Four Case Comments (Including Agraria)

27th Jun 2013 Comments Off on Four Case Comments (Including Agraria)

Agraria v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36

This is a Supreme Court of Canada decision so there is much to take from it, and I will barely be able to begin to scratch the surface in this post.

Mr. Agraria submitted an IRPA s. 34(2) application for ministerial relief in 2002.  The Minister of Public Safety and Emergency Preparedness refused this application in 2009, concluding that it was not in the national interest to admit individuals to Canada who had had sustained contact with known terrorists and/or terrorist-connected organizations.  Mr. Agraria’s role in the organization was apparently to engage people in political discourse, deliver envelops, and raise funds.  The Canada Border Services Agency actually recommended to then Minister that he admit Mr. Agraria, as, in their words:

He appears to have been a regular member who did not occupy a position of trust or authority within the LNSF.  He does not appear to have been totally committed to the LNSF specifically as he indicated to the immigration officer at CIC Oshawa that he would support anyone who tried to rmeove the current regime in Libya through non-violent means.

The Minister overruled his Department, and determined that it was not in the national interest to admit him.

(The above scenario raises two questions about current policy.  The first is that Mr. Agraria was determined inadmissible to Canada for security reasons in 2002.  Yet, he was allowed to remain in the public while the Minister took seven years to process his application.  If the Canadian government truly believed that this individual was a possible threat to the public, you’d think they would have either detained him or acted sooner.  And, if they didn’t think he was a threat to the public (as their actions imply),

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Appealing Loss of NEXUS Cards and NEXUS Application Rejections

25th Jun 2013 Comments Off on Appealing Loss of NEXUS Cards and NEXUS Application Rejections

Anyone who travels frequently understands the benefits of NEXUS membership.  I have been a member since August 2012 and it is only a slight exaggeration to say that I remember a life before NEXUS.

At airports, NEXUS members avoid long line-ups and save time using automated self-serve kiosks at eight designated Canadian international airports.  The wait-times are much less than they are for non-NEXUS passengers.  As well, NEXUS members are expedited through Canadian Air Transport Security Authority airport security screening lanes.  This is the case even on domestic flights.

Those crossing the US-Canada border by land enjoy a quick and simplified entry process using dedicated lanes.  Wait-times are generally a fraction of what they are for non-NEXUS members.   It is not uncommon for the NEXUS lane(s) to be empty while the non-NEXUS lanes have wait-times exceeding one hour.

If you’ve never heard of NEXUS, you should read more about it on the CBSA website here.

Considering all the benefits which membership in NEXUS provides, it is understandable why people whose NEXUS membership applications are rejected often seek recourse, as do people who lose their NEXUS.

First Level Recourse Statistics

In 2011-12 (excluding Q4), there were 614 First Level Recourse appeals of NEXUS membership rejections.  The cases were broken down as follows:

  • Customs – 253
  • Criminal – 158
  • Immigration – 85
  • Program Violations – 27
  • Other – 91

Of the 614 cases, 118 were overturned.  This 19% success rate represented a slight decline from the 2011 success rate of 22%.

Second Level Recourse Statistics

In 2011-12 (excluding Q4), there were 44 Second Level Recourse appeals of NEXUS membership rejections.  

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Bill C-43 Comes into Force

24th Jun 2013 Comments Off on Bill C-43 Comes into Force

In June 2012 I wrote about how the Conservative government had introduced Bill C-43, the Faster Removal of Foreign Criminals Act (“Bill C-43“).  Amongst other things, Bill C-43 increases the penalties for misrepresentation, removes appeal rights for permanent residents who are sentenced to a length of imprisonment of six months or more, gives the Minister of Citizenship and Immigration Canada the power to let otherwise inadmissible people to Canada into the country based on his discretion, and prohibits visa officers from considering humanitarian & compassionate factors in certain scenarios.

On June 19, 2013, Bill C-43 received Royal Assent.

Citizenship and Immigration Canada (“CIC“) has now begun rolling out Operational Bulletins to instruct visa officers of its implications.

