In this episode, we are joined by Gerald Chan, a privacy and criminal defense lawyer from Stockwood’s LLP. We discuss several significant cases and topics within the realm of privacy law and its intersection with Canadian immigration law. Gerald’s paper on text message privacy can be found here. Specific cases include: R. v. Bykovets, 2024 SCC 6 (whether police need warrant to obtain IP address) R v. Marakah, 2017 SCC 59 (whether police need warrant to obtain text messages) R. v. Spencer, 2014 SCC 43 (online anonymity) We also discuss the intersection between privacy law and immigration law, including when CBSA can search electronic devices, and invasive requests for documents. .
Humanitarian & Compassionate Applications
People who would not normally be eligible to become permanent residents of Canada may be able to apply on humanitarian and compassionate (“H&C“) grounds. Humanitarian and compassionate grounds apply to people with exceptional cases. Here are 2020 approval statistics for humanitarian & compassionate class applications. Here are approval statistics for 2018 – 2023 (January – August). Sample Decisions Below are sample H&C decisions that were used in an Immigration, Refugees and Citizenship Canada training session. For each example, IRCC provided a chat to show a portion of the officer’s decision-making steps to describe context of the application. As can be seen, a big deficiency in many H&C applications is the applicant not providing documentary examples to substantiate their assertions in claim. The H&C requests were based on the following situations: Domestic violence in Mexico from two former partners Discrimination in Japan Criminal gangs in Honduras Members of a drug cartel Land dispute Adverse country conditions in Bulgaria Membership in a political party Adverse country conditions in China Adverse country conditions in Fiji Religious discrimination in Bangladesh COVID-19 In the following years there will likely be many humanitarian & compassionate consideration applications filed by people who worked as front-line workers during … Read More
Borderlines #87 – Visa Officers and the IAD Ignoring or Disagreeing with Federal Court, with Raj Sharma
Raj Sharma is an immigration lawyer in Calgary. In Borderlines Podcast Episode 69 we discussed his case Mohammad v. Canada (Citizenship and Immigration), 2022 FC 1, in which the Federal Court quashed an Immigration Appeal Division decision, stating that the IAD did not properly give enough weight to the unique contributions that Ms. Mohammad made as a health care worker during COVID-19, and the debt that was owed to her. The IAD disagreed with the Federal Court, and Raj Sharma sought judicial review again. The case, and today’s episode, provides an insight into how redetermination works, and the degree of deference that visa officers and the IAD need to show the Federal Court.
A37 – Inadmissibility for Organized Crime
Section 37 of the Immigration and Refugee Protection Act (the “IRPA“) provides that a permanent resident or foreign national is inadmissible to Canada for organized criminality. It states: 37. (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for (a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime. Application (2) Paragraph (1)(a) does not lead to a determination of inadmissibility by reason only of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized … Read More
Borderlines Podcast #85 – Security Delays, Study Permits and Mandamus, with Lev Abramovich
Lev Abramovich is an immigration lawyer in Toronto. There has been an increase in security screening in Canadian visa applications for residents of several countries. Chen v. Canada (Citizenship and Immigration), 2023 FC 885 is the first Federal Court of Canada decision to discuss mandamus in the study permit context. Lev was counsel in this case. The court ruled that Immigration, Refugees and Citizenship Canada’s delay in processing the application was unreasonable or unexplained. However, the mandamus application failed because the applicant did not demonstrate significant prejudice. Mandamus applications are actions to the Federal Court of Canada to compel IRCC to conclude the processing of a delayed application. We also discuss security clearance delays for applicants from Iran and China. The lack of transparency and clarity in the immigration process, particularly regarding security concerns, is a growing issue.
Borderlines Podcast #103 – Inadmissibility for Organized Crime and Screening Lawyers for Islamophobia, with A. Connie Campbell
A. Connie Campbell is a lawyer at Edelmann & Co. We discuss inadmissibility for organized crime and answer a question about whether we think that law societies should screen lawyers for Islamophobia or anti-Palestinian sentiments.
Withdrawing a Spousal Sponsorship
The first question on the Application to Sponsor and Undertaking form asks…1) If you are found ineligible to sponsor, indicate whether you want to withdraw your sponsorship. All processing fees less $75 will be repaid OR to proceed with the application for permanent residence.
Who Needs a Study Permit
All foreign nationals are required to obtain a study permit for engaging in academic, professional, vocational or other education or training that is more than six months in duration at a Designated Learning Institute in Canada, unless exempted. The following are not considered studies which requires a study permit: pre-school (pre-kindergarten) courses of general interest or self-imporvement distance learning audited courses (typically by sitting in on an academic course but iwthout obtaining credit for it or having the ability to obtain credit for it retroactively) Legislation Section 30(2) of the Immigration and Refugee Protection Act states: 30(2) Every minor child in Canada, other than a child of a temporary resident not authorized to work or study, is authorized to study at the pre-school, primary or secondary level. Regulation 188(1) of the Immigration and Refugee Protection Regulations states: 188 (1) A foreign national may study in Canada without a study permit (a) if they are a family member or a member of the private staff of a foreign representative who is properly accredited by the Department of Foreign Affairs and International Trade and who is in Canada to carry out official duties as a diplomatic agent, consular officer, representative or official of a country … Read More
Borderlines Podcast #52 – Ranking Economic Immigrants and Listener Q&A, with Asha Kaushal
A discussion of the philosophy behind economic immigration, how Canada ranks economic immigrants, Ministerial Instructions and listener Q&A. Ashal Kaushal is an Assistant Professor at the University of British Columbia’s Allard School of Law, where she teaches, amongst other courses, Immigration Law. 6:00 An introduction to Canada’s points system, how Express Entry changed it and Ministerial Instructions. 14:30 The three models of economic immigration. The Human Capital Model, the Demand-Driven Model and the Neo-Corporatist Model 22:00 How the same job offer can be worth different points depending on the immigration program. 28:30 Is it possible to qualify the value of a prospective economic immigrant through their job? 32:00 Why are the points what they are? Why would a job offer go from 600 to 200 / 50, for example? How did the change from Conservative to Liberal government change? 37:30 A ranking system based on wage. 44:00 Ministerial Instructions Listener Questions 55:30 How long will Express Entry last before they bring in a whole new system? 1:00 Should there be country caps on economic immigration? Will India remain the top source country of immigrants? 1:06 What, if anything, should be done about how the federal and provincial governments have … Read More
Borderlines Podcast #102 – What Being a Visa Officer Was Like, with Corey Clamp
Corey Clamp worked at Citizenship and Immigration Canada from 2003-2008. His roles included working as a Litigation Management Analyst in Ottawa, several supervisory roles at the Canadian High Commission in New Delhi and as a Senior Immigration Officer at the Canadian visa office in Ho Chi Minh City. We discuss Corey’s immigration career, the importance of overseas offices, refusing applications, the importance of individual personalities in the visa processing process and things that Corey believes members of the public or applicants should understand about the role of visa officers. We also answer a recent question about what our thoughts are regarding Immigration, Refugees and Citizenship Canada’s 2023 Temporary Public Policy to bulk waive eligiblity requirements to clear the temporary resident visa backlog, and the 19,000 refugee claims that resulted by the end of 2023.