• Open Spousal Work Permits After September 27, 2021

    Last updated on September 30th, 2021

    Last Updated on September 30, 2021 by Steven Meurrens

    In a previous blog post I wrote about how Immigration, Refugees and Citizenship Canada (“IRCC”) was increasingly focusing on genuineness. On September 27, 2021 IRCC updated its webpage to reform the open spousal work permit program. (more…)
  • 2021 Election Results and Canadian Immigration

    Last Updated on September 21, 2021 by Steven Meurrens

    On September 20, 2021 Canada had its 44th Parliamentary election.  The results leave the composition of Canada’s House of Commons essentially unchanged from before.  As of September 21, 2021, the Liberal Party of Canada, led by Prime Minister Justin Trudeau, has again won a Minority Government with 32% of the vote and 158 seats, 12 short of the required 170 needed for a majority.  This means that the Liberals do not have enough seats in the House of Commons to unilaterally pass legislation and must collaborate with the other parties.  The Conservative Party of Canada won 34% of the vote and 119 seats. The Bloc Québécois won 8% of the vote and 34 seats. The New Democratic Party won 18% of the vote and 25 seats. The Green Party of Canada won 2% of the vote and 2 seats. The Liberals can pass immigration legislation as long as they have the support of either the Conservatives, the Bloc or the NDP.  They do not have to commit to one party, and can pick and choose which party they get support from depending on the specific change they are proposing. It is accordingly worth understanding these parties’ immigration campaigns. The Liberal Party of Canada The Liberals said that if re-elected they would abolish citizenship application processing fees, which are currently $630.00 per adult and $100.00 per child.  They also committed to reducing processing times that have been impacted by COVID-19 and creating a visitor visa program for the spouses of Canadians who wish to visit their partners while their spousal sponsorship applications are in process. The Liberals also plan on establishing a trusted employer system to streamline foreign worker applications, expand the Global Talent Stream and maintain its two-week processing standard.  The will Francophone immigration outside of Quebec and create pathways to permanent residence for foreign workers and international students through Express Entry. They also committed to resettling 40,000 Afghan refugees. Finally, related to immigration, the Liberals said that they would ban foreign money from purchasing a non-recreational, residential property in Canada for two years, unless the purchase is confirmed to be for future employment or immigration. While the Liberal immigration platform was not particularly ambitious, the actual policies that they implemented during the last Parliament were.  The Liberals created a special immigration pathway program for up to 90,000 essential workers and recent graduates and introduced electronic application processes for most immigration streams.  In Budget 2021 they dedicated almost $430-million to implementing an enterprise-wide digital platform that would gradually replace Immigration, Refugees and Citizenship Canada’s current Global Case Management System. It is probably reasonable to expect more of the same, which recently has actually been quite a lot, and not that predictable. The Conservative Party of Canada The Conservatives promised to end IRCC’s current practice of returning applications for being incomplete, and instead require that the Department provide applicants with an opportunity to provide missing documentation.  They wanted to allow applicants to pay a fee to have their files expedited and require that all interactions between officers and applicants be recorded. They hoped to use remote interview technology to match applicants with visa officers who understand an applicant’s cultural context and background.  They would have created a weighted lottery in the Parent and Grandparent Program to give preference to those who would either be providing childcare or have English/French language ability and expanded the super-visa from two years to five. They wanted to provide a pathway to permanent residence for all foreign workers and created a trusted employer regime for foreign workers. Regarding refugees, the Conservatives wanted to increase capacity at the Immigration and Refugee Board to reduce hearing wait times and essentially replace the Government Assisted Refugee program with private and joint refugee sponsorship programs. The Conservatives promised to “close the loophole” in the Safe Third Country Agreement so that those who cross irregularly from the United States into Canada can be returned there. Finally, the Conservatives wanted to ban foreign investors not living in or moving to Canada from buying homes in Canada for a two-year period. As is apparent, some of the Liberal and Conservative commitments were almost identical, and presumably should be implemented without issue. There are some other Conservative ideas that the Liberals may, and should, adopt, and it will be interesting to see if they do. The NDP The NDP immigration commitments were almost word for word identical to 2019.  They wanted to “make sure immigration policies and levels meet Canada’s labour force needs and recognizes people’s experiences, contributions, and ties to Canada,” abolish the cap on parent and grandparent applications, ensure a pathway to permanent residency for all foreign workers and take on unscrupulous immigration consultants.  The NDP also promised to provide caregivers the ability to reunite with their family members and have the government regulate immigration consultants. The general expectation is that the Liberals will rely primarily on the NDP to pass legislation.  Considering the Liberals basically introduced and/or implemented much of the NDP platform before the election, it certainly seems plausible that these two parties will be able to work together. Bloc Quebecois The Bloc Québécois platform on immigration was concise.  They called on whichever party was in government (which couldn’t be them, since they only run in Quebec) to reduce the processing time of Quebec-destined applicants, give Quebec control over foreign worker programs, welcome French-speaking refugees and require that permanent residents in Quebec pass a French language test in order to become citizens. Looking Forward The general consensus in Canadian politics is that the Liberals will work with the NDP and the Bloc ahead of the Conservatives.  In looking at the above policy commitments, however, there is considerable overlap between the Liberal and Conservative immigration plans such that Canada’s two major political parties should also be able to work together. It is worth noting, however, that the ability of the Liberals and the Conservatives to possibly work collaboratively on immigration matters will depend on whether the Conservatives continue to shift left as they have under their current leader, Erin O’Toole. The People’s Party of Canada, a two-year old party generally regarded anti-immigrant, did not win any seats, but did win 5% of the vote.  There will likely be much handwringing in Conservative circles as to whether the PPC cost the Conservatives the election, and what the Conservatives have to do to woo these voters to them. If the Conservatives maintain their current trend towards the middle, then Canada’s next Parliament could be one characterized by collaboration on most immigration matters. If they do not in an attempt to attract PPC voters, then Canada’s political scene could become one of increased division, in which immigration becomes a major political issue. Either way, between policies started before the election, and new commitments that were announced, the next few years will be busy in Canadian immigration law.  
  • C-14 Work Permits

