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The Safe Third Country Agreement

Section 103(2) of the Immigration and Refugee Protection Act (the “IRPA”) states that the Government of Canada can designate countries that it determines comply with international standards relating to the treatment of refugees as safe third countries. Section 101(1)(e) further states that refugee claimaints coming to Canada from these designated safe third countries cannot have their asylum claims heard in Canada.

Regulation 159.3 of the Immigration and Refugee Protection Regulations (the (“IRPR”) designates the United States as being a safe third party.

The Safe Third Country Concept

Under the safe third country concept in refugee law, claims for asylum may be rejected on the basis that the claimant should have sought protection in a country other than where the claim was made. An underlying objective of this concept is to deter asylum shopping.

The Safe Third Country Agreement

The Agreement between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries (the “Safe Third Country Agreement”) came into effect on December 29, 2004.

The Safe Third Country Agreement contains several objectives, including the orderly handling of asylum applications, ehanced burden sharing and avoiding the direct or indirect breaches of the principle of non-refoulement.

Under the Safe Third Country Agreement, refugee claimants arriving from the United States at a Canadian land border port of entry cannot seek protection in Canada. Instead, they are sent back to the United States, it being the first “safe country” in which they arrived.

There are exceptions to this. Canada retains responsibility for determining the refugee status of claimants arriving from the United States in the following scenarios:

where the claimant has family members in Canada and the family member is a Canadian citizen,

Res Judicata

Res judicata is a legal principle which means “a matter already judged.”

Pursuant to the Supreme Court of Canada’s decision in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, there is a three part test for determining whether res judicata applies, as follows:

the same question has been decided earlier in the proceedings;
the prior decision that is said to create the estoppen must have been final; and
the parties (or their representatives) to the prior decision must be the same as the parties to the proceedings in which the doctrine of issue estoppel is being raised.

In Penner v Niagara (Regional Police Services Board), 2013 SCC 19, the Supreme Court further held that even if the pre-conditions are met there is a residual discretion to not apply the doctrine where it is in the interests of justice to deal with the matter on its merits as well as where there is decisive new evidence that was not previously available.

When stating the test it is important to note that issue estoppel is trigerred when the same issue is being re-litigated regardless of whether or not the same facts are before the decision-maker. New evidence is relevant to the second step of the analysis.

Finally, where issue estoppel applies it prevents a subsequent decision-maker, at whatever level, from re-considering the issue. For example, issue estoppel could apply to prevent the Immigration Appeal Division from considering a matter that had previously been determined by the Immigration Division, except of course in situations of direct appeals.

There are two areas in which res judicata typically arises in the immigration context.

» Read more about: Res Judicata »

Permanent Resident Travel Documents

Since December 31, 2003, Canadian permanent residents have been required to have either a Permanet Resident Card (a “PR Card“), or a permanent resident travel document (a “PRTD“) to return to Canada aboard a commercial carrier. A PR Card is a “status document” whereas a PRTD is a “travel document.”

The PR card is the preferred document as it is the official proof of permanent resident status of Canada. Permanent residents who do not have a PR Card, are outside of Canada, and wish to travel commercially back to Canada will need to apply for a PRTD before they can board a flight back to Canada. Without proof of permanent resident status, the Canada Border Services Agency’s Interactive Advance Passenger Information system will impede the permanent resident’s ability to board the airplane to Canada. This is because s. 31(2)(b) of the Immigration and Refugee Protection Act states that a permanent resident abroad without a PR Card is presumed to not be a permanent resident.

However, if they apply to a Canadian visa office, permanent residents outside of Canada who do not have valid PR Cards may be issued PRTDs to facilitate their return to Canada. Immigration, Refugees and Citizenship Canada (“IRCC”) will only issue PRTDs if they are satisfied that the permanent resident complies with the permanent resident residency obligation or if sufficient humanitarian & compassionate grounds apply.

The refusal of a PRTD can result in the loss of permanent resident status, and can trigger appeal rights to the Immigration Appeal Division. It is important to note that the grounds of such a loss of permanent residence are the failure to comply with the residency obligation and not general non-compliance.

In certain situations an individual can receive a one-year PR Card if their application for a PRTD is refused and they have an appeal at the Immigration Appeal Division.

Applications for Extension of Authorization to Remain in Canada as a Temporary Resident

Regulation 181(1) of the Immigration and Refugee Protection Regulations provides that a foreign national may apply for an extension of their authorization to remain in Canada as a temporary resident if:

the application is made by the end of the period authorized for their stay; and
they ahve complied with conditions imposed on their entry to Canada.

