The Federal Court has released its decision on the legality of the “decision” to prohibit former British MP George Galloway from entering Canada for having committed terrorism or been a member of a terrorist organization.
Designated Countries of Origin
From 2011 – 2019 Canada’s refugee system contained a list of Designated Countries of Origin (“DCO“). History Bill C-11, the Balanced Refugee Reform Act, received Royal Assent on June 29, 2010. It introduced sweeping changes to Canadian refugee law, including establishing the DCO regime. The government estimated that approximately 10% of all asylum claimants in Canada could be subject to expedited processing under the DCO policy. The government has estimated that designations would result in a 57% decline in the number of claims received from such countries over the 12 months following a designation. The DCO List The initial list of DCOs covers 27 countries, 25 of which are in the European Union (edit: see below for a list of additional countries that have been added): Austria Belgium Croatia Cyprus Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta Netherlands Poland Portugal Slovak Republic Slovenia Spain Sweden United Kingdom United States of America
Borderlines Podcast #28 – Canada’s Caregiver Programs
Natalie Drolet is the Executive Director / Staff Lawyer for the Migrant Workers Centre. We discuss the history of Canada’s caregiver programs, current issues and what the future looks like. 2:30 – What is a caregiver and how have Canada’s caregiver work permit and immigration programs traditionally worked? 7:00 – What are employer specific work permits? How do these impact caregivers? 14:40 – How do Canadian caregivers find families who are overseas? 16:00 – Why is the caregiver program necessary? Why are Canadians not applying for these positions? What role do wages play? 21:10 – How does the Interim Pathways program work? 29:14 – Could an Expression of Interest Intake model come to the caregiver program? 31:30 – What are employer compliance issues in the caregiver program? What are some of the abuses that occur? 38:00 – Are the problems now similar to problems that the program has traditionally faced? 43:00 – Where do caregivers live out typically stay? 45:00 – What will the program likely look at in the future? 56:00 – Do the caregiver programs allow governments to avoid funding daycare? 57:30 – Where do most caregivers come from?
Sponsoring Someone Who is Out of Status in Canada
It is generally well known that Canadian citizens or permanent residents wishing to sponsor their spouses or common-law partners from abroad can typically do so. As well, most people know that Canadians who live with their spouses or common-law partners who are inside Canada as legal visitors, workers or students can sponsor them as well. What is less known is that they can also sponsor those who are in Canada without status. Requirements Canada since 2005 has had a public policy in which Immigration, Refugees and Citizenship Canada will process permanent residence applications from the spouses and common-law partners of Canadian citizens and permanent residents in Canada who do not have legal immigration status. The objective of the policy is to facilitate family reunification and facilitate processing in cases where families are already residing together in Canada. It is to prevent the hardship caused by family separation. Lack of legal immigration status includes people who overstayed visas or permits, people who worked or studied without authorization from the government to do so, people who entered in Canada without required visas and people who entered Canada without valid passports. The most typical situation involves people who travelled to Canada, became romantically … Read More
Psychological Reports
In John v. Canada (Citizenship and Immigration), 2016 FC 915, Justice Brown provided a helpful summary on how psychological reports are to be treated by the Immigration and Refugee Board and visa officers. He wrote: Having come to this conclusion, it is not necessary to deal with the other issues re the psychologist’s report and the Gender Guidelines. However, in connection with the psychologist’s report, the RPD appears to have rejected the psychologist’s report on grounds that were directly and recently criticized by the majority of the Supreme Court of Canada in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 (Kanthasamy). The RPD states at paras 13-14 of the Decision: [13] The panel, however, does not find [the psychotherapist’s] assessment to be persuasive evidence and determines that [the psychotherapist] is in no position to state categorically that the PC’s mental and emotional state are the result of her alleged problems in Antigua. [14] (…) The panel finds that, although the PC may be suffering from anxiety and depression, this may or may not be related to the causes described by the PC in her evidence. Accordingly, the panel gives the psychological assessment, no weight. [emphasis added] In Kanthasamy at para … Read More
Inferring a Lack of Credibility
