Volunteer Work and Immigrating to Canada

27th Aug 2019 Comments Off on Volunteer Work and Immigrating to Canada

Canadian work experience that is volunteer does not typically count towards immigration.

Regulation 73(2) of the Immigration and Refugee Protection Regulations states that for the purposes of this Division, work means an activity for which wages are paid or commission is earned.  The Division includes the Federal Skilled Worker Class, the Canadian Experience Class, the Federal Skilled Trades Class and the Provincial Nominee Class. The reason is that economic classes are designed to determine whether an applicant can become economically established.

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What is a Conviction

24th Aug 2019 Comments Off on What is a Conviction

Sections 36(1)(a) and (b) of the Immigration and Refugee Protection Act states:

36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years;

Sections 36(2)(a) and (b) of the Immigration and Refugee Protection Act states:

(2) A foreign national is inadmissible on grounds of criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;

(b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;

This blog post discusses what is a conviction.

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Proxy Marriages

23rd Aug 2019 Comments Off on Proxy Marriages

Regulation 5 of the Immigration and Refugee Protection Regulations states that a a foreign national shall not be considered the spouse of a person if at the time the marriage ceremony was conducted either one or both of the spouses were not physically present unless the person was not physically present at the ceremony as a result of their service as a member of the Canadian Forces and the marriage is valid both under the laws of the jurisdiction where it took place and under Canadian law. There are similar provisions excluding such individuals from the Family Class and the Spouse or Common-Law Partner in Canada Class.

The Immigration, Refugees and Citizenship Canada (“IRCC”) Guidelines state that:

Proxy, telephone, fax, Internet or similar forms of marriage where one or both parties are not physically present are excluded relationships in all temporary and permanent immigration programs.

Proxy marriage is defined as a marriage in which one or both of the participants are not physically present, but they are represented by another person who attends the solemnization. A telephone, fax or Internet marriage is a marriage in which one or both of the participants are not physically present at the same location, but participate in the solemnization of the marriage by telephone, fax, Internet or other means (e.g. Skype or FaceTime). It is possible that someone other than the persons getting married participates on their behalf as well as over the telephone, by fax, Internet or other means.

Applications received by IRCC before June 11, 2015, from persons married by proxy, telephone, fax or Internet are not subject to this exclusion.

To be considered physically present at a marriage ceremony, both parties (e.g. sponsor and spouse or principal applicant and accompanying spouse) must have participated in a wedding ceremony in person.

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The Safe Third Country Agreement

21st Aug 2019 Comments Off on The Safe Third Country Agreement

Section 103(2) of the Immigration and Refugee Protection Act (the “IRPA”) states that the Government of Canada can designate countries that it determines comply with international standards relating to the treatment of refugees as safe third countries.  Section 101(1)(e) further states that refugee claimaints coming to Canada from these designated safe third countries cannot have their asylum claims heard in Canada.

Regulation 159.3 of the Immigration and Refugee Protection Regulations (the (“IRPR”) designates the United States as being a safe third party.

The Safe Third Country Concept

Under the safe third country concept in refugee law, claims for asylum may be rejected on the basis that the claimant should have sought protection in a country other than where the claim was made. An underlying objective of this concept is to deter asylum shopping.

The Safe Third Country Agreement

The Agreement between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries (the “Safe Third Country Agreement”) came into effect on December 29, 2004.

The Safe Third Country Agreement contains several objectives, including the orderly handling of asylum applications, ehanced burden sharing and avoiding the direct or indirect breaches of the principle of non-refoulement.

Under the Safe Third Country Agreement, refugee claimants arriving from the United States at a Canadian land border port of entry cannot seek protection in Canada.  Instead, they are sent back to the United States, it being the first “safe country” in which they arrived.

There are exceptions to this. Canada retains responsibility for determining the refugee status of claimants arriving from the United States in the following scenarios:

  • where the claimant has family members in Canada and the family member is a Canadian citizen,

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Res Judicata

20th Aug 2019 Comments Off on Res Judicata

Last updated on October 17th, 2019

Res judicata is a legal principle which means “a matter already judged.”

Pursuant to the Supreme Court of Canada’s decision in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, there is a three part test for determining whether res judicata applies, as follows:

  • the same question has been decided earlier in the proceedings;
  • the prior decision that is said to create the estoppen must have been final; and
  • the parties (or their representatives) to the prior decision must be the same as the parties to the proceedings in which the doctrine of issue estoppel is being raised.

In Penner v Niagara (Regional Police Services Board), 2013 SCC 19, the Supreme Court further held that even if the pre-conditions are met there is a residual discretion to not apply the doctrine where it is in the interests of justice to deal with the matter on its merits as well as where there is decisive new evidence that was not previously available.

When stating the test it is important to note that issue estoppel is trigerred when the same issue is being re-litigated regardless of whether or not the same facts are before the decision-maker.  New evidence is relevant to the second step of the analysis.

