Borderlines Podcast Episode #46 – An Interview with Sergio Marchi, Canada’s Immigration Minister from 1993-1995

19th Feb 2021 Comments Off on Borderlines Podcast Episode #46 – An Interview with Sergio Marchi, Canada’s Immigration Minister from 1993-1995

Sergio Marchi was Canada’s Minister of Citizenship and Immigration from 1993-1995.

Borderlines · #46 – An Interview with Sergio Marchi, Canada’s Immigration Minister from 1993-1995

3:00 – Does someone keep the Minister title their whole life?

4:50 – What was the political consensus regarding Canadian immigration at the end of the 1980s? How did the Reform Party impact things?

8:00 – The mix of immigrants between economic, family and humanitarian immigrants.

11:15 – What dictates whether IRCC meets its level targets?

14:30 – The Brian Mulroney government was considering moving immigration under Public Safety. Under Sergio Marchi it instead became it’s on Ministry. What prompted this?

17:30 – Canadian attitudes to refugee resettlements and misconceptions.

20:45 – Sources of resistance to refugee resettlement. Resettled refugees vs asylum seekers.

23:00 – Changes that Minister Marchi made to the refugee determination process.

25:00 – What was Minister Marchi’s approach to intervening on specific cases? When would Minister Marchi help Members of Parliament on constituent files? Did it matter which political party the MP was from?

32:00 – The impact of a police officer who was shot by an illegal immigrant on deportation policy.

36:00 – Whether the Canada Border Services Agency should be under the immigration umbrella.

37:30 – What Minister Marchi considers to be his main accomplishments and the implementation of the right of landing fee.

45:00 – Minister Marchi’s push to remove the Queen from the citizenship oath.

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Borderlines Podcast Episode 45 – Spousal Sponsorship Delays and Refusals, with Chantal Dube and Syed Farhan Ali

19th Feb 2021 Comments Off on Borderlines Podcast Episode 45 – Spousal Sponsorship Delays and Refusals, with Chantal Dube and Syed Farhan Ali

Syed Farhan Ali shares his Canadian immigration story. During the time that his spousal sponsorship application was in process he was denied temporary entry to Canada, missed the birth of his first child and missed her first steps. He recently arrived in Canada after a three year application process.

Chantal Dube is a Spokesperson for Spousal Sponsorship Advocates, a group with more than 5,000 members in Canada that argues for reforms to the family reunification process.

 

Borderlines · #45 – Spousal Sponsorship Delays and Refusals, with Chantal Dube and Syed Farhan Ali

3:15 Said tells the story of his spousal sponsorship application. His application took 34 months to process. During the processing of his application Canada denied his visitor visa applications. He missed the birth of his children and their first steps, although he was able to reunite with his wife during brief trips to the United States, which did grant him a visitor visa.

21:00 We discuss the refusal of temporary resident visas for people with spousal sponsorship applications in process, people with frequent travel histories, people with American multiple entry visas, and judicial reviews.

25:00 How long a judicial review takes.

29:50 Assessing genuineness in a spousal sponsorship application, and the distinction between “low risk and high risk” in the checklists.

33:00 The strange quirk in the Family Class where people have to prove that their relationship is genuine but immigrants and foreign workers do not. The same is true for work permits, where the spouses of Canadians cannot apply for work permits from abroad, but the spouses of foreign workers can.

38:00 What are major issues that Sponsorship Advocates seeing?

39:45 What things can trigger genuineness concerns?  » Read more about: Borderlines Podcast Episode 45 – Spousal Sponsorship Delays and Refusals, with Chantal Dube and Syed Farhan Ali  »

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Delays in Claiming Asylum

15th Feb 2021 Comments Off on Delays in Claiming Asylum

The Federal Court decision in Calderon Garcia v. Canada (Citizenship and Immigration), 2012 FC 412 sets out the legal principles regarding a delay in claiming asylum. It states:

The Applicants assert that the Board erred in rejecting their claim based solely on the delay in claiming and a lack of supporting documentation. However, this position is not supported by the Board’s decision or related jurisprudence.

Delay in making a refugee claim “is not a decisive factor in itself” but it is a “relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant” (Huerta v Canada (Minister of Employment and Immigration) (1993), 157 NR 225, [1993] FCJ no 271 (CA)). It is reasonable to expect that the Applicants would make a claim at the first possible opportunity (see Jeune v Canada (Minister of Citizenship and Immigration), 2009 FC 835, [2009] FCJ no 965 at para 15).

