Category: Uncategorized

Last updated on January 2nd, 2020

In December 2018 I wrote an article for The Canadian Immigrant about a Supreme Court of Canada case that had just been heard which could have a significant impact on Canadian immigration law.  The case, Minister of Citizenship and Immigration v. Alexander Vavilov, was about whether a child who was born in Canada to Russian spies is a Canadian citizen.   The Supreme Court of Canada before hearing the case announced that it was considering changing the law on how a legal principle called the “standard of review” works in Canadian administrative law.

On December 19, 2019 the Supreme Court of Canada released its decision.  The Supreme Court created a revised framework for the standard of review in judicial review applications.  Vavilov has significant implications for how Canada’s Federal Court will review the decisions of immigration officials.

Understanding The Standard of Review

As I wrote in December, the standard of review pertains to how courts review administrative tribunal decisions. In the immigration context, administrative tribunals include visa officers, border officials and Immigration and Refugee Board of Canada members.  The Federal Court has the jurisdiction to review all decisions of these tribunals, including visa refusals, stays of removal, deportation orders, etc.

The concept of the standard of review is perhaps best illustrated by using the analogy of a parent asking her child to pick the clothes that she will wear to school that day. A parent who is showing her child a lot of deference will let her child wear whatever she wants to wear to school, as long as what the child picks is reasonable. If the child tries to wear pants over her head, for example, the parent would say that the child’s choice is unreasonable and prohibit the outfit.

 » Read more about: The Supreme Court of Canada Decision in Vavilov  »

In 2020, over 400,000 international students at the post-secondary level in Canada will return to school.   Many will want to stay and work in Canada after graduating.  All will be subject to mandatory conditions of their stay as a student in Canada.  It is important for all international students, and especially those who wish to one day work in or immigrate to Canada, to understand these conditions, as the consequence of failing to comply with one of the them is removal from Canada and a one year bar from returning.

The Law on Study Permit Compliance

Regulation 220.1(1) of Canada’s Immigration and Refugee Protection Regulations provides that the holder of a study permit in Canada must enroll at a post-secondary institution that accepts international students, also known as a designated learning institution, and remain enrolled at the designated learning institution until they complete their studies.  As well, students must actively pursue their course or program of study.

Canadian immigration authorities typically interpret this legislative requirement as being that students must be enrolled full-time or part-time during each academic semester (excluding regularly scheduled breaks), that they must make progress towards completing their program’s courses and that they cannot take authorized leaves longer than 150 days from their program.

The Immigration, Refugees and Citizenship Canada website state that a leave will count as authorized if a school has authorized a leave from study due to medical reasons, pregnancy, a family emergency, death or serious illness of a family member, or any other type of leave that a school authorizes.  A leave will also be authorized if a school has closed permanently, if a school is on strike, if someone has changed schools or if the student or their school has deferred their program start date if the student starts studying during the next semester and gets and updated letter of acceptance.

 » Read more about: Study Permit Compliance  »

On October 21, 2019 Canada will have its 43rd Parliamentary election.  There are six main political parties running.  The first is the Liberal Party of Canada, led by Prime Minister Justin Trudeau.  The Liberals are generally regarded as a centrist party and have governed since October, 2015.  The second is the Conservative Party of Canada, led by Andrew Scheer.  The Conservatives are a centre-right party that previously governed Canada from 2006-2015 under Stephen Harper.  The third is the New Democratic Party, a left-wing or progressive party, led by Jagmeet Singh.  The fourth is the Green Party of Canada, led by Elizabeth May, a party that is typically known for its environmental platform, although it does have a detailed platform on all of the important issues facing Canada.   The fifth is the Bloc Québécois, led by Yves Francois Blanchet. The Bloc is a Quebec nationalist party that only runs candidates in Quebec.  Finally, there is the People’s Party of Canada, a recently formed right-wing party led by Maxime Bernier.

