In 2013, the Supreme Court of Canada in Ezokola v. Canada (Citizenship and Immigration) created a new test for determining complicity in Article 1F(a) exclusion cases. Article 1F(a) of the 1951 Refugee Convention provides that: The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; Pursuant to the Supreme Court of Canada decision in Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, a crime against humanity is committed when each of the following four elements is satisfied: An enumerated proscribed act was committed (this involves showing that the accused committed the criminal act and had the requisite guilty state of mind for the underlying act); The act was committed as part of a widespread or systematic attack; The attack was directed against any civilian population or any identifiable group of persons; and The person who committed the proscribed act knew of the attack and knew or took the risk that his or her act comprised … Read More
Misrepresentation Cases at the Immigration Appeal Division
A permanent resident can lose their permanent resident status and be banned from Canada if they commit misrepresentation. However, they have a right of appeal to the Immigration Appeal Division (the “IAD“). At the IAD, the permanent resident can argue that the determination that they committed misrepresentation was based on a factual error or mistake in law. They can also argue that there are sufficient humanitarian & compassionate (“H&C“) to warrant relief. The Test In Wang v. Canada, the Federal Court of Canada set out the following factors (generally known as the “Wang” or the “modified Chieu” factors) to be the appropriate considerations in determining whether there are sufficient H&C considerations to justify not cancelling someone’s permanent resident status and banning them from Canada for five years: the seriousness of the misrepresentation leading to the removal order and the circumstances surrounding it; the remorsefulness of the permanent residence; the length of time spent in Canada and the degree to which the permanent resident is established in Canada; the permanent resident’s family in Canada and the impact on the family that removal would cause; the best interests of a child directly affected by the decision; the support available to the permanent resident … Read More
The Start-Up Business Class
On April 11, 2018, regulations for the Start-Up Business Class (the “Start-Up Business Class”) came into effect. The regulations slightly modify the program that has been in effect since April 1, 2013. Both applicants as well as designated entities should be aware of the changes.
CBSA National Security Screening
According to its website, the Canada Border Services Agency (“CBSA“) screens all visitors, immigrants and refugee claimants to keep Canada safe and secure. Inadmissible persons such as criminals or persons considered security risks are not allowed to enter or remain in Canada. The following PDF contains a detailed breakdown of how this works and efforts to reduce backlogs. Here is a PDF containing more information.
Arranged Employment
Regulation 82 of the Immigration and Refugee Protection Regulations, SOR/2002-227 states: 82 (1) In this section, arranged employment means an offer of employment that is made by a single employer other than an embassy, high commission or consulate in Canada or an employer who is referred to in any of subparagraphs 200(3)(h)(i) to (iii), that is for continuous full-time work in Canada having a duration of at least one year after the date on which a permanent resident visa is issued, and that is in an occupation that is listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix. Arranged employment (10 points) (2) Ten points shall be awarded to a skilled worker for arranged employment if they are able to perform and are likely to accept and carry out the employment and (a) the skilled worker is in Canada and holds a work permit that is valid on the date on which their application for a permanent resident visa is made and, on the date on which the visa is issued, holds a valid work permit or is authorized to work in Canada under section 186 and (i) the work permit … Read More
TRPs for Americans
American nationals wishing to visit Canada may be unable to do so if they have a criminal record which renders them inadmissible to Canada. In order to overcoem their inadmissibility, they need to either apply for criminal rehabilitation or a temporary resident permit (a “TRP”). TRPs Section 24 of the IRPA provides that: A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time. The Immigration, Refugees and Citizenship Canada (“IRCC“) TRP guidelines (the “Guidelines”) provide officers with the following guidance on issuing TRPs: Generally, individuals who do not meet the requirements of the Immigration and Refugee Protection Act (IRPA), or who are inadmissible under the IRPA, may be refused a permanent resident visa (PRV) or temporary resident visa (TRV) abroad refused an electronic travel authorization (eTA) reported inadmissible under section A44(1) allowed to withdraw their application to enter Canada at a port of entry (POE) refused processing within Canada In some cases, however, an officer may issue a … Read More
Excessive Demand on Health and Social Services
People applying for a Canadian permanent resident visa are regarded to undergo medical examinations. Many people with certain conditions are understandably apprehensive about how these examinations will impact their ability to immigrate. In this post, I hope to provide an overview about the issue of “excessive demand on health or social services,” which is probably the medical evaluation component that causes the most misconceptions.
Mandamus Orders
A mandamus order is a judicial command to a government body to do, or forbear from, doing a specific act which it is obligated in law to do. The Federal Court’s decision in Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159, is one of the most cited case in the immigration context for setting forth the test for when a mandamus order will be given. There, Justice Snider stated: The equitable remedy of mandamus lies to compel the performance of a public legal duty that a public authority refuses or neglects to carry out when called upon to do so. Mandamus can be used to control procedural delays (Blencoe v. British Columbia (Human Rights Commission) [2000] 2 S.C.R. 307 at para. 149). The test for mandamus is set out in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.), aff’d [1994] 3 S.C.R. 1100 (and, more recently, discussed in the immigration context in Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189 (T.D.), aff’d [2003] F.C.J. No. 813, 2003 FCA 233,). The eight factors are: (i) There must be a public legal duty to act; (ii) The duty must be owed to the Applicants; (iii) … Read More
Asking the Embassy to Re-Consider an Application
Once a decision has been rendered in relation to an application for a humanitarian and compassionate exemption, is the ability of the decision-maker to reopen or reconsider the application on the basis of further evidence provided by an applicant limited by the doctrine of functus officio?
Procedural Fairness Where Credibility is an Issue
In an application to Immigration, Refugees and Citizenship Canada (“IRCC“) the burden is on the applicant to put forward a complete, convincing and unambiguous application which provides sufficient evidence to establish that the requirements of Canadian immigration legislation are met. Visa officers are not under an obligation to ask for additional information where the submitted material is insufficient. As well, as demonstrated by the decision in Omitogun v. Canada (Citizenship and Immigration), 2024 FC 719, visa officers are under no obligation to review an applicant’s previously submitted applications. However, where there is a concern regarding the credibility or the genuineness of the evidence submitted, as opposed to the sufficiency of, or weight to be given, to that information, then the duty of fairness generally requires that the applicant be given the opportunity to address the concern. The Federal Court succintently set out the test in Fard v. Canada (Citizenship and Immigration), 2024 FC 1403, writing: Where an officer suggests that the applicant’s supporting documents serve a “demonstrative purpose” amounting to a “deceptive façade” (Taeb v Canada (Citizenship and Immigration) 2023 FC 576 at para 6) or where, as here, the officer states that the applicant’s financial data has been “inflated” … Read More