Operational Bulletin 532 – Coming into Force of Bill C-43 – Inadmissibility on Security Grounds (“OB-532”)

Subsection 34(1)(a) of the Immigration and Refugee Protection Act (“IRPA“) previously provided that a permanent resident or a foreign national is inadmissible to Canada on security grounds for:

engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada

IRPA 34(1)(a) has been reworded to provide that a permanent resident or a foreign national is inadmissible to Canada on security grounds for:

engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests

As well, a new IRPA 34(1)(b.1) will make a permanent resident or a foreign national inadmissible to Canada on security grounds for:

engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada

The question that arises from this change is what constitutes espionage that is “contrary to Canada’s interest”

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Four Case Comments

16th Jun 2013 Comments Off on Four Case Comments

Hussain v. Canada (Citizenship and Immigration), 2013 FC 636

This was a FSWP case involving an officer who refused an applicant’s application because the officer determined that the applicant’s work experience was equivalent to “computer and information systems administrator” rather than “computer and information systems manager”.  In overturning the decision, the Court determined that the question is not which National Occupational Classification most resembles an applicant’s experience, but rather the applicant can demonstrate that he/she has one year of skilled work experience in a specific NOC.

The following three paragraphs are the relevant part of the decision:

With respect to its comments regarding the similarities between the Applicant’s experience and NOC 2281, the Respondent falls into the same trap as the Visa Officer – the question is not whether the Applicant’s duties bear more of a resemblance to another category than to the one sought, but whether the Applicant has satisfied the requirements of the category in question.

Although it is not for this Court to re-weigh the Visa Officer’s conclusions in this regard, the Applicant is correct to assert that the similarity with NOC 2281 is the sole explanation offered by the Visa Officer in support of his conclusion that the information submitted was insufficient to show that the Applicant satisfied the requirements of NOC 0213.

This Court is not an expert in the technological terms connected with the various NOC codes and cannot be required to assess the sufficiency of the Applicant’s application where the Visa Officer has provided no relevant comments or reasons in that regard.  The Applicant is correct in his assertion that the fact that duties may “bear more resemblance” to another category is irrelevant where an officer has failed to assess the relevance of the duties in relation to the particular category in question and has provided no analysis comparing the requirements of the two codes mentioned.

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RIMBits Revealed (July 2010)

11th Jun 2013 Comments Off on 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,

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RIMbits Revealed (June 2010)

10th Jun 2013 Comments Off on 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.

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RIMbits Revealed (May 2010)

9th Jun 2013 Comments Off on 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.  

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List of Organizations where Membership can Cause Admissibility Issues

8th Jun 2013 Comments Off on List of Organizations where Membership can Cause Admissibility Issues

Being a member of certain organizations can result in a person being inadmissible to Canada.  In going through internal CIC documents I obtained through an Access to Information and Privacy Act request, I came across a list prepared by the Canadian Embassy in Paris.  It lists every court case (to 2006) involving people who were declared inadmissible to Canada for membership in an organization.  Although the list is obviously dated, individuals who were members in any of the groups which appear below should contact a representative before submitting applications or making refugee claims.

