The Supreme Court of Canada has “clarified” the elements of the duress defence. The defence is important because it can affect admissibility. For example, in Guerra Diaz v. Canada (Citizenship and Immigration), 2013 FC 88, the Federal Court of Court determined that the Immigration and Refugee Board improperly applied the test of whether duress applied, and ordered a new hearing by a different member. Duress and Inadmissibility It is basically trite law that where there is duress, then a person does not have the mens rea do either commit a crime or be a member in a group that renders the individual inadmissible to Canada. In Jalloh v. Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 317, the Federal Court stated that: In my view, it is preferable to consider the evidence of membership along with the evidence of coercion in determining whether there are reasonable grounds to believe the person genuinely was a member of the group. One way of looking at this issue is to regard evidence of duress as defeating the mens rea of membership (Thiyagarajah v Canada (Minister of Citizenship and Immigration), 2011 FC 339). Accordingly, evidence relating to duress must be considered along with the evidence relating to … Read More
Borderlines Podcast #216 – Inside IRCC: Answers to Representatives’ Emails #1
Steven Meurrens and Deanna Okun-Nachoff review several responses from IRCC’s Immigration Representatives’ Mailbox, where immigration representatives ask questions about how Canadian immigration law and various immigration programs are interpreted and applied. This correspondence was obtained through an Access to Information Act request. Topics discussed include: (1) whether rental assistance counts as social assistance for sponsorships; (2) study permit requirements for children of protected persons; (3) maintained status and “rolling” extension applications; (4) whether marriages count for immigration purposes if the commissionaire is joining remotely; (5) criminal rehabilitation applications and concurrent filings; (6) adding newborn children after COPRs are issued; (7) travelling to Canada by land with an expired PR Card; (8) whether C11 entrepreneur work permits count toward Express Entry; (9) foreign work experience performed remotely from inside Canada; (10) Express Entry NOC code refusals and category-based selection issues; (11) non-accompanying spouses and CRS score maximization; (12) proof of settlement funds in foreign currencies; and (13) PR portal travel complications and eCOPRs. We also answer a live listener question about ATIPs and CBSA.
Mandamus Orders
A mandamus order is a judicial command to a government body to do, or forbear from, doing a specific act which it is obligated in law to do. The Federal Court’s decision in Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159, is one of the most cited case in the immigration context for setting forth the test for when a mandamus order will be given. There, Justice Snider stated: The equitable remedy of mandamus lies to compel the performance of a public legal duty that a public authority refuses or neglects to carry out when called upon to do so. Mandamus can be used to control procedural delays (Blencoe v. British Columbia (Human Rights Commission) [2000] 2 S.C.R. 307 at para. 149). The test for mandamus is set out in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.), aff’d [1994] 3 S.C.R. 1100 (and, more recently, discussed in the immigration context in Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189 (T.D.), aff’d [2003] F.C.J. No. 813, 2003 FCA 233,). The eight factors are: (i) There must be a public legal duty to act; (ii) The duty must be owed to the Applicants; (iii) … Read More
Labour Market Impact Assessments – The Genuiness and Actively Engaged Factors
Section 203(1)(a) of the Immigration and Refugee Protection Regulations (“IRPR“) requires Service Canada to only issue a positive Labour Market Impact Assessment (“LMIA“) when it is satisfied that an employer’s job offer is genuine. The IRPR lists several specific factors which Service Canada officers must consider in a genuineness analysis. The Genuineness Factor In addition to regulation 203(1)(a) of the IRPR, regulation 200(5) of IRPR provides that: Genuineness of job offer (5) A determination of whether an offer of employment is genuine shall be based on the following factors: (a) whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made, unless the offer is made for employment as a live-in caregiver; (b) whether the offer is consistent with the reasonable employment needs of the employer; (c) whether the terms of the offer are terms that the employer is reasonably able to fulfil; and (d) the past compliance of the employer, or any person who recruited the foreign national for the employer, with the federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work. … Read More
Responsibility for Missed E-mail Communication
Who bears the risks when e-mail notices are sent by a visa officer but are not received by the applicant’s agent?
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
When the Court Will Award Costs
In this post, which will be updated frequently, I will be looking at scenarios where the Federal Court ordered costs. I’m hoping that this post can become a useful reference for Federal Court practitioners.
Intention to Reside and Provincial Nominees
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; … Read More
Work Experience Under the FSWP and the CEC
In both the Federal Skilled Worker Program, the Canadian Experience Class, and indeed most economic immigration programs, the government of Canada relies on Service Canada’s National Occupational Classification (“NOC“) system to determine eligibility. In the Canadian Experience Class, for example, subsections 87.1(2)(b) and (c) of the Immigration and Refugee Protection Regulations (the “IRPR“) set out the job duties that applicants to the Canadian Experience Class must perform in order to meet the requirements of having experience in an eligible NOC. Subsection 87.1(2)(b) provides that an applicant must have performed the “actions described in the lead statement for the occupation as set out [in the NOC]”, while subsection 87.1(2)(c) provides that an applicant also must have performed a “substantial number of the main duties of the occupation as set out in the NOC, including all of the essential duties.” In the Federal Skilled Worker Program, meanwhile, s. 75(2)(a)-(c) of the IRPR states: A foreign national is a skilled worker if (a) within the 10 years before the date on which their application for a permanent resident visa is made, they have accumulated, over a continuous period, at least one year of full-time work experience, or the equivalent in part-time work, in the occupation … Read More
Inadmissible for Crimes Against Humanity
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