    Last Updated on September 13, 2021 by Steven Meurrens

    On February 17, 2016, Immigration, Refugees and Citizenship Canada (“IRCC”) introduced a Labour Market Impact Assessment (“LMIA”) exemption for foreign nationals in the television and film industry whose position or occupation is essential to a TV or film production.  On September 13, 2021 IRCC narrowed the LMIA exemption. The exemption previously read: ”International
    (exemption code C14) – Canada.ca”] The current requirements are that the work that a foreign national is performing must be:
    • essential to a live-action TV or film project in the production stage (filming): Essential positions are those where the physical presence of foreign workers on location in Canada is required to generate the expected benefit;
    • be high wage: Evidence of high-wage work is meant to establish that Canada will reap a significant economic benefit (for example, tax revenue) from hiring a foreign national and to protect the Canadian labour market from wage suppression;
    • unionized: Proof of unionized work demonstrates that the employment of the foreign national is critical to the production occurring in Canada while protecting the direct employment of Canadians.
    Occupations that may meet these criteria include, but are not limited to, actors and actresses, directors, stunt persons, lighting specialists and choreographers. Consideration under this exemption is to be given for the production (filming) stage of live-action television and film projects in Canada, regardless of whether
    • the production is foreign or Canadian;
    • it is filmed entirely or in part in Canada.
    IRCC has also clarified that the following situations would not qualify:
    • Pre- or post-production work, for example, storyboarding, visual effects, sound editing or film editing. This work is not considered essential to the on location production stage (filming), likely does not have to be performed in Canada, and is beyond the scope of the policy. Pre- or post-production work would normally require an LMIA.
    • Work that is not specific to a production. Administrative LMIA exemption code C14 is intended for work on specific, named productions, so that there can be a valid assessment of the potential significant benefit (for example, job creation, local spending) of the productions to Canada. Long-term positions with a company, where the work is not tied to a specified, named production, may require an LMIA.
    • Work that is paid below the median wage. Salaries that tend to skew towards the lower end of the compensation spectrum may not, broadly speaking, support the argument that the work is of significant benefit. In addition, they could have a negative effect by suppressing overall salaries in the positions.
    • Non-unionized work. Officers should be assessing this specific situation based not on whether the employer is a unionized work place but on whether the occupation itself is unionized in Canada. Unions or guilds in this industry provide valuable information, through the letter of support, on whether sufficient efforts have been made to ensure that Canadians or permanent residents are hired whenever possible. Examples of positions that would not qualify under exemption code C14 are digital media or visual effects positions, as they are generally non-unionized.
    Graphic Designers IRCC has also introduced a Temporary Public Policy for Graphic Designers Working on Live-Action Television or Film in Canada. The Temporary public policy to exempt foreign graphic designers from certain work permit requirements comes into effect on September 10, 2021. This public policy is in effect until March 9, 2022. The purpose of it is to recognize the hardship that the narrowing of the C-14 work permit has caused. To be eligible under this public policy, a foreign national must:
    1. have submitted a work permit application under section R200 or R201 after the public policy came into effect;
    2. be intending to work in an occupation that is included in unit group 5241 – Graphic designers and illustrators of the 2016 National Occupational Classification (NOC) system;
    3. be intending to perform work for one or more named live-action television or film productions being filmed in whole or in part in Canada, whether at the pre-production, production or post-production stage
    4. provide a letter from the employer, or an authorized representative of the employer, to support the work permit application in (1). The letter must attest
      • to the details of the named live-action television or film productions (for example, working titles, production locations)
      • that the foreign national’s presence and work are essential to the television or film productions described in (i)
      • to the wage that the foreign national will be paid, which must be both
        • the same as that set out in the copy of the offer of employment that was provided under paragraph R209.11(1)(d) and
        • at or above the median wage for NOC 5241 in the specific community or area of work, as specified on the Government of Canada’s Job Bank site
      • that the television or film productions described in (i) satisfy the criteria for a federal, provincial or territorial tax credit for television or film production, or are recipients of federal, provincial or territorial funding for television or film production
  • Borderlines Podcast #60 – Where Canada’s Political Parties Stand on Immigration in 2021, with Chantal Desloges

