 1 year has elapsed since his exclusion order was issued.

Is Pablo’s representative right in stating that Pablo does not require ARC 

No.  The Exclusion Order was not enforced because Pablo did not confirm his departure out of Canada.  The 1-year period only starts when the Exclusion Order is enforced. The Officer reviewing the work permit application will enforce the removal order, and the 1-year period will start from that date.

Scenario 4

Park Lee Kim, a 19-year old South Korean national, applies for a study permit so that he can attend the University of British Columbia.  He was previously issued a Deportation Order as a result of being an accompany family member of an individual who was deported from Canada for being involved with organized crime.

Does Park Lee Kim need to apply for ARC? 

No.  Regulation 226(2) of the Immigration and Refugee Protection Regulations exempts family members against whom a deportation order was issued as the result of a deportation order issued against the principal applicant from having to obtain ARC.


Authorizations to Return to Canada

There are three types of removal orders in Canada.  These are the “Departure Order”, the “Exclusion Order”, and the “Deportation Order”.

A Departure Order requires that a person leave Canada within 30 days after the order becomes enforceable.  Failure to do so causes the Departure Order to become a Deportation Order.

An Exclusion Order provides that the removed person cannot return to Canada for one year unless Authorization to Return to Canada (“ARC“) is obtained. For Exclusion Orders resulting from misrepresentation the bar is two years.

A Deportation Order results in a person being permanently barred from returning to Canada. Such a person may not return unless he/she receives ARC.

An ARC is not routinely granted. Individuals applying for an ARC must demonstrate that there are compelling reasons to consider an ARC when weighed against the circumstances that necessitated the issuance of the removal order. Applicants must also show that they post minimal risk to Canadians and to Canadian society.

The factors that an immigration officer should consider include:

  • The severity of the immigration violation that led to the removal.
  • The applicant’s history of cooperation with Citizenship and Immigration Canada (“CIC“).
  • Whether there any previous immigration warrants.
  • Whether the applicant complied with the terms and conditions of the document issued by CIC.
  • Whether the applicant paid for the removal costs.
  • Whether compelling or exceptional circumstances exist.
  • Whether there alternative options available to the applicant that would not necessitate returning to Canada.
  • Whether there are factors that make the applicant’s presence in Canada compelling (e.g., family ties, job qualifications, economic contribution, temporary attendance at an event).
  • Whether there are children directly implicated in the application whose best interests should be considered.
  • Whether the applicant supports him or herself financially.
  • How long the applicant intends to remain in Canada.
  • Whether there are benefits that Canada may derive.

The recent case of Sidhu v. Canada (Citizenship and Immigration), 2010 FC 1055 provides an example as to how hard obtaining ARCs can be. There, the Applicant was a failed refugee claimant from India. She was deported in 1998.  She later conceded that her claim was a lie.

Her mother, a Canadian, later applied to sponsor her. In order to return to Canada, Ms. Sidhu required an ARC. CIC denied the application, and its decision was upheld by both the Immigration Appeal Division and the Federal Court.  All three bodies found that given the nature of the removal, family reunification was not a compelling enough reason to grant an ARC.

 


Restructuring of the North American Processing Network (Continued)

Restructuring of North American Processing Network (Continued)

In a previous post, I wrote about how on May 29, 2012, Citizenship and Immigration Canada (“CIC”) restructured its North American Processing Network.  The restructuring included the closure of immigration section of the Canadian consualte in Buffalo, as well as the realigninment of Work Permit and Study Permit functions of the Canadian consulates in New York, Los Angeles, Washington D.C., Detroit, and Seattle.  For information on those changes, I encourage you to read that post.

On June 11, 2012, CIC released a further Operational Bulletin detailing additional changes to which consulates which process Temporary Resident Permit applications, Rehab applications, and Authorization to Return to Canada applications. .

Re-Configuring the U.S. Network (TRPs, Rehab, and ARC)

Effectively June 18, the Seattle, Detroit, and New York consulates will no longer be processing new TRP, Rehab, and ARC applications.  Only the Los Angeles and Washington DC consulates will process new applications in these categories.  Furthermore, applicants residing in the United States will not be able to choose which consulate to submit their application to.  Applicants living in the United States east of the Mississippi River (including in Puerto Rico, Bermuda, and St. Pierre et Miqueldon) must apply to the Washington DC Consulate.  Applicants residing in the United States living west of the Mississippi River must apply to the Los Angeles consulate.


The following table more clearly shows the breakdown of the new immigration duties of the US Consulates.

New York Los Angeles Washington D.C. Detroit Seattle
Visitor Visa

Verification of Entry

Returning Resident

Visitor Visa

Verification of Entry

Returning Resident

Visitor Visa

Verification of Entry

Returning Resident

Visitor Visa

Verification of Entry

Returning Resident

Study Permit (U.S. Residents East of the Mississippi) Study Permit (U.S. Residents West of the Mississippi)
Work Permit (U.S. Residents East of the Mississippi) Work Permit (U.S. Residents West of the Mississippi)
TRP TRP
Rehabilitation Rehabilitation
ARC ARC

It’s not that hard to envision the immigration processing functions of the Seattle and the Detroit consulates being closed soon.