The Federal Court has certified what might be the most important (and least discussed) issue in Canadian immigration law. In Qin v. Canada, the Court asked:
What standard of review is applicable to a visa officer’s interpretation of the Immigration and Refugee Protection Regulations, SOR/2002-227 and to the officer’s assessment of an application under the Immigration and Refugee Protection Regulations, SOR/2002-227?
The answer to this question will have profound implications regarding the certainty applicants can have when they submit applications, and when counsel provide immigration advice. If the answer is the correctness standard, then a visa officer’s interpretation of the law will either be correct or not. If the answer is the reasonableness standard, then the courts will show considerable deference to how individual visa officers interpret the law, and it is possible that many different, acceptable interpretations of the same law will emerge.
I have previously blogged on the difficulty that citizenship applicants face when determining what constitutes “residency” for the purpose of meeting the “three years out of four” rule. If the Federal Court of Appeal answers that the reasonableness standard applies to a visa officer’s interpretation of the Regulations, then it is possible that this confusion will spread to other area of immigration law.
As the chart below demonstrates, while the Supreme Court of Canada has been moving towards the reasonableness standard in most administrative law contexts, the Federal Court of Appeal has so far resisted abandoning the correctness standard in the immigration context.
Case Name
Year
Court
Finding
Quote
Hilewitz v. Canada (Minister of Citizenship and Immigration)
2005
SCC
Correctness
The parties are in agreement that correctness is the applicable standard for reviewing the visa officers’ decisions in these appeals. » Read more about: Certified Question on the Standard of Review for Visa Officers Interpreting The Law (Updated March 25, 2013) »
Generally, if an applicant in Canada whose request to the Canada Border Services Agency to defer removal is unsuccessful, and the individual then wants to obtain a judicial stay of removal, the appropriate forum is the Federal Court of Canada. In Anthonipillai v. Minister of Public Safety and Emergency Preparedness, 2013 ONSC 1231, the appellant unsuccessfully sought a stay of removal in Federal Court. He then took the rather novel approaching of trying again in Ontario Superior Court (the “ONSJ“).
In dismissing the application, the ONSJ noted that the Supreme Court of Canada has declared that Canada’s Parliament has created a “comprehensive scheme for the review of immigration matters, with the Federal Court as an effective and appropriate forum.” Justice Goldstein also found that Federal Court judges are better equipped than provincial court justices to deal with the complex area of immigration law, as Federal Court judges deal with immigration issues on a daily basis.
As such, unless an applicant raises a constitutional matter, the Federal Court has the exclusive jurisdiction to issue remedies regarding the decisions of visa and border officers. Even where there is a constitutional issue, a provincial or superior court is unlikely to rule favourably with an applicant sidesteps the Federal Court because he dislikes the jurisprudence of the Federal Court. Justice Goldstein cited the Ontario Court of Appeal (“OCA“) decision in Francis (Litigation Guardian) v. Attorney General of Canada, where the OCA noted that:
The appellants’ contention that the Federal Court is not an appropriate or effective court comes down to the submission that the Federal Court’s interpretation of the interests of the child in the context of the deportation of a parent has effectively denied the existence of the constitutional rights relied on by the appellants.
» Read more about: Applying for a Stay of Removal in Superior Court »
Read more ›In 2011, 1,108 people were declared inadmissible to Canada when they arrived at the Vancouver International Airport. The following chart obtained through an Access to Information and Privacy Act request shows these individuals’ source countries.
The top 10 countries were:
Citizenship
2011
United States
247
South Korea
137
Hungary
83
China
72
Taiwan
49
British
40
Australia
35
Iran
30
Hong Kong
26
India
26
Japan
26
Germany
20
Mexico
19 » Read more about: Top Source Countries for A44 Reports at YVR »
Many people entering Canada find themselves at customs being constantly referred to secondary examination. There, they are often told by the Canada Border Services Agency (“CBSA“) that their referral to secondary examination was the mandatory result of an enforcement flag being on their file.
Referral to secondary examination is time consuming. Unnecessary referrals are a burden on both travellers and CBSA. Because of this, CBSA was traditionally quite facilitative when it came to individuals requesting that an enforcement flag on their file be removed. As a supervisor from the CBSA explained to me in an e-mail, enforcement flag removal works as follows:
The flag removal process doesn’t delete information, it merely closes the connection between the immigration database and the integrated system on the primary inspection line on that specific client. The process is not visible to the naked eye – I use this analogy:
You get a lamp for a wedding present from “her” mom. You hate it. It’s a motion sensor lamp and it is hardwired into the wall. You can’t get rid of it, you can’t unplug it, you can’t take the light bulb out but you want the thing to stop lighting up every time you walk by. So, you unscrew the light bulb just enough that it doesn’t make contact. It’s still there, it’s still safe but it won’t ever light up again.
That’s what the flag removal does… we leave everything in place, but alter it slightly so that when the client shows up at the primary line, his name doesn’t light up!
As evidenced from the above e-mail, individuals could traditionally e-mail the CBSA directly to ask that the enforcement flag be removed. The CBSA almost always responded favourably within 48 hours. It was excellent customer service.
» Read more about: Enforcement Flag Removal Policy Change »
Read more ›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 liability, and the marked departure required for criminal fault is a matter of degree. The trier of fact must identify how and in what way the departure from the standard goes markedlybeyond mere carelessness.