    Last Updated on September 9, 2021 by Steven Meurrens

    A discussion of the 2021 immigration platforms of the Liberals, Conservatives, New Democrats, Greens, Bloc Quebecois and the People’s Party of Canada. Chantal Desloges is the Founder and Senior Partner of Desloges Law Group. <iframe width=”100%” height=”20″ scrolling=”no” frameborder=”no” allow=”autoplay” src=”https://w.soundcloud.com/player/?url=https%3A//api.soundcloud.com/tracks/1121909068&color=%23ff5500&inverse=false&auto_play=false&show_user=true”></iframe><div style=”font-size: 10px; color: #cccccc;line-break: anywhere;word-break: normal;overflow: hidden;white-space: nowrap;text-overflow: ellipsis; font-family: Interstate,Lucida Grande,Lucida Sans Unicode,Lucida Sans,Garuda,Verdana,Tahoma,sans-serif;font-weight: 100;”><a href=”https://soundcloud.com/borderlinespodcast” title=”Borderlines” target=”_blank” style=”color: #cccccc; text-decoration: none;”>Borderlines</a> · <a href=”https://soundcloud.com/borderlinespodcast/60-where-canadas-political-parties-stand-on-immigration-in-2021-with-chantal-desloges” title=”#60 – Where Canada&#x27;s Political Parties Stand on Immigration in 2021, with Chantal Desloges” target=”_blank” style=”color: #cccccc; text-decoration: none;”>#60 – Where Canada&#x27;s Political Parties Stand on Immigration in 2021, with Chantal Desloges</a></div> Heading – The Election and Canadian Immigration On September 20, 2021 Canada will have its 44th 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 Erin O’Toole.  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 led by Jagmeet Singh.  The fourth is the Green Party of Canada, led by Annamie Paul, a party that is typically known for its environmental platform.  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 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, which is not guaranteed, it is accordingly important to understand their policy preferences as any of them may have policy influence on the next government. The Liberal Party of Canada The Liberals say that if re-elected they will abolish citizenship application processing fees, which are currently $630.00 per adult and $100.00 per child.  They will also reduce processing times that have been impacted by COVID-19 and create a visitor visa program for the spouses of Canadians who wish to visit their partners while their spousal sponsorship applications are in process. The Liberals will establish a trusted employer system to streamline foreign worker applications, expand the Global Talent Stream, and create pathways to permanent residence for foreign workers and international students through Express Entry. Finally, the Liberals are committing to resettling 40,000 Afghan refugees, a number which is double what they announced just two days before the election was called. The Liberals face the same question that any incumbent government faces, which is why they have not already enacted these policies during their six years in power.  Their obvious answer would be that COVID-19 temporarily derailed their agenda.  Some of their responses to the pandemic, such as creating a special immigration pathway program for up to 90,000 essential workers and recent graduates, as well as the creation of electronic application processes for most immigration streams, appear more ambitious than their actual campaign platform. The Conservative Party of Canada The Conservative Party of Canada’s immigration platform is incredibly detailed.  Some of their ideas are unlikely to generate media coverage with the broader public, but get the attention of immigration stakeholders. The Conservatives are, amongst other things, promising end Immigration, Refugees and Citizenship Canada’s current practice of returning applications for being incomplete, and instead require that the Department provide applicants with an opportunity to provide missing documentation.  