Category: Uncategorized

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, 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.

There are two areas in which res judicata typically arises in the immigration context.  These are misrepresentation and access to the Immigration Appeal Division.

Misrepresentation

In Liu v. Canada (Public Safety and Emergency Preparedness), 2019 FC 849, an individual committed misrepresentation in her Canadian Experience Class application.  IRCC did not address the misrepresentation and refused the application for other reasons.  Ms. Liu then submitted a spousal sponsorship application.  While this was being processed, a visa officer determined that the previous misrepresentation was not relevant to that application.  The Canada Border Services Agency then commenced removal proceedings.  In determining that res judicata did not apply, the Federal Court determined that the first part of the Danyluk test, namely whether the same issue had been decided, did not apply as the issue of whether the mistatement was misrepresentation in the previous application had not been decided.  The decision stands for the proposition that if an applicant lies in two applications, and a visa officer decides that this did not constitute misrepresentation in one application, that it is not preclude immigration officials from pursuing misrepresentation allegations for the other application.

 » 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  »

Molly Joeck and Erica Olmstead are lawyers with Edelmann & Co. They, along with Peter Edelmann, acted for the Canadian Council for Refugees as interveners before the Supreme Court of Canada in Canada (Public Safety and Emergency Preparedness) v. Chhina.

In Chhina the issue before the Supreme Court was whether immigrant detainees have access to habeas corpus. We discuss Chhina, how immigration detention works in Canada, habeas corpus and issues going forward.

2:20 – Why would someone be detained in Canada for immigration reasons?

3:50 – In the federal detention review system who decides if an immigrant should be detained? What is the Immigration Division?

4:30 – How often would an immigrant who is detained have their detention reviewed?

5:30 – What are some issues arising with long term detention?

12:20 – Is there a difference in the issues that arise in long term detention in Ontario as opposed to British Columbia?

18:00 – Is an immigrant refusing to assist with removal by not getting a passport grounds for detention?

24:30 – What is habeas corpus?

27:30 – Why would someone in immigration detention want access to habeas corpus?

30:30 – Why is habeas corpus an alternative to federal court judicial review?

36:00 – The majority in Chhina appears to have commented negatively on certain aspects of the federal detention review process without striking it down. Why did they not just strike it down?

41:00 – How long do habeas corpus applications take?

46:00 – How many times can someone file habeas corpus applications?

51:00 – How has the Immigration Division reacted to the spate of habeas applications?

57:00 – How do detention review cases make it to the Federal Court of Appeal?

 » Read more about: Borderlines Podcast #29 – Immigration Detention and Habeas Corpus, with Molly Joeck and Erica Olmstead  »

Natalie Drolet is the Executive Director / Staff Lawyer for the Migrant Workers Centre.

We discuss the history of Canada’s caregiver programs, current issues and what the future looks like.

2:30 – What is a caregiver and how have Canada’s caregiver work permit and immigration programs traditionally worked?

7:00 – What are employer specific work permits? How do these impact caregivers?

14:40 – How do Canadian caregivers find families who are overseas?

16:00 – Why is the caregiver program necessary? Why are Canadians not applying for these positions? What role do wages play?

21:10 – How does the Interim Pathways program work?

29:14 – Could an Expression of Interest Intake model come to the caregiver program?

31:30 – What are employer compliance issues in the caregiver program? What are some of the abuses that occur?

38:00 – Are the problems now similar to problems that the program has traditionally faced?

43:00 – Where do caregivers live out typically stay?

45:00 – What will the program likely look at in the future?

56:00 – Do the caregiver programs allow governments to avoid funding daycare?

57:30 – Where do most caregivers come from?

 » Read more about: Borderlines Podcast #28 – Canada’s Caregiver Programs  »

(the following is largely paraphrased from the IRCC website)

The North American Free Trade Agreement (“NAFTA“) is a free trade agreement between Canada, the United States and Mexico.  It facilities the temporary entry of individuals, including providing certain Americans and Mexicans with the ability to work in Canada without first requiring Labour Market Impact Assessments (“LMIAs“).

NAFTA does not assist permanent admission, does not apply to permanent residents of the United States and Mexico and does not remove the need for Americans and Mexicans to undergo security screening before entering Canada.

The categories are:

• Business Visitors;
• After – Sales Services;
• Investors;
• Intra-Corporate Transferees; and
• Professionals.

Business Visitors

To qualify as a business visitor, an American or Mexican citizen must be entering Canada to conduct activities that are international in scope, have no intention to enter the Canadian labour market, have their primary source of remuneration be outside of Canada and their principal place of business remain outside of Canada.

For example, business visitors engage in international business activities related to research and design; growth, manufacture and production; marketing; sales; distribution; after-sales service; and general service.  Typical examples of business activities include, but are not limited to, consultation, negotiation, discussion, research, participation in educational, professional or business conventions or meetings and soliciting business.

Marketing includes trade fair and promotional personnel attending a trade convention.

Sales representatives and agents taking orders or negotiating contracts for goods or services for an enterprise located in the U.S. or Mexico qualify for entry as Business Visitors, however, they cannot deliver goods or providing services.  The seller may only take orders for the goods or enter into contracts for the services. 

 » Read more about: Work Permits Under The North American Free Trade Agreement  »

On May 2, 2019 Immigration, Refugees and Citizenship Canada unveiled the Student Direct Stream (the “SDS”), an expedited study permit processing program available to legal residents of India, China, Philippines and Vietnam.

Eligibility 

To be eligible for the SDS, an applicant must:

• be a legal resident of India, China, Philippines and Vietnam;
• provide proof of a valid language test result, completed within 2 years of the date of the SDS application, showing an IELTS score of 6.0 or higher in each language skill, or a TEF score that is equivalent to Canadian Language Benchmark 7;
• provide proof of a Guaranteed Investment Certificate “GIC” of CAN $10,000.00 or more issued from any bank that is insured by the Canadian Deposit Insurance Corporation (“CDIC”) or any bank listed on the IRCC SDS webpage;
• provide proof of full payment of tuition for their first year of study;
• provide a letter of acceptance to a Designated Learning Institute (a “DLI”);
• complete an upfront medical exam.

The GIC must meet the following criteria:

• when the GIC has been purchased, the bank provides a letter of attestation, the GIC certificate, the Investment Directions Confirmation or the Investment Balance Confirmation to the applicant;
• the bank holds the funds in an investment account or a student account that is inaccessible for release to the applicant until the applicant’s arrival in Canada;
• upon entry to Canada, the bank must validate the client’s identity before releasing funds to the study permit holder; and
• the applicant receives an initial disbursement upon identifying themselves, and the remaining funds are disbursed in monthly or bi-monthly installments over a period of 10 to 12 months.

 » Read more about: The Student Direct Stream (SDS)  »

As per the Federal Court of Canada decision in Haile v. Canada (Citizenship and Immigration), 2019 FC 538, it is a breach of procedural fairness to set aside the principle of audi alteram partem on the basis of a short delay in the delivery of the written submissions.

 » Read more about: Missing Deadlines  »