On December 8, 2010, the Federal Court released its decision in Masych v. Canada (Citizenship and Immigration), 2010 FC 1253 (“Masych“) The case involved an individual whose temporary work permit application was denied because she did not produce income tax statements from 2002-2006 after an immigration officer (the “Officer”) requested that she do so. The reason that the Officer wanted copies of her tax statements was not to confirm her employment history for determining whether or not she was qualified for the job that she was applying for, but rather to determine whether or not she was inadmissible for having ever committed tax evasion.
The applicant had never been convicted of a criminal offense. No evidence was ever presented that she had been charged with a criminal offense. Finally, it is important to note that the applicant lived in the United Kingdom from 2002-2006, a country with a legal system similar to Canada’s.
The applicant did not produce the income tax statements as requested, and her application was rejected on the grounds that the Officer was unable to determine whether or not she was inadmissible to Canada for having committed an offense abroad that would constitute an indictable offense in Canada (tax evasion). The Federal Court upheld the Officer’s decision. The Court noted that the Officer had a duty to be satisfied that the applicant was not inadmissible, and that tax evasion could result in an applicant being inadmissible.
A reading of the case suggests that the only argument that the applicant’s counsel made was that the applicant had provided a statement stating that she only worked part time, confirmed by the employer, and that this should have satisfied the visa officer. The Federal Court quickly punted this decision aside noting that such a response did nothing to alleviate the officer’s concern.Read more ›
A person who has been found to be inadmissible to Canada on the grounds of serious criminality may not appeal to the Immigration Appeal Division.Read more ›
The Federal Court of Appeal has answered a question regarding inadmissibility under s. 34 of IRPA.Read more ›
Section 52(1) of Canada’s Immigration and Refugee Protection Act provides that a person who has been removed from Canada cannot return to Canada unless the person first receives specific authorization from immigration authorities. This authorization is known as “authorization to return to Canada” (an “ARC“). Whether an ARC is needed will depend on what type of removal order the person received.
Types of Removal Orders
There are three types of removal orders in Canada. These are the “Departure Order,” the “Exclusion Order,” and the “Deportation Order”.
A Departure Order requires that a person leave Canada within 30 days after the order becomes enforceable. Failure to do so causes the Departure Order to become a Deportation Order.
An Exclusion Order provides that the removed person cannot return to Canada for one year unless the person obtains ARC. For Exclusion Orders resulting from misrepresentation the bar is five years.
A Deportation Order results in a person being permanently barred from returning to Canada. Such a person may not return unless he/she receives ARC.
Authorizations to Return to Canada
An ARC is not routinely granted. Individuals applying for an ARC must demonstrate that there are compelling reasons to consider an ARC when weighed against the circumstances that necessitated the issuance of the removal order. Applicants must also show that they post minimal risk to Canadians and to Canadian society.
The factors that an immigration officer should consider include:
- The severity of the immigration violation that led to the removal.
- The applicant’s history of cooperation with Immigration, Refugees and Citizenship Canada (“IRCC“). Pursuant to the Federal Court decision in Singh v. Canada (Immigration, Refugees and Citizenship),
On October 29, 2010, the Immigration and Refugee Board released Guideline 2 on Detention. The Guidelines are to assist Immigration Division members in determining whether or not to hold an individual in detention.Read more ›
The Federal Court has released its decision on the legality of the “decision” to prohibit former British MP George Galloway from entering Canada for having committed terrorism or been a member of a terrorist organization.Read more ›
The Federal Court has affirmed that membership in the Syrian Socialist Nationalist Party (“SSNP”) can render an individual inadmissible to Canada pursuant to s. 34(1) of the Immigration and Refugee Protection Act.Read more ›
Citizenship and Immigration Canada has released Operational Bulletin 226, which discusses the sharing of biometric information further to the Five Country Conference (FCC) High Value Data Sharing Protocol. The FCC (Canada, the United States, the United Kingdom, Australia, and New Zealand) meets annually at the Deputy Minister level to discuss ways to improve immigration. In 2007, Canada, the US, the UK, and Australia (New Zealand was not yet a member) to committed to work towards the systemic exchange of biometric data for immigration purposes.
Biometric sharing has now commenced.Read more ›
Section 34(1) of Canada’s Immigration and Refugee Protection Act provides, amongst other things, that a foreign national or Canadian permanent resident is inadmissible to Canada for engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests, or being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in espionage against Canada or that is contrary to Canada’s interests. It is one of the most serious inadmissibilities in Canadian immigration law.
Immigration, Refugees and Citizenship Canada’s (“IRCC”) Enforcement Manual 2 – Inadmissibilities contains the following definitions and guidance to officers regarding how immigration officials are to determine whether someone is inadmisisble to Canada for espionage.
Espionage is defined as a method of information gathering by spying; that is, the gathering of information in a surreptitious manner, secretly seeking out information usually from a hostile country to benefit one’s own country.
Paragraph A34(1)(a) contains two possible allegations that could render a permanent resident or foreign national inadmissible to Canada for acts of espionage:
1. if the act of espionage is against Canada, or
2. if the act of espionage is contrary to Canada’s interests.
Espionage “against Canada” means espionage activities conducted by a foreign state or organization in Canada and/or abroad against any Canadian public or private sector entity on behalf of a foreign government. It may also include activities of a foreign nonstate organization against the Government of Canada, but does not include acts of industrial spying between private entities where no government is involved.
The following is a non-exhaustive list of activities that may constitute espionage that is “contrary to Canada’s interests”:
Espionage activity committed inside or outside Canada that would have a negative impact on the safety,Read more ›
Afanasyev v. Canada (Citizenship and Immigration), 2010 FC 737, is a gold-mine of information regarding IRPA 34 inadmissibility. The decision involves claims of cold war espionage, secret evidence, and abuse of authority.
The applicant was a citizen of the Ukraine. He applied for permanent resident status in July, 2000. During his interview, he explained that he had completed compulsory military service in the Soviet Army from 1985 to 1987. He said that he was responsible for telecommunications and intercepts, and denied any affiliation to the Russian or Ukrainian intelligence services. According to a CSIS brief, he was also responsible for listening to English language communications coming from US bases in West Germany, debriefing various frequencies and telegraph codes, and receiving training in NATO telegraphic code.
On April 14, 2008, the Immigration Officer informed the applicant that he might be inadmissible under sections 34(1)(a) and (f) of the Immigration and Refugee Protection Act. These sections provide that:
(a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;
(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c).
On June 13, 2008, the applicant made extensive submissions denying that he was encompassed by this section. He also requested that, in the alternative, he be granted ministerial relief pursuant to s. 34(2) of IRPA, which states that:
(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.Read more ›
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
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