HIV and Immigrating to Canada

Under the Immigration and Refugee Protection Act, all foreign nationals applying for permanent residency, and certain foreign nationals applying for temporary residency, are requested to undergo an immigration medical examination (“IME“) to determine if they are inadmissible on health grounds.

A person will be inadmissible to Canada on health grounds if they are a danger to public health, a danger to public safety, or if they are likely to pose an excessive demand on the health and social services (“Excessive Demand“). The current policies on HIV testing exist because Citizenship and Immigration Canada (“CIC“) determined that people with HIV may pose a danger to public health. As well, based on CIC health data, migrants have at least 10 times the risk of being infected with HIV compared to the Canadian population. Finally, several high profile cases involving permanent residents who were criminally convicted for not informing their sponsor partners about their HIV positive status led to negative publicity for CIC. Indeed, the first Canadian convicted of first degree murder for having transmitted HIV to two persons who subsequently died from HIV was a former refugee.

Notwithstanding the above, since CIC began introducing mandatory HIV testing in 2002, the key reason has been Excessive Demand.

As part of the HIV testing protocol, pre-test counselling is provided to all foreign nationals tested for HIV, while post-test counselling is offered to those found HIV positive. In 2003, CIC implemented an “automatic partner notification” process for sponsored spouses examined overseas. The reason for this was simple. Because s. 38(2) of the Act provided that Excessive Demand could not render someone inadmissible in the Sponsored Family Class, CIC felt obliged to alert sponsors to the principal applicants’ condition. Automatic Partner Notification provides applicants in the Family and Dependant Refugee Classes who test positive for HIV 60 days to voluntarily disclose their HIV-positive status to their partner or to withdraw their application.

The Cost of Escorted Removals and Detentions

In May 2011, the Government Consulting Services prepared a report for the Canada Border Services Agency titled Identification and Assessment of Options for the Escort Program (Project Number: 520-1412).

This blog post is a summary of that report. As the report is over 30 pages, please contact me if you want me to e-mail you a copy of the entire report.

In brief, in 2010/11 the cost of escorted removals was $7.5-million dollars, with an average cost per escorted removal at $13,933.00. The estimated total time spent by the CBSA to complete escorted removals during this time was 78,160 hours.

As noted in the report,

the decision as to whether a foreign national’s removal will be escorted or not lies with the Inland Enforcement regional managers or supervisors who oversee removals. The assessment focuses on many factors related to determining the level of risk likely to be present during the removal such as: the person’s comportment, anticipated reaction to their return to the country of destination, the length of the trip, and/or the transit point(s), the person’s past criminal behaviour, their physical and psychological condition, and more. In some cases, a medical escort may also be provided by the CBSA.

The cost of removals was broken down as follows:

Costs and Hours
Estimated Annual Total Costs

Flight Costs for CBSA Escort Officers
$3,784,908.00

Flight Costs for Foreign Nationals
$773,782.00

Expenses (Accommodation, Other)
$884,718.00

Cost of Regular Working Hours
$821,311.00

Cost of Overtime
$1,428,804.00

Total Costs
$7,495,935.00

The reason that the Flight Costs for CBSA Escort Officers is so much greater than the Flight Costs for Foreign Nationals is because CBSA officers must also pay for their flight to return to Canada. As well, for long distance flights, the CBSA policy is for officers to return to Canada by flying business class.

Bill C-43 Comes into Force

In June 2012 I wrote about how the Conservative government had introduced Bill C-43, the Faster Removal of Foreign Criminals Act (“Bill C-43“). Amongst other things, Bill C-43 increases the penalties for misrepresentation, removes appeal rights for permanent residents who are sentenced to a length of imprisonment of six months or more, gives the Minister of Citizenship and Immigration Canada the power to let otherwise inadmissible people to Canada into the country based on his discretion, and prohibits visa officers from considering humanitarian & compassionate factors in certain scenarios.

On June 19, 2013, Bill C-43 received Royal Assent.

Citizenship and Immigration Canada (“CIC“) has now begun rolling out Operational Bulletins to instruct visa officers of its implications.

