“Does the Immigration Appeal Division have an obligation to determine the genuineness of a marriage on a de novo appeal from a removal order on the basis of a misrepresentation, when the genuineness of the marriage was the misrepresentation alleged in the subsection 44(1) report and was relevant to a determination by the IAD of whether the person concerned made the misrepresentation in issue before it?” This was the question before the Federal Court of Appeal in Canada (Citizenship and Immigration) v. Peirovdinnabi, 2010 FCA 267. In answering it, the Court reflected on the nature of a de novo hearing. The matter pertained to an individual whose application for permanent residence on humanitarian and compassionate grounds was granted, in part because of the applicant’s marriage at the time. The application was approved despite the fact that the applicant’s ex-spouse approached immigration authorities advising them that the marriage was a sham entered into solely for immigration purposes. Shortly thereafter, the applicant applied to sponsor a spouse. This got the attention of immigration authorities, who made a s. 44(1) report to the effect that the applicant was inadmissible for having made a misrepresentation in his H&C application, and that the marriage was … Read More
Considering the Evidence in its Entirety
One of the most common reasons for seeking judicial review is because of concerns that a tribunal did not consider an applicant’s evidence in its entirety. Relevant Documents Must be Considered or Mentioned Federal Court of Canada jurisprudence is clear that when assessing the credibility of an individual, tribunals have to consider and assess all of the evidence, both oral and documentary, and not just selected portions of it. As the Federal Court of Appeal noted in Stelco Inc. v. British Steel Canada Inc. a tribunal must explain its conclusion on those issues that are of central importance to the decision. It is not necessary, however, for tribunals to quote from the evidence in its reasons. In Gourenko v. Canada (Minister of Citizenship and Immigration), the Court established the criteria of whether a piece of evidence is relevant to an important matter. The Court stated: In my view, a document need only be mentioned in a decision if, first of all, the document is timely, in the sense that it bears on the relevant time period. Secondly, it must be prepared by a reputable, independent author who is in a position to be the most reliable source of information. Thirdly, it seems … Read More
Staying Removal at the IAD
People issued removal orders often want to know how long they can stay in Canada before they have to leave, and if there is a chance to defer removal.
Mootness
The doctrine of mootness is an aspect of a general policy that a court may decline to decide a case which raises merely a hypothetical or abstract question. It applies when the decision of a court will not have the effect of resolving a live controversy which affects or may affect the rights of the parties.
Supreme Court Clarifies Dangerous Driving Law
The Supreme Court of Canada in 2012 clarified the law regarding what constitutes dangerous driving under the Criminal Code. The decision, R v. Roy, has implications for people who may be inadmissible to Canada for criminality. Indeed, in Jolly v. Canada (Citizenship and Immigration), the Federal Court of Canada affirmed that it will be a reviewable error if visa officers do not assess criminal equivalency for dangerous driving based on the mens rea standard articulated in Roy. Section 249 of the Criminal Code provides that: 249. (1) Every one commits an offence who operates (a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place; In R v. Roy, the Supreme Court noted that (emphasis added): It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established. Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy. The distinction between a mere departure, which may support civil … Read More
Showing that the Visa Officer or IRB Member or CBSA Officer Was Biased
Many individuals think that either a visa officer, a Canada Border Services Agency (“CBSA“) officer or an Immigration and Refugee Board member is biased against them. This is not an argument to make lightly. Test for Bias In Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 2 (SCC), [1978] 1 SCR 369, the Supreme Court of Canada held that in order for an individual to demonstrate that a government decision maker is biased, then: the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. [T]hat test is “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly. As well, the Supreme Court of Canada has also noted that: Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since … Read More
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 … Read More
COVID-19 and Canadian Immigration
In response to the COVID-19 pandemic, the Canadian government has implemented several measures that impact immigration programs and the ability to enter Canada. These include: Prohibiting Symptomatic Individuals from Entering Canada Restricting who can Travel to Canada from the United States of America Restricting who can Travel to Canada Internationally Masks During Travel and Self-Isolation Upon Arrival into Canada Suspending the Processing of Certain Temporary Residence Applications Providing Flexibility for Students Introducing new Rules for Employers of Foreign Workers Introducing a new Ground of Inadmissibility for Failure to Self-Isolate Not Returning Incomplete Permanent Residence Applications Suspending the Collection of Biometrics Suspending Immigration and Refugee Board Hearings Suspending Federal Court Timelines Please note that the Canadian government is expected to amend its policies as needed in the coming weeks and months and as such we ask that you contact us for advice before relying on the information provided in this memo. Note also that validity of these orders may be extended or cancelled at any time. PROHIBITING SYMPTOMATIC INDIVIDUALS FROM ENTERING CANADA On April 17, 2020 Transport Canada enacted Interim Order to Prevent Certain Persons from Boarding Flights to Canada due to COVID-19, No. 6. It provides that any persons exhibiting … Read More
Federal Court Rules on Galloway Inadmissibility
The Federal Court has released its decision on the legality of the “decision” to prohibit former British MP George Galloway from entering Canada for having committed terrorism or been a member of a terrorist organization.
Judicial Review Success Rates on Refugee Matters based on the Judge
Sean Rehaag, an Associate Professor at Osgoode Hall Law School, has published a paper titled Judicial Review of Refugee Determinations (II): Revisiting the Luck of the Draw. Its Abstract states: This article updates an earlier empirical study of decision-making in the refugee law context in Canada’s Federal Court. The initial study found that outcomes in Federal Court applications for judicial review of refugee determinations depended all too often on the luck of the draw – on which judge decided the case. Since the initial study was released, the Federal Court has adopted measures to address variations in grant rates across judges. Drawing on data collected from over 33,000 online Federal Court dockets from 2008 to 2016, the article examines whether those measures have been successful and what further reforms should be pursued. Some of the charts contained within are fascinating, and show the following. 1) The number of applications for leave to commence judicial review in refugee matters has been steadily declining since 2012. 2) The % of leave applications being granted has increased from just under 20% from 2008-2012 to just under 30%. 3) The % of successful judicial review applications, not including those that settle, has increased from under 10% … Read More