Sections 36(1)(a) and (b) of the Immigration and Refugee Protection Act states: 36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; Sections 36(2)(a) and (b) of the Immigration and Refugee Protection Act states: (2) A foreign national is inadmissible on grounds of criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence; (b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out … Read More
Deemed Rehabilitation
An individual who is criminally inadmissible to Canada may be deemed rehabilitated depending on the crime that was committed, the amount of time that has passed since the crime was committed, the maximum term of punishment for the crime and whether the person committed one or more crimes. Regulation 18(2)(a) of the Immigration and Refugee Protection Regulations states: Rehabilitation 18 (1) For the purposes of paragraph 36(3)(c) of the Act, the class of persons deemed to have been rehabilitated is a prescribed class. Members of the class (2) The following persons are members of the class of persons deemed to have been rehabilitated: (a) persons who have been convicted outside Canada of no more than one offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, if all of the following conditions apply, namely, (i) the offence is punishable in Canada by a maximum term of imprisonment of less than 10 years, (ii) at least 10 years have elapsed since the day after the completion of the imposed sentence, (iii) the person has not been convicted in Canada of an indictable offence under an Act of Parliament, (iv) the person has not been convicted in … Read More
IRCC’s Risk Assessment Unit
People reading Global Case Management System notes may come across the acronyms RAU or RAO. RAO stands for Risk Assessment Officer. RAU stands for Risk Assessment Unit. The following is a summary of a PDF obtained through ATIP about IRCC’s Risk Assessment Units. In 2016, Immigration, Refugees and Citizenship Canada (“IRCC”) established a Regional Assessment Office model to establish Risk Assessment Units in a third of IRCC’s overseas visa office. As of August 2021, there are 19 Risk Assessment Officers overseas who are supported by locally engaged staff. Risk Assessment Officers are responsible for: anti-fraud; document verification; security reviews; strengthening the integrity of overseas program delivery; risk and intelligence reporting; and operational partner liaison. The goal of IRCC’s risk assessment functions are: support delivery of the IRCC mandate to manage Canada’s migration programs for the social and economic benefit of Canada by ensuring that all persons who apply for migration to Canada, whether for temporary purposes or permanently, are both eligible to do so and admissible, and meet all the criteria in the category under which they have applied; to help IRCC to maintain public confidence in Canada’s immigration system, which includes the continuum of immigration, refugee, citizenship, settlement and … Read More
Staying Removal at the IAD
People issued removal orders often want to know how long they can stay in Canada before they have to leave, and if there is a chance to defer removal.
The IMM5707 and the Definition of Accompanying
The IMM57-5 asks applicants to delcare whether any family members will accompany them to Canada. There has been confusion over what “accompany” means that two recent Federal Court of Canada decisions have addressed. In Adepoju v Canada (Citizenship and Immigration), 2022 FC 438, a husband and wife independently submitted study permit applications. In each application they did not include each other as dependents and checked “no” to whether the spouse would accompany the other to Canada. In response to a procedural fairness letter, they wrote: 4. My spouse and I applied for a study permit simultaneously and we indicated in our family information form that each of us will be accompanied to Canada by our spouse. We also indicated in our individual letters of explanation for our study permit that our spouse will stay back in Nigeria to serve as home ties. 5. The fact in our application is true and it is possible to be implemented as there is no law that says that a study permit holder must travel to Canada. Our intention was that either of us that gets approved for the study permit will travel for studies while the other person will stay in Nigeria to … Read More
Determining Equivalency – Whether a Criminal Offence Will Make You Inadmissible to Canada
An individual who has been convicted of offense outside of Canada needs to determine what the equivalent offense would be in Canada.
