Last updated on September 13th, 2018
Sometimes, the Immigration and Refugee Protection Act and its regulations can force individuals to make really difficult choices. I recently encountered this when a client presented issues raising a refugee claim based on sexual orientation, an inadmissible spouse who had been working with a work permit, potential misrepresentation based on a misunderstanding of the law, and really difficult choices.
Because I for obvious reasons cannot get into any details on my own clients, I’m going to present the “inadmissible spouse issue” by summarizing a recent Federal Court case: Abalos v. Canada (Citizenship and Immigration).
In Abalos, the Applicant was a live-in caregiver living in Canada whose application for permanent residence was approved-in-principle. As there was nothing to suggest that she was medically or criminally inadmissible, the coast was essentially clear for her to become a permanent resident.
Prior to the Applicant’s application being approved in principle, the Applicant married a refugee claimant in Canada. The man was from the same country that she was.
Shortly after learning that her application was approved-in-principle, the Applicant sent a letter to Citizenship and Immigration Canada informing them that she had gotten married.
One month later, the Applicant’s husband’s refugee claim was rejected. The rejection of the refugee claim resulted in the husband being the subject of an unenforceable removal order.
This, unfortunately, triggered the application of s. 113(1)(e) of the Regulations, which provide that:
113. (1) A foreign national becomes a member of the live-in caregiver class if
(e) they are not, and none of their family members are, the subject of an enforceable removal order or an admissibility hearing under the Act or an appeal or application for judicial review arising from such a hearing;Read more ›
On June 10, 2011, the Supreme Court of Canada released its decision in Canada (Attorney General) v. Mavi. The case involved an appeal from numerous Ontario residents regarding relief from the sponsorship undertakings that they had signed to sponsor a family class member.
Potential immigrants under the family class are only eligible to apply for permanent residency once a Canadian citizen’s or permanent resident’s application to sponsor them has been approved. Family class immigrants are not assessed independently on their ability to support themselves, as is the case with other immigrants. The burden of showing sufficiently financial wherewithal lies with the sponsor.
I have yet to witness a case where a client showed concern about the sponsorship undertaking. Usually the undertaking is treated as a joke, and sponsors normally tease their spouses / family members about not becoming “welfare bums”. However, as the cases of the individuals in Mavi show, breaches of the sponsorship undertaking can often lead to huge debts. Mavi involved individuals in the following circumstances:
- Mr. D sponsored his fiancee in 2002. When she arrived in Canada she refused to live with him or marry him. Mr. D tried to have his former fiance deported, however, her appeal was successful. Unbeknown to him, she later went on social assistance. In 2007, the Ontario government informed him that he owed $10,510.65 for breach of the undertaking.
- Ms. E sponsored her father, mothers, and two brothers in 1995. Her husband was a co-signatory. She later left him because of abuse. She went on social assistance afterward, as did her father, and one brother. In 2006 she was informed that she owed the Ontario government $94,242.16 for breach of the undertaking.
The governing Conservative Party of Canada is having their convention from June 9-11. One of the measures that the party will be debating is whether to adopt as official party a policy that would strip people of their citizenship if they take up arms against the Canadian Armed Forces or its allies.
The proposal reads:
98. Canadian Citizenship and High Treason
The Conservative Party of Canada believes that any Canadian citizen, whether by birth or by naturalized grant of Canadian citizenship or by claim of landed immigrant or refugee status in Canada who commits treason by taking up arms against the Canadian Forces or the Forces of Canada’s Allies automatically invalidates his or her Canadian citizenship or claim to Canadian citizenship and, if and when returned to the jurisdiction of the Canadian Legal System, should be tried for high treason under the Canadian Criminal Code.
This is an interesting proposal, and before vigorously supporting or opposing it one should consider the following questions and issues that inevitably emerge from adopting such a policy:
- Do you think that a person who fights against the Canadian military should lose their citizenship?
- If yes, then do you think that that should extend to anyone who fights against the military of an ally?
- What do you consider to be an ally? Is any NATO country an ally? Turkey? India?
- What are arms? Is a knife or rock an arm?
- If you generally support the notion, then what about a Palestinian-Canadian who throws a rock at an Israeli soldier? Should that person lose his/her citizenship?
- What if the incident doesn’t occur on foreign soil, but on Canadian? What if there is an Oka like situation whereby an aboriginal youth throws a rock at a Canadian soldier?
