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.
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
Overview of Detention
On October 29, 2010, the Immigration and Refugee Board released Guideline 2 on Detention. The Guidelines are to assist Immigration Division members in determining whether or not to hold an individual in detention.
Truck Driver Work Permits
When it comes to work permits there are certian issues that are somewhat unique to truck drivers. Mandatory Entry-Level Training Over the years Immigration Refugees and Citizenship Canada and Service Canada have had different policies regarding MELT. The most recent on this is that employers must confirm who will pay for MELT, if wages will be paid during the training period, and require documentation confirming. In Singh v. Canada (Citizenship and Immigration), 2026 FC 892, Justice Fuhrer held that it was reasonable for IRCC to determine that a MELT was not a certificate of qualification. Language In Sangha v. Canada (Citizenship and Immigration), 2020 FC 95 Justice Russel stated that “safety must surely be a pramount requirement for competence” in the case of long-haul truck drivers, and that applicants must accordingly provide evidence of compliance. In Patel v. Canada (Citizenship and Immigration), 2021 FC 573 Justice Brown further determined that it is reasonable for an officer to consider the issue of an applicant’s ability to drive safely on Canadian roads when assessing the overall suitability of an applicant to become a Canadian long-haul truck driver, even if visa office checklists do not require this. There, the applicant had provided an … Read More
Danger Opinions
Section 115 of Canada’s Immigration and Refugee Protection Act provides that Canada shall not deport a protected person or a refugee to a country where they would be at risk of persecution of reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment. There are exceptions, however, for people who are: inadmissible to Canada for serious criminality and the government believes that the person is a danger to the public in Canada; or inadmissible to Canada on grounds of security, violating human or international rights or organized criminality and the government believes that the person should not be allowed to remain in Canada on the basis of the nature and severity of the acts committed or of danger to the security of Canada. Determining Whether to Issue a Danger Opinion In Ragupathy v Canada (Minister of Citizenship and Immigration), 2006 FCA 151, the Federal Court of Appeal set out the sequencing for the analysis in respect of a danger opinion: Step 1 – confirm that the protected is inadmissible on grounds of serious criminality; Step 2 – determine that the protected person is a danger to the … Read More
Borderlines Podcast #56 – Responding to Deportation Letters, with Michael Greene
We discuss issues involving the deportation of long term permanent residents for criminality. Michael Greene, Q.C. is an immigration lawyer in Calgary. He served as the National Chair of the Canadian Bar Association’s Citizenship & Immigration Section in 2000-2001. He is representing Jaskirat Singh Sidhu in his immigration and deportation matters. 5:45 – What are the grounds for deporting a permanent resident for criminality? 13:00 – How does the appeal process work? 17:00 – What are the factors in deportation. 19:00 – An overview of the history of the law involving the deportation of permanent residents. 26:00 – What is the probability of success for a permanent resident in avoiding deportation once proceedings start? 36:00 – Stays of removal 41:00 – Strategies and tips for responding to procedural fairness letters involving removal. [UPDATE – DECEMBER 20, 2023] The Federal Court in Sidhu v Canada (Public Safety and Emergency Preparedness), 2023 FC 1681 has upheld a decision of the Canada Border Services Agency to refer Mr. Sidhu to the Immigration and Refugee Board. Citing the Federal Court of Appeal decision in Obazughanmwen v Canada (Public Safety and Emergency Preparedness), 2023 FCA 151, the Court set forth the general principles applicable 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.