Section 96 of the Immigration and Refugee Protection Act (“IRPA“) provides that:
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 of nationality” in the IRPA s. 96 context when in Williams v. Canada (“Williams”) it answered the following certified question in the affirmative:
Does the expression “countries of nationality” of section 96 of the Immigration and Refugee Protection Act include a country where the claimant can obtain citizenship if, in order to obtain it, he must first renounce the citizenship of another country and he is not prepared to do so?
In Williams the Federal Court of Appeal ruled that whether the citizenship of another country was obtained at birth,Read more ›
Last updated on April 27th, 2019
Section 37of the Immigration and Refugee Protection Act (the “IRPA“) provides that a permanent resident or foreign national is inadmissible to Canada for organized criminality. It states:
37. (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for
(a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or
(b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime.
(2) Paragraph (1)(a) does not lead to a determination of inadmissibility by reason only of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity.
Immigration, Refugees and Citizenship Canada (“IRCC“) in 2010 created a useful internal document summarizing the jurisprudence on the interpretation of this section, and I have reproduced it below.
Please note that what I have reproduced below should not be viewed as legal advice. I obtained a copy of this internal Citizenship and Immigration Canada training guide through an Access to Information Act request (the “ATI”). The reproduction of question and answer has not occurred with the affiliation of the Government of Canada,Read more ›
On June 11, 2015, John McCallum, the Member of Parliament for Markham — Unionville, and a member of the Liberal caucus, introduced Bill C-690, An Act to amend the Immigration and Refugee Protection Act (live-in caregiver). Its short form is the Live-in Caregiver Access, Respect and Employment Act. Considering how close Mr. McCallum introduced Bill C-690 prior to the upcoming federal election, Bill C-690’s provisions will presumably form part of the Liberal Party of Canada‘s election platform.
Bill C-690 is short, and its substantive portion would introduce a new s. 32(d.11) into the Immigration and Refugee Protection Act (“IRPA”) so that s. 32 of IRPA would read:
32. The regulations may provide for any matter relating to the application of sections 27 to 31, may define, for the purposes of this Act, the terms used in those sections, and may include provisions respecting
(d) the conditions that must or may be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals, including conditions respecting work or study;
(d.1) the conditions that must or may be imposed, individually or by class, on individuals and entities — including employers and educational institutions — in respect of permanent residents and foreign nationals, or that must or may be varied or cancelled;
(d.11) for the purposes of paragraph (d.1), the restriction of the right to enter into an employment contract with a foreign national who is a member of the live-in caregiver class to entities authorized to do so by permit, and the issuance, renewal and revocation of such permits;
The summary for Bill C-690 states:
This enactment amends the Immigration and Refugee Protection Act to provide for the making of regulations requiring that the employer of a foreign national who is a member of the live-in caregiver class be an entity holding a permit authorizing it to enter into an employment contract with such a foreign national.Read more ›
On November 5, 2014, the Leader of the Government in the Senate introduced Bill S-7, An Act to amend the Immigration and Refugee Protection Act, the Civil Marriage Act and the Criminal Code and to make consequential amendments to other Acts, otherwise known as the Zero Tolerance for Barbaric Cultural Practices Act (“Bill S-7“).
Bill S-7 has mainly received media attention because of its arguably inflammatory title. The actual significant impacts for prospective immigrants and practitioners are:
Practising polygamy does not result in a foreign national or permanent resident being inadmissible to Canada.
A permanent resident or a foreign national is inadmissible on grounds of practising polygamy if they are or will be practising polygamy with a person who is or will be physically present in Canada at the same time as the permanent resident or foreign national.
Marriage requires the free and enlightened consent of two persons to be the spouse of each other.
No person who is under the age of 16 years may contract marriage.
There will be a new offence that everyone who celebrates, aids or participates in a marriage rite or ceremony knowing that one of the persons being married is marrying against their will is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
There will be a new offence that everyone who celebrates, aids or participates in a marriage rite or ceremony knowing that one of the persons being married is under the age of 16 years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
A judge may order a person to enter into a recognizance with conditions to keep the peace and be of good behaviour for the purpose of preventing the person from committing an offence relating to the marriage of a person against their will or the marriage of a person under the age of 16 years or relating to the removal of a child from Canada with the intention of committing an act that, » Read more about: Bill S-7 – The Zero Tolerance for barbaric Cultural Practices Act »Read more ›
Last updated on September 21st, 2020
Arguably the most important part of any spousal or common-law sponsorship application is establishing that a relationship is not encompassed by r. 4(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRPR”). Regulation 4(1) provides that:
4. (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership
(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or
(b) is not genuine.
