If a visitor, worker, or student loses their legal status in Canada, they may be eligible to apply for status restoration. This process, known as a restoration application, allows individuals to regain their temporary resident status under specific conditions. According to section 182 of the Immigration and Refugee Protection Regulations (“IRPR”), applicants must meet certain eligibility criteria to restore their status in Canada.: 182. On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay, has not failed to comply with any other conditions imposed and is not the subject of a declaration made under subsection 22.1(1) of the Act. According to Immigration, Refugees and Citizenship Canada (“IRCC“) Guidelines, if an individual applies to extend their temporary resident status and IRCC refuses the application after their status has expired, the Case Processing Centre – Edmonton will notify them that they can submit a restoration of … Read More
Rehabilitation Applications
Section 36(3)(c) of the Immigration and Refugee Protection Act provides the legislative basis for rehablitation applications. It states that: 36(3)(c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated. IRCC Rehabilitation Guide The following PDF is IRCC’s United States Criminality Assessment Guide. As well, here is an internal IRCC New York memo which provides context on the number of rehabilitation applications that they receive. Where To Submit IRCC’s preference is that rehabilitation applications be submitted separate from permanent or temporary residence applications. Statistics Jurisprudence In Hadad v. Canada (The Minister of Citizenship, Immigration, and Multiculturalism), 2011 FC 1503, the Federal Court affirmed several important principles of rehabilitation applications, including that: The Minister should take into consideration the unique facts of each particular case and consider whether the overall situation warrants a finding that the individual has been rehabilitated; rehabilitation is forward looking; and an officer commits a reviewable error if they too much importance to … Read More
Inadmissible for Crimes Against Humanity
Section 35 of the Immigration and Refugee Protection Act (the “IRPA“) provides that: Human or international rights violations 35 (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for (a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act; (b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act; or (c) being a person, other than a permanent resident, whose entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a country against which Canada has imposed or has agreed to impose sanctions in concert with that organization or association. Internal Guideline Immigration, Refugees and Citizenship Canada (“IRCC“) has produced a useful internal document … Read More
Agriculture LMIAs
The Department of Employment and Social Development’s (“ESDC“) Primary Agricultural Stream allows employers to hire temporary foreign workers (“TFWs“) for a maximum period of 24 months when Canadians and permanent residents are not available. The program was created to reduce differences between the Seasonal Agricultural Workers Program (“SAWP“) and the regular Labour Market Impact Assessment (“LMIA“) stream. Overview of LMIAs Under the Temporary Foreign Worker Program ESDC reviews LMIA applications to assess the likely impact that foreign workers will have on the Canadian labour market. Immigration, Refugees and Citizenship Canada then generally processes work permit applicaitons submitted by foreign nationals who want to work in Canada. IRCC ensures that program requirements are met, and assesses the admissibility of applicants. The Canada Border Services Agency (“CBSA”) examines foreign nationals at the time of entry and determines whether they may enter Canada. Agricultural LMIAs The Primary Agricultural Stream applies to TFWs entering Canada from any country. Information can be found on the ESDC website here: http://www.esdc.gc.ca/en/foreign_workers/hire/agricultural/overview.page In brief, Primary Agriculture is defined as work duties that must: be performed within the boundaries of a farm, nursery or greenhouse involve at least one activity, such as: operation of agricultural machinery, boarding, care, breeding, sanitation or … Read More
Duress and Inadmissibility to Canada
The Supreme Court of Canada has “clarified” the elements of the duress defence. The defence is important because it can affect admissibility. For example, in Guerra Diaz v. Canada (Citizenship and Immigration), 2013 FC 88, the Federal Court of Court determined that the Immigration and Refugee Board improperly applied the test of whether duress applied, and ordered a new hearing by a different member. Duress and Inadmissibility It is basically trite law that where there is duress, then a person does not have the mens rea do either commit a crime or be a member in a group that renders the individual inadmissible to Canada. In Jalloh v. Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 317, the Federal Court stated that: In my view, it is preferable to consider the evidence of membership along with the evidence of coercion in determining whether there are reasonable grounds to believe the person genuinely was a member of the group. One way of looking at this issue is to regard evidence of duress as defeating the mens rea of membership (Thiyagarajah v Canada (Minister of Citizenship and Immigration), 2011 FC 339). Accordingly, evidence relating to duress must be considered along with the evidence relating to … Read More
Labour Market Impact Assessments – The Genuiness and Actively Engaged Factors
Section 203(1)(a) of the Immigration and Refugee Protection Regulations (“IRPR“) requires Service Canada to only issue a positive Labour Market Impact Assessment (“LMIA“) when it is satisfied that an employer’s job offer is genuine. The IRPR lists several specific factors which Service Canada officers must consider in a genuineness analysis. The Genuineness Factor In addition to regulation 203(1)(a) of the IRPR, regulation 200(5) of IRPR provides that: Genuineness of job offer (5) A determination of whether an offer of employment is genuine shall be based on the following factors: (a) whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made, unless the offer is made for employment as a live-in caregiver; (b) whether the offer is consistent with the reasonable employment needs of the employer; (c) whether the terms of the offer are terms that the employer is reasonably able to fulfil; and (d) the past compliance of the employer, or any person who recruited the foreign national for the employer, with the federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work. … Read More
Responsibility for Missed E-mail Communication
Who bears the risks when e-mail notices are sent by a visa officer but are not received by the applicant’s agent?
The Return of Incomplete Applications
I have previously written in this blog about how Immigration, Refugees and Citizenship Canada (“IRCC’) has adapted an exceptionally strict approach to returning applications for incompleteness. I have also written in Policy Options about how frustrating this approach can be, because one of its main purposes appears to be to allow politicians to boast about reduced processing times, while ignoring the fact that the experience of individuals who are actually applying is actually often longer than previously. I wrote: The current rigid triage system distorts a fair comparison of processing times. Suppose an individual applies to sponsor a spouse to immigrate to Canada and forgets to include in one of the forms the city where a non-accompanying brother was born. Previously, processing might have been delayed by two to three months while IRCC contacted the family, informed them of the mistake and requested they provide the information. Now, IRCC would instead return the application one to two months after it is submitted, and the family would have to resubmit. If some supporting documents have expired, they may have to reobtain them, and the process can easily take several months. Under the previous system, this delay would have added two to … Read More
Overview of Detention
On October 29, 2010, the Immigration and Refugee Board released Guideline 2 on Detention. The Guidelines are to assist Immigration Division members in determining whether or not to hold an individual in detention.
Danger Opinions
Section 115 of Canada’s Immigration and Refugee Protection Act provides that Canada shall not deport a protected person or a refugee to a country where they would be at risk of persecution of reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment. There are exceptions, however, for people who are: inadmissible to Canada for serious criminality and the government believes that the person is a danger to the public in Canada; or inadmissible to Canada on grounds of security, violating human or international rights or organized criminality and the government believes that the person should not be allowed to remain in Canada on the basis of the nature and severity of the acts committed or of danger to the security of Canada. Determining Whether to Issue a Danger Opinion In Ragupathy v Canada (Minister of Citizenship and Immigration), 2006 FCA 151, the Federal Court of Appeal set out the sequencing for the analysis in respect of a danger opinion: Step 1 – confirm that the protected is inadmissible on grounds of serious criminality; Step 2 – determine that the protected person is a danger to the … Read More