They will allow applicants to pay a fee to have their files expedited, require that all interactions between officers and applicants be recorded and use remote interview technology to match applicants with visa officers who understand an applicant’s cultural context and background.   The Conservatives would create a weighted lottery in the Parent and Grandparent Program that will give preference to those who either be providing childcare or have English/French language ability, expand the super-visa from two years to five, provide a pathway to permanent residence for all foreign workers, and create a trusted employer regime for foreign workers.  Erin O’Toole has long been a proponent of establishing a broad free trade agreement between Canada, the United Kingdom, Australia and New Zealand, and he has promised to enter into negotiations with those countries to provide open study and work permits to their citizens. Regarding refugees, the Conservatives would increase capacity at the Immigration and Refugee Board to reduce hearing wait times and essentially replace the Government Assisted Refugee program with private and joint refugee sponsorship programs.  Finally, the Conservatives have promised to “close the loophole” in the Safe Third Country Agreement so that those who cross irregularly from the United States into Canada can be returned there.  This would of course assume that the United States would take these individuals back, which is unlikely. The NDP The NDP immigration commitments are almost word for word identical to 2019. If elected the NDP would “make sure immigration policies and levels meet Canada’s labour force needs and recognizes people’s experiences, contributions, and ties to Canada,” abolish the cap on parent and grandparent applications, ensure a pathway to permanent residency for all foreign workers and take on unscrupulous immigration consultants. The NDP is also promising to provide caregivers the ability to reunite with their family members and have the government regulate immigration consultants.  Both of these are actually policies that the Liberals have already enacted or will soon come into force, although the new Liberal caregiver programs have seen very little applications or work permits actually finalized since they were enacted. The Green The Green Party has stated that it tackle xenophobia and hate, provide a pathway to permanent residence for all foreign workers, reduce processing fees based on income and abolish the visa requirement for parents visiting their children in Canada. Bloc Quebecois The Bloc Québécois platform on immigration is rather concise.  They will call on whichever party is in government (which won’t be them, since they only run in Quebec) to reduce the processing time of Quebec-destined applicants, give Quebec control over foreign worker programs, welcome French-speaking refugees and require that permanent residents in Quebec pass a French language test in order to become citizens (rather than English or French). People’s Party of Canada The People’s Party of Canada continues to adopt a markedly different tone from Canada’s other main political parties when it comes to immigration policy.  They appear to be rising in the polls as of writing, so it is important to understand what they stand for. The PPC if elected would reduce immigration levels from around 350,000 to between 100,000 – 150,000, accept fewer resettled refugees, abolish the parent and grand-parent reunification program, limit the number of foreign workers and ensure that every candidate for immigration passes an interview to test for Canadian values.  They would also erect fences along the Canada-US border. The Next Few Years In the event of a minority government it is clear that there are areas where most of Canada’s political parties could work together to develop immigration policy. Most of the parties have some truly interesting ideas.  I encourage readers to checkout the various party platforms as it was not possible in this piece to include all of their platform commitments.
  • Memorandums to the Minister

