Canadian Immigration Law and International Law

29th Apr 2017 Comments Off on Canadian Immigration Law and International Law

Section 3(f) of Canada’s Immigration and Refugee Protection Act states that Canadian immigration law is to be construed and applied in a manner which complies with international human rights instruments to which Canada is a signatory.

In de Guzman v. Canada (Minister of Citizenship and Immigration)the Federal Court of Appeal articulated the following principles for what this means:

  • While previously international conventions to which Canada was party to did not give rise to rights and duties enforceable in Canadian courts, this is no longer the case.
  • The values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.
  • Canadian immigration law does not incorporate into it “international human rights instruments to which Canada is signatory” but merely directs that the law be construed and applies in a manner that complies with them.
  • The words “shall be construed and applied in a manner that complies with” are mandatory and appear to direct courts to give the international human rights instruments in question more than persuasive or contextual significance in the interpretation of the Canadian immigration legislation.
  • Canadian immigration law must only be construed and applied in a manner that complies with international law where Canada has signed the international instrument creating it.
  • It is not necessary that each and every provision of Canadian immigration legislation comply with international law.  Rather, the question is whether an impugned statutory provision, when considered holistically with others, results in the law complying with international law.
  • A legally binding international human rights instrument to which Canada is signatory is determinative of how Canadian immigration legislation must be interpreted and applied,

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Addressing IRPR r. 117(9)(d)

29th Apr 2017 Comments Off on Addressing IRPR r. 117(9)(d)

Regulation 117(9)(d) of the Immigration and Refugee Protection Regulations provides that a foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined. An exception exists where the foreign national was not examined because an immigration officer determined that they did not need to be.  Regulation 117(9)(d) typically arises where a person immigrates to Canada, does not disclose that they are either married or have children, and then attempt to sponsor for immigration the people that they did not disclose.

The Charter

If one has a regulation 117(9)(d) refusal and wishes to make a Charter challenge, they should know that the Federal Court of Appeal has already held that the law is constitutional.

In de Guzman v. Canada (Minister of Citizenship and Immigration), [2006] 3 FCR 655, 2005 FCA 436, Ms. de Guzman’s counsel argued that by preventing her from sponsoring her children, and keeping her apart from them, regulation 117(9)(d) deprived her of the Charter’s right to liberty because it restricted her right to make fundamental personal choices, and also that regulation 117(9)(d) deprived her of her Charter right to security of the person by subjecting her to the psychological stress of being separated from close family members.

The Federal Court of Appeal disagreed, and found that s. 7 of the Charter was not engaged because regulation 117(9)(d) was not the cause of Ms. de Guzman’s 12 year separation from her children.

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10 Pieces of Advice Before Entering First Year

23rd Apr 2017 Comments Off on 10 Pieces of Advice Before Entering First Year

Half way through my second year of law school I drafted a list of 10 pieces of advice that I would give to anyone entering their first year.  I passed this list on to between 5-10 people, and everyone seemed to appreciate it.  After not having thought about the list for a few years someone who had heard of it recently asked me for a copy.  It took me a fair bit of time searching through old Facebook messages to find it.  I accordingly decided to publish the list here so that if I was ever asked again I could easily find my recommendations rather then spend time during a sunny Sunday looking for it.

Remarkably, while I have updated the rationale behind each suggestion, my recommendations for people entering first year law remain the same now as they did when I was a second year law student.

So here they are.

1) You Control How Intense Law School Is

First year law school is intense.  There are typically mandatory year long courses, most of which are graded almost exclusively on a final exam.  You will be surrounded by some of the smartest people that you have ever met and will (depending on the school) be graded on a curve against them.  There will be a flurry of electives that you can choose from and if you’ve gone abroad for school it could be difficult to not become fully immersed in the study of law.

However, law school is only as intense as you want it to be. You could spend thirty hours a week in the library or just use other people’s summaries. For every student spending their weekend reading dozens of cases there is another student probably doing just as well who is rock climbing having just read a ten sentence summary of each case.

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Strict Interpretation of Compliance in the Foreign Worker Program

22nd Apr 2017 Comments Off on Strict Interpretation of Compliance in the Foreign Worker Program

[The following article appeared in the May edition of The Canadian Immigrant. I have slightly modified it for this blog post.]

Back in 2013, Canada’s temporary foreign worker program was rocked by wellpublicized stories of abuse. As a result, the Government of Canada introduced a comprehensive compliance regime for employers of foreign workers, and promised to ban companies from being able to hire temporary migrants for two years if they breached the new conditions. In 2015, Canada’s Immigration and Refugee Protection Regulations were further amended to introduce an administrative monetary penalty regime, which would also fine employers for non-compliance.

The number of Canadian employers who have either been banned or fined for non-compliance is currently quite small, although both Immigration, Refugees and Citizenship Canada (IRCC) and the Department of Employment and Social Development (ESDC), the two main government agencies that manage Canada’s foreign worker programs, have indicated that the number is likely to grow in the near future, especially considering new funding announced with Budget 2017 to better protect vulnerable workers and to encourage employers to do more to hire Canadians first.

On March 23, 2017, the Federal Court of Canada released its first publicized decision on an ESDC decision to ban a company from hiring foreign workers for two years. The decision, Farms v. Canada (Employment and Social Development), provides much-needed guidance to both companies and to the government on how foreign worker compliance regime should be interpreted.

