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”
» Read more about: Bill C-43 Comes into Force »
Read more ›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,
» Read more about: RIMBits Revealed (July 2010) »
Read more ›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.
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 May 2010.
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.
» Read more about: RIMbits Revealed (May 2010) »
Read more ›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 »
Read more ›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.
» Read more about: The Cost of Detaining “Illegal Immigrants” »
Read more ›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
22
Wayne Martson
Hamilton East—Stoney Creek
NDP
12
John Baird
Ottawa West – Nepean
Conservative
10
Jason Kenney
Calgary Southeast
Conservative
8
Nina Grewal
Fleetwood – Port Kells
Conservative
8
Dean Del Mastro
Peterborough
Conservative
7
Devinder Shory
Calgary Northeast
Conservative
7
David Sweet
Ancaster—Dundas—Flamborough—Westdale
Conservative
6
Andrew Scheer
Regina—Qu’Appelle
Conservative
6
Tim Uppal
Edmonton – Sherwood Park
Conservative
6
Rod Broinooge
Winnipeg South
Conservative
5
Paul Calandra
Oak Ridges—Markham
Conservative
5
Maurizio Bevilacqua
Vaughan
Liberal
4
Lois Brown
Newmarket – Aurora
Conservative
4
Patrick Brown
Barrie
Conservative
4
Dennis Coderre
Bourassa
Liberal
4
Don Davies
Vancouver Kingsway
NDP
4
Randy Kamp
Pitt Meadows—Maple Ridge—Mission
Conservative
4
MikeLake
Edmonton – Mill Woods – Beaumont
Conservative
4
Rob Nicholson
Niagara Falls
Conservative
4
David Tilson
Dufferin – Caledon
Conservative
4
Vic Toews
Provencher
Conservative
4
Alice Wong
Richmond
Conservative
4
Alex Atamanenko
British Columbia Southern Interior
NDP
3
Peter Braid
Kitchener – Waterloo
Conservative
3
Scott Brison
Kings – Hants
Liberal
3
Tony Clement
Parry Sound—Muskoka
Conservative
3
Libby Davies
Vancouver East
NDP
3
Ken Dryden
York Centre
Liberal
3
Rick Dystra
St.
» Read more about: Which Members of Parliament are Getting the TRPs? »
Read more ›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 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.
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.
Therefore,
» Read more about: Duress and Inadmissibility to Canada »
Read more ›
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.
» Read more about: Data Confirms Removals from British Columbia Up Since Conservatives Took Office »
Read more ›Canada’s Immigration and Refugee Protection Act (the “Act“) provides that an officer who believes that a foreign national or permanent resident in Canada is inadmissible to Canada (for criminality, health, overstay, working without authorization, etc.) may prepare a report alleging the inadmissibility (commonly known as an “A44 Report“). The Act further provides that once an officer prepares an A44 Report, then the Canada Border Services Agency (“CBSA“) (the agency generally responsible for this) may commence removal proceedings, or, when necessary, refer the matter to the Immigration and Refugee Board, an independent administrative tribunal.
The use of the term “may” in the Act has caused much confusion.
In Cha v. Canada (Minister of Citizenship and Immigration), 2006 FCA 126 (“Cha“), the Federal Court of Appeal (the “FCA“) declared that the use of the word “may” did not actually grant CBSA officers broad discretion to exercise or not to exercise the power to write A44 Reports and to commence removal proceedings when it believed that someone was inadmissible to Canada. The FCA stated (citations removed for ease of reading):
In Ruby v. Canada (Solicitor General) at pages 623 to 626, Létourneau J.A. reminded us that the use of the word “may” is often a signal that a margin of discretion is given to an administrative decision maker. It can sometimes be read in context as “must” or “shall”, thereby rebutting the presumptive rule in section 11 of the Interpretation Act, R.S.C., 1985, c. I‑21 that “may” is permissive. It can also be read as no more than a signal from the legislator that an official is being empowered to do something. Even when “may” is read as granting discretion,
» Read more about: A Common Sense Approach to A44 Reports »
Read more ›On March 15, 2013, the Canada Border Services Agency (“CBSA“) conducted a raid on a construction site in Vancouver. Much of the media attention has focused on the fact that a reality television crew apparently followed the CBSA officers onto the premise. Many have also commented on how surprised they were that the CBSA apparently arrested many foreign nationals without warrants, and wondered whether this was legal.
It is.
Section 55(2) of the Immigration and Refugee Protection Act (the “Act“) states that:
An officer may, without a warrant, arrest and detain a foreign national, other than a protected person,
(a) who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); or
(b) if the officer is not satisfied of the identity of the foreign national in the course of any procedure under this Act.
A foreign national in Canada may be inadmissible for numerous reasons, including if they have remained in Canada beyond the period authorized by their visa, or if they have worked without authorization. If an officer has reason to believe that the foreign national has done something to make them inadmissible, and believes that they likely won’t appear for examination or removal when directed to do so, the officer may arrest and detain the individual. That individual will then have the right to detention reviews at the Immigration and Refugee Board.
In addition to the CBSA, peace officers (the police) also have the authority to arrest and detain individuals without a warrant if they believe that s.
» Read more about: CBSA Arresting People without a Warrant »
Read more ›Social Media