As of writing, polls suggest that Canada is likely heading to a minority government.  This means that none of the political parties above will win enough seats to govern without the support of another party.  Assuming that all of the above parties win seats, it is accordingly important to understand their policy preferences as any of them may have policy influence on the next government.

I note that there is a strong possibility that Jody Wilson-Raybould, an Independent Member of Parliament running in Vancouver – Granville could win her seat, and also possibly influence the next government.  However, as far as I can tell she has not specified any positions on immigration policy, and so I have omitted her from this article.

The Liberal Party of Canada

In the 2015 election the Liberals ran on a bold immigration platform. 

 » Read more about: Where Canada’s Political Parties Stand on Immigration  »

Section 129 of the Criminal Code, RSC 1985, c C-46 states:

Offences relating to public or peace officer:

129 Every one who

(a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer,

(b) omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so, or

(c) resists or wilfully obstructs any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure,

is guilty of

(d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or

(e) an offence punishable on summary conviction.

There are several principles pertaining to s. 129 of the Criminal Code that can be helpful to determining equivalency.

Ancillary Powers Doctrine

In the Supreme Court of Canada decision Fleming v. Ontario, 2019 SCC 45, the Supreme Court of Canda held that a police power to arrest someone who is acting lawfully in order to prevent a breach of the peace is not reasonably necessary for the fulfillment of the relevant duties.  » Read more about: Obstruction of Justice and Resisting Arrest  »

Canadian work experience that is volunteer does not typically count towards immigration.

Regulation 73(2) of the Immigration and Refugee Protection Regulations states that for the purposes of this Division, work means an activity for which wages are paid or commission is earned.  The Division includes the Federal Skilled Worker Class, the Canadian Experience Class, the Federal Skilled Trades Class and the Provincial Nominee Class. The reason is that economic classes are designed to determine whether an applicant can become economically established.

 » Read more about: Volunteer Work and Immigrating to Canada  »

Last updated on October 17th, 2019

Res judicata is a legal principle which means “a matter already judged.”

Pursuant to the Supreme Court of Canada’s decision in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, there is a three part test for determining whether res judicata applies, as follows:

• the same question has been decided earlier in the proceedings;
• the prior decision that is said to create the estoppen must have been final; and
• the parties (or their representatives) to the prior decision must be the same as the parties to the proceedings in which the doctrine of issue estoppel is being raised.

In Penner v Niagara (Regional Police Services Board), 2013 SCC 19, the Supreme Court further held that even if the pre-conditions are met there is a residual discretion to not apply the doctrine where it is in the interests of justice to deal with the matter on its merits as well as where there is decisive new evidence that was not previously available.

When stating the test it is important to note that issue estoppel is trigerred when the same issue is being re-litigated regardless of whether or not the same facts are before the decision-maker.  New evidence is relevant to the second step of the analysis.

Finally, where issue estoppel applies it prevents a subsequent decision-maker, at whatever level, from re-considering the issue.  For example, issue estoppel could apply to prevent the Immigration Appeal Division from considering a matter that had previously been determined by the Immigration Division, except of course in situations of direct appeals.

There are two areas in which res judicata typically arises in the immigration context. 

 » Read more about: Res Judicata  »

According to the CBSA, between January 1, 2015 and June 30, 2016 Bangladesh became the top source country for individuals found inadmissible to Canada under IRPA s. 34.  The issue involves membership in the Bangladesh Nationalist Party (the “BNP“) or its main political ally, the Jamaat-e-Islami (“Jamaat“).  While not designated by Public Safety Canada as terrorist entities, some members of the BNP and Jamaat, through, have, according to CBSA, shown that they qualify as being a member of an organisation that there are reasonable grounds to believe engages, has engaged in or will engage in acts or instigate the subversion by force of a government or terrorism.

