When a Law Contradicts Itself

29th Aug 2011 Comments Off on When a Law Contradicts Itself

Last updated on July 22nd, 2018

Last Updated on July 22, 2018 by Steven Meurrens

As much as we know that the people who write our laws are perfect, they can sometimes write things that seem contradictory.

For example, s. 5(4) of the Citizenship Act states that:

Special cases

(4) In order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada, and notwithstanding any other provision of this Act, the Governor in Council may, in his discretion, direct the Minister to grant citizenship to any person and, where such a direction is made, the Minister shall forthwith grant citizenship to the person named in the direction.

In other words, notwithstanding anything else in the Citizenship Act, an individual may be granted citizenship in order to alleviate cases of hardship or to reward services of exceptional value to Canada.

However, s. 22(1) of the same Act states that:

22. (1) Despite anything in this Act, a person shall not be granted citizenship under subsection 5(1), (2) or (4) or 11(1) or take the oath of citizenship

(a) while the person is, pursuant to any enactment in force in Canada,

(i) under a probation order,

(ii) a paroled inmate, or

(iii) confined in or is an inmate of any penitentiary, jail, reformatory or prison;

In other words, notwithstanding anything else in the Citizenship Act, an individual may not be granted citizenship if they are under a probation order, are a paroled inmate, or are in prison.

How does one reconcile these two sections of Canada’s Citizenship Act,

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Justice Shore on Religious Persecution

24th Aug 2011 Comments Off on Justice Shore on Religious Persecution

Last Updated on August 24, 2011 by Steven Meurrens

On August 15, 2011, Justice Shore released his decision in Oraminejad v. Canada (Citizenship and Immigration), 2011 FC 997.  The decision did not involve a particularly complicated set of facts, nor did it expand upon existing areas of law.

However, the decision contains the following paragraph that I found to be quite compelling, and which reads as follows:

It is important to note that certain questions, asked of the Applicant, apply to the practice, rites and symbols (example: the crossing of a person) of Catholics but not of Protestants (except high Anglicans), again, depending on the actual denomination of Protestantism; such specialized knowledge may not be common knowledge; thus, it must often be sought in specialized documentation requested and not decided on that which a first-instance decision-maker thinks he knows on his own or on a whim! It could be a very costly whim in regard to the life and limb of an applicant who could be returned to his country of origin to a situation of peril. It is significant that throughout history and even modern history: e.g. Christians of various denominations, Jews, Moslems, Buddhists, Hindus and Bahais have been killed for their beliefs without necessarily even having had deep knowledge, or even any knowledge, of their religions, other than adherence to their faith. Many died for their faiths but, according to the annals of history, did not live according to their faiths; yet, that did not stop their slaughter. Therefore, it is important to view the evidence in this case such as provided by the specific church in question and additional evidence therefrom that was provided.

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Mandamus Orders

22nd Aug 2011 Comments Off on Mandamus Orders

Last updated on July 27th, 2021

Last Updated on July 27, 2021 by Steven Meurrens

mandamus order is a judicial command to a government body to do, or forbear from, doing a specific act which it is obligated in law to do.

The Federal Court’s decision in Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159, is one of the most cited case in the immigration context for setting forth the test for when a mandamus order will be given.  There, Justice Snider stated:

The equitable remedy of mandamus lies to compel the performance of a public legal duty that a public authority refuses or neglects to carry out when called upon to do so. Mandamus can be used to control procedural delays (Blencoe v. British Columbia (Human Rights Commission) [2000] 2 S.C.R. 307 at para. 149). The test for mandamus is set out in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.), aff’d [1994] 3 S.C.R. 1100 (and, more recently, discussed in the immigration context in Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189 (T.D.), aff’d [2003] F.C.J. No. 813, 2003 FCA 233,). The eight factors are:

(i)  There must be a public legal duty to act;

(ii)  The duty must be owed to the Applicants;

(iii)  There must be a clear right to the performance of that duty, meaning that:

a.  The Applicants have satisfied all conditions precedent; and

b.  There must have been:

I. 

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Open spousal work permit program expanded in British Columbia

18th Aug 2011 Comments Off on Open spousal work permit program expanded in British Columbia

Last Updated on August 18, 2011 by Steven Meurrens

 

A little known fact in Canada’s immigration system is that a foreign worker’s spouse or common-law partner may be eligible to apply for an “open” work permit that will allow him/her to accept any job with any employer in Canada.  For most of Canada, the condition is that the foreign worker must be working in Canada for six months or longer in a job that is skill level 0, A, or B in the National Occupational Classification.