Recent jurisprudence also suggests that while the delay itself is not determinative, it “may, in the right circumstances, constitute sufficient grounds upon which to dismiss a claim” (Duarte v Canada (Minister of Citizenship and Immigration), 2003 FC 988, [2003] FCJ no 1259 at para 14). Absent a satisfactory explanation for the delay, it “can be fatal to such claim, even where the credibility of an applicant’s claims has not otherwise been challenged” (Velez v Canada (Minister of Citizenship and Immigration), 2010 FC 923, [2011] FCJ no 1138 at para 28).

While the Board implied that the nineteen month delay in this instance would be fatal to the claims, it proceeded to raise several other issues associated with the Applicants’ credibility, notably evasive testimony and the lack of corroborating documents. It is evident from the remainder of the decision that the delay was a significant factor,

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Applying for a Permit When Country Conditions Are Not Good

15th Feb 2021 Comments Off on Applying for a Permit When Country Conditions Are Not Good

It is generally regarded as difficult for people who are from countries with bad home country conditions to apply for permits.  Hamad v. Canada (Citizenship and Immigration), 2012 FC 336 is an example of how to put together an application that can overcome these issues.

Background

When he applied, Mr. Hamad lived in Benghazi, Libya, with Ms. Mahmoud and their four children who were all under the age of ten.  They were all Libyan citizens.  In 2011, Mr. Hamad applied to study in Canada at George Brown College in a business administration-accounting program.

Mr. Hamad had two brothers living in Libya.  His third brother was a Canadian citizen who lived in Toronto and who testified that he was committed to supporting and financially assisting his brother’s family during their stay in Canada.  Mr. Hamad had previously traveled to Egypt, and in his application stated that he had visited his brother in Canada in 1991, on a visitor’s visa valid from January 24, 1991 to July 23, 1991, and that he left Canada before the expiry date.

The family had no debts, had a home, an orchard and a well in Libya.  Mr. Hamad also owned a transport truck and an interest in a building supply store.  He was the Head of Teaching Staff Human Resources, Faculty of Agriculture, Garyounis University in Benghazi, and his wife was a teacher.  Both of them arranged for leaves of absence from their jobs while in Canada.

Refusal

IRCC refused the application.  The refusal was because the officer was not satisfied that the family would return to Libya after their visit.  In reaching this view, the officer examined their travel history; their purpose for the visit; family ties in Egypt,

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Inadmissibility for Being a Danger to Canada

9th Feb 2021 Comments Off on Inadmissibility for Being a Danger to Canada

Section 34(1)(d) of the Immigration and Refugee Protection Act (the “IRPA”) provides that a permanent resident or a foreign national is inadmissible on security grounds for being a danger to the security of Canada.

Standard of Proof

Section 33 of the IRPA provides that the facts which can give rise to an inadmissibility under IRPA s. 34(1)(d) include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.

In Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, the Supreme Court of Canada stated that the “reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities and that reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information.

Requirements

In Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, the Supreme Court stated:

While the phrase “danger to the security of Canada” must be interpreted flexibly, and while courts need not insist on direct proof that the danger targets Canada specifically, the fact remains that to return (refouler) a refugee under s. 53(1)(b) to torture requires evidence of a serious threat to national security.  To suggest that something less than serious threats founded on evidence would suffice to deport a refugee to torture would be to condone unconstitutional application of the Immigration Act.  Insofar as possible, statutes must be interpreted to conform to the Constitution. 

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Statistics on Asylum Claimants

6th Feb 2021 Comments Off on Statistics on Asylum Claimants

Last updated on February 14th, 2021

In this page I will be posting assorted statistics on asylum claims that I find interesting.

1) In 2010 the rate of asylum claimants claiming social assistance was 84% in Ontario, 79% in Quebec, 57% in BC, and 48% in BC.

2) Interesting chart showing asylum claimants based on country of citizenship and province of claim in 2013-14.

3) Charts Showing the Increase in Claims from Nigeria

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Extensions of Time and Judicial Review

29th Jan 2021 Comments Off on Extensions of Time and Judicial Review

Section 72(2)(b) of the Immigration and Refugee Protection Act provides that a judicial review shall be filed within 15 days of a matter arising in Canada and 60 days on a matter arising outside of Canada.

Rule 6(2) of the Citizenship, Immigration and Refugee Protection Rules, S.O.R./93‑22 provides that a request for an extension of time shall be determined at the same time, and on the same materials, as the application for leave.

