The Federal Court decision in Calderon Garcia v. Canada (Citizenship and Immigration), 2012 FC 412 sets out the legal principles regarding a delay in claiming asylum. It states: The Applicants assert that the Board erred in rejecting their claim based solely on the delay in claiming and a lack of supporting documentation. However, this position is not supported by the Board’s decision or related jurisprudence. Delay in making a refugee claim “is not a decisive factor in itself” but it is a “relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant” (Huerta v Canada (Minister of Employment and Immigration) (1993), 157 NR 225, [1993] FCJ no 271 (CA)). It is reasonable to expect that the Applicants would make a claim at the first possible opportunity (see Jeune v Canada (Minister of Citizenship and Immigration), 2009 FC 835, [2009] FCJ no 965 at para 15). Recent jurisprudence also suggests that while the delay itself is not determinative, it “may, in the right circumstances, constitute sufficient grounds upon which to dismiss a claim” (Duarte v Canada (Minister of Citizenship and Immigration), 2003 FC 988, [2003] FCJ no 1259 at … Read More
Applying for a Permit When Country Conditions Are Not Good
It is generally regarded as difficult for people who are from countries with bad home country conditions to apply for permits. Hamad v. Canada (Citizenship and Immigration), 2012 FC 336 is an example of how to put together an application that can overcome these issues. Background When he applied, Mr. Hamad lived in Benghazi, Libya, with Ms. Mahmoud and their four children who were all under the age of ten. They were all Libyan citizens. In 2011, Mr. Hamad applied to study in Canada at George Brown College in a business administration-accounting program. Mr. Hamad had two brothers living in Libya. His third brother was a Canadian citizen who lived in Toronto and who testified that he was committed to supporting and financially assisting his brother’s family during their stay in Canada. Mr. Hamad had previously traveled to Egypt, and in his application stated that he had visited his brother in Canada in 1991, on a visitor’s visa valid from January 24, 1991 to July 23, 1991, and that he left Canada before the expiry date. The family had no debts, had a home, an orchard and a well in Libya. Mr. Hamad also owned a transport truck and an … Read More
A34 – Inadmissibility for Security Reasons
Section 34 of the Immigration and Refugee Protection Act provides that a permanent resident or foreign national is inadmissible to Canada for security reasons. It states: Security 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). (2) [Repealed, 2013, c. 16, s. 13] Immigration, Refugees and Citizenship Canada has produced a useful internal document summarizing the jurisprudence (up to about 2010) on the interpretation of this section, and I have reproduced it below. More recent jurisprudence can be found throughout my blog, but … Read More
Extensions of Time and Judicial Review
Section 72(2)(b) of the Immigration and Refugee Protection Act provides that a judicial review shall be filed within 15 days of a matter arising in Canada and 60 days on a matter arising outside of Canada. Rule 6(2) of the Citizenship, Immigration and Refugee Protection Rules, S.O.R./93‑22 provides that a request for an extension of time shall be determined at the same time, and on the same materials, as the application for leave. In Singh v. Canada (Citizenship and Immigration), 2021 FC 93, Justice Bell affirmed that extension request determinations should not be left to the judicial review but rather addressed at leave. He further noted: Having expressed my opinion regarding the approach to be employed, I will, nonetheless, decide the question of the extension of time. Time limits have a purpose. One of their clear purposes is to ensure evidence does not go stale. Another is undoubtedly, to ensure defendants or respondents can know with some degree of certainty the extent of potential claims outstanding against them. Given these and other considerations, the Courts have developed an objective and balanced approach to when motions for extensions of time will be granted. Generally, the moving party must demonstrate: a) a continuing intention … Read More
Refusal to Process a Labour Market Impact Assessment
A Labour Market Impact Assessment (a “LMIA“) is an assessment by the Department of Employment and Social Development Canada (“ESDC“) that the hiring of a foreign worker will have a positive, neutral or negative impact on Canada’s labour market. An LMIA is often a requirement to hire a foreign worker. There are certain situations in which ESDC will refuse to issue a LMIA. This effectively precludes employers from utilizing the Temporary Foreign Worker Program (the “TFWP“). The Sex Industry Regulations 183(b.1) and 196.1 of the Immigration and Refugee Protection Regulations (the “IRPR”) provides that temporary residents are prohibited from entering into an employment agreement, or extending the term of an employment agreement, with an employer who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages. Regulation 200(3)(g.1) of the IRPR further provides that work permits cannot be issued to workers who intend to work for employers who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages. Because of this, ESDC will not issue LMIAs to employers who regularly offer services in the sex industry (striptease, erotic dance, escort services or erotic massage). Ineligilibity List Employers who hire temporary workers may be inspected to … Read More