    Last Updated on September 8, 2021 by Steven Meurrens

    In this post are various Memorandums to the Minister. F-115178
    F-1159644
  • Access to Information Act Exemptions

    Last Updated on September 6, 2021 by Steven Meurrens

    The following chart is a helpful summary of the exemptions to disclosure under the Access to Information Act. ATIP Exemptions
  • Intention to Reside and Provincial Nominees

    Last Updated on August 26, 2021 by Steven Meurrens

    Sections 87(1) and (2) of the Immigration and Refugee Protection Regulations provide that:

    87 (1) For the purposes of subsection 12(2) of the Act, the provincial nominee class is hereby prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada.

    Member of the class

    (2) A foreign national is a member of the provincial nominee class if

    (a) subject to subsection (5), they are named in a nomination certificate issued by the government of a province under a provincial nomination agreement between that province and the Minister; and

    (b) they intend to reside in the province that has nominated them.

    In Dhaliwal v. Canada (Citizenship and Immigration), 2016 FC 131, Justice Diner wrote:

    The assessment of intention, since it is a highly subjective notion, may take into account all indicia, including past conduct, present circumstances, and future plans, as best as can be ascertained from the available evidence and context. In this case, the Applicant clearly expressed her intention to permanently reside in Brampton, Ontario, as well as her intention to finish her PhD in Quebec, which required continued temporary residence in Quebec. These intentions are not contradictory; rather, they are complementary to one another. As summarized above, she also provided statutory declarations from herself, her parents, and her sister setting out the reasons why she intended to move to Ontario, all in cogent terms, which further buttressed her stated intention to live outside of Quebec.

    In Tran v. Canada (Citizenship and Immigration), 2021 FC 721 Justice Ahmed determined that Federal Court of Canada jurisprudence indicates that if a foreign national is nominated by a province under a provincial nomination program that foreign national is presumed to be able to become economically established in Canada. However, it does not mean that the foreign national is presumed to have an intention to reside in that province.  This affirmed the Federal Court’s decision in Kikeshian v Canada (Citizenship and Immigration), 2011 FC 658 and Ransanz v Canada (Public Safety and Emergency Preparedness), 2015 FC 1109.  
  • Procedural Fairness at the Immigration Appeal Division

    Last Updated on August 20, 2021 by Steven Meurrens

    One of the leading cases on procedural fairness is Charkaoui v Canada (Minister of Citizenship and Immigration), 2007 SCC 9.  There, the Supreme Court of Canada stated:

    Last but not least, a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case. This right is well established in immigration law. The question is whether the procedures “provide an adequate opportunity for [an affected person] to state his case and know the case he has to meet” (Singh, at p. 213). Similarly, in Suresh, the Court held that a person facing deportation to torture under s. 53(1)(b) of the former Immigration Act, R.S.C. 1985, c. I-2, must “[n]ot only . . . be informed of the case to be met . . . [but] also be given an opportunity to challenge the information of the Minister where issues as to its validity arise” (para. 123).

