One of the leading cases on procedural fairness is Charkaoui v Canada (Minister of Citizenship and Immigration), 2007 SCC 9. There, the Supreme Court of Canada stated: Last but not least, a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case. This right is well established in immigration law. The question is whether the procedures “provide an adequate opportunity for [an affected person] to state his case and know the case he has to meet” (Singh, at p. 213). Similarly, in Suresh, the Court held that a person facing deportation to torture under s. 53(1)(b) of the former Immigration Act, R.S.C. 1985, c. I-2, must “[n]ot only . . . be informed of the case to be met . . . [but] also be given an opportunity to challenge the information of the Minister where issues as to its validity arise” (para. 123). In Therrien v Canada (Attorney General), 2017 FCA 14, the Federal Court of Appeal stated that the the required specificity of the notice provided an affected person is to be determined in light of all of the circumstances including consideration of whether … Read More
Urgent Processing of PR Cards
On October 20, 2016, IRCC posted Operational Bulletin 627. It restricts what qualifies for “urgent processing” of PR Cards to: travel due to an applicant’s own serious illness or the serious illness or death of a family member; or to obtain employment or to travel due to employment requirements or opportunity. In Li v. Canada (Immigration, Refugees and Citizenship),the Federal Court stated that mandamus cannto be used to compel IRCC to mail a PR Card rather than require that it be picked up in person.
H&C Third Country
Several Federal Court of Canada decisions affirm that a visa officer’s assessment of humanitarian & compassionate considerations will be unreasonable if the officer assesses hardship on the basis that a foreign national will reside in a country other than their country of citizenship. In Hermann v. Canada (Citizenship and Immigration), 2014 FC 266, Justice Zinn stated: I have very serious doubt that in making an H&C assessment an officer can assess hardship on the premise that the applicant relocate to a country other than his country of nationality, regardless of any mobility agreements between countries. If an applicant is in Canada without authorization and is to be removed, Canada cannot remove him to a country other than his country of nationality. Why then should Canada consider any other country when examining hardship to the applicant in a H&C application? In Abdullah v. Canada (Citizenship and Immigration), 2019 FC 954, Justice McAffie stated: This Court has held that assessing an H&C application with reference to a country where the applicant has no legal status is an error that renders a decision unreasonable. In Joe (Litigation guardian of) v Canada (Citizenship and Immigration), 2009 FC 116 [Joe], the minor applicant was a … Read More
Yes, IRCC Can Deny PNP Nominees Permanent Resident Visas
The Immigration and Refugee Protection Regulations (“IRPR“) provide that an immigration officer may issue a negative substituted evaluation and refuse an application where the officer is not satisfied that a provincial nomination certificate is an appropriate indicator of whether an applicant will be able to successfully establish themselves economically in Canada. Subsections 87(3) and (4) of the Regulations state that: Substitution of evaluation (3) If the fact that the foreign national is named in a [provincial nomination certificate] is not a sufficient indicator of whether they may become economically established in Canada and an officer has consulted the government that issued the certificate, the officer may substitute for the criteria set out in subsection (2) their evaluation of the likelihood of the ability of the foreign national to become economically established in Canada. Concurrence (4) An evaluation made under subsection (3) requires the concurrence of a second officer. I have reproduced below an excerpt from the recently decided Federal Court decision Kousar v. Canada, 2014 FC 12, which illustrates this point. Because Kousar was a Federal Court case, Immigration, Refugees and Citizenship Canada’s (“IRCC”) refusal reasons become part of the public record. Accordingly, while I was not the lawyer involved with either the initial … Read More
Environmental Overview – Chandigarh
Earlier this year I published a partial reproduction of the Environmental Overview of the immigration functions at the Canadian Consulate in Chandigargh current to 2012. The post was quite popular, and the following is a summary of the most recent Environmental Overview of the immigration functions at the Canadian Consulate in Chandigarh (the “Environmental Overview”). The Environmental Overview was prepared as part of the Citizenship and Immigration Canada 2014-2015 planning exercise, and is current as of January 2014. Areas in blockquote are direct passages from the Environmental Overview. Environment The Canadian Consulate in Chandigarh (“CIC Chandigarh“) provides temporary residence processing in northwest India. Chandigarh is a non-immigrant processing office. However in 2013 we processed some family class files in order to assist Delhi with their targets and to provide a learning experience for officers in Chandigarh. Over 400 family class applications were interviewed and processed to conclusion in 2013. SuperVisas continue to account for 15% of our total visitor intake. Systemic fraud necessitates a careful review of applications in all lines of business. Interestingly, CIC Chandigarh has been active in meeting with Punjab government officials to provide input on the new Punjab Prevention of Human Smuggling Act, a law which provides a registration system … Read More
Deferring Removal
People who either face removal or who have received a removal order should contact a lawyer immediately to determine what their options are. The purpose of this post is to provide an overview of the legislative scheme for deferring removal orders. It provides a general framework, and cannot substitute the advice that a lawyer can give when he applies these facts to your situation.
