In Tabingo c. Canada (Citizenship and Immigration), 2013 FC 377, the Federal Court (the “Court“) certified three questions when it dismissed the class action lawsuit launched by people whose permanent residence applications were terminated by Bill C-38, the Jobs Growth and Long-term Prosperity Act (“Bill C-38“). Bill C-38 introduced a new s. 87.4(1) (“Section 87.4(1)“)to the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA“) ,which terminated Federal Skilled Worker Class applications made before February 27, 2008 unless an officer had made a selection decision before March 29, 2012.
Section 87.4(1) reads:
87.4 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class.
(2) Subsection (1) does not apply to an application in respect of which a superior court has made a final determination unless the determination is made on or after March 29, 2012.
(3) The fact that an application is terminated under subsection (1) does not constitute a decision not to issue a permanent resident visa.
(4) Any fees paid to the Minister in respect of the application referred to in subsection (1) — including for the acquisition of permanent resident status — must be returned, without interest, to the person who paid them. The amounts payable may be paid out of the Consolidated Revenue Fund.
(5) No person has a right of recourse or indemnity against Her Majesty in connection with an application that is terminated under subsection (1).
Read more ›Last updated on February 3rd, 2019
An Educational Credential Assessment is a report by a designated company company that evaluates an individual’s foreign education and compares it to a Canadian equivalent. It is necessary to be eligible for the Federal Skilled Worker Program, to get education points in Express Entry and for certain provincial nomination programs.
The designated organizations are:
- Comparative Education Service: University of Toronto School of Continuing Studies;
- International Credential Assessment Service of Canada;
- World Education Services;
- International Qualifications Assessment Service;
- International Credential Evaluations Service;
- Medical Council of Canada; and
- Pharmacy Examining Board of Canada.
The Medical Council of Canada has been designated only for those applicants who intend to apply with “specialist physician” or “general practitioner/family physician” as their primary occupation in their application.
I have browsed the websites of each of the above agencies, and produced the table below. Getting educational credentials assessed is going to be a very time consuming process. Right now the World Education Services website strongly suggests that it is faster, cheaper, and less document heavy than the other two organizations. However, I would not be surprised if competition forces the other two organizations to change, and applicants are advised to check all websites to determine which one agency would be best for them.
Immigration, Refugees and Citizenship Canada (“IRCC”) will follow what a designated entity states in its Educational Credential Assessment (an “ECA”). In Ijaz v. Canada (Citizenship and Immigration), 2015 FC 67, the Federal Court of Canada affirmed that that visa officers can simply follow exactly what an ECA,
» Read more about: Educational Credential Assessments »
Read more ›The Federal Court in Carran v. Canada (Public Safety and Emergency Preparedness) has certified the following question of general importance:
During a stay of removal order, does subsection 68(4) of the IRPA only apply to convictions for subsection 36(1) offences committed after the beginning of the stay?
The case involved a permanent resident who had several criminal convictions. On May 13, 2008, a Minister’s delegate referred the permanent resident to an admissibility hearing. The delegate noted that the individual had 14 convictions, as well as an outstanding criminal charge. On April 23, 2009, the permanent resident and the Canada Border Services Agency (“CBSA“) made a joint recommendation to the Immigration Appeal Division (the “IAD“) to stay the deportation of the individual for a period of 24 months. The IAD accepted the joint recommendation, and stayed the deportation.
On December 2, 2010, the permanent resident pled guilty to the outstanding charge, and received a sentence of one day incarceration, and 18 months probation. The CBSA upon discovering this conviction made an application to cancel the stay of removal, and deport the permanent resident. The IAD canceled the stay, citing section 68(4) of the Immigration and Refugee Protection Act (the “Act”), which states that:
If the Immigration Appeal Division has stayed a removal order against a permanent resident or a foreign national who was found inadmissible on grounds of serious criminality or criminality, and they are convicted of another offence referred to in subsection 36(1), the stay is cancelled by operation of law and the appeal is terminated.
The permanent resident sought judicial review in Federal Court, and made the following arguments regarding the unresolved issue of whether the phrase “convicted of another offence”
» Read more about: Certified Question on Affect of Convictions on a Stay of Removal »
Read more ›The Canada Border Services Agency is responsible for the detection and prevention of border-related offences such as smuggling, fraud, and wilful non-compliance with immigration, trade, and tax law. The CBSA Enforcement Manual, also known as the Customs Enforcement Manual, serves as the guide for CBSA officers in the execution of their enforcement related responsibilities. It has been relied upon in several court challenges.
