Sean Rehaag, an Associate Professor at Osgoode Hall Law School, has published a paper titled Judicial Review of Refugee Determinations (II): Revisiting the Luck of the Draw. Its Abstract states: This article updates an earlier empirical study of decision-making in the refugee law context in Canada’s Federal Court. The initial study found that outcomes in Federal Court applications for judicial review of refugee determinations depended all too often on the luck of the draw – on which judge decided the case. Since the initial study was released, the Federal Court has adopted measures to address variations in grant rates across judges. Drawing on data collected from over 33,000 online Federal Court dockets from 2008 to 2016, the article examines whether those measures have been successful and what further reforms should be pursued. Some of the charts contained within are fascinating, and show the following. 1) The number of applications for leave to commence judicial review in refugee matters has been steadily declining since 2012. 2) The % of leave applications being granted has increased from just under 20% from 2008-2012 to just under 30%. 3) The % of successful judicial review applications, not including those that settle, has increased from under 10% … Read More
Return of Incomplete LMIA Applications
The Department of Employment and Social Development Canada (“ESDC”) has very strict procedures for returning incomplete Labour Market Impact Assessment (“LMIA”) applications. All applications are reviewed for completeness. A “complete” application means that the employer has used the appropriate form and an acceptable version, and: filled out all fields in all the necessary forms; included all the documents that are requested; signed all the forms, where required; and provided the payment form for the processing fee (where applicable). If an application is missing information, an officer will determine if the missing element can be obtained quickly and call the employer to obtain the information. Applications that would have been eligible for priority processing but for the missing information are placed in regular processing, even if the information can be obtained quickly. If the application is missing information that is not easy to obtain, then the application will be deemed incomplete. Although ESDC officers will typically shred or delete an incomplete LMIA, officers will enter reasons for why the application was incomplete in the employer’s system file notes. The following information from the ESDC Wiki expands on what is written above.
Misrepresentation
Section 40 of the Immigration and Refugee Protection Act provides that a permanent resident or foreign national is inadmissible to Canada for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of Canada’s immigration laws. The general consequence of misrepresenting is a five-year ban from entering Canada. As well, s. 40(3) of the Immigration and Refugee Protection Act provides that a foreign national who is inadmissible to Canada for misrepresentation cannot apply for permanent residence during the five year bar. In Gill v. Canada (Citizenship and Immigration), 2020 FC 33 the Federal Court ruled that applications submitted during the bar are a “nullity” and as such refusals cannot be appealled to the Immigration Appeal Division. Canada is very strict on misrepresentation. In Bundhel v. Canada (Citizenship and Immigration), 2014 FC 1147, for example, Mr. Bundhel had been charged and convicted with an offence, which had been overturned on appeal. Mr. Bundhel would accordingly not have been criminally inadmissible to Canada. Because of this, he put on his immigration forms that he had never been charged or arrested. When it discovered thathehad been previously charged, Citizenship and Immigration Canada wrote to him and provided him … Read More
The Passenger Protect Program
On June 18, 2015 the Secure Air Travel Act received Royal Assent. It enhanced the Passenger Protect Program, more commonly called the “no-fly list.” The previous Conservative Government of Canada strengthened the Passenger Protect Program in response to an increase in the number of individuals travelling from Canada to participate in foreign conflicts, and in particular joining ISIS. The Passenger Protect Program is an air passenger security program. Through it the government works with air carriers to screen commercial passenger flights to, from and within Canada, and uses measures to mitigate the threat if a listed individual attempts to board an aircraft. The specific categories of individuals who can be impacted include (a) those who are suspected of posing a threat to transportation and (b) those who are attempting to travel abroad by air to support terrorism-related activities. Individuals who are subject to a denial of boarding, also known as those on the Specified Persons List, can make an application to the Minister of Public Safety and Emergency Preparedness to be removed. The government does not publish the Specified Persons List, nor does it say how many people are on the list.
Religious Exemption to IRCC Photo Requirements
From requiring that foreign nationals have their photos taken as part of the biometrics process to visa applicants needing to provide headshots in their applications, many Canadian immigration programs have a photo requirement. There is no exemption from the photograph for religious reasons. Below is a memo that was prepared for the Minister of Citizenship and Immigration Canada in 2013 confirming that there are no exemptions to the photograph requirements in response to a request for an exemption from the Amish community.