Despite the importance of applicants demonstrating that their relationship is genuine and not entered into primarily for the purpose of acquiring any status or privilege under the Immigration and Refugee Protection Act (the “Act”) there are no set criteria which determine whether an application is bona-fide. As the Federal Court noted in Koffi v. Canada (Citizenship and Immigration), 2014 FC 7 (citations removed)
It is well established in the case law of this Court that there is no specific criterion, or even a set of criteria, to determine whether a marriage is genuine pursuant to section 4 of the Immigration and Refugee Protection Regulations. It is exclusively up to the visa officer to determine the relative weight to grant each of the factors, based on the facts, to ensure the inherent logic of the applicant’s story according to the particular clues, or references made by the applicant himself, meaning the encyclopedia of references, a dictionary of terms, a picture gallery of the applicant’s file in addition to an assessment to determine whether the facts on file taken together create harmony or discord.Read more ›
On May 13, 2015, the Minister of Public Safety and Emergency Preparedness introduced Bill C-60, An Act to amend the Criminal Records Act, the Corrections and Conditional Release Act, the Immigration and Refugee Protection Act and the International Transfer of Offenders Act, also known as the Removal of Serious Foreign Criminals Act (“Bill C-60Removal of Serious Foreign Criminals Act”).
Bill C-60 will:
- Make it easier and faster to remove certain foreign nationals and permanent residents who are inadmissible to Canada for serious criminality.
- Make all foreign nationals and certain permanent residents ineligible for a record suspension.
- Allow the Correctional Service of Canada to inform registered victims of crime of the date and destination of criminals released from immigration detention; and
- Make it easier for Canada to transfer criminals without their consent to serve their sentence in their home country.
A more detailed breakdown of the provisions is as follows:Read more ›
The following article appeared in the January edition of The Canadian Immigrant. At the end of the article I have reproduced two Access to Information Act which confirm the great reduction in the program.Read more ›
Bill C-59 – An Act to implement certain provisions of the budget tabled in Parliament on April 21, 2015 (“Bill C-59“) and other measures introduces certain amendments to the Immigration and Refugee Protection Act (“IRPA“). One of them is:
186.1 (1) The Minister may administer this Act using electronic means, including as it relates to its enforcement.
(5) For greater certainty, an electronic system, including an automated system, may be used by the Minister to make a decision or determination under this Act, or by an officer to make a decision or determination or to proceed with an examination under this Act, if the system is made available to the officer by the Minister.
It is well known that most Electronic Travel Authorization decisions will be electronic. Bill C-59 allows for the possibility that automated decision making may occur elsewhere.
As computers possibly start deciding temporary and permanent residence applications, the question has to be asked.. how do you judicially review the decision of a computer? Is the computer an expert?Read more ›
One of the questions that we are most frequently asked is which family members can be sponsored under Canada’s family reunification programs. Most people rightly assume that Canadian citizens and/or permanent residents can sponsor their spouses, children, and parents. However, many also wonder about sponsoring siblings, cousins, nieces, nephews, etc.
Canada’s Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRPR“), provide that a Canadian citizen / permanent resident (the “Sponsor“) may sponsor the Sponsor’s spouse, common-law partner or conjugal partner. A “spouse” is the Sponsor’s husband or wife. A “common-law partner” is someone who the Sponsor has cohabited with in a conjugal relationship for a period of at least one year. A “conjugal partner” is someone who the Sponsor has been in a conjugal relationship with for a period of at least one year, but who for exceptional circumstances the Sponsor has neither been able to marry nor cohabit with. It most commonly applies to same-sex relationships where the couple is unable to cohabit or marry due to fear of persecution or penal control.
IRPR also provides that a Sponsor may sponsor the Sponsor’s dependent child. A “dependent child” is a child who is the biological or adopted child of the Sponsor, and who is under the age of 19 and is not married or in a common-law partnership. If the child is over 19, then the child must have depended substantially on the financial support of the parent since before the age of 19, and be unable to be financially self-supporting due to a physical or mental condition.
A Sponsor may also sponsor his/her mother, father, grandfather, or grandmother.
While the above three scenarios are commonly well known, there are other family relationships that are eligible for sponsorship.Read more ›
The following article appeared in the April edition of The Canadian Immigrant.
On Jan. 28, 2015, Citizenship and Immigration Canada (CIC) launched the replacement to the federal investor immigration program, called the immigrant investor venture capital pilot program. CIC was apparently so confident about demand for the new program that it announced that it would only accept applications to the new program for two weeks, or until a maximum of 500 applications were received, whichever came first. It soon became apparent that no one was applying to the new program, and on Feb. 13, CIC quietly announced that it was extending its two-week deadline until April 15.
The question thus has to be asked … has CIC created an immigrant investor program that no one is interested in?
Old immigrant investor program
Under the old federal investor immigration program, investor immigrants had to make a five-year $800,000 interest-free loan to the Government of Canada, have a net worth of CDN $1.6 million, and have two years of qualifying business experience. The program was first-come-first-served, and applicants were not required to possess any English or French language skills.
In 2014, the Government of Canada ended the investor immigration program and terminated all existing applications that were in processing. This resulted in roughly 65,000 individuals having their Canadian permanent residency applications cancelled.
Pilot program requirements
Under the new immigrant investor venture capital pilot program, immigrant investors will be required to make a $2-million investment for 15 years into what CIC is calling a “fund of funds” operated by the Business Development Bank of Canada. Applicants will have no say over how the “fund of funds” operates, and will have to be prepared for the possibility that they will lose the entirety of their investment.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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