On June 5, 2015, the appellants in Elham Fathy Elsayed Ismail et al v. Minister of Citizenship and Immigration, A-203-15, discontinued their appeal of the Federal Court’s decision in Ismail v. Canada (Citizenship and Immigration), 2015 FC 338 (“Ismail“). This is unfortunate because the question that Justice de Montigny certified needs to be answered. That question was:
For the purposes of determining its jurisdiction to hear an appeal pursuant to subsection 63(2) of the IRPA, shall the validity of the permanent resident visa be assessed by the IAD at the time of arrival in Canada or at the time the exclusion order is made?
The question is important because it addresses a growing tendency of the Canada Border Services Agency (“CBSA“) to defer the examination of foreign nationals possessing permanent resident visas seeking to become permanent residents where CBSA suspects that the foreign nationals may not be admissible to Canada, rather than preparing an inadmissibility report. During the deferral period, the CBSA will then contact Citizenship and Immigration Canada (“CIC”), who, often without providing the prospective permanent resident with any notice, cancel the permanent resident visa. CBSA can then deny entry to Canada on the basis that the person does not have a valid permanent resident visa rather than for the underlying possible inadmissibility. Many immigration practitioners have suspected that the reason for this is to prevent the prospective permanent resident from having a right of appeal to the Immigration Appeal Division (the “IAD“).
The Federal Court’s decision in Ismail in my opinion raised more questions than it answered, and it is unfortunate that the question will remain murky until the question is again certified in the future.Read more ›
The following article appeared in the August edition of The Canadian Immigrant.
In June 2015, the United States Supreme Court in Obergefell v. Hodges required that all U.S. states license marriages between two people of the same sex, essentially legalizing same-sex marriage in America. Two years before, the United States Supreme Court in United States v. Windsor ended the disparate treatment of same-sex and opposite-sex couples in matters of immigration.
The two United States Supreme Court decisions will likely result in American immigration policy more closely resembling that in Canada, where same-sex marriage has been legal since July 20, 2005.
In Canada, people in same-sex and opposite-sex relationships have three options to sponsor their partner from abroad; they can either apply as spouses, common-law partners or conjugal partners.
Three partnership options
The spouse category is straightforward, and applies to anyone who was legally married, provided that both parties to the marriage are over the age of 16, and that both parties voluntarily entered the marriage and had the capacity to do so. There are specific exceptions to this, including marriages conducted through proxy, telephone, internet and fax, as well as polygamous and bigamous marriages.
The common-law partner category requires people in relationships who have not married to have cohabited together for at least one year in a conjugal relationship. It requires continuous cohabitation for one year, not intermittent cohabitation adding up to one year. While cohabitation means living together continuously, short periods of separation due to work, business travel, family obligations, etc., are permitted. After the one-year period of cohabitation has been established, the partners may live apart for periods of time without legally breaking the cohabitation, provided that there is evidence that both parties are continuing the relationship.Read more ›
I have previously written about the upcoming Supreme Court of Canada decision in Jeyakannan Kanthasamy v. Minister of Citizenship and Immigration in which the Supreme Court will address the following question:
What is the scope of the humanitarian & compassionate discretion in s. 25 of theImmigration and Refugee Protection Act: is it limited to cases of “unusual and undeserved, or disproportionate hardship”, reserved for exceptional cases, and restricted by requiring that the hardship be ‘personalized’ or that the person’s establishment be greater than what would ordinarily be expected?
The Federal Court recently certified a question of general importance which shows both how restrictive the current principles of humanitarian & compassionate considerations can be, as well as why the Federal Court feels that such an approach is necessary.
Joseph v. Canada
In Joseph v. Canada (Citizenship and Immigration), 2015 FC 661, the Federal court certified the following three questions:
1) Is evidence of kidnapping and similar violent criminal conduct relevant to a hardship analysis under section 25 of the Immigration and Refugee Protection Act?
2) Is it incorrect or unreasonable to require, as part of an H&C, analysis that an applicant establish that the circumstances of hardship that he or she will face on removal are not those generally faced by others in their country of origin?
3) If the answer to question 2) is no, can the conditions in the country of origin support a reasoned inference as to the challenges any applicant would face on return to his or her country of origin, and thereby provide an evidentiary foundation for a meaningful, individualized analysis of hardships that will affect the applicant personally and directly as required by Kanthasamy v Canada (Citizenship and Immigration),Read more ›
On April 16, 2015, the Supreme Court of Canada announced that it was reserving its decision in Jeyakannan Kanthasamy v. Minister of Citizenship and Immigration (“Kanthasamy”). When it is released, Kanthasamy may be the most significant immigration decision since Baker v. Canada (Minister of Citizenship and Immigration).
