In Sahloul v. Canada (Citizenship and Immigration), 2025 FC 1331, Justice Régimbald provided the following powerful statements about how Canadian refugee does not prohibit asylum shopping: According to some, a legitimate refugee is compelled to leave their national state out of fear of persecution at the first opportunity, and seek the first state possible that will provide safe haven. No other choice is permissible, including the choice to seek asylum in one state over another. To behave otherwise would be incommensurate with the actions of the legitimate refugee and as such, these individuals lack subjective fear. This contention has not been formed in accordance with the law. The Court should not behold refugee claimants to a mirage that robs them of their agency and imputes dishonesty where there is none. Availing oneself of the first, or closest, opportunity for international protection is not a precondition to finding refuge in Canada.
Asking the Embassy to Re-Consider an Application
Once a decision has been rendered in relation to an application for a humanitarian and compassionate exemption, is the ability of the decision-maker to reopen or reconsider the application on the basis of further evidence provided by an applicant limited by the doctrine of functus officio?
Responding to Procedural Fairness Letters
Where an applicant submits a complete application, but an immigration officer nonetheless has concerns regarding the merits of it, the immigration officer will often provide a fairness letter to the applicant. This requirement has arisen from Federal Court of Canada jurisprudence which provides that the duty of procedural fairness can require that an applicant be given an opportunity to respond to a decision maker’s concerns when those concerns go beyond simply whether the legislation or related requirements are met on the face of the application. When, for example, the applicant may be unaware of the existence or the basis of the concern, procedural fairness may require prior notice of the concern before a decision is made so that the applicant has an opportunity to try to disabuse the officer of the concern. As the Court noted in Kaur v. Canada (Citizenship and Immigration), 2020 FC 809, this is the case for both temporary and permanent residency applications. In Asanova v. Canada (Citizenship and Immigration), 2020 FC 1173, the Court stated: Even so, at a minimum procedural fairness requires that an applicant for a visa have an opportunity to participate meaningfully in the application process. Consequently, the duty of procedural fairness can require … Read More
Article 1E of the 1951 Refugee Convention
Article 1E of the 1951 Refugee Convention states: This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country. The leading case for interpreting Article 1E is Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118. There, the Federal Court of Appeal stated: Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, … Read More
Inadmissibility for Subversion
Section 34 of the Immigration and Refugee Protection Act states: 34 (1) A permanent resident or a foreign national is inadmissible on security grounds for (a) engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests; (b) engaging in or instigating the subversion by force of any government; (b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada; (c) engaging in terrorism; (d) being a danger to the security of Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c). The Test for Subversion Canadian immigration legislation does not define subversion. Several Federal Court of Canada decisions have found that it does not require violence, including Oremade v Canada (Minister of Citizenship and Immigration), 2005 FC 1077, where Justice Phelan stated: I agree with the IAD’s conclusion that the term “by force” is not simply the equivalent of “by violence”. “By force” includes coercion or compulsion by violent means, coercion or compulsion … Read More
Dual Intent
One of the most common questions that immigration lawyers and consultants get asked is whether someone can visit, work or study in Canada if they either have a permanent residence application in process or plan to submit one. The issue is often especially pronounced in Canada’s family reunification programs, as families do not want to wait the years that it can take Immigration, Refugees and Citizenship Canada (“IRCC” ) to reunite, at least temporarily. It can also, however, arise in economic immigration programs, as foreign workers who arrive in Canada may ultimately want to immigrate. The same is true with students. Section 22(2) of Canada’s Immigration and Refugee Protection Act (the “IRPA“) states that: An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay. This is commonly referred to as the dual intent provision. Because of this, IRCC’s program manuals specifically state that “having 2 intents (one for temporary residence and 1 for permanent residence) is legitimate.” However, “the possibility that an applicant for temporary residence may, at some point in … Read More
Language Requirements and Work Permits
Regulation 200(3)(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227 provides that an officer shall not issue a work permit to a foreign national if there are reasonable grounds to believe that the foreign national is unable to perform the work sought. An issue that is becomming increasingly common is whether someone has sufficient language ability to perform the work sought. IELTS For the most part, the Federal Court has been very deferential to visa officers when assessing whether they have the language requirements to perform the work sought. In Sen v. Canada (Citizenship and Immigration), 2022 FC 777, for example, Madam Justice Strickland determined that it was reasonable for a visa officer to determine that someone with a 3.5 IELTS reading score could not perform the duties of a Cook in Canada because they might be unable to follow recipes, read notes from serving staff, and read food safety instructions. In Singh v. Canada (Citizenship and Immigration), 2023 FC 170 , Madam Justice McDonald ruled that it was reasonable for a visa officer to determine that an individual with IELTS 5.0 in reading would be unable to safely read road signs, understand safety procedures and regulations, record cargo information and administer bills. … Read More
Administrative Deferrals of Removal
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. H&C Applications Pursuant to the Federal Court of Canada decision in Bawazir v. Canada (Citizenship and Immigration), 2019 FC 623 (“Bawazir“), 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 … Read More
Express Entry Imm Rep Q&A
The following PDFs contain several Express Entry Q&As that were obtained through an Access to Information Act request. The topics include what documentation is required in an Express Entry application, enclosing rehabilitation applications with Express Entry, what counts as a ‘certificate of qualification’, points for skills transferability, and qualifying arranged employment. Here is more functional guidance about concurrent work experience.
Spousal Sponsorship Bar on Violent Spouses
In April the Gazette announced that a sponsorship bar would soon come into effect prohibiting individuals that have been convicted of certain offenses from sponsoring family members. One of the offenses that would result in a bar was violence against someone that the wannabe sponsor had dated, which seemed a little vague. Now that the sponsorship bar has come into effect, and Citizenship and Immigration Canada has released a detailed Operational Bulletin on the matter, lets see if the if the new rule is a little clearer. The Operational Bulletin starts by noting the gap in the law exposed by the Brar (2008 FC 1285) decision, where the Federal Court found that an individual who had murdered his brother’s wife was allowed to sponsor his own wife, as the Immigration and Refugee Protection Regulations did not specifically bar an individual who had killed a sister-in-law from sponsoring another family member. Under the new Regulations, subject to certain exceptions, anyone convicted of an indictable offense involving the use of violence punishable by a maximum term of imprisonment of at least 10 years or an attempt to commit such an offense will be barred from sponsorship. As well, subject to certain exceptions, … Read More