To the best of my knowledge, the CBSA Enforcement Manual is not publicly available. However, we have obtained a copy of it through an Access to Information and Privacy Act request and have made it available for purchase on this blog. The price for this document, which is a massive 1,274 pages, is $4.95. Our goal in providing the CBSA Enforcement Manual is to help you save valuable research time, and to provide you with a comprehensive understanding of how the CBSA operates.
We have provided as a free preview the first page of the CBSA Enforcement Manual. We have also provided an outline of all of the information, policies, and guides which are found in it.
The Customs Enforcement Manual is divided into parts as outlined below.
» Read more about: Presenting The Customs Enforcement Manual »
Read more ›In 2011 I wrote about a resolution at the Conservative Party Convention to strip the citizenship of people who take up arms against Canadian soldiers or other types of treason. Fast forward to 2013, and it seems like the government may adopt a similar policy.
So with the New Democratic Party, the Official Opposition in Canada, about to have their Policy Convention in Montreal, I thought it would be prudent to state the resolutions of theirs directly related to immigration (as opposed to resolutions which would indirectly influence immigration by impacting Canada’s standard of living).
3-16-13 Resolution on Equal Access to Employment Insurance Benefits for Temporary Foreign Workers
Submitted by UFCW Canada, UFCW Canada Local 1518, UFCW Canada Local 1000A
WHEREAS An estimated 800,000 temporary foreign workers in Canada pay full premiums with employers into the Employment Insurance (EI) program but are not eligible for the primary benefit when laid off and return home due to residency regulations implemented by the federal government; and
WHEREAS Temporary foreign workers were eligible for the secondary benefits under the EI program for Parental and Maternal benefit;
and THEREFORE, BE IT RESOLVED That the NDP call on the Harper Government to repeal this regulation and restore access to these secondary benefits for all foreign workers; and
THEREFORE, BE IT FURTHER RESOLVED That an NDP Government would repeal the residency requirement and allow full universal access to EI benefits to all those who contribute into the system.
4-13-13 Resolution on Temporary Foreign Workers
Submitted by Toronto—Danforth
BE IT RESOLVED THAT the following clause be added to Section 4.3 of the policy book:
Resolutions // 72
i.
» Read more about: Immigration Related Resolutions at the NDP Convention »
Read more ›When the Canada Border Services Agency began dramatically increasing enforcement operations, many wondered where the Department was going to detain individuals. The provinces, especially Ontario, has indicated for many years that they do not want to be in the “detention business.” The internal document below shows that at one point the Department went so far as to approach the Department of National Defence to host some immigration detainees, particularly in the case of mass arrivals and security certificate cases. Ultimately, as the document below also indicates, the Department of National Defence was not interested.
Neither the provinces nor DND appear to be interested in using their facilities to detain “illegal immigrants.” Given this, I am always surprised when a few CBSA officers (certainly not all, or even most) decide to detain people as a matter of course, only to have them be released only a few days later by the Immigration Division.
Please note that the document below was obtained through an Access to Information and Privacy Act Request, and to my knowledge is not otherwise publicly available. The reproduction of this document has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.
» Read more about: The Cost of Detaining “Illegal Immigrants” »
Read more ›The debate over temporary foreign workers is back in the news. I have received a copy of the results of an Access to Information and Privacy Act request which shows the breakdown of admittance of foreign worker by year and occupation. (I am not publishing this document on my blog, however, if you want a copy feel free to e-mail me.)
The table below shows the breakdown in 2005 (the last year that the Liberal Party of Canada was in government) and 2011 (the most recent year available). That I have chosen these years of course has limitations in terms of detecting trends (who knows if an occupation had an “on” or “off” year?). However, the data is nonetheless interesting, and shows an explosion in the number of people in certain occupations.
