RIMBits Revealed (July 2010)

The following are some excerpts from the July 2010 RIMbits.  RIMbits are messages sent from National Headquarters to missions overseas.  The July 2010 RIMbits on admissibility consisted of eight questions and answers or bulletins.  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 July 2010.

Canadian citizen Visiting Forces Act applicant

Q. We ask for your opinion on the process for a Canadian dual citizen and his family who wish to enter Canada under the Act on Visiting Forces at the request of the ________ government. The applicant and spouse currently have official _____  passports. The sons, also dual citizens, have an ordinary ____ passports stating “son of government agent.” With what documentation should the applicant and his sons travel? Obtaining proof of Canadian citizenship for the children could take 14-16 months.

Also, the spouse has no status in Canada. The Foreign Worker Guide indicates that dependents of people who are in Canada under the Visiting Forces Act qualify for an open work permit. As the spouse of a Canadian citizen, is the wife still eligible for a work permit or study permit?

A. The Canadian citizens (principal applicant and sons) could arrive in Canada with their Official passports ______ with no permits or visas; however, the Port of Entry will have to investigate again their status as Canadian citizens. Therefore, I suggest that the applicant and his children be issued Facilitation visas so that CBSA POE will have the full story at their fingertips. The visa-exempt spouse, as accompanying dependent under the Visiting Forces Act, should be issued an open study-work permit.

Permanent residence determinations -accompanying a now-deceased spouse

Q. We need your expertise and clarification on a permanent residence determination dealing with a permanent resident accompanying a Canadian citizen spouse outside of Canada.

The 5-year period of consideration is from _____ to _____ . We determined that the applicant had only spent 171 days in Canada and did not meet the residency obligations. However, until ______ when the applicant’s spouse died, he was accompanying a Canadian citizen.

My understanding for accompanying is that the spouse/common-law partner must be alive. If the spouse or common law partner is deceased and has been deceased for a number of years should we be counting the time spent while alive for residency determinations?

A. Yes, you should count the time the applicant was accompanying a living Canadian citizen. When determining physical presence in Canada, each part of a day in which a person is accompanying a Canadian citizen outside Canada counts as a day in Canada. In this case, the time spent accompanying the Canadian citizen spouse outside of Canada up to and including _______ should be considered.

A similar case can be made for permanent residents who were previously married to Canadian citizens. The period of time where the permanent resident accompanies a Canadian citizen spouse should count towards residency requirements until the date of a legal separation or, if no legal separation exists, the date of the divorce decree.

Medical inadmissibility

Q. I would like to find admissible an applicant that the medical officer has found inadmissible for excessive demand for social services (MOS).

The medical officer indicates that this individual is inadmissible for excessive demand on social services.

I disagree. I am not satisfied that this person is medically inadmissible, and I believe that this decision is mine under the Act and related jurisprudence. However, there are no instructions on how to issue a visa on a case where there is an MOS. I do not plan to send a procedural fairness letter, because I am not satisfied that there is inadmissibility.

A. Ultimately, it is the visa officer that determines if an individual is inadmissible, not the medical officer. If there is, in your opinion, sufficient information on file to counter the excessive demand component of an MOS assessment, then there would appear to be little gained by going through the procedural fairness exercise. You may want to confer with your IPM on whether it is appropriate to waive this administrative step.

For issuing a visa, you can “override” the MOS assessment in CAIPS. It is recommended that you record your argument for visa issuance in CAIPS notes.

OB 63B addresses this issue:

Coding

At the end of the process, if the applicant has satisfied the immigration/visa officer that they have the ability and intent to mitigate the cost of the required social services, the immigration/visa officer will enter a positive medical decision code “1” in FOSS or CAIPS, as applicable. Although the medical assessment code will remain unchanged (MOS), CAIPS will permit a Final Decision code “1” (visa issued).


RIMbits Revealed (June 2010)

The following are some excerpts from the June 2010 RIMbits.  RIMbits are messages sent from National Headquarters to missions overseas.  The June 2010 RIMbits on admissibility consisted of six questions and answers.  I have reproduced two 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.

Appeals Allowed and Resumption of Examination

Q. Our FC1 case went to appeal at the IAD and was allowed. The decision states that the Panel is disgusted with the behaviour of the appellant and the applicant and that their behaviour cries out for further investigation, but it is not within the mandate of this panel to carry out such an exercise.

In light of this written comment in the decision, we would like to know if we can re examine and refuse the application as a marriage of convenience. We originally refused under A40(1)(a).

A. When the application for admission of a member of the family class is refused, the sponsor may appeal to the IAD on either legal or humanitarian grounds. Since the refusal may occur at several different stages, the allowance of the appeal results in resumption of the examination by the visa officer, not outright approval of the application. The important limitation is that the visa officer cannot reconsider matters upon which the board has decided. The difficulty in some instances, however, is figuring out exactly what the board decided. So, for example, in the case of King v. Canada (1996 115 FTR 306), the dispute was over whether or not a visa officer could refuse an applicant following a ruling that an initial refusal for medical reasons was procedurally flawed. The Court ruled that the only thing that was res judicata was the initial medical opinion. Thus, a second refusal by the visa officer for medical reasons was reasonably open to the visa officer, based upon the evidence. Recently, the Federal Court of Appeal ruled that a visa officer can refuse a case because of new evidence regardless of the basis for which the IAD ruled in favour of the applicant. In Shu Foo Au v. M.C.I. (A-229-01) 1 the Court of Appeal cautioned visa officers to ensure any subsequent refusal after a successful appeal to the IAD was based upon something significant and new; otherwise there would be no finality to decision making.

http: //reports. fja .gc.ca/enq/2002/2002fca8/2002fca8.html

Military Service and Definition of Dependency

Q. We received an IAD decision where the Member approach to the issue of obligatory military service, effectively suggesting that it is a matter of statutory interpretation to conclude that mandatory military service should be considered equivalent to full time studies for the purposes of the definition of dependent child (R2).Could you please advise if we should continue to follow this interpretation?

A. Under the old Immigration Act, where a person had interrupted a program of studies for an aggregate period not exceeding one year, that person was not considered to have failed to have continuously pursued a program of studies (subsection 2(7) of the Immigration Regulations, 1976). In Moghtader (2002 FCT 296), Justice Nadon held that the cause of the interruption was completely irrelevant; if there was an interruption of studies for more than a year, whatever the cause, then it was considered as a break in the continuity of the program of studies. Although R2(7) was not incorporated into IRPA, nothing indicates that the conclusion of Justice Nadon could not continue to apply under IRPA. Therefore, any interruptions (except for regular school breaks and minor leave of absence) should be considered as a break in continuity of a program of studies. Furthermore, with the introduction of IRPA, the age of dependency was raised to 22 in order to accommodate situations that create longer child dependency, including those where an applicant has been required to perform military duty. However, while conscription military service was contemplated as it relates to dependency up to the age of 22, no exception was created for it in the same way as was for an individual over 22 who is financially dependent on their parents and is engaged in study or is unable to be self-supportive due to a physical or mental condition (R2).


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.