In this episode we provide an overview of family law issues that immigrants and their Canadian sponsors should be aware of, inlcuding the recognition of foreign marriages, how divorce works, threatening to have an ex-spouse deported and the difference between common-law and marriage and getting a marriage anulled. Ari Wormelli practices family law with YLAW Group. Borderlines · #40 – Family Law Concepts That Immigrants and their Sponsors Should Understand, with Ari Wormelli The topic is relevant to Canadian immigration law because sponsored spouses are statistically much more likely to get divorced than the general Canadian public.
Borderlines Podcast Episode 39 – Immigration Detention Hearings after Brown v. Canada, with Aris Daghighian
Aris Daghighian is a senior associate with Green and Spiegel LLP in Toronto. He represented the Canadian Association of Refugee Lawyers as intervenors in Brown v. Canada, 2020 FCA 130. In this episode we discuss the issues raised in the case, including how immigration detention works in Canada, what the disclosure obligations should be on the government in an immigration detention proceeding and whether there should be a maximum time that someone can be held in immigration detention. On April 1, 2021 the Immigration and Refugee Board issued updated detention guidelines in response to the Brown decision. They stated: As a result of the FCA decision in Brown and the feedback received through our consultations, the IRB has revised the Guideline in the following ways: Clarify that there must be a nexus to an immigration purpose for detention to continue. Reinforce the Division’s obligation to consider sections 7, 9 and 12 of the Charter in exercising its discretion concerning whether or not detention is warranted. Confirm that consideration of conditions of detention is an extension of the ID’s Charter jurisdiction. Reinforce that the Minister has the legal burden to establish that detention is lawfully justified and remains on the Minister throughout the … Read More
Borderlines Podcast Episode 27 – Civil Forfeiture in Canada, with Bibhas Vaze
Civil forfeiture is a process in which the government seizes assets from persons suspected of involvement with crime without necessarily charging the owners with wrongdoing. Did you know that in British Columbia the government can seize and forfeit your car if you speed? Or that police can “seize first ask later” for property that is less than $75,000? This was a fascinating look at an area of law that receives little scrutiny, especially in how it can relate to immigration. Bibhas Vaze is a criminal defence lawyer in Vancouver. 4:45 – An overview of New Can and how it relates to civil forfeiture. 5:30 – What is civil forfeiture? 13:15 – Who has the onus of proving there is a tracing of property to unlawful activity? 16:50 – Can the government seize property that is partially the proceed of crime or that was used to commit unlawful activity? 17:10 – What is unlawful activity in the civil forfeiture context? 19:20 – What is the size of British Columbia’s Civil Forfeiture Office? How much property has it seized since its inception? 20:30 – Do all civil forfeiture cases have to go to trial? 25:10 – When is the property actually seized? 29:00 – What level of connection between the unlawful activity and the property is … Read More
Borderlines Podcast Episode 18 – The Deportation Consequences of Criminal Records
The Supreme Court of Canada in October issued its decision in R v. Tran, a case which Peter litigated. Deanna, Peter and Steve discuss the issues that the Supreme Court addressed in this landmark decision, including whether conditional sentences are terms of imprisonment for the purposes of deportation and retrospectivity in law. This was the first of two Supreme Court cases that Peter arguedin Ottawa this year. While he was in Ottawa for the second case, he joined Michael Spratt and Emilie Taman, the creators of the Docket, a fantastic podcast about criminal law in Canada. Peter, Emilie and Michael discussed all sorts of issues regarding the intersection of immigration and criminal law, and Peter even explained how he got into practicing immigration law.
Top Source Countries of Immigration to Canada
One of the interesting trends of Canadian immigration during the past five years has been the explosion of India as a source country, the flat-lining of China, and the decline of the Philippines. There has also been a steady increase in immigrants from Brazil, Eritrea, the USA and Nigeria.