Expungements, Pardons and Inadmissibility
A question that often gets asked is whether a United States pardon or expungement results in a person no longer being inadmissible to Canada. Expungements As noted in IRCC’s 2021 United States Criminality Assessment Guide (the “IRCC NY Guide“), in reviewing a rehabilitation application that includes an expungement or other permanent relief mechanism, it is recommended that a thorough review be conducted to determine whether the relief issued by the individual state equates to the conditions of a record suspension in Canada. Canada (Minister of Citizenship and Immigration) v. Saini, [2001] F.C.J. No. 1577 is the leading case in relation to the recognition of foreign pardons. There, the Federal Court of Canada created a three pronged test to establish whether Canadian law will recognize a foreign pardon or expungement. The test is: The foreign legal system as a whole must be similar to the Canadian one; The content, aim and effect of the foreign law in question must be similar to the Canadian law; and No other valid reason exists that would compel Canadian authorities not to recognize the effects of the foreign law. According to the IRCC NY Guide, IRCC has determined that the United States possesses legal traditions … Read More
The CBSA Databases – ICES, FOSS, CPIC, and NCIC
In 2013 the Federal Court released its decision in Martin-Ivie v. Canada (Attorney General), 2013 FC 772 (“Martin-Ivie“), a case which involved a Canada Border Services Agency (“CBSA“) officer who sued CBSA over what she regarded as safety issues. The case revealed much about the operations of the CBSA at land ports of entry. I have combined information from Martin-Ivie with what is found in the People Processing Manual and the Customs Enforcement Manual to help provide further understanding of what CBSA officers are looking at on their computers at primary inspection (“Primary“). The Databases There are four databases which CBSA officers have access to at Ports of Entry. Integrated Customs Enforcement System (“ICES”) ICES is a national Canadian database of lookout information and enforcement activities that, amongst other things, contains information about Canadians who have come into contact with CBSA, or individuals who might seek to enter the country and might pose a risk. In addition to traveller records, ICES contains information on customs seizures for a period of five years. As well, ICES contains a record of every vehicle (and theoretically individual person) entry into Canada. (Practitioners generally request copies of ICES when representing individuals in permanent resident card renewal … Read More
Borderlines Podcast #51 – Inadmissibility to Canada for Committing a Criminal Offence, with Sania Chaudhry
A discussion of when someone can be inadmissible to Canada for having committed a crime which doesn’t lead to a conviction. Cases referenced are Garcia v. Canada (Citizenship and Immigration), 2021 FC 141 and Dlieow v. Canada (Citizenship and Immigration), 2020 FC 59 Sania (Ahmed) Chaudhry was counsel in Garcia. She is currently Legal Counsel (Professional Conduct Proceedings) at Real Estate Council of Alberta. 2:00 Introduction and an overview of Garcia v. Canada. 15:00 The purpose of Canada’s inadmissibility provisions. 17:10 What is the standard of proof for determining that someone committed a crime where there is no conviciton? 19:45 A review of Enforcement Manual 2 30:30 Determining equivalency and issues with inadmissibility findings where there is no conviction. 39:30 Dlieow v. Canada (Citizenship and Immigration) 46:00 Living in a society where the State makes everything a crime.
Duress and Inadmissibility to Canada
The Supreme Court of Canada has “clarified” the elements of the duress defence. The defence is important because it can affect admissibility. For example, in Guerra Diaz v. Canada (Citizenship and Immigration), 2013 FC 88, the Federal Court of Court determined that the Immigration and Refugee Board improperly applied the test of whether duress applied, and ordered a new hearing by a different member. Duress and Inadmissibility It is basically trite law that where there is duress, then a person does not have the mens rea do either commit a crime or be a member in a group that renders the individual inadmissible to Canada. In Jalloh v. Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 317, the Federal Court stated that: In my view, it is preferable to consider the evidence of membership along with the evidence of coercion in determining whether there are reasonable grounds to believe the person genuinely was a member of the group. One way of looking at this issue is to regard evidence of duress as defeating the mens rea of membership (Thiyagarajah v Canada (Minister of Citizenship and Immigration), 2011 FC 339). Accordingly, evidence relating to duress must be considered along with the evidence relating to … Read More