Sections 5 and 6 of the Immigration Division Rules, SOR/2002-229 state: Withdrawing a Request by the Minister for an Admissibility Hearing Abuse of process 5 (1) Withdrawal of a request for an admissibility hearing is an abuse of process if withdrawal would likely have a negative effect on the integrity of the Division. If no substantive evidence has been accepted in the proceedings, withdrawal of a request is not an abuse of process. Withdrawal if no evidence has been accepted (2) If no substantive evidence has been accepted in the proceedings, the Minister may withdraw a request by notifying the Division orally at a proceeding or in writing. If the Minister notifies in writing, the Minister must provide a copy of the notice to the other party. Withdrawal if evidence has been accepted (3) If substantive evidence has been accepted in the proceedings, the Minister must make a written application to the Division in order to withdraw a request. Reinstating a Request by the Minister for an Admissibility Hearing Application for reinstatement of withdrawn request 6 (1) The Minister may make a written application to the Division to reinstate a request for an admissibility hearing that was withdrawn. Factors (2) … Read More
Borderlines #15 – Gordon Maynard on New Can Consulting and the Biggest Immigration Fraud in Vancouver History
Xun (Sunny) Wang was a ghost consultant who is estimated to have made $10 million by filing fraudulent immigration applications for clients of his two firms, New Can Consulting and Well Long Enterprises. Mr. Wang, who is currently serving an eight year jail sentence, and his staff, apparently put fake passport stamps in peoples’ passports in order to lie about having spent sufficient time in Canada to qualify for various immigration programs. The Canada Border Services Agency is now endeavouring through what the Department is calling Project New Can to remove over 1,500 former clients of his for having committed misrepresentation to obtain Canadian permanent residency and/or maintain it. All of the lawyers involved in this podcast have and are representing some of his clients in these removal proceedings. Gordon Maynard is a Vancouver based lawyer who practices exclusively in Canadian immigration law. He is a past Chair of the Canadian Bar Association’s Immigration Section. Topics 1:39 – Gordon provides an overview of the timeline involved in Sunny Wang’s alleged fraud. 7:50 – What constitutes misrepresentation in Canadian immigration applications? 10:30 – We discuss some of the mechanics of what Sunny Wang is alleged to have done. 12:00 – Many New Can clients are saying that … Read More
LMIA Cap on Low Wage Employees
Canada’s Temporary Foreign Worker Program (the “TFWP“) allows employers to bring foreign workers to Canada to temporarily fill jobs for which qualified Canadians are not available. After the program became increasingly controversial in 2012-13, the Department of Employment and Social Development Canada (“ESDC“) on June 20, 2014 imposed a cap limiting the proportion of low-wage foreign workers that businesses can employ. How the Cap Works Employers with a company-wide business size of 10 or more employees are subject to the cap. The cap percentage is determined for each individual worksite location and is based on paid positions and total hours worked at that worksite. Employers that are new to the TFWP or returning employers who did not have any foreign workers on staff on June 20, 2014 are capped at 10% low-wage foreign workers for each work location. The cap, implemented on June 20, 2014, was phased in to provide employers time to transition to a Canadian workforce which means that they are limited to a: 20 percent cap on the number of foreign workers in low-wage positions, or the employer’s established estimated cap (whichever is lower), if the employer hired a TFW in a low-wage position prior to June 20, 2014; or 10 … Read More
Establishing that Someone is a Refugee
Section 96 of Canada’s Immigration and Refugee Protection Act (the “IRPA) defines a refugee as being a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries. A refugee also includes though who do not have a country of nationality, but who are outside of their country of former habitual residence, and, because of the same fear, are unwilling to return to that country. Refugee law is very complicated, and components of it are the subject of numerous blog posts on this website. In this post, I hope to cover some of the major jurisprudence involving the interpretation of IRPA s. 96. Past Persecution vs. A Future Fear It is important to understand that refugees need to have a forward looking fear of returning to their country of origin. The existence of past persecution will not create a rebuttal presumption that someone have a reasonable objective or subjective fear of persecution. In Fernandopulle v. Canada (Minister of Citizenship … Read More
Service Canada Officers Fettering Discretion
As I have previously written in this blog, there is an increasing number of judicial review applications being filed against Labour Market Impact Assessment (“LMIA”) refusals. There is also accordingly a growing jurisprudence on what constitutes the “fettering of discretion” in a LMIA assessment. Those who have experience submitting LMIA applications will know that this is not surprising. Paturel International Company v. Canada (Employment and Social Development), 2016 FC 541 (“Paturel“) In Paturel, an officer with the Department of Employment and Social Development (“ESDC“) refused an LMIA application simply because the employer’s job offer did not have a wage that met or exceeded the median wage on ESDC’s Working in Canada website. The Federal Court stated that: While the officer has broad discretion to rely on the data that he considered to be most representative of the prevailing wage in the region, I find that the officer’s sole reliance on EI data amounted to a fettering of his discretion. Justice O’Reilly went on to note that: Canadian immigration legislation does not stipulate that a failure to meet the prevailing wage, alone, would be sufficient to defeat an employer’s application; and Because the employer had provided evidence that the Working in Canada website … Read More
Inconsistent Applications
There is a slowly developing caselaw on the consequences of inconsistent applications. In Singh v. Canada, Justice Barnes determined that an officer could not refuse a permanent resident visa because the officer thought that a study permit had been improperly issued.