One of the biggest issues in immigration law is credibility. When a tribunal finds a lack of credibility based on inferences there must be a basis in the evidence to support the tribunal’s inferences. It is not open to tribunal members to base their decision on assumptions and speculations for which there is no real evidentiary basis. In Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39, the House of Lords (in a decision frequently cited by Canadian courts) noted that: The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference. At the same time, as per the Federal Court of Canada decision in Giron v Canada (Minister of Employment and Immigration), credibility assessment is “the heartland of the discretion of triers of fact”, … Read More
Supreme Court Clarifies Child Luring Laws
The Supreme Court of Canada in 2019 clarified the law regarding the requirements to convict someone for child luring under the Criminal Code. The decision, R v. Morrison, has implications for people who may be inadmissible to Canada for serious criminality. Section 172.1(1) of the Criminal Code prohibits communicating, by means of telecommunication, with a person who is, or who the accused believes is, under the age of 18, 16 or 14 (depending on the circumstances) for the purposes of facilitating the commission of certain designated offences against that person, such as sexual offences. Prior to R v. Morrison, the law was that if someone told someone else they were underage, the law presumed the person believed it. The only exception was if there was evidence that the person didn’t believe it. All the judges at the Supreme Court agreed that this violated the right to be presumed innocent. As a result, in the context of a police sting where there is no underage person, the offence of child luring has three essential elements: (1) an intentional communication by means of telecommunication; (2) with a person who the accused believes is under the requisite age; (3) for the purpose of facilitating the commission of a designated offence … Read More
Inability to Provide Documents
Immigration, Refugees and Citizenship Canada often makes requests for documents. In Paddayuman v. Canada (Citizenship and Immigration), 2019 FC 28, Justice Manson articulated two important principles for this requirement. First, it is unreasonable to require documents that do not exist. While in Paddayuman this referred testimonies, affidavits and out of court settlement documents, it can also extend to reference letters, custody agreements, etc. Second, the passage of a significant amount of time, while not determinative, does suggest that the stringency of document requirements should be viewed with a purposive lens.
Voluntary Disclosures and Administrative Monetary Penalties
In both the Temporary Foreign Worker Program (the “TFWP”) and the International Mobility Program (the “IMP”) employers who have been non-compliant can reduce their potential penalties by voluntarily disclosing the non-compliance. Voluntary disclosures are only available to mitigate against the consequences for non-compliance that occurred on or after December 1, 2015. Considerations A voluntary disclosure must be unsolicited. It must be complete and voluntary. Officers will consider several factors in determining whether the voluntary disclosure is acceptable. First, a voluntary disclosure will only be acceptable for violations that are not severe. Whether a violation is severe will depend on the number of foreign workers negatively affected by the violation, whether any abuse of a foreign worker occurred, the duration of non-compliance, and any economic gain the employer may have obtained as a result of the violation. Second, acceptable voluntary disclosures must be made in a timely manner. Third, the number of times an employer is non-compliant will impact whether a disclosure is voluntary and complete. Employers will not be allowed to repeatedly use voluntary disclosures to their advantage while making little or no effort to comply with TFWP or IMP requirements. Fourth, the complexity of meeting a condition can impact … Read More
The Interim Pathway for Caregivers
On February 25, 2019 Immigration, Refugees and Citizenship Canada (“IRCC“) announced a one-time, short-term public policy for in-Canada caregivers to provide a pathway to permanent residence for caregivers who do not qualify under the 2014 Ministerial Instructions Establishing the Caring for Children Class and the Caring for People with High Medical Needs Class. This is a 3-month interim pathway, with no cap on volumes. To be eligible, caregivers have to meet all the following conditions: At the time of application, they are authorized to work in Canada on a work permit other than a Live-in Caregiver Program work permit; They intend to reside in a province or territory other than Quebec; Since November 30, 2014, they have acquired at least 1 year of full-time Canadian work experience in an eligible caregiver occupation. These occupations are National Occupational Classification (“NOC”) 4411 – Home Childcare Providers and NOC 4412 – Home Support Workers and Related Occupations (other than Housekeeper); They meet the minimum education requirement; and They meet the minimum language proficiency requirement. Experience Only home child care providers are eligible under NOC 4411. Applicants with work experience under NOC 4411 must have provided in-home care to children under the age of 18 … Read More