Joint Submissions at the Immigration Appeal Division
It is not uncommon for the Canada Border Services Agency (“CBSA“) to consent to an Immigration Appeal Division (the “IAD”) appeal, and for the applicant and CBSA to make joint submissions. On occassion, the IAD will not accept the joint submissions. There are also occassions where the IAD may signal, either expressly or impliedly that a certain matter is not at issue, while it in fact may be or become an issue. The jurisprudence on this is as follows. In Velauthar v Canada (Minister of Employment and Immigration), [1992] FCJ No 425 (CA), a panel advised counsel before submissions that the only issue was whether the persecution the claimant feared was based on a Convention ground. This implied that credibility was not in issue, so the parties did not address credibility in their submissions. The Federal Court of Appeal found it to be a “gross denial of natural justice” for the panel to then make an adverse determination on grounds of credibility.” The Federal Court of Canada has applied Velauthar in cases where a tribunal directly or by implication gave the misleading impression that a matter or issue was resolved. At the same time, the Federal Court of Canada in Fong v … Read More
LMIA Working Conditions
The Temporary Foreign Worker Manual states the following about working conditions.
Returning Applications During COVID-19
During the COVID-19 pandemic Immigration, Refugees and Citizenship Canada (“IRCC”) has implemented numerous policies to try to process applications as normally as possible and also provide applicants who are unable to provide certain documents or meet deadlines with flexibility. Applicants should know that while IRCC is providing more flexibility than it normally does to incomplete applications that it is still returning applications that are technically incomplete where applicants do not provide an explanation. The return of these applications sometimes takes months due to pandemic related intake delays at IRCC, and it is very important that applicants submit complete applications. IRCC’s COVID-19 Policy with Regard to Missing Documentation Canada’s Immigration and Refugee Protection Regulations provides that IRCC can return applications that are missing mandatory information or documents. During COVID-19, IRCC’s policies are that new, complete applications will be processed as normally possible. If a new application is missing supporting documentation or information, then an applicant must include an explanation with their application that they are affected by a service disruption as a result of COVID-19. IRCC will then essentially put the application aside, and wait for the document to be provided. If a new application is missing supporting documentation or information, … Read More
Understanding Dual Intent
It is not uncommon for people who are applying for temporary residency are scared to admit anything that could convey a future desire to immigrate to Canada. However, Immigration, Refugees and Citizenship Canada (“IRCC“) recognizes that having two intents (one temporary and one permanent) is legitimate. Its policy on this is commonly known as “dual intent.”
Borderlines Podcast #44 – An Interview with Chris Alexander, Canada’s Immigration Minister from 2013-2015
The Honourable Chris Alexander served as Canada’s Minister of Citizenship and Immigration Canada from July 2013 to November 2015. He represented the riding of Ajax—Pickering in the House of Commons of Canada from 2011 to 2015. Prior to that spent 18 years in the Canadian Foreign Service, serving as Canada’s first resident Ambassador to Afghnistan from 2003 – 2005. Subsequent to being an Member of Parliament he ran for the leadership of the Conservative Party of Canada. As Minister of Citizenship and Immigration Canada, Mr. Alexander presided over the launch of Express Entry, the termination of the Immigrant Investor Program and the introduction of the Barbaric Cultural Practices Act, which prohibited forced and underaged marriages. 5:09 – If there was one misconception about Canadian immigration law that Minister Alexander would like to change what would it be? 15:00 – Bill C-24 and the revocation of citizenship for dual nationals convicted of high crimes. 16:00 – Whether there was a strong anti-fraud and anti-exploitation mandate during Minister Alexander’s time as Minister. 22:00 – Combatting forced marriages. 23:00 – Preventing foreign worker abuse by sanctioning the employers who abuse them. 26:00 – The Barbaric Cultural Practices Act 36:45 – Ending the … Read More