 Conditions for hiring foreign workers

Employers of foreign workers must agree to comply with numerous conditions outlined in Canadian immigration legislation. The most significant one is the requirement to provide foreign workers with wages and working conditions that are substantially the same as — but not less favourable than — those set out in their offers of employment.

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Withdrawing and Reinstating IRB Proceedings

22nd Apr 2017 Comments Off on Withdrawing and Reinstating IRB Proceedings

Sections 5 and 6 of the Immigration Division Rules, SOR/2002-229 state:

Withdrawing a Request by the Minister for an Admissibility Hearing

Abuse of process

5 (1) Withdrawal of a request for an admissibility hearing is an abuse of process if withdrawal would likely have a negative effect on the integrity of the Division. If no substantive evidence has been accepted in the proceedings, withdrawal of a request is not an abuse of process.

Withdrawal if no evidence has been accepted

(2) If no substantive evidence has been accepted in the proceedings, the Minister may withdraw a request by notifying the Division orally at a proceeding or in writing. If the Minister notifies in writing, the Minister must provide a copy of the notice to the other party.

Withdrawal if evidence has been accepted

(3) If substantive evidence has been accepted in the proceedings, the Minister must make a written application to the Division in order to withdraw a request.

Reinstating a Request by the Minister for an Admissibility Hearing

Application for reinstatement of withdrawn request

6 (1) The Minister may make a written application to the Division to reinstate a request for an admissibility hearing that was withdrawn.

Factors

(2) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice or if it is otherwise in the interests of justice to allow the application.

Application

The leading case on ss. 5 and 6 of the Immigration Division Rules is Canada (Minister of Citizenship and Immigration) v.

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Borderlines #15 – Gordon Maynard on New Can Consulting and the Biggest Immigration Fraud in Vancouver History

11th Apr 2017 Comments Off on Borderlines #15 – Gordon Maynard on New Can Consulting and the Biggest Immigration Fraud in Vancouver History

Gordon Maynard is a Vancouver based lawyer who practices exclusively in Canadian immigration law.  He is a past Chair of the Canadian Bar Association’s Immigration Section.

In this episode we discuss the biggest immigration scam in Vancouver’s history, which is still unfolding. Xun (Sunny) Wang was a ghost consultant who is estimated to have made $10 million by filing fraudulent immigration applications for clients of his two firms, New Can Consulting and Well Long Enterprises.  Mr. Wang, who is currently serving an eight year jail sentence, and his staff, apparently put fake passport stamps in peoples’ passports in order to lie about having spent sufficient time in Canada to qualify for various immigration programs.  The Canada Border Services Agency is now endeavouring through what the Department is calling Project New Can to remove over 1,500 former clients of his for having committed misrepresentation to obtain Canadian permanent residency and/or maintain it.  All of the lawyers involved in this podcast have and are representing some of his clients in these removal proceedings.

Topics

1:39 – Gordon provides an overview of the timeline involved in Sunny Wang’s alleged fraud.

7:50 – What constitutes misrepresentation in Canadian immigration applications?

10:30 – We discuss some of the mechanics of what Sunny Wang is alleged to have done.

12:00 – Many New Can clients are saying that they signed blank forms and did not know that the applications were fake. Is this a defence to misrepresentation in Canadian immigration law?  Plus Steven reads a summary of what a typical Project New Can procedural fairness letter or allegation looks like.

19:30 – What is the process for having a permanent resident or a foreign national removed from Canada for misrepresentation?

23:00 – What sorts of misrepresentations can actually lead to removal from Canada?

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Ministerial Relief Exemption Requests

1st Apr 2017 Comments Off on Ministerial Relief Exemption Requests

Last updated on March 2nd, 2019

Foreign nationals who are found to be inadmissible to Canada on the basis of security (including espionage, subversion, engaging in terrorism, or being a member of a group that engages in terrorism), certain human and international rights violations, or organised crime can still visit or immigrate to Canada despite being inadmissible for such serious reasons if they satisfy the Minister of Public Safety and Emergency Preparedness (the “Minister“) that their entry to Canada is not contrary to Canada’s national interest.  Such applications are referred to as “Ministerial Relief applications.”

In assessing a Ministerial Relief application, Canadian immigration law somewhat confusingly provides that the Minister “may only take into account national security and public safety considerations, but, in his or her analysis, is not limited to considering the danger that the foreign national presents to the public or the security of Canada.”

Ministerial Relief applications, previously done under ss. 34(2), 35(2), and 37(2)(a) of Canada’s Immigration and Refugee Protection Act, and now s. 42.1, have long been problematic. As the Government of Canada noted when it introduced a standardised process on March 10, 2017:

A number of issues have contributed to inefficiencies in terms of processing requests for Ministerial relief. These include the lack of a formalized application process, the inability to close applications as appropriate in the absence of a declaration by the Minister, and voluminous applicant submissions of varying degrees of relevance to the ministerial decision-making process. Currently, there is no standardized application form and applicants may seek Ministerial relief at any time. For instance, applicants may simply indicate that they wish to be considered for Ministerial relief, providing little or no supporting explanation or documentation. This means that resources are allocated to processing applications from individuals who may not be found inadmissible and thereby not require Ministerial relief (e.g.

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