Borderlines Episode #14 – How to overcome systemic barriers in LGBTQ asylum claims, with Sharalyn Jordan
In this episode we discuss how to overcome systemic barriers in LGBTQ asylum claims. Much of this episode is dedicated to establishing how LGBTQ asylum claimants must prove their sexual identity during their refugee claim. How does someone from a country where being gay is illegal and who has been a closeted homosexual for their entire life prove that they are gay? What do Immigration and Refugee Board members expect? How can counsel assist? Finally, we discuss whether LGBTQ asylum claimants should even be required to prove their sexual orientation as part of their asylum claim. Sharalyn can be reached on Twitter @SharalynJordan Sharalyn Jordan is an Assistant Professor in the Faculty of Education at Simon Fraser University. She works with with community agencies that support LGBTQ and refugee mental health as they develop and assess their counselling practices and programs. Topics 1:13 – Sharalyn provides an overview of the history of how Canada’s immigration and refugee system has restricted the ability of LGBT people to relocate to Canada. 5:12 – Canada’s immigration and refugee system often requires that people prove their sexual orientation. How can LGBT people prove their orientation? 20:00 – Are there circumstances in which an … Read More
John McCallum – The Good, the Bad, and the Ugly
(As published in Policy Options) On January 10, 2017, Prime Minister Justin Trudeau appointed Ahmed Hussen as the minister of immigration, refugees and citizenship. Hussen replaced John McCallum, who had been the minister since November 4, 2015. This is the third time that I am weighing the good, the bad and the ugly about a Canadian immigration minister. It is in some ways the most difficult time, given that McCallum’s tenure was so short. My first assessment of an immigration minister was about Jason Kenney, who remains Canada’s longest-serving immigration minister, having held the role for 1,719 days. His successor, Chris Alexander, whom I also wrote about, led Canada’s immigration department for 826 days. John McCallum was Canada’s immigration minister for only 433 days. To some extent, the busy nature of McCallum’s tenure made up for its short duration. He was the first immigration minister in Trudeau’s Liberal majority government, which assumed power after an election campaign in which refugee and citizenship issues were prominent. Because McCallum had also been the Liberal immigration critic during Canada’s previous Conservative government, and had also served as a cabinet minister in previous Liberal governments, he was able to hit the ground running in … Read More
How many Judicial Reviews?
One of the confusing aspects of a judicial review practice is determining how many applications are needed. In Chambers v. Canada (Citizenship and Immigration), for example, the applicant filed one judicial review to seek review of i) an immigration Officer’s decision to prepare a report pursuant to subsection 44(1) of the Immigration and Refugee Protection Act (the “IRPA“) to the Minister of Public Safety and Emergency Preparedness’ delegate, (ii) the decision of the Minister’s delegate pursuant subsection 44(2) of the IRPA to refer the applicant, to an admissibility hearing before the Immigration Division of the Immigration and Refugee Board, and (iii) the decision of the Immigration and Refugee Board to order the applicant’s removal from Canada. The Department of Justice argued that this was improper. However, Justice Bell disagreed, writing that: The Applicant counters that this same issue was raised in Clare v Minister of Citizenship and Immigration, 2016 FC 545, [2016] FCJ no 513 [Clare]. In Clare, O’Reilly, J. disagreed with the Minister’s contention. He concluded that, “[w]hile it was open to Mr. Clare to seek judicial review of those other decisions, it was not necessary to do so in order to challenge the [Immigration Division’s] decision on admissibility”. While O’Reilly, J. acknowledged … Read More
Borderlines Episode #13 – Problems with the Safe Third Country Agreement and Interdiction, With Efrat Arbel
Efrat Arbel is Assistant Professor at the Allard School of Law at the University of British Columbia. She is an executive member of the Canadian Association of Refugee Lawyers. A list of Dr. Arbel’s recent publications can be found here. During this podcast we talk about three areas that Dr. Arbel has recently focused her research on. These include the distinction between physical borders and legal borders in the refugee context, how interdiction works, and the Safe Third Country Agreement. The Safe Third Country Agreement between Canada and the United States requires that persons seeking refugee protection must make a claim in the first country they arrive in unless they qualify for an exception to the Agreement. In other words, an asylum seeker who wishes to seek refugee status in Canada will typically be denied the ability to do so if they attempt to enter Canada by land from the United States. This episode was recorded before President Trump’s recent Executive Order imposed a moratorium on asylum claims in the United States. President Trump’s decision has only intensified and magnified many of the issues that Dr. Arbel discusses in this podcast. 1:43 – Dr. Arbel explains different concepts of what … Read More