Regulation 4 of Canada’s Immigration and Refugee Protection Regulations state that a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership (a) was entered into primarily for the purpose of acquiring any status or privilege under the Act or (b) is not genuine.

A Hasty Marriage

In Nadasapillai v Canada (Citizenship and Immigration), 2015 FC 72, Justice Diner held that the fact that a marriage was entered into after a short courtship is not determinative of a mala fide marriage. He stated:

The Panel criticized the haste based on Ms. Raman’s troubled past relationship and marriage, and the fact that Ms. Raman was 38 years of age at the time, i.e., getting on in age for a single mother.  There are two reasons that this is a weak conclusion.

First, one can easily understand why Ms. Raman was ready for the companionship that she clearly explained she had longed for: older couples can be quick in deciding to get married (although haste is certainly not the exclusive domain of any particular age).  Older people are often ready to move more quickly into a lifelong commitment, as they know what they want. As Ms. Raman stated in her testimony, “I am getting older. I am very old now and I don’t know how long I’ll be able to live. … I found him a good person. So I took two or three days… to think about it and then decide it.”

Second, if the basis of finding haste was one steeped in a certain culture, it is unfair. In the context of the Refugee Protection Division,

 » Read more about: Assessing the Genuineness and Primary Purpose of a Marriage  »

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Last updated on August 19th, 2019

One of the more common reasons for a study permit application to be refused is because a visa officer determines that an applicant’s proposed program of study in Canada is unreasonable given the applicant’s background.  The wording of such refusals varies, but it typically includes statements about how an individual could study in a similar program for a cheaper cost in their country of residence, or that there is no logical academic progression given their previous studies.

The following is an example of such a refusal.

The Law

Visa officers have the authority to determine whether a study permit applicant’s proposed program of study is reasonable.  It is reasonable for an officer to find that an intended program does not accord with an applicant’s previous academic history.  Officers can also question applicants who are abruptly changing career paths.

However, the decisions of visa officers must demonstrate that all evidence of applicants was considered. Where they do not, the decisions will be unreasonable.

For example, in Taiwo v. Canada (Citizenship and Immigration), Justice Shore stated that:

The Officer should not have doubted the Applicant’s explanations regarding his change of career path. The Applicant first studied in Sociology from 1995 to 2000, even though from 2004 to 2012, he has been employed as a Financial Officer and a Financial Manager. In 2012, the Applicant became the Financial Director at Tropical Spectrum BDC Ltd., a family owned business by the Applicant himself, in which he owns the majority of the shares of the company. The business is currently still running, recognizing that it is the Applicant’s wife, as stated in her sworn affidavit of financial support that she will take care of the company during the absence of her husband.

 » Read more about: The Reasonableness of a Proposed Program of Study  »

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Sean Rehaag, an Associate Professor at Osgoode Hall Law School, has published a paper titled Judicial Review of Refugee Determinations (II): Revisiting the Luck of the Draw.  Its Abstract states:

This article updates an earlier empirical study of decision-making in the refugee law context in Canada’s Federal Court. The initial study found that outcomes in Federal Court applications for judicial review of refugee determinations depended all too often on the luck of the draw – on which judge decided the case. Since the initial study was released, the Federal Court has adopted measures to address variations in grant rates across judges. Drawing on data collected from over 33,000 online Federal Court dockets from 2008 to 2016, the article examines whether those measures have been successful and what further reforms should be pursued.

Some of the charts contained within are fascinating, and show the following.

1) The number of applications for leave to commence judicial review in refugee matters has been steadily declining since 2012. 

2) The % of leave applications being granted has increased from just under 20% from 2008-2012 to just under 30%. 

3) The % of successful judicial review applications, not including those that settle, has increased from under 10% to around 15%

4) The JR Grant Rate, including leave decisions, ranges from 0.7% to 33.8% in 2008-2011, and 1.8% to 22.8% in 2013-2016, depending on who the judge is. 

 

 » Read more about: Judicial Review Success Rates on Refugee Matters based on the Judge  »

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The Department of Employment and Social Development Canada (“ESDC”) has very strict procedures for returning incomplete Labour Market Impact Assessment (“LMIA”) applications.

All applications are reviewed for completeness. A “complete” application means that the employer has used the appropriate form and an acceptable version, and:

  • filled out all fields in all the necessary forms;
  • included all the documents that are requested;
  • signed all the forms, where required; and
  • provided the payment form for the processing fee (where applicable).

If an application is missing information, an officer will determine if the missing element can be obtained quickly and call the employer to obtain the information.  Applications that would have been eligible for priority processing but for the missing information are placed in regular processing, even if the information can be obtained quickly.

If the application is missing information that is not easy to obtain, then the application will be deemed incomplete. Although ESDC officers will typically shred or delete an incomplete LMIA, officers will enter reasons for why the application was incomplete in the employer’s system file notes.

The following information from the ESDC Wiki expands on what is written above.

 » Read more about: Return of Incomplete LMIA Applications  »

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Last updated on August 20th, 2019

Section 40 of the Immigration and Refugee Protection Act provides that a permanent resident or foreign national is inadmissible to Canada for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of Canada’s immigration laws.

The general consequence of misrepresenting is a five-year ban from entering Canada.