Sing Tao newspaper recently published an editorial of mine stating that Canada still welcomes immigrants. The article was a response to an article by another immigration lawyer stating the opposite. The article was in Chinese, and stated that:
關 於引進標準化語言考試，值得指出的是，聯邦技術移民和加拿大經驗類別不需要先找到工作，它們是基於該移民能夠立即找到工作的可能性而設立的類別。顯然，英 文或法文能力是某個人能否達到這一要求的關鍵因素，語言考試提供了測試的標準方式。但是，如果你已有工作安排，而對語言考試有顧慮，那麼對你來說可能有其 他更好的移民方式。
關於強制730天居住義務，須要注意的是它的目的是促進新移民對加國的經濟融入。舉個極端例子，它避免人們在獲得永久居民身分 後回到本國，直到退休才回來。五年中在加拿大境內居住兩年的義務，包括為加國公司在境外工作或陪同加國公民在境外旅行，並不是過於嚴苛。並且，和公眾所認 知的相反，移民部和移民部覆議庭經常以人道主義和同情因素作出豁免。
關於對入籍考試的更改，我曾經說過我認為這些更改非常無聊，但不是基於它們增 強一致性或減少多元文化。我的立場是不明白為甚麼要答對九成問題。和永久居民身分相比，國籍帶來可以永遠居住加國和投票的好處。我不理解關於加國歷史、地 理和體育的問題和這些好處有甚麼關係。我們容忍在加國出生的人在地圖上找不到自己國家，那又何必在這些無關緊要的事情上測試移民呢？
讓我們回到加 拿大如何歡迎移民的話題上來。過去幾年中，聯邦政府為國際留學生引進了校外工作簽證項目和畢業後工作簽證項目。獲得省提名移民的人數，因此有極大增長，省 提名項目在卑詩省是沒有語言要求的。加拿大政府採取措施打擊那些動輒騙取幾千加元費用的偽劣移民顧問。它取消了對普通台灣護照持有者的簽證要求。它還縮短 某些申請的受理時間。
For those that don’t read Chinese, the English version stated that:
Recently, some immigration lawyers have voiced concerns that the Canadian government no longer welcomes immigrants. This must seem odd to those working at Citizenship and Immigration Canada, who in 2010 admitted a record number of immigrants as permanent residents and foreign students, and a near record number of foreign workers.
Three areas of repeated expressed concern are the recent amendments to the citizenship test, the enforcement of the 730-day rule for the renewal of a permanent residency cards, and the introduction of language tests to the Federal Skilled Worker Program and the Canada Experience Class.
In analyzing these changes, it is important to consider the broader issue of ensuring that people who immigrate to Canada successfully integrate economically into Canada. As a recent study by the Fraser Institute reported, the 2006 Census showed that the incomes of people who immigrate to Canada are considerably less than those born here. Many of the changes that have been introduced were done so to reduce this unacceptable disparity.
Regarding the introduction of standardized language tests, it is important to recognize that the Federal Skilled Worker Program and the Canada Experience Class do not require an offer of employment to immigrate, and are based on the likely ability of an immigrant to readily find work.Read more ›
Effective May 25, 2011, the Canadian visa section in Taipei will no longer be accepting new applications. It will cease operations permanently on June 17, 2011. All Taiwan files will now be processed in Hong Kong.
The decision is largely a result of the dramatic reduction in work following the removal of the temporary resident visa requirement for holders of Taiwanese passports.
The visa section is going to make every effort to finalize all temporary resident visas, study/work permits, and permanent resident travel documents before it ceases operations.
Applicants who have paid application fees at a bank in Taiwan but who have not yet submitted a visa application may apply for a refund through the Canadian Trade Office in Taipei, as the processing fees are non-transferable. Refund request forms may be obtained at the following website: http://www.canada.org.tw/taiwan/assets/pdfs/refund-remboursement.pdf.
Applicants who subsequently choose to submit a new application to Hong Kong will be required to submit a new fee payment with that application.Read more ›
I have previously written about Canada’s aging demographics. Compared to most European nations, Canada’s population is aging slowly. However, compared to the other anglophone nations, Canada fares poorly. In my previous post I noted that:
Amongst anglophone nations, however, Canada’s low fertility rate – currently 1.6 – results in their being fewer children than in the United States (with a fertility rate of 2.1), Australia (1.8), and the United Kingdom (1.9).
Accordingly, if Canada is to maintain a comparable population demographic to other anglophone nations, it is going to have to rely on immigration. I do not see any other alternative. After all, these numbers are extremely difficult to change, and to a certain degree are “locked in”. The number of 10-year olds in Canada in 2020 will be roughly the number of people born in 2010. The only thing that will make it higher is immigration.
Zerohedge recently produced a chart which highlights the historic change in fertility rates.
As the chart shows, from 1950-1955 Canada’s fertility rate was actually higher than the United States. However, by 2010-2015, it had fallen precipitously to below 2.0. Indeed, most nations have witnessed a dramatic decline in fertility rates.Read more ›
There is a myth amongst potential Federal Skilled Worker Program applicants that their application is guaranteed if they can get 67 points. This is not true for several reasons, including the possible use of substituted evaluations.Read more ›