Section 35 of the Immigration and Refugee Protection Act (the “IRPA“) provides that: Human or international rights violations 35 (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for (a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act; (b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act; or (c) being a person, other than a permanent resident, whose entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a country against which Canada has imposed or has agreed to impose sanctions in concert with that organization or association. Internal Guideline Immigration, Refugees and Citizenship Canada (“IRCC“) has produced a useful internal document … Read More
Addressing IRPR r. 117(9)(d)
Regulation 117(9)(d) of the Immigration and Refugee Protection Regulations provides that a foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined. An exception exists where the foreign national was not examined because an immigration officer determined that they did not need to be. Regulation 117(9)(d) typically arises where a person immigrates to Canada, does not disclose that they are either married or have children, and then attempt to sponsor for immigration the people that they did not disclose. The Charter If one has a regulation 117(9)(d) refusal and wishes to make a Charter challenge, they should know that the Federal Court of Appeal has already held that the law is constitutional. In de Guzman v. Canada (Minister of Citizenship and Immigration), [2006] 3 FCR 655, 2005 FCA 436, Ms. de Guzman’s counsel argued that by preventing her from sponsoring her children, and keeping her apart from them, regulation 117(9)(d) deprived her of the Charter’s right to liberty because it … Read More
Arguing Incompetence of Counsel in an Appeal
Many lawyers when they meet with clients often review rejected applications and/or appeals where it is obvious that the individual’s previous representative was incompetent. The examples of incompetence range from missed deadlines to ignorance of the law. Some specific examples include: former counsel being told by an Immigration Appeal Division member to “sit down” because they were incompetent; an immigration consultant not knowing the difference between a “conviction” and a “dismissal”; an immigration consultant stating that the “prevailing wage = the wage paid to Canadians at the employer’s company”; and a lawyer filing late because “deadlines are policy, not statute.” While the previous representative’s incompetence may serve as a ground for relief in a judicial review, cases based on incompetence and/or negligence of previous counsel are exceptionally difficult. The Federal Court’s March 7, 2014, Procedural Protocol on arguing incompetence of counsel only make these cases more challenging. The Law on Incompetence of Counsel As the Supreme Court of Canada stated in R v. GDB for incompetence/negligence of previous counsel/representative to count as a ground for judicial review, it must be established that (1) previous counsel’s acts or omissions constituted incompetence and (2) that a miscarriage of justice resulted from the incompetence. The Federal … Read More
Citizenship Applications – Residency
Canadian citizenship carries significant rights and responsibilities, and as a result it is not granted lightly. Individuals seeking to become Canadian citizens must demonstrate that they meet several eligibility requirements set out in the Citizenship Act. These requirements are designed to ensure that applicants have established a meaningful connection to Canada before being granted citizenship. One of the most important requirements applies to adult permanent residents who apply for citizenship. To be eligible, applicants must show that they satisfy all of the criteria in subsection 5(1) of the Citizenship Act. These criteria include factors such as holding permanent resident status, meeting language requirements where applicable, filing taxes when required, and passing a citizenship knowledge test. A key component of eligibility is the residency requirement. Under the Citizenship Act, an applicant must demonstrate that they were physically present in Canada for at least 1,095 days during the five-year period immediately before the date of their citizenship application. In other words, an applicant must have spent at least three years in Canada within the relevant five-year window. This physical presence requirement is assessed based on the actual number of days that the applicant was in Canada. Applicants are therefore required to carefully … Read More
Introducing Express Entry
On January 1 2015, Citizenship and Immigration Canada (“CIC“) is expected to overhaul its economic immigration programs with the launch of Express Entry. On December 1, 2014, the Government of Canada released detailed Ministerial Instructions regarding Express Entry. In this post I hope to provide an easy to read overview of the new program. Express Entry will significantly alter every economic immigration program, including the Federal Skilled Worker Program (“FSWP“), the Canadian Experience Class (“CEC“), the Federal Skilled Trades Program (“FSTP“), and the Provincial Nominee Program (“PNP“). Rather than first in, first processed for permanent residence applications Express Entry will feature a “selection” of candidates who the Government of Canada believes is most likely to succeed in Canada. Express Entry will consist of two steps for potential applicants: Completing an Online Express Entry Profile Receiving a Letter of Invitation CIC is touting that Express Entry is not a new immigration per se, but rather a way for CIC to manage economic immigration applications online. However, a quick review of Express Entry suggests that who will be eligible to immigrate to Canada under Express Entry will fundamentally change.