CBSA Report on Inadmissibility to Canada
Both Immigration, Refugees and Citizenship Canada as well as the Canada Border Services Agency (“CBSA“) are responsible for ensuring that Canada’s immigration system maintains the security of Canadian society. One of the ways that both departments do this is by determining that individuals are inadmissible to Canada. In this post I will review and summarize a CBSA Intelligence Advisory that was obtained through an informal Access to Information Act. The Intelligence Advisory was produced by the CBSA Intelligence Operations and Analysis Division in September 2016. It expired in January 2017. The Intelligence Advisory identified certain countries that at the time posed unique issues for CBSA’s mandate of protecting Canadians. In reproducing the information below my goal is not to stigmatize members of these communities nor to imply that their citizens are a threat. Rather, it is to present information as produced by the CBSA for informational purposes only. Every person deserves to be treated as an individual. However, it is contrary to common sense to suggest that certain communities don’t have unique circumstances. Statistics on Inadmissibility From 2007 to 2016, the Canada Border Services Agency wrote reports for the following inadmissibilities: Year Security Grounds Human Rights Criminal Serious Criminal Organized Crime Health Financial … Read More
Bill C-46 and Retrospectivity
As previously noted on this blog, Bill C-46 will when it takes effect make many offences that currently render someone inadmissible for criminality inadmissible for serious criminality. The Minister of Immigration, Refugees and Citizenship Canada has now affirmed that these changes will not apply retrospectively. As such, people who were previously deemed rehabilitated will continue to be so. As well, people who committed an offence prior to December 18, 2018 will benefit from the previous sentencing provisions in the Criminal Code.
Providing a Right of Appeal to Medically Inadmissible Immigrants
On December 3, 2015, Don Davies, the member of Parliament for Vancouver Kingsway, introduced Bill C-214, An Act to Amend the Immigration and Refugee Protection Act (Appeals) (Bill C-214). If passed, Bill C-214 would provide a right of appeal to the Immigration Appeal Division (IAD) for prospective immigrants whose applications for permanent residency are refused because Immigration, Refugees and Citizenship Canada (IRCC) determines that they will likely represent an excessive demand on Canada’s health and social services systems. Because Bill C-214 is a private member’s bill, it is unlikely to become law. Indeed, Davies has introduced similar bills in previous Parliamentary sessions, to no effect. However, what he is proposing is certainly worthy of discussion and debate. I hope that if he reads this post that he will consider my comments, if he ever reintroduces or amends his proposed legislation. As well, at the end of this article I will discuss another immigration issue that Davies has proposed that I hope he reintroduces soon. Inadmissibility for Excessive Demand Canada’s Immigration and Refugee Protection Act provides that foreign nationals are inadmissible to Canada on health grounds if their health conditions might reasonably be expected to cause an excessive demand on Canada’s health or social services. Health … Read More
Suing Schools for Post-Graduation Work Permit Refusals
People who graduate from designated learning institutions are often eligible to apply for post-graduation work permits (“PGWP“). However, not all schools are eligible. In addition to other requirements, to be eligible, a student must have graduated from a: public post-secondary school, such as a college, trade/technical school or university, or CEGEP in Quebec; or private post-secondary school that operates under the same rules as public schools (currently applies only to certain private post-secondary institutions in Quebec); or private secondary or post-secondary school (in Quebec) that offers qualifying programs of 900 hours or longer, leading to a diplôme d’études professionnelles (DEP) or an attestation de spécialisation professionnelle (ASP); or Canadian private school that can legally award degrees under provincial law (for example, Bachelors, Masters or Doctorate degree) but only if the student was enrolled in a study programs leading to a degree as authorized by the province. Lawsuits There have been recent media stories about international graduates suing designated learning institutions for misleading them into thinking that they would have been eligible for post-graduate work permits once they graduated. The requirements to establish a claim in negligent misrepresentation are: There must be a duty of care based on a “special relationship” between the representor and the representee; The … Read More
Foreign Worker Protection in British Columbia
Section 9.4 of Annex B of the Canada – British Columbia Immigration Agreement 2015 provides that “if Canada or B.C. determines that there is a real and substantial risk to a foreign worker as a result of an employer not complying with federal or provincial laws, Canada and B.C. will jointly undertake actions to mitigate such risk, including, where appropriate, issuing a new Labour Market Impact Assessment (“LMIA”) through the priority Labour Market Impact Assessment process, or issuing a new work permit without the need for an LMIA provided that the Foreign Worker meets all other requirements of the Immigration and Refugee Protection Regulations (the “IRPR”). On May 4, 2018 the Government of Canada announced how it will apply the LMIA exemption to foreign workers who are at risk as a result of potential employer non-compliance in British Columbia. The policy will be in force until April 7, 2020. The measures are available to all foreign nationals in B.C. who hold an employer-specific work permit for an employer located in B.C. or who are authorized to work without a work permit. Eligibility Under the policy, visa officers may consider issuing a work permit if they have reason to suspect potential employer … Read More