As noted in the Appellant’s factum, the issue that the Supreme Court of Canada will be addressing is:
What is the scope of the humanitarian & compassionate discretion in s. 25 of the Immigration and Refugee Protection Act: is it limited to cases of “unusual and undeserved, or disproportionate hardship”, reserved for exceptional cases, and restricted by requiring that the hardship be ‘personalized’ or that the person’s establishment be greater than what would ordinarily be expected?
As any immigration practitioner can confirm, if the Supreme Court of Canada broadens the current restrictive interpretation of humanitarian & compassionate considerations under s. 25 of the Immigration and Refugee Protection Act (“IRPA“) it would cause a monumental shift in the processing of immigration applications.
The Federal Court of Appeal Decision
In Kanthasamy v. Canada (Citizenship and Immigration), 2013 FC 802, the Federal Court certified the following question of general importance.
What is the nature of the risk, if any, to be assessed with respect to humanitarian and compassionate considerations under section 25 of IRPA, as amended by the Balanced Refugee Reform Act?
The Federal Court of Appeal answered as follows:
Matters such as well-founded fear of persecution, risk to life, and risk of cruel and unusual treatment or punishment – factors under sections 96 and 97 – may not be considered under subsection 25(1) by virtue of subsection 25(1.3).Read more ›
On August 1, 2015, the Government of Canada launched the Electronic Travel Authorization (“eTA”) program. The program is similar to the United States of America’s Electronic System for Travel Authorization. Implementation of the eTA program will allow Canada to pre-screen eTA-required travellers to ensure that they are admissible to Canada.
As of March 15, 2016, most foreign nationals who are exempt from the requirement to obtain a Temporary Resident Visa (“TRV“) to enter Canada will be required to obtain an eTA before they travel to Canada by air. A list of countries and territories whose citizens will need an eTA to travel to Canada can be found here. As such, it will no longer be the case that residents of these countries can simply purchase tickets and board planes to travel to Canada. Rather, an individual will be unable to board a commercial airline to Canada unless the airline first confirms that the individual possesses an eTA through the Canada Border Services Agency’s new Interactive Advance Passenger Information system.
Americans are exempted from the requirement to obtain an eTA.
The eTA is an online application on the Citizenship and Immigration Canada (“CIC“) website. Applicants will need to provide their passport details, personal details, contact information, and answer background questions regarding their health, criminal history, and travel history. CIC anticipates that it will automatically process most eTA applications within minutes. When an eTA application cannot be automatically approved, it will be referred to a CIC officer for a manual review. Officers can request additional documents, and, where required, further the application to a Canadian visa office abroad for further processing, including a possible interview.
The eTA will be valid for five years or until the applicant’s passport expires, whichever occurs sooner.Read more ›
The Federal Court in Yu v. Canada has certified the following question of general importance:
Does the one-child policy, when, in fact, executed by a State qualify as one of “persecution” as interpreted by the Refugee Convention, if, and when, a couple would want to have, have conceived, or have more than one child?
If the Federal Court of Appeal answers in the affirmative, the implications for refugee claimants from the People’s Republic of China will be significant.
Read more ›
In the increasingly growing area of Labour Market Impact Assessment judicial review the question of whether officers are fettering their discretion by overly relying on operational guidelines is arising. To me a more interesting question is whether officers being told that they cannot make decisions without first consulting Business Expertise Consultants is more interesting. Consider the situation below, as obtained through an Access to Information Act request.
It is clear that in this case the officer wanted to approve the Transition Plan exemption request. However, the Business Expertise Consultant recommended that the officer refrain from doing so. In the fettering of discretion scenario, the following questions need to be asked:
- If a program officer went against the recommendation of a Team Leader and a Business Expertise Consultant, what would be the consequences?
- If program officers are administrative tribunals who are purportedly experts in the administration of their home statute, then why do they need to defer to Business Expertise Consultants and Team Leaders?
- How often do program officers ignore the recommendations of Team Leaders and Business Expertise Consultants?
- What other areas in an LMIA application do program officers have to rely on Team Leaders and Business Expertise Consultants for?
Read more ›
The following article appeared in the July edition of The Canadian Immigrant.Read more ›
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 the Immigration and Refugee Protection Act against bringing a Pre-Removal Risk Assessment application until 36 months have passed since the claim for refugee protection was abandoned, violate section 7 of the Charter?
Section 7 of the Canadian Charter of Rights and Freedoms, s. 7, Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 states that:
Everyone has the right to life,Read more ›
A few weeks ago we received through an Access to Information Act request several copies of internal policy guidance. I’ve reproduced what I found to be the most surprising one below.
The fact that employers are needing to recruit foreign workers because the permanent residents and/or Canadian citizens who are applying don’t speak either English or French is rather troubling, to say the least.
Read more ›
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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