The Return of Incomplete Applications
I have previously written in this blog about how Immigration, Refugees and Citizenship Canada (“IRCC’) has adapted an exceptionally strict approach to returning applications for incompleteness. I have also written in Policy Options about how frustrating this approach can be, because one of its main purposes appears to be to allow politicians to boast about reduced processing times, while ignoring the fact that the experience of individuals who are actually applying is actually often longer than previously. I wrote: The current rigid triage system distorts a fair comparison of processing times. Suppose an individual applies to sponsor a spouse to immigrate to Canada and forgets to include in one of the forms the city where a non-accompanying brother was born. Previously, processing might have been delayed by two to three months while IRCC contacted the family, informed them of the mistake and requested they provide the information. Now, IRCC would instead return the application one to two months after it is submitted, and the family would have to resubmit. If some supporting documents have expired, they may have to reobtain them, and the process can easily take several months. Under the previous system, this delay would have added two to … Read More
Understanding the Citizenship Revocation Process
Between 1977 and 2010 only 63 people had their citizenship revoked. In July, 2011, Jason Kenney, then the Minister of Citizenship and Immigration (“Minister Kenney“), announced that as many as 1,800 Canadians could be stripped of their citizenship because they obtained their citizenship fraudulently. The 1,800 individuals were identified following a three-year investigation by the RCMP, other police forces and Citizenship and Immigration Canada. On September 9, 2012, Minister Kenney announced that the number of people who would likely have their citizenship revoked had risen to 3,100, with an additional 11,000 people under investigation. An Access to Information Act request revealed that most of the Canadian citizens who were the subject of investigations were originally from the following countries. By the end of 2012, the process of revoking these peoples’ citizenship had already begun. Ultimately, after Federal Court litigation and a change in government, citizenship revocations continue at a rate much smaller than it seemed would occur, but more than before. In 2021, 7 people had their citizenship revoked. In 2022, it was 25. Section 10 of the Citizenship Act The authority of the Government of Canada to strip people of their citizenship is legally provided for by s. 10 of the … Read More
Labour Market Impact Assessments- Prevailing Wage
In order to obtain a positive Labour Market Impact Assessments, an employer must commit to paying a prospective foreign worker at least the prevailing wage for an occupation in a geographic area. The prevailing wage is set by Employment and Skills Development Canada (“ESDC“)/Service Canada. It is a very strict requirement, and Service Canada officers currently have no discretion to vary it.
Misrepresentation
Section 40 of the Immigration and Refugee Protection Act provides that a permanent resident or foreign national is inadmissible to Canada for directly or indirectly misrepresenting or withholding a material fact relating to a relevant matter that induces or could induce an error in the administration of Canada’s immigration laws. The general consequence of misrepresenting is a five-year ban from entering Canada. Canada is very strict on misrepresentation. In Bundhel v. Canada (Citizenship and Immigration), 2014 FC 1147, for example, Mr. Bundhel had been charged and convicted with an offence, which had been overturned on appeal. Mr. Bundhel would accordingly not have been criminally inadmissible to Canada. Because of this, he put on his immigration forms that he had never been charged or arrested. When it discovered thathehad been previously charged, what is now Immigration, Refugees and Citizenship Canada wrote to him and provided him with an opportunity to explain why he misrepresented. After the immigration officer reviewed Mr. Bundhel’s explanation that it was an innocent mistake, the officer refused the application, and declared the person inadmissible to Canada for misrepresentation. The Court wrote (citations removed): Mr. Bundhel’s complaint that the Officer should have considered the fact that he owned-up to the … Read More