In Chung v. Canada (Citizenship and Immigration), 2015 FC 1329, the Federal Court certified the following rather interesting question of general importance: Does the Immigration Appeal Division of the Immigration and Refugee Board, in the exercise of its humanitarian jurisdiction, err in law in considering adverse to an appellant lack of remorse for an offence for which the appellant has pled not guilty but was convicted? The issue of whether one should express remorse for a crime that they are adamant they did not commit frequently arises in the rehabilitation and humanitarian & compassionate context. Applicants who have criminal records frequently deny guilt, even when convicted, and even including when they entered into a plea bargain (which is perhaps not surprising given the leverage that the state has during plea bargaining). In Chung v. Canada (Citizenship and Immigration), 2015 FC 1329, the applicant argued that when an accused pleads not guilty, it is an error of law to consider lack of remorse as an aggravating factor for the purpose of sentencing, and that this principle should be extended to the immigration context. Justice Russell disagreed, stating that in the immigration context, the lack of remorse and failure to take responsibility for past crimes goes to … Read More
Who Can Be Sponsored
One of the questions that we are most frequently asked is which family members can be sponsored under Canada’s family reunification programs. Most people rightly assume that Canadian citizens and/or permanent residents can sponsor their spouses, children, and parents. However, many also wonder about sponsoring siblings, cousins, nieces, nephews, etc. Canada’s Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRPR“), provide that a Canadian citizen / permanent resident (the “Sponsor“) may sponsor the Sponsor’s spouse, common-law partner or conjugal partner. A “spouse” is the Sponsor’s husband or wife. A “common-law partner” is someone who the Sponsor has cohabited with in a conjugal relationship for a period of at least one year. A “conjugal partner” is someone who the Sponsor has been in a conjugal relationship with for a period of at least one year, but who for exceptional circumstances the Sponsor has neither been able to marry nor cohabit with. It most commonly applies to same-sex relationships where the couple is unable to cohabit or marry due to fear of persecution or penal control. IRPR also provides that a Sponsor may sponsor the Sponsor’s dependent child. A “dependent child” is a child who is the biological or adopted child of the Sponsor, and who is under the age … Read More
Five Reasons IRCC Rejects Express Entry Applications
Since January 1, 2015, almost all prospective economic immigrants to Canada must apply through Express Entry. Express Entry is an application intake management system in which Immigration, Refugees and Citizenship Canada (“IRCC”) controls immigration application intake by requiring applicants be issued an invitations to apply for permanent residency (“ITAs” before they can actually submit their applications. The purpose of Express Entry is to minimize processing times. Indeed, when Express Entry was launched IRCC guaranteed that it would be able to process permanent residence applications within six months. On March 31, 2016, IRCC released its Express Entry Year-End Report 2015 (the “Express Entry Report”). The Express Entry Report shows that IRCC in 2015 met its six-month processing goal. However, the Express Entry Report also revealed that IRCC has been bouncing (or rejecting, as IRCC likes to describe it) many Express Entry applications due to incompleteness. Prior to the introduction of Express Entry, while a bounced permanent residence application was frustrating for applicants, they could for the most part easily simply re-submit their applications. However, with Express Entry there is no guarantee that an individual whose permanent residence application is rejected for incompleteness will be issued another Invitation to Apply. As such, … Read More
Certified Questions After Kanthasamy
Section 74(d) of Canada’s Immigration and Refugee Protection Act provides that an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the Federal Court certifies that a serious question of general importance is involved and states the question. Certified questions have traditionally resolved divergent jurisprudence at the Federal Court, and have typically provided certainty on how immigration law is to be interpreted. However, as a result of recent Supreme Court of Canada decisions, this is changing. In Agraira v. Canada (Public Safety and Emergency Preparedness), the Supreme Court of Canada applied the reasonableness standard to answer the following certified question: When determining a ss. 34(2) application, must the Minister of Public Safety consider any specific factors in assessing whether a foreign national’s presence in Canada would be contrary to the national interest? The decision to not provide a definite answer caused some confusion at the Federal Court of Appeal, which declared in Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113, that: A decision made under the Act is subject to judicial review only if leave is granted by the Federal Court (subsection 72(1) of the Act). The Federal Court’s decision on the judicial review cannot be appealed unless the Federal … Read More
Overview of PRRA Changes
The purpose of this blog post is to provide an overview of the changes to Pre-Removal Risk Assessments (“PRRAs“) resulting from Bill C-31 which are now in effect. A PRRA is a paper application in which individuals can submit that they would be at risk of persecution, risk to life, or risk of cruel and unusual treatment or punishment if returned to their countries of origin. For most applicants, a positive determination results in the granting of refugee protection and the opportunity to apply for permanent residence as a protected person. Bill C-31, the Protecting Canada’s Immigration System Act, introduced several restrictions on the ability of people to apply for PRRA. One Year Bar A person may not apply for a PRRA if less than 12 months have passed since the Immigration and Refugee Board (“IRB“) rejected their refugee claim, or determined the claim to be abandoned or withdrawn. A person may also no longer apply for a PRRA if less than 12 months have passed since Citizenship and Immigration Canada (“CIC“) rejected the individuals previous PRRA application, or determined it to be withdrawn or abandoned. The above bars apply retroactively to PRRAs currently being processed. Applicants from certain countries are exempted … Read More
