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 by the IRB. The Minister again was able to file an application for leave and judicial review that day under IMM-502-16 and obtain an interim stay of release from Mr. Justice Mosley, in effect until 16 February.
16 February 2016
Mr. Justice Simon Noël set a timetable with respect to both the January and February decisions, leading to the applications for leave to be heard on 3 March 2016, and if granted, immediately followed by a hearing on judicial review. His order in both docket numbers provides, “the interim stay of the release is extended until a final determination…”
1 March 2016
Mr. » Read more about: Can the Federal Court Order Continued Detention »
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 announced that each country intends on establishing preclearance areas and perimeters for air, sea, land, and rail crossings.
At preclearance perimeters and areas and areas CBSA officers will be permitted to admit or refuse travellers to continue to Canada from preclearance facilities prior to them actually arriving at a Canadian port of entry.
Importantly, s. 48(1) of the Preclearance Act, 2016 provides that a traveller in a preclearance area or preclearance perimeter who is seeking to enter Canada is,Read more ›
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 to familiarize themselves with this topic.
It was obtained through an Access to Information Act request, and I have embedded it below.Read more ›
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 rehabilitation and the likelihood of reoffending, and that adjudicators can assume that where a court issues a “beyond a reasonable doubt” conviction that the events arose.
This was not completely satisfactory answer, especially in light of recently, well publicized incidents of how plea bargaining and biased systems work in certain jurisdiction.
It found that while a criminal court may not treat a plea of not guilty and lack of remorse as an aggravating factor during sentencing as this would undercut the presumption of innocence,Read more ›
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, until IRCC adopts a more flexible approach to handling technical deficiencies in applications, it is imperative that applicants check and double-check that their permanent residence applications meet all IRCC requirements.
The Express Entry Report and Application Bouncing
The Express Entry Report shows that IRCC was able to process most Express Entry applications in under six months. Specifically, for Federal Skilled Worker Program applicants the processing standard was 4.7 months, for Canadian Experience Class applicants it was 3.5 months, for Federal Skilled Trades Class applicants it was 4.9 months, and for Provincial / Territorial Nominees it was 3.8 months.Read more ›
I’m glad the answer to this question was no.
Read more ›
The following PDFs contain several Express Entry Q&As that were obtained through an Access to Information Act request.
The topics include what documentation is required in an Express Entry application, enclosing rehabilitation applications with Express Entry, what counts as a ‘certificate of qualification’, points for skills transferability, and qualifying arranged employment.Read more ›
IRCC has released it’s 2015 Express Entry report, which is here.
Read more ›
Section 74(d) of Canada’s Immigration and Refugee Protection Act provides that an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the Federal Court certifies that a serious question of general importance is involved and states the question. Certified questions have traditionally resolved divergent jurisprudence at the Federal Court, and have typically provided certainty on how immigration law is to be interpreted. However, as a result of recent Supreme Court of Canada decisions, this is changing.
In Agraira v. Canada (Public Safety and Emergency Preparedness), the Supreme Court of Canada applied the reasonableness standard to answer the following certified question:
When determining a ss. 34(2) application, must the Minister of Public Safety consider any specific factors in assessing whether a foreign national’s presence in Canada would be contrary to the national interest?
The decision to not provide a definite answer caused some confusion at the Federal Court of Appeal, which declared in Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113, that:
A decision made under the Act is subject to judicial review only if leave is granted by the Federal Court (subsection 72(1) of the Act). The Federal Court’s decision on the judicial review cannot be appealed unless the Federal Court certifies a serious question of general importance (paragraph 74(d) of the Act). This case, like Agraira has proceeded to this Court on the basis of a certified question from the Federal Court. In this case, as in Agraira, the certified question asks a question that requires an interpretation of a provision of the Act.
This Court has consistently taken the view that where a certified question asks a question of statutory interpretation,Read more ›
Many people are curious as to what information various police and government departments share with the Canada Border Services Agency.
Embedded below are the following documents:
- Memorandum of Understanding Between the Abbotsford Police Department and the Canada Border Services Agency Pacific Region Enforcement Centre
- Letter of Agreement for Immigration Detentions between the Canada Border Services Agency and BC Corrections
- Memorandum of Understanding between the Greater Vancouver Transportation Authority Police Service and the Canada Border Services Agency Pacific Region Enforcement Centre, including letter from Neil Dubord, Chief Officer, Transit Police dated 26 February 2015 terminating the MOU
- Memorandum of Understanding Between the Royal Canadian Mountain Police “E” Division and the Canada Border Services Agency Pacific Region Enforcement Centre
- Memorandum of Understanding Between the Vancouver Police Department and the Canada Border Services Agency Pacific Region Enforcement Centre
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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