Judicial Reviews of BC PNP Decisions
An interesting aspect of judicial review is that provincial courts show much more deference to provincial nomination programs than the Federal Court does of visa officers. Here are some key passages of two British Columbia Provincial Nomination Program judicial reviews. Chaudan v. British Columbia (Ministry of Jobs, Tourism and Skills Training), 2016 BCSC 2142 This case essentially stands for the proposition that officers can look beyond an offer of employment to determine whether a proposed job offer meets BC PNP program requirements. Justice Bowden wrote: In determining whether an applicant met the criterion of PNP, if a decision maker relied only upon a future offer of employment, that might well be unreasonable. Not only would that ignore the factor of past employment over a nine month period but also an offer of employment in the future is not an assurance that the criterion will be met. Raturi v. British Columbia, 2017 BCSC 9 In this case Madam Justice E.A. Arnold-Bailey provided a useful summary of existing jurisprudence on provincial nomination judicial reviews. She wrote: Moving from more general statements of principle to specific cases more closely aligned to the present case, I note that among the cases referred to by the … Read More
Determining Whether a Marriage Is Genuine
Arguably the most important part of any spousal or common-law sponsorship application is establishing that a relationship is not encompassed by r. 4(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRPR”). Regulation 4(1) provides that: 4. (1) For the purposes of these Regulations, 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. Despite the importance of applicants demonstrating that their relationship is genuine and not entered into primarily for the purpose of acquiring any status or privilege under the Immigration and Refugee Protection Act (the “Act”) there are no set criteria which determine whether an application is bona-fide. As the Federal Court noted in Koffi v. Canada (Citizenship and Immigration), 2014 FC 7 (citations removed) It is well established in the case law of this Court that there is no specific criterion, or even a set of criteria, to determine whether a marriage is genuine pursuant to section 4 of the Immigration and Refugee Protection Regulations. It is exclusively up … Read More
Medical Exam Requirements to Visit Canada
Citizenship and Immigration Canada has removed 45 countries from the designated country or territory list, and added four. The countries removed include Iran, Mexico, Saudi Arabia, and Singapore.
LMIAs and Labour Disputes
Section 203(3)(f) of the Immigration and Refugee Protection Regulations states an assessment provided by the Department of Employment and Social Development (“ESDC”) with respect to the whether the entry of a foreign national is unlikely to have a positive or neutral effect on the labour market in Canada shall be based, in part, on whether the employment of the foreign national is likely to adversely affect the settlement of any labour dispute in progress of the employment of any person involved in the dispute. ESDC policy is short on this matter, and states that employers should not use the Temporary Foreign Worker Program to circumvent a legal work stoppage or to influence the outcome of a labour dispute. A labour dispute is defined as occuring when the parties to a collective agreement have reached an impasse in their efforts to enter into, renew or revise a collective agreement and require the intervention of a third party (e.g., government labour officials) to resolve the differences. It does not include all grievances between a union and employer. Labour disputes, which often arise during collective agreement/contract negotiation between an employer and a union, may include: work stoppage, strikes, refusal to work, picketing, lockouts, etc. They … Read More
Inadmissibility Due to Non-Compliance with the Act
Individuals can be inadmissible to Canada for numerous reasons, including criminality, misrepresentation, medical issues, and non-compliance with Canadian immigration legislation. The latter reason, non-compliance with the Canadian immigration legislation, can seem extremely vague. Fortunately, the Immigration, Refugees and Citizenship Guidelines contains a list of the different frequently used reasons for declaring someone inadmissible for non-compliance with the Act. They are: Entering Canada to remain on a permanent basis without first obtaining a permanent resident visa. Entering Canada to remain on a temporary basis without first obtaining a temporary resident visa. Entering Canada to study without first obtaining a study permit. Entering Canada to work without first obtaining a work permit. Not answering questions truthfully or producing required relevant documents. Not submitting to a medical examination. Not holding a medical certificate that is based on the last medical examination. Not holding the required documents to enter Canada. Not establishing that the person will live Canada by the end of the authorized period. Where a person is subject to an enforced removal, returning to Canada without authorization. Working without authorization. Studying without authorization. Not leaving Canada at the end of the authorized period. Not reporting to a port of entry examination without … Read More