Finally, where issue estoppel applies it prevents a subsequent decision-maker, at whatever level, from re-considering the issue.  For example, issue estoppel could apply to prevent the Immigration Appeal Division from considering a matter that had previously been determined by the Immigration Division, except of course in situations of direct appeals.

There are two areas in which res judicata typically arises in the immigration context. 

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Permanent Resident Travel Documents

20th Aug 2019 Comments Off on Permanent Resident Travel Documents

Since December 31, 2003, Canadian permanent residents have been required to have either a Permanet Resident Card (a “PR Card“), or a permanent resident travel document (a “PRTD“) to return to Canada aboard a commercial carrier.  A PR Card is a “status document” whereas a PRTD is a “travel document.”

The PR card is the preferred document as it is the official proof of permanent resident status of Canada. Permanent residents who do not have a PR Card, are outside of Canada, and wish to travel commercially back to Canada will need to apply for a PRTD before they can board a flight back to Canada. Without proof of permanent resident status, the Canada Border Services Agency’s Interactive Advance Passenger Information system will impede the permanent resident’s ability to board the airplane to Canada.  This is because s. 31(2)(b) of the Immigration and Refugee Protection Act states that a permanent resident abroad without a PR Card is presumed to not be a permanent resident.

However, if they apply to a Canadian visa office, permanent residents outside of Canada who do not have valid PR Cards may be issued PRTDs to facilitate their return to Canada.  Immigration, Refugees and Citizenship Canada (“IRCC”) will only issue PRTDs if they are satisfied that the permanent resident complies with the permanent resident residency obligation or if sufficient humanitarian & compassionate grounds apply.

The refusal of a PRTD can result in the loss of permanent resident status, and can trigger appeal rights to the Immigration Appeal Division.  It is important to note that the grounds of such a loss of permanent residence are the failure to comply with the residency obligation and not general non-compliance.

In certain situations an individual can receive a one-year PR Card if their application for a PRTD is refused and they have an appeal at the Immigration Appeal Division. 

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Applications for Extension of Authorization to Remain in Canada as a Temporary Resident

14th Aug 2019 Comments Off on Applications for Extension of Authorization to Remain in Canada as a Temporary Resident

Regulation 181(1) of the Immigration and Refugee Protection Regulations provides that a foreign national may apply for an extension of their authorization to remain in Canada as a temporary resident if:

  • the application is made by the end of the period authorized for their stay; and
  • they ahve complied with conditions imposed on their entry to Canada.

Regulation 181(2) further states that an officer shall extend the foreign national’s authorization to remain in Canada as a temporary resident if it is established that the foreign national will leave Canada by the end of the period authorized for their stay, holds a passport and is not inadmissible to Canada.

Factors

There are many factors that immigration officers will consider in assessing whether to extend someone’s status in Canada.  These include:

  • What is the individual doing in Canada?
  • How long has the individual been in Canada?
  • How long is the extension request for?
  • Do they have a valid job offer? If so, are they able to perform the work?
  • What activities has the individual done during their time in Canada?
  • Are they earning enough to support themselves?
  • Can someone else provide adequate support?
  • Does the individual have the means and ability to either return to their home country or to proceed onward to a third country?
  • Has the original purpose of the visit been fulfiled?
  • Is the proposed extension logical, reasonable and feasible in light of the person’s circumstances?
  • What ties does the person have to their home country?

 

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The Bangladesh Nationalist Party

13th Aug 2019 Comments Off on The Bangladesh Nationalist Party

According to the CBSA, between January 1, 2015 and June 30, 2016 Bangladesh became the top source country for individuals found inadmissible to Canada under IRPA s. 34.  The issue involves membership in the Bangladesh Nationalist Party (the “BNP“) or its main political ally, the Jamaat-e-Islami (“Jamaat“).  While not designated by Public Safety Canada as terrorist entities, some members of the BNP and Jamaat, through, have, according to CBSA, shown that they qualify as being a member of an organisation that there are reasonable grounds to believe engages, has engaged in or will engage in acts or instigate the subversion by force of a government or terrorism.

The BNP 

According to Wikipedia, the BNP is one of the contemporary political parties of Bangladesh. It was founded on 1 September 1978 by former Bangladesh President Ziaur Rahman after the Presidential election of 1978, with a view to uniting the people with nationalist ideology of the country.  The party holds the ideology of Bangladeshi nationalism as its core concept and adopted a 19-point program which declared that “The sovereignty and independence of Bangladesh, golden fruits of the historic liberation struggle, is our sacred trust and inviolable right”. The founding manifesto of the BNP claims that the people of Bangladesh want to “…see that all-out faith and confidence in the almighty Allah, democracy, nationalism and socialism of social and economic justice are reflected in all spheres of national life”. BNP and its student wing was the driving force in the 1990 uprising against the autocratic Ershad rule that culminated in the fall of the regime and the restoration of democracy in Bangladesh.

In 2012, supporters of the BNP and Jamaat took to the streets to portest the ruling Awami League’s decision to annul the care-taker government system,

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