The Saskatchewan Queen’s Bench (the “Court“) in Kaberwal v. Saskatchewan (Economy), 2013 SKQB 244 has released a decision clarifying the procedural fairness owed by provincial nomination programs to immigration representatives accused of fraud. To the best of my knowledge, it is the first decision on this issue. The Facts of the Case On December 31, 2012, Saskatchewan’s Ministry of Economy, Immigration Services (the “Ministry“) suspended an immigration consultant’s (the “Consultant“) right to submit applications to the Saskatchewan Immigration Nominee Program (“SINP“) for a period of two years. SINP officials accused the Consultant of fabricating job offers for employers who informed SINP that they never saw or signed the job offers that the Consultant submitted to SINP without their knowledge. The Ministry sent the Consultant a letter which, amongst other things, stated the following: We have reviewed seven job offers from Saskarc Industries that you submitted on behalf of seven applicants that have you listed as the third party representative. Part of the review of the application includes verifying the validity of the documents and information included in the application. As a representative, you have signed and agreed to the Saskatchewan Immigrant Nominee Program (SINP)’s Code of Conduct for Representatives which states that … Read More
Five Things I hope Jason Kenney Brings to the HRSDC Temporary Foreign Worker Program
On July 15, 2013, Prime Minister Stephen Harper shuffled his cabinet. From an immigration perspective, the important changes are: Steven Blaney replaces a retiring Vic Toews as the Minister of Public Safety and Emergency Preparedness. Chris Alexander replaces Jason Kenney as the Minister of Citizenship and Immigration. Jason Kenney replaces Diane Finley as the Minister of Employment and Social Development (formerly Human Resources and Skills Development Canada). The Ministry of Employment and Social Development is a huge ministry, responsible for developing, managing, and delivering social programs and services. In addition to overseeing the Labour Market Opinion aspect of the Temporary Foreign Worker Program, Minister Kenney will also be responsible for Employment Insurance, the Canada Student Loans, the Canada Pension Plan, Old Age Security, the national Homelessness Initiative, and more. He will be managing the delivery of over $87-billion in programs and services, and will oversee approximately 24,000 employees. In hindsight, Jason Kenney’s appointment to be Minister of Employment and Social Development is not that surprising. On April 29, 2013, he gave a press conference regarding changes to the Labour Market Opinion program. More recently, he gave Service Canada the power to issue what are in effect Ministerial Instructions, and he recently introduced regulatory amendments providing the … Read More
Partial Returns of Money under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act
The Government of Canada through the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, c 17 (the “PCMLTFA“), has enacted measures to increase the detection of money associated to the proceeds of crime at Ports of Entry. Part 2 of the PCMLTFA imposes on obligation on every person to report the importation or exportation of currency or monetary instruments of an equal value to or greater than the prescribed threshold of CAD $10,000. While there is no limitation on the total amount of currency or monetary instruments that may be brought into or taken out of Canada, every person has to report any amount exceeding $10,000. The Canada Border Services Agency (“CBSA“) may then question person regarding the possession of the currency. Levels of Seizure and Penalty CBSA officers who believe on reasonable grounds that the reporting requirement of the PCMLTFA has been violated may seize as forfeit currency or monetary instruments, and impose the prescribed penalty as terms of release. The Customs Enforcement Manual provides that the following terms of release are to be offered: Level 1 – $250 Where a person has not concealed the currency or monetary instruments; Where a person has made … Read More
HIV and Immigrating to Canada
Under the Immigration and Refugee Protection Act, all foreign nationals applying for permanent residency, and certain foreign nationals applying for temporary residency, are requested to undergo an immigration medical examination (“IME“) to determine if they are inadmissible on health grounds. A person will be inadmissible to Canada on health grounds if they are a danger to public health, a danger to public safety, or if they are likely to pose an excessive demand on the health and social services (“Excessive Demand“). The current policies on HIV testing exist because Citizenship and Immigration Canada (“CIC“) determined that people with HIV may pose a danger to public health. As well, based on CIC health data, migrants have at least 10 times the risk of being infected with HIV compared to the Canadian population. Finally, several high profile cases involving permanent residents who were criminally convicted for not informing their sponsor partners about their HIV positive status led to negative publicity for CIC. Indeed, the first Canadian convicted of first degree murder for having transmitted HIV to two persons who subsequently died from HIV was a former refugee. Notwithstanding the above, since CIC began introducing mandatory HIV testing in 2002, the key reason has been Excessive … Read More
The Jurisdiction of the IAD in Considering Procedural Fairness in 117(9)(d) Cases
On April 25, I blogged about how the Federal Court had certified the following question involving s. 117(9)(d) of the Immigration and Refugee Protection Regulations (“R179(9)(d)”): In light of sections 72(2)(a), 63(1) and 65 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and the case of Somodi v. Canada (Minister of Citizenship and Immigration), 2009 FCA 288 (CanLII), [2010] 4 F.C.R. 26 (F.C.A.), where the applicant has made a family class sponsorship application and requested humanitarian and compassionate considerations within the application, is the applicant precluded from seeking judicial review by the Federal Court before exhausting their right of appeal to the Immigration Appeal Division where the right of appeal is limited pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227? On June 11, 2013, in Fang v. Canada (Citizenship and Immigration) (“Fang“), VB2-00332, Member Mattu of the Immigration Appeal Division (the “IAD“) issued a decision which raises similarly broad issues. Andrew Wlodyka, the appellant’s counsel, has informed me that an Application for Leave to Commence Judicial Review is currently underway, as confirmed here, and I wouldn’t be surprised if the litigation resulted in a certified question. The issue is whether the IAD has the jurisdiction to determine whether an officer breached procedural fairness in determining humanitarian … Read More
