We have recently noted an increased trend involving cases of misrepresentation allegations out of mainland China. The success of litigants appealing these cases is extremely unpredictable. In this post I have summarized two cases with very similar facts, and opposite results. He v. Canada (Citizenship and Immigration), 2012 FC 33, provides a good example of how a finding of misrepresentation can occur, as well as how the Anti-Fraud Unit works to verify employment. The facts of the case were: H was a citizen of China who had been nominated by the province of New Brunswick to immigrate to Canada. On March 8, 2010, H submitted an application to immigrate to Canada as a member of the Provincial Nominee Class. In the application, H stated that she had worked as a sale manager at the Building Company. The immigration officer assessing her application asked the Anti-Fraud Unit to verify her employment. Officer R of the Anti-Fraud Unit called the Building Company. He spoke to Huang, an individual at the Building Company responsible for maintaining the company’s list of employees. Huang stated that he had never heard of H. Officer R then spoke to the president of Building Company, Boss Deng. Boss … Read More
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 … Read More
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 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 … Read More
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 … Read More
CBSA Arresting People without a Warrant
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 … Read More
Supreme Court Clarifies Elements of Conspiracy
On March 1, 2013, the Supreme Court of Canada (the “SCC“) in R v. J.F., clarified the elements of the offence of conspiracy. The decision has immigration implications because people who have been convicted of conspiracy may be inadmissible to Canada. Section 465 of Canada’s Criminal Code criminalizes the offence of conspiracy. Conspiracy is a form of inchoate liability. In other words, the actual result of the conspiracy need not occur for someone to be convicted under s. 465. For example, a person can be convicted of “conspiracy to commit murder” even if the murder does not occur. Furthermore, members in a conspiracy need not personally commit, or intend to commit, the offence which each has agreed should be committed. Any degree of assistance in the furtherance of the unlawful object can lead to a finding of membership as long as agreement to a common plan can be inferred and the requisite mental state has been established. Aiding or abetting the formation of an agreement between conspirators amounts to aiding or abetting the principals in the commission of the conspiracy. Party liability is limited, however, to cases where the accused aids or abets the initial formation of the agreement, or aids or abets a new … Read More
Voluntary Departures
Fresh off of last week’s report on people who were declared in 2011 to be inadmissible to Canada when they arrived at the Vancouver International Airport, the following chart obtained through an Access to Information and Privacy Act request shows the source countries of people who were voluntarily allowed to leave YVR without being declared inadmissible to Canada. The top 10 countries were: Citizenship 2011 United States 207 Korea 144 China 109 Hong Kong 49 Taiwan 49 Philippines 37 Japan 34 Mexico 28 Australia 26 Germany 30 Israel 18 British 17 India 14 France 11
Due Process When Everything is a Crime: Court Strikes Down Human Smuggling Law
The British Columbia Supreme Court (“BCSC“) in R v. Appulonappa has struck down s. 117 of the Immigration and Refugee Protection Act (“IRPA“). Section 117 theoretically prohibited human smuggling. Its exact wording was: 117. (1) No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act. (2) A person who contravenes subsection (1) with respect to fewer than 10 persons is guilty of an offence and liable (a) on conviction on indictment (i) for a first offence, to a fine of not more than $500,000 or to a term of imprisonment of not more than 10 years, or to both, or (ii) for a subsequent offence, to a fine of not more than $1,000,000 or to a term of imprisonment of not more than 14 years, or to both; and (b) on summary conviction, to a fine of not more than $100,000 or to a term of imprisonment of not more than two years, or to both. (3) A person who contravenes subsection (1) with respect to a group of 10 persons or more is guilty of an offence … Read More
Restructuring of the North American Processing Network (Continued)
Restructuring of North American Processing Network (Continued) In a previous post, I wrote about how on May 29, 2012, Citizenship and Immigration Canada (“CIC”) restructured its North American Processing Network. The restructuring included the closure of immigration section of the Canadian consualte in Buffalo, as well as the realigninment of Work Permit and Study Permit functions of the Canadian consulates in New York, Los Angeles, Washington D.C., Detroit, and Seattle. For information on those changes, I encourage you to read that post. On June 11, 2012, CIC released a further Operational Bulletin detailing additional changes to which consulates which process Temporary Resident Permit applications, Rehab applications, and Authorization to Return to Canada applications. . Re-Configuring the U.S. Network (TRPs, Rehab, and ARC) Effectively June 18, the Seattle, Detroit, and New York consulates will no longer be processing new TRP, Rehab, and ARC applications. Only the Los Angeles and Washington DC consulates will process new applications in these categories. Furthermore, applicants residing in the United States will not be able to choose which consulate to submit their application to. Applicants living in the United States east of the Mississippi River (including in Puerto Rico, Bermuda, and St. Pierre et Miqueldon) must apply to … Read More
Can I Enter Canada With a Criminal Conviction?
As published in the May Canadian Immigrant magazine: In November 2011, the Auditor General of Canada Michael Ferguson released a report criticizing the Canadian government for having what he essentially described as a completely inadequate screening process for detecting people who pose a security risk to Canadians. As one might expect, this did not go over too well with a Conservative government that spent much of the autumn session pushing a public safety agenda. It responded to the auditor general’s report by promising to comply with his recommendations, and stating that it had already begun to make significant investments to improve security screening. Previously, people with criminal convictions occasionally entered Canada undetected. Border officials would also often let them into Canada on a short-term basis without requiring much paperwork. Now, both of these scenarios are likely to become less common. It is, therefore, important that people who have been convicted of a criminal offence determine in advance whether they will likely be prohibited from entering Canada. Will you be inadmissible to Canada? If a conviction exists, then it is necessary to determine whether the conviction’s equivalent offence in Canada would be a summary, hybrid or indictable offence under an act of … Read More