CBSA Memorandums of Understanding
Many people are curious as to what information various police and government departments share with the Canada Border Services Agency. Embedded below are the following documents: Memorandum of Understanding Between the Abbotsford Police Department and the Canada Border Services Agency Pacific Region Enforcement Centre Letter of Agreement for Immigration Detentions between the Canada Border Services Agency and BC Corrections Memorandum of Understanding between the Greater Vancouver Transportation Authority Police Service and the Canada Border Services Agency Pacific Region Enforcement Centre, including letter from Neil Dubord, Chief Officer, Transit Police dated 26 February 2015 terminating the MOU Memorandum of Understanding Between the Royal Canadian Mountain Police “E” Division and the Canada Border Services Agency Pacific Region Enforcement Centre Memorandum of Understanding Between the Vancouver Police Department and the Canada Border Services Agency Pacific Region Enforcement Centre
The 2016 Liberal Immigration Numbers
On March 8, 2016, John McCallum, the Minister of Immigration, Refugees and Citizenship Canada (“IRCC”) tabled the 2015 Annual Report to Parliament on Immigration (the “2015 IRCC Report”) It states that in 2016 Canada will welcome between 280,000 and 305,000 immigrants, with a target of 300,000. While this target if fulfilled would be Canada’s highest annual immigration number in over a century, not all immigration categories are being increased. The 2015 IRCC Report reveals that 2016 will be a good year for the spouses and common-law partners of Canadians. It also suggests that it will be a frustrating one for economic migrants, especially international graduates seeking to transition to permanent residency. Before proceeding, it is important to note that while IRCC in the 2015 IRCC Report released a detailed breakdown of immigration statistics to Canada in 2014, it did not publish data for 2015. As such, as of writing it is only possible to compare what the Liberal Government of Canada (the “Liberals”) is planning in 2016 with what the previous Conservative Government of Canada (the “Conservatives”) achieved in 2014, and what it planned in 2015. Economic Immigration Programs In 2016, Canada will accept between 54,000 to 58,400 immigrants in … Read More
Bill C-6 – How the Liberals are Changing Canadian Citizenship Law
On February 25, 2016, the Liberal Government of Canada introduced Bill C-6, An Act to Amend the Citizenship Act and to make consequential amendments to another Act (“Bill C-6”). Bill C-6 was highly anticipated as during the 2015 election campaign the Liberal Party of Canada (the “Liberals”) made repealing portions of the then Conservative Government of Canada’s Bill C-24, The Strengthening Canadian Citizenship Act, one of the key pillars of their election platform. Specifically, the Liberals promised to repeal the provisions of Bill C-24 that provided the Canadian government the ability to revoke the citizenship of certain citizens for national security concerns, to re-allow international students to count as half-days the time that they spent in Canada studying towards the residency requirement to apply for citizenship, and to eliminate the requirement that new Canadian citizens declare that they intend to reside in Canada. The overall theme that the Liberals stressed during the campaign was that they would make it easier for “hard-working” immigrants to become Canadian citizens. Bill C-6 goes beyond the Liberals’ specific promises listed above while remaining true to their campaign theme. Bill C-6 amends many additional aspects of Canada’s Citizenship Act, including reducing the time that it … Read More
LMIA Exemption for the Performing Arts Sector
On February 3, 2016, Immigration, Refugees and Citizenship Canada (“IRCC”, previously “CIC”) introduced new Labour Market Impact Assessment (“LMIA“) exemptions, and expanded the Business Visitors category for certain foreign nationals so that they may work in Canada without a work permit. The specific changes are: the introduction of a LMIA exemption for prospective foreign workers whose work is essential to a television or film production and would create and maintain significant economic benefits and opportunities to Canadians and permanent residents; the introduction of a LMIA exemption to prospective foreign workers working in dance, opera, orchestra and live theatre whose work contributes to competitive advantages and reciprocal benefits for all Canadians, including Canadian performing artists and performing arts organizations; and that foreign nationals who are employed as film producers, essential personnel for commercial (i.e,, advertising) shoots, and film and recording studio users may now be considered as Business Visitors. The LMIA exemptions described above take affect on February 17, 2016. The expansion to the Business Visitor category is effective immediately. Significant Benefit Guidelines As noted above, starting on February 17, 2016, an LMIA exemption will exist for prospective foreign workers whose work is essential to a television or film production … Read More
Abolish PR Cards and Implement a Residency Obligation Amnesty
Permanent residents of Canada are currently required to possess a Permanent Resident Card, commonly referred to as a “PR Card,” in order to board commercial transport to Canada. Processing times for new PR Cards currently exceed 100 days, and the Immigration, Refugees and Citizenship Canada (“IRCC”) Twitter account recently advised permanent residents seeking to renew their PR Cards to apply 9 months in advance of travel in order to avoid trip disruptions. Permanent residents are often left stranded abroad, or find themselves stuck in Canada unable to travel internationally, for months. The situation is untenable, and it is time for the Government of Canada to eliminate PR Cards, let permanent residents travel to Canada using the new Electronic Travel Authorization system, and implement a “residency obligation amnesty” until the government develops a better system to track entries and exits to and from Canada. This will focus on the impact of PR Card processing delays to those travelling by air to Canada, as this is where the issue is most pronounced. However, it is important to note that the PR Card requirement applies to all commercial transport to Canada, including air, boat, rail, and bus. The Residency Obligation When someone immigrates … Read More