Accordingly, the actus reus of s. 249 of the Criminal Code is driving in a manner that is dangerous to the public,
» Read more about: Supreme Court Clarifies Dangerous Driving Law »
Read more ›Is a foreign national inadmissible for misrepresenting a material fact if at the time of filing his/her application for permanent residence or at the time of granting permanent residence he/she had no knowledge of the material fact that constituted such misrepresentation?
In essence, the Federal Court of Canada has determined that misrepresentation is similar to a strict liability offence, in which there is a “reasonableness” (or “due diligence”) defence.
An Overview of the Rule
In Jiang v Canada(Minister of Citizenship and Immigration), Justice Russell stated that:
With respect to inadmissibility based on misrepresentation, this Court has already given section 40 a broad and robust interpretation. In Khan, above, Justice O’Keefe held that the wording of the Act must be respected and section 40 should be given the broad interpretation that its wording demands. He went on to hold that section 40 applies where an applicant adopts a misrepresentation but then clarifies it prior to a decision. In Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059, this Court held that section 40 applies to an applicant where the misrepresentation was made by another party to the application and the applicant had no knowledge of it. The Court stated that an initial reading of section 40 would not support this interpretation but that the section should be interpreted in this manner to prevent an absurd result.
In Baro v Canada (Minister of Citizenship and Immigration), the Court further held that:
Even an innocent failure to provide material information can result in a finding of inadmissibility; for example, an applicant who fails to include all of her children in her application may be inadmissible: Bickin v.
» Read more about: The “Innocent Mistake” Defence to Misrepresentation »
Read more ›Over the last several years, the Supreme Court of Canada has released numerous administrative law decisions where it found that the reasonableness standard of review should replace other standards. On March 22nd 2012, in Dore v. Burraeu du Quebec, 2012 SCC 12, the Court extended this trend to proclaiming that the reasonableness standard should replace the Oakes test when determining whether an administrative tribunal’s action which limited a right under Canada’s Charter of Rights and Freedoms could nonetheless withstand s. 1 analysis.
Section 1 analysis refers to the judicial process of determining whether a government’s breach (or limitation) of a Charter right is nonetheless constitutional pursuant to s. 1 of the Charter, which states that:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
In 1985, the Supreme Court of Canada created the Oakes test for determining whether a Charter breach is reasonable and justifiable in a free and democratic society. The Oakes test first involves determining whether the government’s limitation of a Charter right is the result of a pressing and substantial objective. If it is, then the government must demonstrate that the means to achieve its objective are proportional. Proportionality requires that:
- The means be rationally connected to the government’s pressing and substantial objective;
- That the means to achieve the objective involve a minimal impairment of Charter rights; and
- There must be proportionality between the infringement and the objective.
As the Court noted in Dore,
» Read more about: SCC Replaces the Oakes Test with the Reasonableness Standard »
Read more ›Does the Immigration and Refugee Board (“IRB”) violate the provisions of section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) if it declines to postpone a hearing based on risk to life where there is a pending humanitarian and compassionate application also based on risk to life?
The above question was certified by the Federal Court in Laidlow v. Canada, 2012 FC 144, released today. The Federal Court of Appeal will soon answer the question.
The facts in Laidlow giving rise to the question were essentially that an individual had a pending H&C claim which was based on risk to life (availability of medical treatment reasons) at the time that he appeared for his refugee hearing. He asked that the refugee hearing be adjourned until the H&C application was determined. The IRB refused to do so, and heard the refugee claim, which was dismissed.
The Court’s answer to the question was that refusing to adjourn the hearing did not breach section 7 of the Charter. Relying on Poshteh v. Canada, [2005] 3 FCR 487, and Gosselin v. Quebec (Attorney General of Canada), [2005] 4 SCR 429, the Court articulated the following principles:
- A finding of inadmissibility does not engage an individual’s section 7 Charter rights. The reason is because a number of proceedings may take place before an individual reaches the stage at which his deportation from Canada may occur.
- Section 7 does not place upon the state a positive obligation to ensure that each persons enjoys life, liberty or security of the person. Rather, it restricts the state’s ability to deprive people of these.
Considering that the jurisprudence is fairly settled on the first point,
» Read more about: Certified Question on Section 7 Charter Rights »
Read more ›I was recently asked where one can learn how to request that an “enforcement flag” against them be removed so that an individual does not have to go to a secondary examination every time they enter Canada.
This is actually a question that comes up rather frequently, so for all those who are interested, here is the relevant section from the Immigration, Refugees and Citizenship Canada Manual:
There are other ways to remove enforcement flags where the procedure outlined above is not working.
» Read more about: Removing Flags at the Port of Entry »
Read more ›The following is a table that shows the Immigration Appeal Division inventory as of September 30, 2011. As of that date, there were 11,828 cases pending. In Western Canada, a disproportionate majority involved sponsorship appeals. I like to think that Peter Larlee and Vivian Yuen, lawyers with our firm, represented individuals on a disproportionately high number of those appeals.
Type of Appeal
East
Central
West
Total
#
%
#
%
#
%
Removal Order
1,351
43
2,163
34
570
24
4,084
Sponsorship
1,446
46
3,453
55
1,500
64
6,399
Residency Appeal
336
11
713
11
270
11
1319
Minister Appeals
10
0.3
4
0
12
0.5
26
Total
3,143
6,333
2,352
11,828 » Read more about: Current Immigration Appeal Division Inventory »
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Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
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