    In Therrien v Canada (Attorney General), 2017 FCA 14, the Federal Court of Appeal stated that the the required specificity of the notice provided an affected person is to be determined in light of all of the circumstances including consideration of whether the affected person was in a position to meaningfully respond. Where an interested person is misinformed about the issues, including the statutory provisions in issue, a Court may conclude the interested person was unaware of the case to be met. In Lv v. Canada (Citizenship and Immigration), stated:

    the issue is not so much whether the decision was “correct”, but rather whether, taking into account the particular context and circumstances at issue, the process followed by the decision-maker was fair and offered to the affected parties a right to be heard and the opportunity to know and respond to the case against them.

    In Gill v. Canada (Citizenship and Immigration), 2021 FC 741, the Federal Court ruled that an extension of time does not always remedy the impact that the lack of notice had, or may have have in an individual’s case.
  • C-11 Work Permits

    Last Updated on August 10, 2021 by Steven Meurrens

    Immigration, Refugees and Citizenship Canada’s (“IRCC”) International Mobility Program contains Labour Market Impact Assessment (“LMIA”) exemption code C-11, titled Canadian interests – Significant benefit – Entrepreneurs/self-employed candidates seeking to operate a business. The exemption falls under Regulation 205(a) of the Immigration and Refugee Protection Regulations. According to the IRCC website, the eligibility requirement can be divided into those who seek permanent residence and those who don’t. For those who seek permanent residence, an applicant must:
    • be an actual or potential provincial nominee undertaking business activities or be a Quebec-destined entrepreneur or self-employed person issued a Quebec Selection Certificate (a “CSQ”); and
    • have a letter of support from the province or territory (this letter of support should count towards evidence that their admission to Canada to operate a business may create significant economic, social or cultural benefit to Canada) or a request from the Ministère de l’Immigration, de la Diversité et de l’Inclusion (MIDI) requesting early entry.
    For those who do not seek permanent residence, an applicant must:
    • demonstrate that their admission to Canada to operate their business would generate significant economic, social or cultural benefits or opportunities for Canadian citizens or permanent residents.  Benefits to Canadian clients of a self-employed worker may be considered in this case, particularly if the worker is providing a unique service.;
    • satisfy an officer that they have the ability and willingness to leave Canada at the end of the temporary period authorized; and
    • will have the incentive to depart Canada when their work is complete or the business closes.
    Some of the factors in determining whether there will be a significant benefit include:
    • Is the work likely to create a viable business that will benefit Canadian or permanent resident workers or provide economic stimulus?
    • Does the applicant have a particular background or skills that will improve the viability of the business?
    • Is there a business plan that clearly shows that the applicant has taken steps to initiate their business?
    • Has the applicant taken some measure to put the business plan in action (showing evidence of having the financial ability to begin the business and pay expenditures, renting space, having a staffing plan, obtaining a business number, showing ownership documents or agreements, etc.)?
    Indicators of “significant benefit” include:
    • general economic stimulus (such as job creation, development in a regional or remote setting or expansion of export markets for Canadian products and services);
    • advancement of the Canadian industry (such as technological development, product or service innovation or differentiation or opportunities for improving the skills of Canadians).

    Degree of ownership

    According to the IRCC website, the issuance of work permits for entrepreneurs should be considered only when the applicant controls at least 50% of the business in question.  Where an individual is a partial owner with a slightly smaller stake and is coming to work in the business, they are required to apply for a work permit as an employee (rather than as an entrepreneur or self-employed person) and may therefore require LMIA. If there are multiple owners, only one owner is generally eligible for a C-11 work permit. Duration C-11 work permits are issued for a maximum of two years.