Canada is very strict on misrepresentation.  In Bundhel v. Canada (Citizenship and Immigration), 2014 FC 1147, for example, Mr. Bundhel had been charged and convicted with an offence, which had been overturned on appeal.  Mr. Bundhel would accordingly not have been criminally inadmissible to Canada.  Because of this, he put on his immigration forms that he had never been charged or arrested.  When it discovered thathehad been previously charged, Citizenship and Immigration Canada wrote to him and provided him with an opportunity to explain why he misrepresented.  After the immigration officer reviewed the Mr. Bundhel’s explanation that it was an innocent mistake, the officer refused the application, and declared the person inadmissible to Canada for misrepresentation. The Court wrote (citations removed):

Mr. Bundhel’s complaint that the Officer should have considered the fact that he owned-up to the problem at the first available opportunity is also unjustified. Mr. Bundhel only acknowledged the true facts when he was confronted with them. This is not equivalent to a situation where an applicant owns-up to a mistake before it is brought to light or where the file already contains the correct information. In such a case, a favourable inference is more likely to be drawn because it is suggestive of an innocent mistake and not a wilful omission. The same point is made in Uppal v Canada (Minister of Citizenship and Immigration),

 » Read more about: Misrepresentation  »

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Where there is a corporate restructuring, merger or acquisition, the holder of a Labour Market Impact Assessment (an “LMIA”) should contact the Department of Employment and Social Development Canada (“ESDC”) to inform them of the change.  Whether a new LMIA will be required will depend on a variety of factors, including whether the corporate restructuring, merger or acquisition impacts the prevailing wage, job description and job duties of a foreign worker.

As per the internal ESDC wiki, reproduced below, in cases where employer’s responsibilities are transferred to a different employer through a merger or acquisition, both the original and successor employer must provide details on when the responsibilities of the employer were transferred, and the successor must agree (and acknowledge in writing) to all conditions set out in the original LMIA. Generally, a new LMIA would not be required.

A new LMIA would be required if the acquisition resulted in changes to the job duties or description. In addition, if the officer has serious concerns regarding the genuineness of the new employer, they may require the new employer to submit a new LMIA application and pay the required fees.

 » Read more about: LMIAs – Mergers & Acquisitions  »

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On June 18, 2015 the Secure Air Travel Act received Royal Assent.  It enhanced the Passenger Protect Program, more commonly called the “no-fly list.”

The previous Conservative Government of Canada strengthened the Passenger Protect Program in response to an increase in the number of individuals travelling from Canada to participate in foreign conflicts, and in particular joining ISIS.

The Passenger Protect Program is an air passenger security program.  Through it the government works with air carriers to screen commercial passenger flights to, from and within Canada, and uses measures to mitigate the threat if a listed individual attempts to board an aircraft.

The specific categories of individuals who can be impacted include (a) those who are suspected of posing a threat to transportation and (b) those who are attempting to travel abroad by air to support terrorism-related activities.

Individuals who are subject to a denial of boarding, also known as those on the Specified Persons List, can make an application to the Minister of Public Safety and Emergency Preparedness to be removed.

The government does not publish the Specified Persons List, nor does it say how many people are on the list.

 » Read more about: The Passenger Protect Program  »

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From requiring that foreign nationals have their photos taken as part of the biometrics process to visa applicants needing to provide headshots in their applications, many Canadian immigration programs have a photo requirement.  There is no exemption from the photograph for religious reasons.  Below is a memo that was prepared for the Minister of Citizenship and Immigration Canada in 2013 confirming that there are no exemptions to the photograph requirements in response to a request for an exemption from the Amish community.

 » Read more about: Religious Exemption to IRCC Photo Requirements  »

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Last updated on May 23rd, 2019

Both Immigration, Refugees and Citizenship Canada as well as the Canada Border Services Agency (“CBSA“) are responsible for ensuring that Canada’s immigration system maintains the security of Canadian society.  One of the ways that both departments do this is by determining that individuals are inadmissible to Canada.

In this post I will review and summarize a CBSA Intelligence Advisory that was obtained through an informal Access to Information Act.  The Intelligence Advisory was produced by the CBSA Intelligence Operations and Analysis Division in September 2016.  It expired in January 2017.  The Intelligence Advisory identified certain countries that at the time posed unique issues for CBSA’s mandate of protecting Canadians.  In reproducing the information below my goal is not to stigmatize members of these communities nor to imply that their citizens are a threat.  Rather, it is to present information as produced by the CBSA for informational purposes only.  Every person deserves to be treated as an individual.  However, it is contrary to common sense to suggest that certain communities don’t have unique circumstances.

Statistics on Inadmissibility

From 2007 to 2016, the Canada Border Services Agency wrote reports for the following inadmissibilities:

Year

Security Grounds
Human Rights
Criminal
Serious Criminal
Organized Crime
Health
Financial
Total

2007

32
34
3993
4691
66
10
49
8875

2008

47
37
3876
4993
108
11
59
9131

2009

55
50
3356
4361
176
14
58
8070

2010

85
25
2922
3943
152
20
58
7205

2011

67
25
3087
3970
158
12
72

7391

2012
42
49
3010
4081
230
6
61

7479

2013
53
43
2883
3934
154
32
65

7169

2014
34
27
2774
3849
176
13
59

6932

2015
107
36
2197
3800
191
18
73

6422

2016
76
25
2290
3771
123
17
63

6385

 

 » Read more about: CBSA Report on Inadmissibility to Canada  »

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As previously noted on this blog, Bill C-46 will when it takes effect make many offences that currently render someone inadmissible for criminality inadmissible for serious criminality.

The Minister of Immigration, Refugees and Citizenship Canada has now affirmed that these changes will not apply retrospectively.

As such, people who were previously deemed rehabilitated will continue to be so. As well, people who committed an offence prior to December 18, 2018 will benefit from the previous sentencing provisions in the Criminal Code.

 » Read more about: Bill C-46 and Retrospectivity  »

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