Foreign nationals who are found to be inadmissible to Canada on the basis of security (including espionage, subversion, engaging in terrorism, or being a member of a group that engages in terrorism), certain human and international rights violations, or organised crime can still visit or immigrate to Canada despite being inadmissible for such serious reasons if they satisfy the Minister of Public Safety and Emergency Preparedness (the “Minister“) that their entry to Canada is not contrary to Canada’s national interest. Such applications are referred to as “Ministerial Relief applications.” In assessing a Ministerial Relief application, Canadian immigration law somewhat confusingly provides that the Minister “may only take into account national security and public safety considerations, but, in his or her analysis, is not limited to considering the danger that the foreign national presents to the public or the security of Canada.” In Thomas v. Canada (Citizenship and Immigration), 2022 FC 1169, Madam Justice Heneghan affirmed that tthe Minister is required to consider whether someone is a danger to Canada. Ministerial Relief applications, previously done under ss. 34(2), 35(2), and 37(2)(a) of Canada’s Immigration and Refugee Protection Act, and now s. 42.1, have long been problematic. As the Government of Canada noted when it … Read More
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
Deferring Removal
People who either face removal or who have received a removal order should contact a lawyer immediately to determine what their options are. The purpose of this post is to provide an overview of the legislative scheme for deferring removal orders. It provides a general framework, and cannot substitute the advice that a lawyer can give when he applies these facts to your situation.
When an Applicant’s and a Visa Officer’s Account Differs
It is not uncommon for applicants to have a differing account of what transpired during a visa interview or a port of entry matter from what an immigration officer says occurred. As such, it is very important that applicants take detailed notes of every interaction that they have with government officials. The Federal Court recently dealt with the issue of inconsistencies in Gedara v. Canada (Citizenship and Immigration), 2016 FC 209. The Federal Court stated (emphasis added, and citations removed for ease of reading): The affidavits filed by the Applicant and by the Interviewing Officer present opposing accounts of the tone of the interview and whether concerns were specifically communicated. I find the Applicant’s affidavit more persuasive and assign it more weight for the following reasons. I agree with the reasoning in Rukmangathan, above, at paras 30, 31, citing Parveen v Canada (Minister of Citizenship and Immigration), that “…[v]isa officers deal with many applications, one can expect that they will not have as precise a memory of the event as does the applicant” The interview took place on March 11, 2015, yet the Officer’s affidavit was sworn in December 4, 2015 – approximately nine months later. The extended passage of time and the number of … Read More
Inadmissibility for Being a Danger to Canada
Section 34(1)(d) of the Immigration and Refugee Protection Act (the “IRPA”) provides that a permanent resident or a foreign national is inadmissible on security grounds for being a danger to the security of Canada. Standard of Proof Section 33 of the IRPA provides that the facts which can give rise to an inadmissibility under IRPA s. 34(1)(d) include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. In Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, the Supreme Court of Canada stated that the “reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities and that reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information. Requirements In Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, the Supreme Court stated: While the phrase “danger to the security of Canada” must be interpreted flexibly, and while courts need not insist on direct proof that the danger targets Canada specifically, … Read More