Regulation 181(2) further states that an officer shall extend the foreign national’s authorization to remain in Canada as a temporary resident if it is established that the foreign national will leave Canada by the end of the period authorized for their stay, holds a passport and is not inadmissible to Canada.

Factors

There are many factors that immigration officers will consider in assessing whether to extend someone’s status in Canada. These include:

What is the individual doing in Canada?
How long has the individual been in Canada?
How long is the extension request for?
Do they have a valid job offer? If so, are they able to perform the work?
What activities has the individual done during their time in Canada?
Are they earning enough to support themselves?
Can someone else provide adequate support?
Does the individual have the means and ability to either return to their home country or to proceed onward to a third country?
Has the original purpose of the visit been fulfiled?
Is the proposed extension logical, reasonable and feasible in light of the person’s circumstances?
What ties does the person have to their home country?

The Bangladesh Nationalist Party

According to the CBSA, between January 1, 2015 and June 30, 2016 Bangladesh became the top source country for individuals found inadmissible to Canada under IRPA s. 34. The issue involves membership in the Bangladesh Nationalist Party (the “BNP“) or its main political ally, the Jamaat-e-Islami (“Jamaat“). While not designated by Public Safety Canada as terrorist entities, some members of the BNP and Jamaat, through, have, according to CBSA, shown that they qualify as being a member of an organisation that there are reasonable grounds to believe engages, has engaged in or will engage in acts or instigate the subversion by force of a government or terrorism.

The BNP

According to Wikipedia, the BNP is one of the contemporary political parties of Bangladesh. It was founded on 1 September 1978 by former Bangladesh President Ziaur Rahman after the Presidential election of 1978, with a view to uniting the people with nationalist ideology of the country. The party holds the ideology of Bangladeshi nationalism as its core concept and adopted a 19-point program which declared that “The sovereignty and independence of Bangladesh, golden fruits of the historic liberation struggle, is our sacred trust and inviolable right”. The founding manifesto of the BNP claims that the people of Bangladesh want to “…see that all-out faith and confidence in the almighty Allah, democracy, nationalism and socialism of social and economic justice are reflected in all spheres of national life”. BNP and its student wing was the driving force in the 1990 uprising against the autocratic Ershad rule that culminated in the fall of the regime and the restoration of democracy in Bangladesh.

In 2012, supporters of the BNP and Jamaat took to the streets to portest the ruling Awami League’s decision to annul the care-taker government system,

Home Child-Care Provider Pilot and Home Support Worker Pilot

On June 18, 2019 Canada launched the Home Child-Care Provider Pilot and Home Support Worker Pilot.

The Home Child-Care Provider Pilot and Home Support Worker Pilot are 2 economic pilot programs targeted to foreign national caregivers who:

have a job offer or Canadian work experience in an eligible caregiver occupation; and
meet minimum education and language proficiency requirements.

The ability to be a foreign caregiver in Canada has largely been restricted to these two programs as the Department of Employment and Social Development Canada has issued Ministerial Instructions refusing to process Labour Market Impact Assessments for caregivers.

Application Caps

A maximum of 2,750 complete applications will be processed per year in each pilot.

Applicants with 24 Months or more of Eligible Experience

Applicants with 24 months or more of eligible Canadian work experience must satisfy the following criteria:

meet the minimum language requirements of Canadian Language Benchmark 5 in Listening, Reading, Speaking and Writing;
meet the minimum education requirements of having either a Canadian one-year post secondary (or higher) educational credential or a foreign educational credential that is equivalent to a completed one-year Canadian post-secondary (or higher) educational credential;
meet the work experience requirement; and
be admissible to Canada.

Eligible Canadian experience must be full-time work of at least 30 hours per week in the following applications:

Home Child-Care Providers (except for foster parents);
Home Support Workers.

Housekeepers and related occupations are not eligible to apply.

Canadian work experience does not need to be continuous to qualify, but the period of 24 months of required employment does not include

any extended absence from Canada (including any time worked for an employer outside Canada);

Temporary Resident Permits

On June 28, 2019 Immigration, Refugees and Citizenship Canada substantially changed the guidance that it provides to officers regarding the issuance of Temporary Resident Permits (“TRPs“). The biggest change was the removal of the statement that TRPs could not be issued for administrative convenience.

People who do not meet the requirements of the Immigration and Refugee Protection Act (the “IRPA“), and most commonly people who are criminally inadmissible to Canada and who are not eligible to apply for rehabilitation, require TRPs in order to enter or remain in Canada.

The Safe Third Country Agreement

Res Judicata

Permanent Resident Travel Documents

Applications for Extension of Authorization to Remain in Canada as a Temporary Resident

The Bangladesh Nationalist Party

Home Child-Care Provider Pilot and Home Support Worker Pilot

Temporary Resident Permits

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