Operational Bulletin 532 – Coming into Force of Bill C-43 – Inadmissibility on Security Grounds (“OB-532”)

Subsection 34(1)(a) of the Immigration and Refugee Protection Act (“IRPA“) previously provided that a permanent resident or a foreign national is inadmissible to Canada on security grounds for:

engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada

IRPA 34(1)(a) has been reworded to provide that a permanent resident or a foreign national is inadmissible to Canada on security grounds for:

engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests

As well, a new IRPA 34(1)(b.1) will make a permanent resident or a foreign national inadmissible to Canada on security grounds for:

engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada

The question that arises from this change is what constitutes espionage that is “contrary to Canada’s interest”

RIMBits Revealed (July 2010)

The following are some excerpts from the July 2010 RIMbits. RIMbits are messages sent from National Headquarters to missions overseas. The July 2010 RIMbits on admissibility consisted of eight questions and answers or bulletins. I have reproduced three of them for free below.

Please note that the questions and answers below should not be viewed as legal advice. Rather, they are simply reproductions of how CIC senior management answered specific questions from visa offices in July 2010.

Canadian citizen Visiting Forces Act applicant

Q. We ask for your opinion on the process for a Canadian dual citizen and his family who wish to enter Canada under the Act on Visiting Forces at the request of the ________ government. The applicant and spouse currently have official _____ passports. The sons, also dual citizens, have an ordinary ____ passports stating “son of government agent.” With what documentation should the applicant and his sons travel? Obtaining proof of Canadian citizenship for the children could take 14-16 months.

Also, the spouse has no status in Canada. The Foreign Worker Guide indicates that dependents of people who are in Canada under the Visiting Forces Act qualify for an open work permit. As the spouse of a Canadian citizen, is the wife still eligible for a work permit or study permit?

A. The Canadian citizens (principal applicant and sons) could arrive in Canada with their Official passports ______ with no permits or visas; however, the Port of Entry will have to investigate again their status as Canadian citizens. Therefore, I suggest that the applicant and his children be issued Facilitation visas so that CBSA POE will have the full story at their fingertips. The visa-exempt spouse, as accompanying dependent under the Visiting Forces Act,

RIMbits Revealed (May 2010)

The following are some excerpts from the May 2010 RIMbits. RIMbits are messages sent from National Headquarters to missions overseas. The May 2010 RIMbits on admissibility consisted of seven questions and answers. I have reproduced three of them for free below.

Seized Travel Document

Q) We were notified by the authorities that a permanent resident travelling on a Canadian travel document has been charged with: (1) ______ (2) _____ and (3) _____. According to local authorities, the permanent resident has been released on bail with the condition that she surrender her travel document and that “Stop Orders” are placed with the Immigration exit controls at airports. We have been formally requested not to issue a new travel document to this permanent resident “until the matters have been disposed.”

As the charged person is not a Canadian, the Consular Section has referred this case to us. Although she has not done so at this point, it is possible that in the near future, this permanent resident may request from the visa office a Permanent Resident Travel Document or other documents to facilitate her return to Canada. Would you have any advice on what we may and may not consider if the permanent resident applies for a PRTD before the judicial proceedings have come to a conclusion?

(A) The permanent resident’s Canadian travel document has been seized by local authorities in connection with a legal matter. It is not lost or stolen, and she will get it back when the legal process is completed.

List of Organizations where Membership can Cause Admissibility Issues

Being a member of certain organizations can result in a person being inadmissible to Canada. In going through internal CIC documents I obtained through an Access to Information and Privacy Act request, I came across a list prepared by the Canadian Embassy in Paris. It lists every court case (to 2006) involving people who were declared inadmissible to Canada for membership in an organization. Although the list is obviously dated, individuals who were members in any of the groups which appear below should contact a representative before submitting applications or making refugee claims.