Occupation
2005
2011
Percentage Change
Legislator and Senior Management
1,205
2130
77%
Administrative Service Managers
610
1005
65%
Managers in Financial and Business Services
200
390
95%
Managers in Communication (Except Broadcasting)
25
40
60%
Managers in Engineering, Architecture, Science and Information Systems
610
1615
165%
Managers in Health, Education, Social and Community Services
55
90
64%
Managers in Public Administration
25
35
40%
Managers in Art, Culture, Recreation, and Sport
95
145
53%
Sales, Marketing, and Advertising Managers
630
810
29%
Managers in Retail Trade
180
405
125%
Managers in Food Service and Accommodation
570
535
-6%
Managers in Other Services
50
55
10%
Managers in Construction and Transportation
390
1000
156%
Facility Operation and Maintenance Managers
95
190
100%
Managers in Primary Production (Except Agriculture)
55
125
127%
Managers in Manufacturing and Utilities
405
415
2%
Auditors, » Read more about: Temporary Foreign Workers to Canada by Year and Job »
Read more ›The media is reporting today that Citizenship and Immigration Canada (“CIC“) is unsure over whether individuals who received Temporary Resident Permits (“TRPs”) which were issued at the requests of Members of Parliament (“MPs”) ever left Canada. I have received a copy of the results of an Access to Information and Privacy Act request which shows the breakdown of TRPs issued by MP. (I am not publishing this document on my blog, however, if you want a copy feel free to e-mail me.)
The table below shows which MPs, presumably through their respective constituency offices, successfully requested TRPs since around January 2009. I have included only current sitting MPs. That I have done so means that any conclusions reached about partisanship in the granting of TRPs would be based on incomplete information. The reason that I am posting this is that it does show that MP requests for TRPs are frequently granted, and that constituents should not feel shy about approaching their MPs.
The list is:
Member of Parliament
Riding
Party
Number
Bob Deschert
Mississauga—Erindale
Conservative
22
Wayne Martson
Hamilton East—Stoney Creek
NDP
12
John Baird
Ottawa West – Nepean
Conservative
10
Jason Kenney
Calgary Southeast
Conservative
8
Nina Grewal
Fleetwood – Port Kells
Conservative
8
Dean Del Mastro
Peterborough
Conservative
7
Devinder Shory
Calgary Northeast
Conservative
7
David Sweet
Ancaster—Dundas—Flamborough—Westdale
Conservative
6
Andrew Scheer
Regina—Qu’Appelle
Conservative
6
Tim Uppal
Edmonton – Sherwood Park
Conservative
6
Rod Broinooge
Winnipeg South
Conservative
5
Paul Calandra
Oak Ridges—Markham
Conservative
5
Maurizio Bevilacqua
Vaughan
Liberal
4
Lois Brown
Newmarket – Aurora
Conservative
4
Patrick Brown
Barrie
Conservative
4
Dennis Coderre
Bourassa
Liberal
4
Don Davies
Vancouver Kingsway
NDP
4
Randy Kamp
Pitt Meadows—Maple Ridge—Mission
Conservative
4
MikeLake
Edmonton – Mill Woods – Beaumont
Conservative
4
Rob Nicholson
Niagara Falls
Conservative
4
David Tilson
Dufferin – Caledon
Conservative
4
Vic Toews
Provencher
Conservative
4
Alice Wong
Richmond
Conservative
4
Alex Atamanenko
British Columbia Southern Interior
NDP
3
Peter Braid
Kitchener – Waterloo
Conservative
3
Scott Brison
Kings – Hants
Liberal
3
Tony Clement
Parry Sound—Muskoka
Conservative
3
Libby Davies
Vancouver East
NDP
3
Ken Dryden
York Centre
Liberal
3
Rick Dystra
St.
» Read more about: Which Members of Parliament are Getting the TRPs? »
Read more ›Last updated on October 12th, 2019
The Supreme Court of Canada has “clarified” the elements of the duress defence. The defence is important because it can affect admissibility.
For example, in Guerra Diaz v. Canada (Citizenship and Immigration), 2013 FC 88, the Federal Court of Court determined that the Immigration and Refugee Board improperly applied the test of whether duress applied, and ordered a new hearing by a different member.
Duress and Inadmissibility
It is basically trite law that where there is duress, then a person does not have the mens rea do either commit a crime or be a member in a group that renders the individual inadmissible to Canada. In Jalloh v. Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 317, the Federal Court stated that:
In my view, it is preferable to consider the evidence of membership along with the evidence of coercion in determining whether there are reasonable grounds to believe the person genuinely was a member of the group. One way of looking at this issue is to regard evidence of duress as defeating the mens rea of membership (Thiyagarajah v Canada (Minister of Citizenship and Immigration), 2011 FC 339). Accordingly, evidence relating to duress must be considered along with the evidence relating to membership in deciding whether the person really was a member of the group or, rather, was motivated by self-preservation.
In sum, a person cannot be considered to be a member of a group when his or her involvement with it is based on duress. At a minimum, a member is someone who intentionally carries out acts in furtherance of the group’s goals.
» Read more about: Duress and Inadmissibility to Canada »
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