On August 15, 2011, the program was significantly expanded in British Columbia under a Pilot Project that will last until February 15, 2013.  Spouses and common-law partners of temporary foreign workers engaged in NOC C and D skill categories are now eligible to obtain open work permits.

According to OB 337, Applicants must meet the following criteria:

  1. The applicant must be a spouse or common-law partner, or a dependent child, of a principal applicant described in sub-section ii below.
  2. The principal foreign worker must have been issued an employer-specific work permit that is valid for at least six months for an employer located in BC.
  3. Dependent children  must be aged 18-22 at the date of application, and eligible to work in BC.
  4. Family members of seasonal agricultural workers (including the Seasonal Agricultural Worker Program participants), Live-in-Caregivers (including non-LCP live-in caregivers) and temporary foreign workers in BC who have work permits issued under the International Experience Canada Program are NOT eligible for open WPs under this pilot.

A maximum of 1,800 work permits will be issued under the pilot project.

This program makes perfect sense. 

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Who are the Quebec Investors?

Who are the Quebec Investors?

15th Aug 2011 Comments Off on Who are the Quebec Investors?

Last Updated on August 15, 2011 by Steven Meurrens

The Quebec government has data regarding the amount of people applying to immigrate to Canada under the Quebec Immigrant Investor Program.  The data contains interesting trends about who is using the program.

The first thing to note is the dramatic rise in the number of people applying to the program from June 2010 to January 2011, followed by the collapse in the number of applicants.  Those familiar with Canadian immigration knew that the Quebec from benefited greatly from the close of the Federal Investor Program in 2010.  This chart confirms that.  It will be interesting to see whether there will be a similar increase in the number of applicants now that there is a moratorium on Federal Investor applications.

The second thing, which was obvious to everyone familiar with immigration, is how dominant Asia and the Middle East are in terms of source countries for investor immigrants.

What would be especially interesting to know would be the distribution of investor immigrants among the facilitator banks.  However, to my knowledge, such data has never been made publicly available.

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Inadmissibility Due to Non-Compliance with the Act

14th Aug 2011 Comments Off on Inadmissibility Due to Non-Compliance with the Act

Last updated on April 16th, 2020

Last Updated on April 16, 2020 by Steven Meurrens

Individuals can be inadmissible to Canada for numerous reasons, including criminality, misrepresentation, medical issues, and non-compliance with Canadian immigration legislation.  The latter reason, non-compliance with the Canadian immigration legislation, can seem extremely vague.

Fortunately, the Immigration, Refugees and Citizenship Guidelines contains a list of the different frequently used reasons for declaring someone inadmissible for non-compliance with the Act.

They are:

  • Entering Canada to remain on a permanent basis without first obtaining a permanent resident visa.
  • Entering Canada to remain on a temporary basis without first obtaining a temporary resident visa.
  • Entering Canada to study without first obtaining a study permit.
  • Entering Canada to work without first obtaining a work permit.
  • Not answering questions truthfully or producing required relevant documents.
  • Not submitting to a medical examination.
  • Not holding a medical certificate that is based on the last medical examination.
  • Not holding the required documents to enter Canada.
  • Not establishing that the person will live Canada by the end of the authorized period.
  • Where a person is subject to an enforced removal, returning to Canada without authorization.
  • Working without authorization.
  • Studying without authorization.
  • Not leaving Canada at the end of the authorized period.
  • Not reporting to a port of entry examination without delay.
  • Being a permanent resident and not complying with the residency requirement.

Non-compliance is the most common reason why a removal order is issued. 

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Implications of Signing a Document

10th Aug 2011 Comments Off on Implications of Signing a Document

Last Updated on August 10, 2011 by Steven Meurrens

Clients often come to me having signed documents that they do not understand.  Sometimes these documents are admissions of certain actions.  Other times they are documents stating that they waive their appeal right.

The Federal Court has recently released a decision affirming that such signatures may not be legally binding on the individual.

In Martinez Rodriguez v. Canada (Citizenship and Immigration), an individual wanted to visit Canada.  She had previously been a permanent resident, but left Canada at the age of six.   She returned twice, each time obtaining a temporary resident visa.  She applied for a visa to visit a third time.  During the processing of her application, the immigration officer noticed that she was in fact still a resident, but was in breach of the residency requirements.  The officer, apparently trying to facilitate her visit to Canada, had the client sign a document whereby she acknowledged that she had lost her permanent resident, and that she voluntarily waived her appeal right.

The applicant then appealed the lost of her permanent resident status to the Immigration Appeal Division.  They refused the appeal, saying that she could not appeal because she had signed a document waiving her appeal right.