Country (Organization)
Case Name
Judgment
Type of Organization

Afghanistan (Air Force)
Khan
1F(a) Exclusion
Non-Brutal

Afghanistan (Police)
Mohammad
1F(a) Exclusion
Non-Brutal

Afghanistan (PDPA)
OFUQ
1F(a) Exclusion
Non-Brutal

Afghanistan (Secret Police -Khad)
Raduli
1F(a) Exclusion
Brutal

Afghanistan (Secret Police -Khad)
Zadeh
1F(a) Exclusion
Brutal

Afghanistan (Secret Police -Khad)
Moshen
Insufficent Evidence for 1F(a)
Brutal

Afghanistan (Secret Police -Khad)
Hamidi
35(1)(a) overturned
Brutal

Albania (Secret Police – Shik)
Lalaj
1F(a) Exclusion

Algeria (Police)
Kiared
1F(a) Exclusion
Non-Brutal

Algeria (Police)
Allel
1F(a) Exclusion
Non-Brutal

Algeria (FIS)
Chougui
1F(a) Exclusion
Non-Brutal

Algeria (GIA)
Ikhlef
Security Certificate Upheld
Terrorist

Angola (MPLA)
Goncalves
Insufficent Evidence for 1F(a)
Non-Brutal

Angola (ANP)
Januario
1F(a) Exclusion
Non-Brutal

Angola (FLEC)
Muto
Not involved in crimes against humanity
Non-Brutal

Angola (FLEC/FAC)
Nlandu-Nkosi
Terrorist Organization
Terorrist

Angola (Army)
Joao Antonio
1F(a) Exclusion
Brutal

Angola (MOI)
Justino
1F(a) Exclusion
Non-Brutal

Azerbaijan (Police)
Saftarov
Insufficent Evidence for 1F(a)
Non-Brutal

Bangladesh (PBS)
Khan
Insufficent Evidence for 1F(a)
Non-Brutal

Bangladesh (Awami League)
Chowdhury
Insufficent Evidence for 1F(a)
Non-Brutal

Bangladesh (Awami League)
Chowdhury
1F(a) Exclusion
Non-Brutal

Bolivia (Army, AND)
Ledezma
Insufficent Evidence for 1F(a)
Non-Brutal

Burundi (Government)
Kaburundi
1F(a) Exclusion
Non-Brutal

Burundi (Government)
Ryivuze
1F(a) Exclusion
Non-Brutal

Cambodia (Police Force)
Say
1F(a) Exclusion
Non-Brutal

Chile (Socialist Party; MRPF)
Cardenas
Insufficent Evidence for 1F(a)
Non-Brutal

Chile (Military)
Saavedra
1F(a) Exclusion
Non-Brutal

China (Government)
Han
1F(a) Exclusion
Non-Brutal

China (Family planning)
Yang
1F(a) Exclusion
Non-Brutal

China (Security guard at abortion clinic)
Chen
1F(a) Exclusion
Non-Brutal

China (Family Planning Manager)
Lai
1F(a) Exclusion
Non-Brutal

Columbia (Army)
Torres Herrera
1F(a) Exclusion overturned
Non-Brutal

Columbia (Army)
Bedoya
1F(a) Exclusion overturned
Non-Brutal

Columbia (Army)
Ortiz Ardilla
1F(a) Exclusion overturned
Non-Brutal

Columbia (Army)
Corrales Murcia
1F(a) Exclusion overturned
Non-Brutal

Columbia (Army)
Torres Rubianes
1F(a) Exclusion overturned
Non-Brutal

Columbia (Army)
Bonilla Vasquez
1F(a) Exclusion overturned
Non-Brutal

Columbia (Navy)
Ruiz Blanco
1F(a) Exclusion overturned
Non-Brutal

Columbia (DAS)
Escorcia
1F(a) Exclusion overturned
Non-Brutal

Congo (CSE)
Bukumba
1F(a) Exclusion
Non-Brutal

congo (NSIP/NIPS)
Zoya
1F(a) Exclusion
Non-Brutal

Congo (SARM)
Musansi
Insufficent Evidence for 1F(a)
Non-Brutal

Congo (ANR)
Diasonama
1F(a) Exclusion
Brutal

Congo (MLC)
Molebe
Not Excluded
Brutal

Congo (Garde Civile)
Yogo
Insufficent Evidence for 1F(a)
Non-Brutal

Congo (Foreign Service)
Imama
1F(a) Exclusion
Non-Brutal

Congo (Judiciary)
Mankoto
1F(a) Exclusion overturned
Non-Brutal

Ecudaor (army – » Read more about: List of Organizations where Membership can Cause Admissibility Issues »

The Cost of Detaining “Illegal Immigrants”

When the Canada Border Services Agency began dramatically increasing enforcement operations, many wondered where the Department was going to detain individuals. The provinces, especially Ontario, has indicated for many years that they do not want to be in the “detention business.” The internal document below shows that at one point the Department went so far as to approach the Department of National Defence to host some immigration detainees, particularly in the case of mass arrivals and security certificate cases. Ultimately, as the document below also indicates, the Department of National Defence was not interested.

