On the 6th podcast episode, Dani Willetts joins Peter Edelmann and I to discuss the decision making process at Canada’s immigration department, her experience transitioning from a career working for CIC to being an immigration consultant, some recent cases impacting international graduates in particular with regards to the Post-Graduate Work Permit program, a recent Parliamentary report on the Temporary Foreign Worker Program, and the discovery that Canada has started negotiating an extradition treaty with China. Dani Willetts is an immigration consultant at TDWImmigration. From 1989 – 2012 she worked in numerous capacities with Canada’s immigration department, including as a Supervisor in Vancouver. First, using three recent cases as examples we discussed how Immigration, Refugees and Citizenship Canada officers view themselves. Do they see themselves as administering the Immigration and Refugee Protection Act or as administering Canadian immigration programs. Three recent cases from the Federal Court were used to guide our discussion. The first was Zhang v. Canada (Citizenship and Immigration), 2016 FC 964, where the Federal Court determined that a visa officer was correct when it determined that a person had engaged in unauthorized study in Canada while in Canada as a visitor. Ms. Zhang had arrived in Canada on a visitor’s visa on August 23, 2014, … Read More
Best Interests of the Child can Be Considered in Detention Reviews
The Canadian Council for Refugees (the “CCR“) has just distributed the following two PDFs to its followers. In brief, the Federal Court has issued an order saying that the best interests of non-detained children can be considered in detention reviews (e.g. of a parent who is accompanied in detention by a child who is in detention, but not legally detained). As copied from the CCR e-mail, the Order confirms that: the factors to be considered by the Immigration Division when deciding whether to detain or release are not limited to those enumerated under R. 248 of the Regulations; the Immigration Division has the jurisdiction to consider the interests of a child who is a Canadian at an immigration holding centre (i.e. residing there with her detained parent) even if that child is not under a detention order herself and therefore not directly subject to the Immigration Division’s jurisdiction; and the interests of a child may be taken into account (but are not a primary consideration) when determining whether a person is a flight risk. Also, according to the CCR, Canada Border Services Agency Hearings Officers have been instructed to bring this Order to the attention of Immigration Division members. The following instructions have also been provided to officers.
Immediate Measures Are Needed to Help International Graduates Stay in Canada
John McCallum, Canada’s Minister of Immigration, Refugees and Citizenship Canada (“IRCC”), has spent much of the summer conducting a speaking tour about upcoming changes to Canada’s immigration system. He has particularly focused on how he wants to welcome more international students as permanent residents. This will be a welcome development, because so far Minister McCallum’s tenure as immigration minister has been a disaster for international graduates whose post graduate work permits have already or are soon expiring. Mr. McCallum’s March 2016 cuts to Canada’s economic immigration levels have resulted in IRCC’s Comprehensive Ranking System’s points requirement for foreign nationals to receive an Invitation to Apply for Canadian permanent residency remaining out of reach for most international graduates. Minister McCallum has promised that improvements are coming in the fall, although the details are vague. Given that the Minister recognises that the current situation is untenable, it is incomprehensible why he has not introduced temporary measures to alleviate the frustration and dashed dreams that many international graduates living in Canada are experiencing, if they have not already had to return home. Mr. McCallum’s decision to not introduce temporary measures is especially galling given how simple and easy to implement they could have been. Express Entry … Read More
Can the Federal Court Order Continued Detention
The Federal Court in Canada (Public Safety and Emergency Preparedness) v. Lunyamila has certified the following question of general importance: Does the Federal Court have jurisdiction to usurp the jurisdiction of the Immigration Division of the Immigration and Refugee Board of Canada to order the release of the detainee pursuant to the Immigration and Refugee Protection Act, SC 2001, c 27, by ordering that the detainee shall remain in detention until further Court order? The timeline giving rise to the question was as follows: 5 January 2016 Mr. Lunyamila is ordered released from detention. The very same day the Minister applied for leave and judicial review under docket number IMM-63-16 and obtained an interim stay from Madam Justice Simpson. 8 January 2016 Mr. Justice Shore extended the interim stay to 19 January as a transcript of the hearing was not yet available. 20 January 2016 Mr. Justice Shore granted an interlocutory stay. While he noted that there would be another 30-day review upcoming and that the case might possibly be heard on an expedited basis he stayed the release “until the application for leave and judicial review is determined on the merits.” 2 February 2016 Mr. Lunyamila was again ordered released … Read More
The Constitutionality of the PRRA Bar
The Federal Court has certified numerous questions regarding the constitutionality of s. 112(2)(b.1) of the Immigration and Refugee Protection Act, which in essence provides that a person may not apply for a Pre-Removal Risk Assessment (“PRRA”) if they were previously a refugee claimant until 12 months have passed since their refugee hearing, or 36 months in the case of people from designated countries of origin. In Peter v. Canada (Public Safety and Emergency Preparedness), 2014 FC 1073, Justice Annis certified the following two questions: Does the prohibition contained in section 112(2)(b.1) of the Immigration and Refugee Protection Act against bringing a Pre-Removal Risk Assessment application until 12 months have passed since the claim for refugee protection was last rejected infringe section 7 of the Charter? If not, does the present removals process, employed within 12 months of a refugee claim being last rejected, when determining whether to defer removal at the request of an unsuccessful refugee claimant for the purpose of permitting a Pre-Removal Risk Assessment application to be advanced, infringe section 7 of the Charter? In Atawnah v. Canada (Public Safety and Emergency Preparedness), 2015 FC 774, Madam Justice Mactavish certified the following additional question: Does the prohibition contained in section 112(2)(b.1) of … Read More
