The Federal Court of Appeal in Canada (Citizenship and Immigration) v. Mudalige Don has answered the following certified question: Does the Minister’s issuance of an exclusion order pursuant to subparagraph 228(1)(c)(v) of the [Regulations] before the member of a crew subject to the exclusion order has any contact with the immigration authorities constitute a breach of procedural fairness because it deprives the foreign national of the opportunity to make a refugee claim? Background and Facts Crew members may enter Canada without temporary resident visas, work permits, or even passports. They do not need to report individually at ports of entry. Their status as crew members enables them to disembark and circulate freely so long as they remain crew members and leave on the ship on which they came. However, pursuant to s. 184(1) of the Immigration and Refugee Protection Regulations (“IRPR”), a foreign national who enters Canada as a member of a crew must leave Canada within 72 hours of ceasing to be a member of a crew. The refugee claimant in Mudalige Don was a Sri Lankan crew member aboard the foreign registered vessel M/V Lake Ontario. On November 27, 2011, the ship docked in Oshawa. On December 2, 2011, the ship’s agent filed … Read More
Question & Answer – Unauthorized Study and CEC (IR-13)
The following is an e-mail exchange between an immigration representative and Citizenship and Immigration Canada regarding expungements. The Federal Skilled Worker Program allows certain individuals employed in Canada without a Labour Market Opinion to qualify for Arranged Employment. As with any program, questions emerged regarding specific requirements, including whether intra-company transferees qualify for Arranged Employment without a Labour Market Opinion. Please note that what I have reproduced below should not be viewed as legal advice. The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. Question – May 15, 2013 Dear CIC, I would be grateful if you would kindly answer the following question about the Canadian Experience Category (“CEC”): My question relates toR. 87.1(3)(c) and in particular the wording near the end of this subsection which reads “and any period of full-time study or training”. That wording appears to be a “carry over” from the previous iteration of the CEC category, when there was a “graduates” stream and a “foreign worker” stream. Now that the concept of qualifying education in Canada is no longer part ofthe CEC category, the existence of this wording inR. 87.1(3)(c) is confusing. … Read More
Substituted Evaluations for Federal Skilled Worker and Federal Skilled Trade Applicants
There is a myth amongst potential Federal Skilled Worker Program applicants that their application is guaranteed if they can get 67 points. This is not true for several reasons, including the possible use of substituted evaluations.
The Bill of Rights and Canadian Immigration
The Canadian Bill of Rights, S.C. 1960, c. 44 (the “Bill of Rights“) is a Canadian federal statute that was enacted in August 1960. It is quasi-constitutional in nature. As it is an Act of Parliament it applies only to federal law. It also predates the Charter of Rights and Freedoms, which has largely superseded the Bill of Rights in importance. However, not all of the provisions of the Bill of Rights were reproduced in the Charter of Rights and Freedoms. Section 2(e) of the Bill of Rights provides: 2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to […] (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations. In Canadian National Railway Company, the Federal Court established that four basic conditions must be met … Read More
Retrospective Legislation
In a recent Borderlines episode, Garth Barriere, Eric Purtzki, Peter Edelmann and I discussed the constitutionality of laws that are retroactive or retrospective. This episode can be found here: A link to this episode’s synopsis can be found here. The following post provides a more detailed written summary of retroactive and retrospective legislation in the immigration context.
Who Can Help You with Immigration Matters
The following article appeared in the November issue of Canadian immigrant magazine: Who Can Help You with Immigration Matters Understanding the New Regulations I frequently receive e-mails from individuals asking if it is true that it is either illegal or impossible to immigrate toCanadawithout hiring a lawyer or a paid consultant. Some people appear to be under the mistaken impression that the Government of Canada recently enacted regulations to this affect. I am not sure what the source of this misinformation is, but hopefully by the end of this article I will have dispelled these myths. Bill C-35 The first misconception that needs to be clarified is the substance of Bill C-35, which came into force on June 31, 2011. Bill C-35 changed many rules pertaining to immigration representatives, however, not one of them made it mandatory to hire a paid representative. Amongst other things, Bill C-35 makes it an offence for anyone other an authorized representative to conduct business, for a fee or other benefit, at any stage of an immigration application or proceeding. Authorized representatives include lawyers, paralegals in certain provinces, and members of the Immigration Consultants of Canada Regulatory Council (“ICCRC”). The penalty for providing paid … Read More
Urgent Processing of PR Cards
On October 20, 2016, IRCC posted Operational Bulletin 627. It restricts what qualifies for “urgent processing” of PR Cards to: travel due to an applicant’s own serious illness or the serious illness or death of a family member; or to obtain employment or to travel due to employment requirements or opportunity. In Li v. Canada (Immigration, Refugees and Citizenship),the Federal Court stated that mandamus cannto be used to compel IRCC to mail a PR Card rather than require that it be picked up in person.
H&C Third Country
Several Federal Court of Canada decisions affirm that a visa officer’s assessment of humanitarian & compassionate considerations will be unreasonable if the officer assesses hardship on the basis that a foreign national will reside in a country other than their country of citizenship. In Hermann v. Canada (Citizenship and Immigration), 2014 FC 266, Justice Zinn stated: I have very serious doubt that in making an H&C assessment an officer can assess hardship on the premise that the applicant relocate to a country other than his country of nationality, regardless of any mobility agreements between countries. If an applicant is in Canada without authorization and is to be removed, Canada cannot remove him to a country other than his country of nationality. Why then should Canada consider any other country when examining hardship to the applicant in a H&C application? In Abdullah v. Canada (Citizenship and Immigration), 2019 FC 954, Justice McAffie stated: This Court has held that assessing an H&C application with reference to a country where the applicant has no legal status is an error that renders a decision unreasonable. In Joe (Litigation guardian of) v Canada (Citizenship and Immigration), 2009 FC 116 [Joe], the minor applicant was a … Read More
Environmental Overview – Chandigarh
Earlier this year I published a partial reproduction of the Environmental Overview of the immigration functions at the Canadian Consulate in Chandigargh current to 2012. The post was quite popular, and the following is a summary of the most recent Environmental Overview of the immigration functions at the Canadian Consulate in Chandigarh (the “Environmental Overview”). The Environmental Overview was prepared as part of the Citizenship and Immigration Canada 2014-2015 planning exercise, and is current as of January 2014. Areas in blockquote are direct passages from the Environmental Overview. Environment The Canadian Consulate in Chandigarh (“CIC Chandigarh“) provides temporary residence processing in northwest India. Chandigarh is a non-immigrant processing office. However in 2013 we processed some family class files in order to assist Delhi with their targets and to provide a learning experience for officers in Chandigarh. Over 400 family class applications were interviewed and processed to conclusion in 2013. SuperVisas continue to account for 15% of our total visitor intake. Systemic fraud necessitates a careful review of applications in all lines of business. Interestingly, CIC Chandigarh has been active in meeting with Punjab government officials to provide input on the new Punjab Prevention of Human Smuggling Act, a law which provides a registration system … Read More
Canadian Immigration Embassy Interview Strategies and Tips
When visa officers have concerns regarding a completed application, they often convoke interviews. The interview provides the applicants to address these concerns. In this post I hope to convey to applicants the basic procedural fairness rules that they can expect.