Country (Organization)
Case Name
Judgment
Type of Organization

Afghanistan (Air Force)
Khan
1F(a) Exclusion
Non-Brutal

Afghanistan (Police)
Mohammad
1F(a) Exclusion
Non-Brutal

Afghanistan (PDPA)
OFUQ
1F(a) Exclusion
Non-Brutal

Afghanistan (Secret Police -Khad)
Raduli
1F(a) Exclusion
Brutal

Afghanistan (Secret Police -Khad)
Zadeh
1F(a) Exclusion
Brutal

Afghanistan (Secret Police -Khad)
Moshen
Insufficent Evidence for 1F(a)
Brutal

Afghanistan (Secret Police -Khad)
Hamidi
35(1)(a) overturned
Brutal

Albania (Secret Police – Shik)
Lalaj
1F(a) Exclusion

Algeria (Police)
Kiared
1F(a) Exclusion
Non-Brutal

Algeria (Police)
Allel
1F(a) Exclusion
Non-Brutal

Algeria (FIS)
Chougui
1F(a) Exclusion
Non-Brutal

Algeria (GIA)
Ikhlef
Security Certificate Upheld
Terrorist

Angola (MPLA)
Goncalves
Insufficent Evidence for 1F(a)
Non-Brutal

Angola (ANP)
Januario
1F(a) Exclusion
Non-Brutal

Angola (FLEC)
Muto
Not involved in crimes against humanity
Non-Brutal

Angola (FLEC/FAC)
Nlandu-Nkosi
Terrorist Organization
Terorrist

Angola (Army)
Joao Antonio
1F(a) Exclusion
Brutal

Angola (MOI)
Justino
1F(a) Exclusion
Non-Brutal

Azerbaijan (Police)
Saftarov
Insufficent Evidence for 1F(a)
Non-Brutal

Bangladesh (PBS)
Khan
Insufficent Evidence for 1F(a)
Non-Brutal

Bangladesh (Awami League)
Chowdhury
Insufficent Evidence for 1F(a)
Non-Brutal

Bangladesh (Awami League)
Chowdhury
1F(a) Exclusion
Non-Brutal

Bolivia (Army, AND)
Ledezma
Insufficent Evidence for 1F(a)
Non-Brutal

Burundi (Government)
Kaburundi
1F(a) Exclusion
Non-Brutal

Burundi (Government)
Ryivuze
1F(a) Exclusion
Non-Brutal

Cambodia (Police Force)
Say
1F(a) Exclusion
Non-Brutal

Chile (Socialist Party; MRPF)
Cardenas
Insufficent Evidence for 1F(a)
Non-Brutal

Chile (Military)
Saavedra
1F(a) Exclusion
Non-Brutal

China (Government)
Han
1F(a) Exclusion
Non-Brutal

China (Family planning)
Yang
1F(a) Exclusion
Non-Brutal

China (Security guard at abortion clinic)
Chen
1F(a) Exclusion
Non-Brutal

China (Family Planning Manager)
Lai
1F(a) Exclusion
Non-Brutal

Columbia (Army)
Torres Herrera
1F(a) Exclusion overturned
Non-Brutal

Columbia (Army)
Bedoya
1F(a) Exclusion overturned
Non-Brutal

Columbia (Army)
Ortiz Ardilla
1F(a) Exclusion overturned
Non-Brutal

Columbia (Army)
Corrales Murcia
1F(a) Exclusion overturned
Non-Brutal

Columbia (Army)
Torres Rubianes
1F(a) Exclusion overturned
Non-Brutal

Columbia (Army)
Bonilla Vasquez
1F(a) Exclusion overturned
Non-Brutal

Columbia (Navy)
Ruiz Blanco
1F(a) Exclusion overturned
Non-Brutal

Columbia (DAS)
Escorcia
1F(a) Exclusion overturned
Non-Brutal

Congo (CSE)
Bukumba
1F(a) Exclusion
Non-Brutal

congo (NSIP/NIPS)
Zoya
1F(a) Exclusion
Non-Brutal

Congo (SARM)
Musansi
Insufficent Evidence for 1F(a)
Non-Brutal

Congo (ANR)
Diasonama
1F(a) Exclusion
Brutal

Congo (MLC)
Molebe
Not Excluded
Brutal

Congo (Garde Civile)
Yogo
Insufficent Evidence for 1F(a)
Non-Brutal

Congo (Foreign Service)
Imama
1F(a) Exclusion
Non-Brutal

Congo (Judiciary)
Mankoto
1F(a) Exclusion overturned
Non-Brutal

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Proposed Regulations Add Teeth to the CIC/Service Canada Employer Blacklist

7th Jun 2013 Comments Off on Proposed Regulations Add Teeth to the CIC/Service Canada Employer Blacklist

On June 7, 2013, the Government of Canada introduced regulatory changes which will take soon effect at a date to be determined (the “New Regulations”).  The New Regulations will impact all employers of foreign nationals in Canada.  Specifically, the New Regulations will impose new conditions on employers and increase the government’s ability to ensure compliance with those conditions.

Previous Announcements

The New Regulations follow a previous Government of Canada announcement on April 29, 2013, in which it announced the following changes to the Temporary Foreign Worker Program, which will also soon take effect at a date to be determined:

  • The Government of Canada will begin working with employers to ensure that temporary foreign workers are relied upon only when Canadians genuinely cannot fill those jobs;
  • Increasing the recruitment efforts that employers must make to hire Canadians before they will be eligible to apply for temporary foreign workers, including increasing the time span and reach of advertising;
  • Helping employers who legitimately rely on temporary foreign workers, due to a lack of qualified Canadian applicants, find ways to ensure that they have a plan to transition to a Canadian workforce over time;
  • Restricting the identification of non-official languages as job requirements when hiring through the Temporary Foreign Worker process; and
  • Introducing user fees for employers applying for temporary foreign workers through the Labour Market Opinion (“LMO”) process.

The New Regulations

Contacting Employers Directly

Once the New Regulations take affect, Citizenship and Immigration Canada (“CIC”) will have the statutory ability to contact employers directly to verify information contained in work permit applications.  Previously, all officer requests for additional information went through the applicant.

Clarifying Substantially-the-Same 

The New Regulations affirm that officers must be satisfied that employers who are seeking to employ foreign nationals have employed their previous and current foreign nationals in substantially-the-same positions as what was in their Labour Market Opinions and/or offers of employment (“STS”).

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

5th Jun 2013 Comments Off on 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,

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