The BNP 

According to Wikipedia, the BNP is one of the contemporary political parties of Bangladesh. It was founded on 1 September 1978 by former Bangladesh President Ziaur Rahman after the Presidential election of 1978, with a view to uniting the people with nationalist ideology of the country.  The party holds the ideology of Bangladeshi nationalism as its core concept and adopted a 19-point program which declared that “The sovereignty and independence of Bangladesh, golden fruits of the historic liberation struggle, is our sacred trust and inviolable right”. The founding manifesto of the BNP claims that the people of Bangladesh want to “…see that all-out faith and confidence in the almighty Allah, democracy, nationalism and socialism of social and economic justice are reflected in all spheres of national life”. BNP and its student wing was the driving force in the 1990 uprising against the autocratic Ershad rule that culminated in the fall of the regime and the restoration of democracy in Bangladesh.

In 2012, supporters of the BNP and Jamaat took to the streets to portest the ruling Awami League’s decision to annul the care-taker government system,

 » Read more about: The Bangladesh Nationalist Party  »

Over the course of the past several years I have noticed a steady increase in the number of what I call digital nomads seeking to immigrate to Canada.  These individuals, often avid readers of Tim Ferris’s The Four Hour Work Week, typically work from home.  They are hyper efficient, and through delegation and automation can accomplish in twenty hours what most people take forty hours to do.  They work on contract, often with multiple employers, or are self-employed.  While they have skills that would make them very marketable in the Canadian labour force, most do not want to give up the freedom that they have built just to obtain permanent residency.

The question that they all have is simple. Can they immigrate to Canada without having to become an employee?

Economic Immigration Programs Specifically for Entrepreneurs

Most Canadian economic immigration programs discourage self-employment.  For example, in the Canadian Experience Class, self-employment in Canada does not count towards the one-year work experience requirement.  In Express Entry, meanwhile, self-employment does not earn any points for Canadian work experience.  Most skills-based provincial nomination programs also prohibit independent contractor work, and even set caps on what percentage of a Canadian business a prospective immigrant can own in order to qualify as a skilled immigrant.

There are, however, a few exceptions to this.  The Self-Employed Class, for example, allows individuals who in the past five years have two one-year periods of self-employment in cultural or athletic activities to apply for permanent residence in Canada if they intend to be self-employed in Canada.  Examples of cultural and athletics include music teachers, actors, athletes, painters, film makers, freelance journalists, choreographers, coaches and trainers.  In recent years YouTube celebrities have started applying under the program, and absent changes in the future it is likely the Self-Employed Class will expand to include professional Instagrammers,

 » Read more about: Digital Nomads and Immigration  »

Administrative deferrals of removal (“ADR“) are temporary measures when the Government of Canada determines that immediate action is needed to temporarily defer removals of foreign nationals to countries experiencing humanitarian crisis.  Once the situation in a country stabilizes the ADR is lifted and removals resume.

Those who are inadmissible to Canada on grounds of criminality, international or human rights violations, organized crime, or security can still be removed despite the ADR.

An ADR is currently in place for certain regions in Somalia (Middle Shabelle, Afgoye, and Mogadishu), the Gaza Strip, Syria, Mali, the Central African Republic, South Sudan, Libya, Yemen, Burundi, Venezuela and Haiti.

H&C Applications

Pursuant to the Federal Court of Canada decision in Bawazir v. Canada (Citizenship and Immigration), 2019 FC 623, the existence of an ADR should not negate the hardship analysis that officers conduct in humanitarian & compassionate applications.  As Justice Norris noted:

One can certainly understand why Mr. Bawazir would like to secure his status in Canada by obtaining permanent residence here. In my view, a reasonable and fair-minded person would judge the requirement that he leave Canada and go to a war zone where a dire humanitarian crisis prevails so that he could apply for permanent residence as a misfortune potentially deserving of amelioration. The existence of the ADR demonstrates that Canada views the conditions in Yemen as a result of the civil war to “pose a generalized risk to the entire civilian population.” The conditions are so dire there that, with a few exceptions, Canada will not remove nationals to that country. Applying the usual requirements of the law in such circumstances clearly engages the equitable underlying purpose of section 25(1) of the IRPA (cf. Lauture v Canada (Citizenship and Immigration),

 » Read more about: Administrative Deferrals of Removal  »