The Federal Court overturned the Immigration Appeal Division’s decision.  Justice Harrington, apparently dusting off his first year law school notes, cited Lord Denning in noting that:

Gathering all together, I would suggest that through all these instances there runs a single thread. They rest on “inequality of bargaining power.” By virtue of it, the English law gives relief to one who, without independent advice, enters into a contract upon terms which are very unfair or transfers property for a consideration which is grossly inadequate,

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Solicitor-Client Privilege

10th Aug 2011 Comments Off on Solicitor-Client Privilege

Last Updated on August 10, 2011 by Steven Meurrens

Clients often ask whether I, as their lawyer, will be keeping what they tell me a secret from immigration authorities, the media, their family and/or their friends.  I assure them that they have nothing to be concerned about, because lawyers, and the state, are bound by the rules of solicitor-client privilege.

Overview of Solicitor-Client Privilege

As the Supreme Court of Canada reiterated in Canada (National Revenue) v. Thompson, solicitor-client privilege is a a principle of fundamental justice in Canada.

There are several aspects to solicitor-client privilege.

First, the confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client’s consent.

Second, unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person’s right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.

Third, when the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.

Fourth, laws which abrogate solicitor-client privilege must be interpreted narrowly.

Fifth, solicitor-client privilege is a right that belongs to, and can only be waived by, a client of a legal professional.

Where an individual seeks legal advice of any kind from a lawyer,

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CSIC Sues, and Gets Sued

9th Aug 2011 Comments Off on CSIC Sues, and Gets Sued

Last Updated on August 9, 2011 by Steven Meurrens

As previously noted on this blog, big changes are afoot in the Canadian immigration consultant world.  On March 18, 2011, the Canadian government announced that the Immigration Consultants of Canada Regulatory Council (ICCRC) would replace the Canadian Society of Immigration Consultants (CSIC) as the body that regulates immigration consultants.

Accordingly, immigration consultants that want to continue to represent applicants must become members of the ICCRC.  Pursuant to Citizenship and Immigration Canada’s Operational Bulletin 317, all CSIC members in good standing as of June 30, 2011 are temporarily deemed to be members of the ICCRC.  This transition period will last until October 28, 2011, after which anyone who wishes to be an immigration consultant must register with the ICCRC.

CSIC Gets Sued

As is evident from the above, in order to continue practicing as an immigration consultant, it is necessary for CSIC members to maintain their standing with CSIC during the transition process.

Since the Minister announced that the ICCRC would replace CSIC, CSIC has suspended roughly 600 members for failing to pay their fees.  They have since removed the list of suspended members from their website, however, numerous people saved screen shots of who was suspended, and the list can be found online in numerous places.

Now, according to the Toronto Star, two immigration consultants that were on the CSIC list of suspended members have filed a lawsuit against CSIC.  They are seeking a refund of any dues collected after CSIC ceased being the regulator.

It should be noted that both consultants, as well as most of those who were suspended by CSIC,

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The Jews of Hungary

The Jews of Hungary

9th Aug 2011 Comments Off on The Jews of Hungary

Last Updated on August 9, 2011 by Steven Meurrens

I spent 6 months of law school studying in Budapest, Hungary.  While I was there I lived on the border of what use to be old Jewish ghetto during World War II.  I became fascinated with the history of the Jewish people in Budapest, and you can view some of my flickr photos of different Jewish related sites in Budapest here.  Given this curiosity, it was with great interest that I read a recent Federal Court case involving an individual who claimed that he would face persecution if he had to go back to Hungary.

Ultimately, the case was dismissed partially due to a lack of evidence regarding whether the plight of Jews in Hungary was worsening.

Given my interest, I decided to have a look at what came up on Google News when I typed “Jews Hungary”.

The results were not particularly encouraging.

Jews and Roma Talk Alliance

The Bankito Festival itself is a music and cultural extravaganza organized by a number of Jewish and non-Jewish NGOs, which is expected to attract hundreds of people from Hungary and further afield.

“There is a high level of intolerance and a lack of critical thinking in Hungary at the moment,” says Haver CEO Mircea Cernov. “The roots of this come from the schools and is deeply rooted throughout society. What we are trying to do is address the lack of debate on these issues.

“Radical voices are getting stronger in Hungary in the last few years,” Cernov says.

“There are concrete signs and cases of discrimination against people in the Roma community and the strengthening of hard anti-Semitic narratives.”

Anti-Jewish Tirades at Hungarian Newspaper Provoke Outrage

Anti-Jewish comments from the Hungarian daily Magyar Hirlap and the passage of a restrictive new media law in early July by Hungary’s conservative government have prompted sharp criticism from American and Austrian media outlets.

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