The Preclearance Act, 2016
On June 17, 2016, Ralph Goodale, the Minister of Public Safety and Emergency Preparedness, introduced Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United states (short titled the “Preclearance Act, 2016”). Amongst other things, the Preclearance Act, 2016 provides for the creation of preclearance areas and perimeters in the United States by Canadian officers of travellers and goods bound for Canada. Canadians who have travelled by air to the United States during the last several years will be familiar with the concept of preclearance, as the United States already has preclearance areas at most major Canadian airports. There, passengers travelling to the United States clear customs at Canadian airports. When the passengers arrive at American airports, they disembark at domestic terminals, and do not have to again clear customs. The Preclearance Act, 2016 will allow Canada to set up preclearance areas and perimeters in the United States, and will allow the Canada Border Services Agency (“CBSA”) officials to exercise their powers under the Immigration and Refugee Protection Act in preclearance areas and preclearance perimeters whose locations will be agreed upon between the United States and Canada. Both Canada and the United States have … Read More
“Country of Origin” in the Refugee Context
Section 96 of the Immigration and Refugee Protection Act (“IRPA“) provides that: Convention refugee 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. There has recently been disagreement within the Federal Court over what the term “countries of nationality” encompasses, and on May 11, 2015, Justice Mosely certified the following question: Do the expressions “countries of nationality” and “country of nationality” in Section 96 of the Immigration and Refugee Protection Act include a country where the claimant is a citizen but where he may face impediments in exercising the rights and privileges which attach to citizenship, such as the right to obtain a passport? The Federal Court of Appeal has previously addressed the issue of the definition of “countries … Read More
Polygamy and Canadian Immigration
Polygamous marriages are not legal in Canada and are an offence under the criminal code. Regulation 117(9)(c)(i) of the Immigration and Refugee Protection Regulations provides that a spouse is not a member of the family class if the spouse or sponsor was already married to another person at the time of the subsequent marriage. Canadian immigration law prohibits a second wife from being recognized as a spouse within the family class and provides that only the first marriage may be recognized for immigration purposes. Recognizing First Marriage For the first marriage to be recognized, the couple must live together in a monogamous marriage in Canada. Canadian common law imparts that a polygamous marriage can be converted into a monogamous marriage provided that the couple live together in a monogamous relationship from the time of arrival in Canada. This can be demonstrated if the couple states their intention to convert their marriage to a monogamous one, followed by some factual evidence that they have complied. Departmental Report In March 2014, a paper was prepared for the Admissibility Branch of Citizenship and Immigration Canada titled “Polygamy and Immigration.” Although it is now two years old, it is useful reading for anyone looking … Read More
Remorse in the Rehabilitation Context
In Chung v. Canada (Citizenship and Immigration), 2015 FC 1329, the Federal Court certified the following rather interesting question of general importance: Does the Immigration Appeal Division of the Immigration and Refugee Board, in the exercise of its humanitarian jurisdiction, err in law in considering adverse to an appellant lack of remorse for an offence for which the appellant has pled not guilty but was convicted? The issue of whether one should express remorse for a crime that they are adamant they did not commit frequently arises in the rehabilitation and humanitarian & compassionate context. Applicants who have criminal records frequently deny guilt, even when convicted, and even including when they entered into a plea bargain (which is perhaps not surprising given the leverage that the state has during plea bargaining). In Chung v. Canada (Citizenship and Immigration), 2015 FC 1329, the applicant argued that when an accused pleads not guilty, it is an error of law to consider lack of remorse as an aggravating factor for the purpose of sentencing, and that this principle should be extended to the immigration context. Justice Russell disagreed, stating that in the immigration context, the lack of remorse and failure to take responsibility for past crimes goes to … Read More
Five Reasons IRCC Rejects Express Entry Applications
Since January 1, 2015, almost all prospective economic immigrants to Canada must apply through Express Entry. Express Entry is an application intake management system in which Immigration, Refugees and Citizenship Canada (“IRCC”) controls immigration application intake by requiring applicants be issued an invitations to apply for permanent residency (“ITAs” before they can actually submit their applications. The purpose of Express Entry is to minimize processing times. Indeed, when Express Entry was launched IRCC guaranteed that it would be able to process permanent residence applications within six months. On March 31, 2016, IRCC released its Express Entry Year-End Report 2015 (the “Express Entry Report”). The Express Entry Report shows that IRCC in 2015 met its six-month processing goal. However, the Express Entry Report also revealed that IRCC has been bouncing (or rejecting, as IRCC likes to describe it) many Express Entry applications due to incompleteness. Prior to the introduction of Express Entry, while a bounced permanent residence application was frustrating for applicants, they could for the most part easily simply re-submit their applications. However, with Express Entry there is no guarantee that an individual whose permanent residence application is rejected for incompleteness will be issued another Invitation to Apply. As such, … Read More