Agraria
Agraria v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 This is a Supreme Court of Canada decision so there is much to take from it, and I will barely be able to begin to scratch the surface in this post. Mr. Agraria submitted an IRPA s. 34(2) application for ministerial relief in 2002. The Minister of Public Safety and Emergency Preparedness refused this application in 2009, concluding that it was not in the national interest to admit individuals to Canada who had had sustained contact with known terrorists and/or terrorist-connected organizations. Mr. Agraria’s role in the organization was apparently to engage people in political discourse, deliver envelops, and raise funds. The Canada Border Services Agency actually recommended to then Minister that he admit Mr. Agraria, as, in their words: He appears to have been a regular member who did not occupy a position of trust or authority within the LNSF. He does not appear to have been totally committed to the LNSF specifically as he indicated to the immigration officer at CIC Oshawa that he would support anyone who tried to rmeove the current regime in Libya through non-violent means. The Minister overruled his Department, and determined that … Read More
Bill C-43 Comes into Force
In June 2012 I wrote about how the Conservative government had introduced Bill C-43, the Faster Removal of Foreign Criminals Act (“Bill C-43“). Amongst other things, Bill C-43 increases the penalties for misrepresentation, removes appeal rights for permanent residents who are sentenced to a length of imprisonment of six months or more, gives the Minister of Citizenship and Immigration Canada the power to let otherwise inadmissible people to Canada into the country based on his discretion, and prohibits visa officers from considering humanitarian & compassionate factors in certain scenarios. On June 19, 2013, Bill C-43 received Royal Assent. Citizenship and Immigration Canada (“CIC“) has now begun rolling out Operational Bulletins to instruct visa officers of its implications. Operational Bulletin 532 – Coming into Force of Bill C-43 – Inadmissibility on Security Grounds (“OB-532”) Subsection 34(1)(a) of the Immigration and Refugee Protection Act (“IRPA“) previously provided that a permanent resident or a foreign national is inadmissible to Canada on security grounds for: engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada IRPA 34(1)(a) has been reworded to provide that a permanent resident or a foreign national is inadmissible to Canada … Read More
RIMBits Revealed (July 2010)
The following are some excerpts from the July 2010 RIMbits. RIMbits are messages sent from National Headquarters to missions overseas. The July 2010 RIMbits on admissibility consisted of eight questions and answers or bulletins. I have reproduced three of them for free below. Please note that the questions and answers below should not be viewed as legal advice. Rather, they are simply reproductions of how CIC senior management answered specific questions from visa offices in July 2010. Canadian citizen Visiting Forces Act applicant Q. We ask for your opinion on the process for a Canadian dual citizen and his family who wish to enter Canada under the Act on Visiting Forces at the request of the ________ government. The applicant and spouse currently have official _____ passports. The sons, also dual citizens, have an ordinary ____ passports stating “son of government agent.” With what documentation should the applicant and his sons travel? Obtaining proof of Canadian citizenship for the children could take 14-16 months. Also, the spouse has no status in Canada. The Foreign Worker Guide indicates that dependents of people who are in Canada under the Visiting Forces Act qualify for an open work permit. As the spouse of … Read More
RIMbits Revealed (June 2010)
The following are some excerpts from the June 2010 RIMbits. RIMbits are messages sent from National Headquarters to missions overseas. The June 2010 RIMbits on admissibility consisted of six questions and answers. I have reproduced two of them for free below. Please note that the questions and answers below should not be viewed as legal advice. Rather, they are simply reproductions of how CIC senior management answered specific questions from visa offices in May 2010. Appeals Allowed and Resumption of Examination Q. Our FC1 case went to appeal at the IAD and was allowed. The decision states that the Panel is disgusted with the behaviour of the appellant and the applicant and that their behaviour cries out for further investigation, but it is not within the mandate of this panel to carry out such an exercise. In light of this written comment in the decision, we would like to know if we can re examine and refuse the application as a marriage of convenience. We originally refused under A40(1)(a). A. When the application for admission of a member of the family class is refused, the sponsor may appeal to the IAD on either legal or humanitarian grounds. Since the refusal … Read More
RIMbits Revealed (May 2010)
The following are some excerpts from the May 2010 RIMbits. RIMbits are messages sent from National Headquarters to missions overseas. The May 2010 RIMbits on admissibility consisted of seven questions and answers. I have reproduced three of them for free below. Please note that the questions and answers below should not be viewed as legal advice. Rather, they are simply reproductions of how CIC senior management answered specific questions from visa offices in May 2010. Seized Travel Document Q) We were notified by the authorities that a permanent resident travelling on a Canadian travel document has been charged with: (1) ______ (2) _____ and (3) _____. According to local authorities, the permanent resident has been released on bail with the condition that she surrender her travel document and that “Stop Orders” are placed with the Immigration exit controls at airports. We have been formally requested not to issue a new travel document to this permanent resident “until the matters have been disposed.” As the charged person is not a Canadian, the Consular Section has referred this case to us. Although she has not done so at this point, it is possible that in the near future, this permanent resident … Read More