In Singh v. Canada (Citizenship and Immigration), 2021 FC 93, Justice Bell affirmed that extension request determinations should not be left to the judicial review but rather addressed at leave.  He further noted:

Having expressed my opinion regarding the approach to be employed, I will, nonetheless, decide the question of the extension of time. Time limits have a purpose. One of their clear purposes is to ensure evidence does not go stale. Another is undoubtedly, to ensure defendants or respondents can know with some degree of certainty the extent of potential claims outstanding against them. Given these and other considerations, the Courts have developed an objective and balanced approach to when motions for extensions of time will be granted. Generally, the moving party must demonstrate: a) a continuing intention to pursue the application; b) that the application has some merit; c) that no prejudice arises from the delay; and d) that a reasonable explanation for the delay exists. The underlying principle is that justice, according to law, must be done: Grewal v. Canada (Minister of Employment and Immigration), [1985] 2 FC 263 (FCA), 63 N.R. 106; Patel v. Canada (MCI), 2011 FC 670, [2011] F.C.J. No. 860 at para.12; Semenduev v. Canada, [1997] F.C.J.

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Refusal to Process a Labour Market Impact Assessment

24th Jan 2021 Comments Off on Refusal to Process a Labour Market Impact Assessment

A Labour Market Impact Assessment (a “LMIA“) is an assessment by the Department of Employment and Social Development Canada (“ESDC“) that the hiring of a foreign worker will have a positive, neutral or negative impact on Canada’s labour market.

An LMIA is often a requirement to hire a foreign worker.

There are certain situations in which ESDC will refuse to issue a LMIA. This effectively precludes employers from utilizing the Temporary Foreign Worker Program (the “TFWP“).

The Sex Industry 

Regulations 183(b.1) and 196.1 of the Immigration and Refugee Protection Regulations (the “IRPR”) provides that temporary residents are prohibited from entering into an employment agreement, or extending the term of an employment agreement, with an employer who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages.

Regulation 200(3)(g.1) of the IRPR further provides that work permits cannot be issued to workers who intend to work for employers who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages.

Because of this, ESDC will not issue LMIAs to employers who regularly offer services in the sex industry (striptease, erotic dance, escort services or erotic massage).

Ineligilibity List

Employers who hire temporary workers may be inspected to make sure  they meet their responsibilities as an employer under the Temporary Foreign Worker Program or International Mobility Program. If an employer is found non-compliant, they can receive either a monetary penalty or a ban from hiring temporary workers for a specified period of time.

As such, ESDC will not issue LMIAs to employers who are on the Immigration, Refugees and Citizenship Canada ineligibility list which includes employers who:

  • have been found non-compliant as result of an employer compliance review
  • have been banned from the Temporary Foreign Worker Program because non-compliance was discovered during an inspection
  • are in default of payment of an administrative monetary penalty.

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Joint Submissions at the Immigration Appeal Division

13th Jan 2021 Comments Off on Joint Submissions at the Immigration Appeal Division

It is not uncommon for the Canada Border Services Agency (“CBSA”) to consent to an Immigration Appeal Division (the “IAD”) appeal, and for the applicant and CBSA to make joint submissions.

On occassion, the IAD will not accept the joint submissions.

There are also occassions where the IAD may signal, either expressly or impliedly that a certain matter is not at issue, while it in fact may be or become an issue.

The jurisprudence on this is as follows.

In Velauthar v Canada (Minister of Employment and Immigration), [1992] FCJ No 425 (CA), a panel advised counsel before submissions that the only issue was whether the persecution the claimant feared was based on a Convention ground. This implied that credibility was not in issue, so the parties did not address credibility in their submissions. The Federal Court of Appeal found it to be a “gross denial of natural justice” for the panel to then make an adverse determination on grounds of credibility.”  The Federal Court of Canada has applied Velauthar in cases where a tribunal directly or by implication gave the misleading impression that a matter or issue was resolved.

At the same time, the Federal Court of Canada in Fong v Canada (Public Safety and Emergency Preparedness), 2010 FC 1134, ruled that the IAD is entitled to reject a joint submission so long as it provides reasons for so doing and if hte process was procedurally fair.  However, the IAD must give serious consideration to the joint submission.  Several Federal Court decisions have compared joint submissions at the IAD with joint submissions in criminal sentencing.

In Grewal v. Canada (Citizenship and Immigration),

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LMIA Working Conditions

12th Jan 2021 Comments Off on LMIA Working Conditions

The Temporary Foreign Worker Manual states the following about working conditions.

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