Neither the provinces nor DND appear to be interested in using their facilities to detain “illegal immigrants.” Given this, I am always surprised when a few CBSA officers (certainly not all, or even most) decide to detain people as a matter of course, only to have them be released only a few days later by the Immigration Division.

Please note that the document below was obtained through an Access to Information and Privacy Act Request, and to my knowledge is not otherwise publicly available. The reproduction of this document has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.

Which Members of Parliament are Getting the TRPs?

The media is reporting today that Citizenship and Immigration Canada (“CIC“) is unsure over whether individuals who received Temporary Resident Permits (“TRPs”) which were issued at the requests of Members of Parliament (“MPs”) ever left Canada. I have received a copy of the results of an Access to Information and Privacy Act request which shows the breakdown of TRPs issued by MP. (I am not publishing this document on my blog, however, if you want a copy feel free to e-mail me.)

The table below shows which MPs, presumably through their respective constituency offices, successfully requested TRPs since around January 2009. I have included only current sitting MPs. That I have done so means that any conclusions reached about partisanship in the granting of TRPs would be based on incomplete information. The reason that I am posting this is that it does show that MP requests for TRPs are frequently granted, and that constituents should not feel shy about approaching their MPs.

The list is:

Member of Parliament

Riding

Party

Number

Bob Deschert

Mississauga—Erindale

Conservative

Wayne Martson

Hamilton East—Stoney Creek

NDP

John Baird

Ottawa West – Nepean

Conservative

Jason Kenney

Calgary Southeast

Conservative

Nina Grewal

Fleetwood – Port Kells

Conservative

Dean Del Mastro

Peterborough

Conservative

Devinder Shory

Calgary Northeast

Conservative

David Sweet

Ancaster—Dundas—Flamborough—Westdale

Conservative

Andrew Scheer

Regina—Qu’Appelle

Conservative

Tim Uppal

Edmonton – Sherwood Park

Conservative

Rod Broinooge

Winnipeg South

Conservative

Paul Calandra

Oak Ridges—Markham

Conservative

Maurizio Bevilacqua

Vaughan

Liberal

Lois Brown

Newmarket – Aurora

Conservative

Patrick Brown

Barrie

Conservative

Dennis Coderre

Bourassa

Liberal

Don Davies

Vancouver Kingsway

NDP

Randy Kamp

Pitt Meadows—Maple Ridge—Mission

Conservative

MikeLake

Edmonton – Mill Woods – Beaumont

Conservative

Rob Nicholson

Niagara Falls

Conservative

David Tilson

Dufferin – Caledon

Conservative

Vic Toews

Provencher

Conservative

Alice Wong

Richmond

Conservative

Alex Atamanenko

British Columbia Southern Interior

NDP

Peter Braid

Kitchener – Waterloo

Conservative

Scott Brison

Kings – Hants

Liberal

Tony Clement

Parry Sound—Muskoka

Conservative

Libby Davies

Vancouver East

NDP

Ken Dryden

York Centre

Liberal

Rick Dystra

St.

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 membership in deciding whether the person really was a member of the group or, rather, was motivated by self-preservation.

In sum, a person cannot be considered to be a member of a group when his or her involvement with it is based on duress. At a minimum, a member is someone who intentionally carries out acts in furtherance of the group’s goals. A person who performs acts consistent with those goals while under duress cannot be said to be a genuine member.

Data Confirms Removals from British Columbia Up Since Conservatives Took Office

We have obtained through an Access to Information and Privacy Act request data showing the Canada Border Services Agency’s removal statistics for people in British Columbia from 2003 – 2012 (2012 is partial). I have reproduced below two pages of the data. We have also obtained a chart showing Removal Orders from British Columbia by Country of Birth by Year, which I have not published. If you wish to see it please contact me and I will send it to you by e-mail.

As the chart below demonstrates, removals from British Columbia has increased under the Conservatives. Interestingly, it peaked in 2008 and 2009, before begin to decline.

There is a lot of interesting information contained in the data below, including tables showing:

Removal Orders by Type;
Removal Orders by Refugee Claimant vs. Non Refugee Claimant;
Removal Orders by Status in Canada;
Removal Orders by Inadmissibility Ground;
Removal Orders by Gender; and
Removal Orders by Age.

Please note that the Tables below are a copy of an official work by the Government of Canada which was obtained through an Access to Information and Privacy Act Request, and to my knowledge is not otherwise publicly available. While I believe that the data is still current, I cannot be assured of this. The reproduction of this document has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.