    Renewals

    The IRCC website states that applicants who have repeatedly been issued work permits over several years in the self-employed or entrepreneur category should, in addition to satisfying the indicators of general economic stimulus, be able to provide evidence of the following:
    • registration of their business as a legal entity in Canada;
    • demonstration that the profits of the business remain predominantly in Canada or proof that other significant benefits have accrued to Canada;
    • proof that all appropriate federal, provincial or territorial and local tax returns have been filed; and
    • proof that will leave Canada at the end of the period authorized for their stay.
    As well, provincial nominees must provide a letter of continued support from the province or territory. Weight of Provincial Letters of Support In Shang v. Canada (Citizenship and Immigration), 2021 FC 633, Madam Justice Kane determined that if a visa officer is to refuse a provincial nominee’s work permit application, and that provincial nominee presented a work permit support letter, then the decision will be unreasonable if an officer does not explain why they are not giving significant weight to the provincial nomination.
    As the internal exchange at IRCC demonstrates, IRCC does not consider a province’s determination of a significant benefit binding.
    Starting a Business While on a Work Permit Fishing Guides Certain fishing guides are eligible for work permits under C-11. Stats Below are several statistics regarding C-11 approval rates based on visa office, year and province of destination. : C-11 Approval Stats
    C-11 More Stats
    C-11 Stats By Visa Office
  • H&C Third Country

    Last Updated on August 8, 2021 by Steven Meurrens

    Several Federal Court of Canada decisions affirm that a visa officer’s assessment of humanitarian & compassionate considerations will be unreasonable if the officer assesses hardship on the basis that a foreign national will reside in a country other than their country of citizenship. In Hermann v. Canada (Citizenship and Immigration), 2014 FC 266, Justice Zinn stated:

    I have very serious doubt that in making an H&C assessment an officer can assess hardship on the premise that the applicant relocate to a country other than his country of nationality, regardless of any mobility agreements between countries. If an applicant is in Canada without authorization and is to be removed, Canada cannot remove him to a country other than his country of nationality. Why then should Canada consider any other country when examining hardship to the applicant in a H&C application?

    In Abdullah v. Canada (Citizenship and Immigration), 2019 FC 954, Justice McAffie stated:

    This Court has held that assessing an H&C application with reference to a country where the applicant has no legal status is an error that renders a decision unreasonable. In Joe (Litigation guardian of) v Canada (Citizenship and Immigration), 2009 FC 116 [Joe], the minor applicant was a citizen of New Zealand, although she had resided in China with her parents, who were Chinese citizens, before coming to Canada. In assessing the H&C application, the immigration officer concluded that the applicant was a Chinese citizen and assessed the hardship that would be faced by her returning to China.

    Justice Maurice E. Lagacé found that the applicant did not have legal status in China and that the officer therefore erred in basing his decision on China as the country of reference rather than New Zealand. This error then also affected the assessment of the applicant’s best interests, which would not be served by removal to New Zealand, where she had no remaining ties and had not been since she was a baby. These errors based on the use of the improper country of reference rendered the decision unreasonable: Joe at paras 23-24, 35-37.

    The Joe decision was considered in Xie v Canada (Citizenship and Immigration), 2010 FC 580 [Xie], a case relied on by the Minister in the present case (Xie has also been referred to as Jiang, the name of the other applicants in the matter). The Minister cites Xie for the proposition that an officer may reasonably assess the hardship that might be faced by a foreign national facing removal to a country where they do not currently have status, and to assess the possibility of obtaining status there. However, a review of Xie shows that while it distinguishes Joe factually, it does not disturb the principle in Joe and does not go as far as the Minister contends.

    In Xie, the applicants were two Chinese citizens and their minor daughter who was a Peruvian citizen. The immigration officer assessing their H&C application concluded that the daughter could seek Chinese citizenship by naturalization, and assessed the question of hardship with reference to both Peru and China.

    Justice Yves de Montigny, then of this Court, found that the officer’s findings did not contradict the Joe decision. Although the officer had assessed hardship in both Peru and China, Justice de Montigny noted that the assessment of hardship in returning to China “was merely out of an abundance of caution.” He also found that unlike the situation in Joe, the daughter in Xie had family in Peru, making the assessment of the best interests of the child different from that in Joe. The remainder of the decision focuses on the reasonableness of the officer’s findings regarding hardship if the daughter were returned to Peru, where the daughter did have status: Xie at paras 34-40. The decision therefore does not sanction basing an H&C decision on the impacts of removal to a country where an applicant has no legal status.