Showing that the Visa Officer or IRB Member or CBSA Officer Was Biased
Many individuals think that either a visa officer, a Canada Border Services Agency (“CBSA“) officer or an Immigration and Refugee Board member is biased against them. This is not an argument to make lightly. Test for Bias In Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 2 (SCC), [1978] 1 SCR 369, the Supreme Court of Canada held that in order for an individual to demonstrate that a government decision maker is biased, then: the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. [T]hat test is “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly. As well, the Supreme Court of Canada has also noted that: Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since … Read More
No Expectation on Applicants to ATIP
Garcia Balarezo v. Canada (Citizenship and Immigration) is an interesting case which stands for the principle that it is unreasonable for IRCC to expect applicants to submit ATIP requests to learn the internal status of their file and what submissions they might need to make. The Court noted: The officer recognized that both the May 2012 and June 2015 work permits were issued by IRCC in error. However, the officer asserted that Ms. Garcia’s May 2012 and October 2012 work permits “had clear notes on them that PA [principal applicant] was not part of the LC program.” This appears to have been very important in the officer’s thinking, as they repeated the point both in responding to one of Ms. Garcia’s submissions, and again in their conclusion, stating: The errors made on CIC’s part (including issuing first work permit with med instructions to work in childcare field and adding the incorrect remarks to clients third work permit in 2015) have been taken into consideration and there is still insufficient evidence of H&C grounds to warrant exemptions. PA’s rep stated that PA and her employers were aware of Section 112 of the Immigration and Refugee Protection Regulations and were aware that the … Read More
Religious and Charitable Workers
There are generally two types of religious workers who seek entry to Canada to work. The first are clergy (which includes Buddhist monks, Sikh granthis, rabbis, priests, preachers, pastors, etc.) whose employment in Canada will consist mainly of preaching doctrine, presiding at religious functions, or providing spiritual counselling. The second are religious workers (which includes nuns, monks and field workers). Work Without a Work Permit Section 186(l) of the Immigration and Refugee Protection Regulations (“IRPR“) provides that such people may work in Canada without a work permit. IRPR r. 186(l) states: 186. A foreign national may work in Canada without a work permit (l) as a person who is responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties are to preach doctrine, perform functions related to gatherings of the congregation or group or provide spiritual counselling; Generally, applicants applying to work in Canada without a work permit under IRPR r. 186(l) need to demonstrate that they have a genuine offer of employment from the religious denomination that seeks to employ them, that the organization employing them can provide for their care and support, and that they are able to minister to a congregation under the auspices of … Read More
Temporary Resident Visa Statistics
A Temporary Resident Visa (“TRV”) is a document issued by Immigration, Refugees and Citizenship Canada (“IRCC”) which shows that the person has met the requirements for admission to Canada as a temporary resident. It is typically a counterfoil that is placed in a person’s passport. There are many types of TRVs. Statistics From 2011-2021 (February) the temporary resident visa approval rates based on country of citizenship were as follows: