One of the most common reasons for seeking judicial review is because of concerns that a tribunal did not consider an applicant’s evidence in its entirety. Relevant Documents Must be Considered or Mentioned Federal Court of Canada jurisprudence is clear that when assessing the credibility of an individual, tribunals have to consider and assess all of the evidence, both oral and documentary, and not just selected portions of it. As the Federal Court of Appeal noted in Stelco Inc. v. British Steel Canada Inc. a tribunal must explain its conclusion on those issues that are of central importance to the decision. It is not necessary, however, for tribunals to quote from the evidence in its reasons. In Gourenko v. Canada (Minister of Citizenship and Immigration), the Court established the criteria of whether a piece of evidence is relevant to an important matter. The Court stated: In my view, a document need only be mentioned in a decision if, first of all, the document is timely, in the sense that it bears on the relevant time period. Secondly, it must be prepared by a reputable, independent author who is in a position to be the most reliable source of information. Thirdly, it seems … Read More
A44 Reports
Section 44 of the Immigration and Refugee Protection Act states: Preparation of report 44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister. Referral or removal order (2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order. Conditions (3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order. Conditions — … Read More
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 … Read More
Immigration Consequences of a Conviction and Sentence in Canada
A person who has been found to be inadmissible to Canada on the grounds of serious criminality may not appeal to the Immigration Appeal Division.
Restrictions on H&C
Section 25 of Canada’s Immigration and Refugee Protection Act provides that applicants can seek humanitarian & compassionate relief from the harsh application of other portions of Canadian immigration legislation. When the IRPA was created s. 25 was short two paragraphs, and read: 25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. Provincial criteria (2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national. In 2020, s. 25 is much longer, and reads: 25 (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent … Read More
Cessation of Refugee Status
There are 2 ways that refugee protection can be removed. A person can cease to hold their refugee status if, for example, they voluntarily reavail themselves of the protection of their country of nationality or obtain protection from another country. They can also have their refugee status vacated if they obtained that status by directly or indirectly misrepresentating or withholding material facts relating to a relevant matter. Section 108 of the Immigration and Refugee Protection Act states that a person’s refugee protection chall cease when: Rejection 108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances: (a) the person has voluntarily reavailed themself of the protection of their country of nationality; (b) the person has voluntarily reacquired their nationality; (c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality; (d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or (e) the reasons for which the person sought refugee protection have ceased … Read More
Residency Obligation Appeals
Section 28 of the Immigration and Refugee Protection Act states: Residency obligation (28)(1) A permanent resident must comply with a residency obligation with respect to every five-year period. Application (2) The following provisions govern the residency obligation under subsection (1): (a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are (i) physically present in Canada, (ii) outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent, (iii) outside Canada employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, (iv) outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, or (v) referred to in regulations providing for other means of compliance; (b) it is sufficient for a permanent resident to demonstrate at examination (i) if they have been a permanent resident for less than five years, that … Read More
The Transit Without Visa Program and the China Transit Trial Program
In order to improve the competitiveness of Canadian airports, the Canadian government has programs so that people who are transiting to Canada to get to the United States do not need to apply for temporary resident visas. The Transit Without Visa Program The Transit Without Visa Program (“TWOV Program”) allows certain foreign nationals with valid United States visas, traveling to and from the United States, to transit through Canada without having to first obtain a Canadian visa. Qualifying nationalities include Indonesia, Thailand, Philippines, China and Taiwan. The TWOV Program operates at both Vancouver International Airport and Toronto’s Pearson International Airport. The program only applies to nationals of Indonesia, the Philippines, Taiwan, and Thailand. In order to be eligible to travel under the TWOV Program, nationals of these countries must: be in possession of a valid visa issued by the United States; be in possession of a valid passport issued by the authorities of a participating country; hold a confirmed onward ticket for a connecting flight that departs Canada immediately (foreign nationals transiting Canada under the TWOV Program may not seek entry to Canada as temporary residents); arrive in Canada on an eligible airline; and transit through either Vancouver International Airport … Read More
Electronic Travel Authorizations
On August 1, 2015, the Government of Canada launched the Electronic Travel Authorization (“eTA”) program. The program is similar to the United States of America’s Electronic System for Travel Authorization. Implementation of the eTA program allows Canada to pre-screen eTA-required travellers to ensure that they are admissible to Canada. Since March 15, 2016, most foreign nationals who are exempt from the requirement to obtain a Temporary Resident Visa (“TRV“) to enter Canada are required to obtain an eTA before they travel to Canada by air. A list of countries and territories whose citizens need an eTA to travel to Canada can be found here. It is not possible that residents of these countries can simply purchase tickets and board planes to travel to Canada. Rather, an individual will be unable to board a commercial airline to Canada unless the airline first confirms that the individual possesses an eTA through the Canada Border Services Agency’s Interactive Advance Passenger Information system. Americans are exempted from the requirement to obtain an eTA. Other exemptions include: The Queen and the British Royal family; Air crew members and air crew members transiting through Canada; Transit Without Visa: Indonesia, Thailand and Philippines; China Transit Program: Beijing, … Read More
What is Unauthorized Work
Canada’s Immigration and Refugee Protection Act states that a foreign national may not work or study in Canada unless authorized to do so. The Immigration and Refugee Protection Regulations define work as “an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market.” Wages and Commission Wages includes salary or wages paid by an employer to an employee, remuneration or commission received for fulfilling a service contract, or any other situation where a foreign national receives payment for performing a service. It is clear that an individual who receives payment for services would be working under Canadian immigration law. Activities that Compete Directly The IRCC Guidelines states that for unpaid work officers must consider whether there is entry into the labour market. The two relevant factors that officers are to assess are: Will they be doing an activity that a Canadian or permanent resident should really have an opportunity to do? Will they be engaging in a business activity that is competitive in the marketplace? The IRCC Guidelines further states that the following are examples of activities that constitute work. a foreign technician … Read More