    The Minister also points to sections 238 and 241 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR], which contemplate removal of a foreign national to a country other than their country of nationality. Section 238 permits a foreign national who wants to voluntarily comply with a removal order to submit a choice of destination. Section 241 addresses the country of removal where a foreign national does not voluntarily comply with a removal order, specifying that it be the country from which they came to Canada; the country in which they last permanently resided before coming to Canada; a country of which they are a national or citizen; or the country of their birth.

    A section 25 application and the enforcement of a removal order under sections 48 to 52 of the IRPA and sections 235 to 243 of the IRPR are different processes that engage different questions. Nonetheless, I agree that there needs to be coherence between the two, such that consideration of sections 238 and 241 of the IRPR may be material in assessing whether an applicant in Canada may be removed to a given country, or any country: see, e.g., Abeleira v Canada (Immigration, Refugees and Citizenship), 2017 FC 1008 at paras 37 to 45; Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3 [Chieu] at paras 51-55. At the same time, a central aspect of the regulations governing removal is the requirement that the identified country of removal “authorize” the foreign national to enter: IRPR at ss. 238(1)(a), 240(a)(d) and 241(2). Where an applicant has no legal status in the identified country and there is no evidence that the country has otherwise authorized the applicant’s return, there is no basis to ground an H&C assessment on the potential for removal to that country.

    This conclusion is consistent with the purpose of the assessment of foreign country conditions in H&C applications. Where an applicant is in Canada, the assessment is of the conditions and circumstances that will be faced by the applicant should the application not be granted and the applicant be removed from Canada as a result: Miyir at paras 18-19 and 33. For that assessment to be meaningful, it must be made with reference to the country that the applicant is expected to return to: what is termed in Chieu the “likely country of removal.” While Chieu arose in the context of an appeal under Division 7 of Part 1 of the IRPA, there does not seem to be any reason to use a different approach to the country of reference when considering foreign hardship on a section 25 application.

    As the Supreme Court of Canada recognized in Chieu, the likely country of removal will most often be the applicant’s country of origin (the country or countries of nationality, except in the case of stateless persons), as the country with a duty to receive that person under international law: Chieu at paras 53-54. In some cases it may be appropriate to consider a third country to which the applicant may be removed, instead of or in addition to the country of origin, e.g., a country in which the applicant has permanent residence or other status: Zuluaga v Canada (Citizenship and Immigration), 2017 FC 1005 [Zuluaga] at paras 18-23; Chieu at para 88.

    Even where an applicant can return to a third country based on a temporary ability to enter, such as a spouse’s work visa, this Court has held that consideration must be given in the H&C assessment to the risk of potential further removal from that third country to the country of nationality: Dandachi v Canada (Citizenship and Immigration), 2016 FC 952 at paras 8-10 and 15-16. Similarly, even where an applicant is believed to have status in a third country but there is a possibility that it has been lost, risk of removal to the country of nationality must be considered: Zuluaga at paras 19-23. This being so, it would be incongruous to allow an H&C assessment to be based on an assumption of removal to a country where the applicant has no legal status or right to return.

    In Singh v. Canada (Citizenship and Immigration), 2021 FC 710, Justice Southcott stated:

    The Respondent argues that, following settlement of the judicial review of his previous H&C application, the Applicant had the opportunity to furnish additional and updated evidence but failed to do so meaningfully, instead providing only one paragraph of supplementary submissions.

    However, that one paragraph of supplementary submissions emphasizes that the Applicant cannot be removed to India or the UK, having no right to abode in either country, and refers to evidence supporting this submission. I appreciate that the Applicant did not submit any evidence raising issues of risk or hardship particular to Kenya. However, the H&C application was premised significantly on the hardship Applicant would experience as a result of separation from his family. Given that the Officer’s assessment took into account factors associated with relocation to India or the UK that would mitigate that hardship, the Court cannot know whether the outcome would have been different if the Officer had performed that assessment against the alternative of returning to Kenya.