One of the biggest issues in immigration law is credibility. When a tribunal finds a lack of credibility based on inferences there must be a basis in the evidence to support the tribunal’s inferences. It is not open to tribunal members to base their decision on assumptions and speculations for which there is no real evidentiary basis. In Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39, the House of Lords (in a decision frequently cited by Canadian courts) noted that: The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference. At the same time, as per the Federal Court of Canada decision in Giron v Canada (Minister of Employment and Immigration), credibility assessment is “the heartland of the discretion of triers of fact”, … Read More
Supreme Court Clarifies Child Luring Laws
The Supreme Court of Canada in 2019 clarified the law regarding the requirements to convict someone for child luring under the Criminal Code. The decision, R v. Morrison, has implications for people who may be inadmissible to Canada for serious criminality. Section 172.1(1) of the Criminal Code prohibits communicating, by means of telecommunication, with a person who is, or who the accused believes is, under the age of 18, 16 or 14 (depending on the circumstances) for the purposes of facilitating the commission of certain designated offences against that person, such as sexual offences. Prior to R v. Morrison, the law was that if someone told someone else they were underage, the law presumed the person believed it. The only exception was if there was evidence that the person didn’t believe it. All the judges at the Supreme Court agreed that this violated the right to be presumed innocent. As a result, in the context of a police sting where there is no underage person, the offence of child luring has three essential elements: (1) an intentional communication by means of telecommunication; (2) with a person who the accused believes is under the requisite age; (3) for the purpose of facilitating the commission of a designated offence … Read More
Inability to Provide Documents
Immigration, Refugees and Citizenship Canada often makes requests for documents. In Paddayuman v. Canada (Citizenship and Immigration), 2019 FC 28, Justice Manson articulated two important principles for this requirement. First, it is unreasonable to require documents that do not exist. While in Paddayuman this referred testimonies, affidavits and out of court settlement documents, it can also extend to reference letters, custody agreements, etc. Second, the passage of a significant amount of time, while not determinative, does suggest that the stringency of document requirements should be viewed with a purposive lens.
Voluntary Disclosures and Administrative Monetary Penalties
In both the Temporary Foreign Worker Program (the “TFWP”) and the International Mobility Program (the “IMP”) employers who have been non-compliant can reduce their potential penalties by voluntarily disclosing the non-compliance. Voluntary disclosures are only available to mitigate against the consequences for non-compliance that occurred on or after December 1, 2015. Considerations A voluntary disclosure must be unsolicited. It must be complete and voluntary. Officers will consider several factors in determining whether the voluntary disclosure is acceptable. First, a voluntary disclosure will only be acceptable for violations that are not severe. Whether a violation is severe will depend on the number of foreign workers negatively affected by the violation, whether any abuse of a foreign worker occurred, the duration of non-compliance, and any economic gain the employer may have obtained as a result of the violation. Second, acceptable voluntary disclosures must be made in a timely manner. Third, the number of times an employer is non-compliant will impact whether a disclosure is voluntary and complete. Employers will not be allowed to repeatedly use voluntary disclosures to their advantage while making little or no effort to comply with TFWP or IMP requirements. Fourth, the complexity of meeting a condition can impact … Read More
The Interim Pathway for Caregivers
On February 25, 2019 Immigration, Refugees and Citizenship Canada (“IRCC“) announced a one-time, short-term public policy for in-Canada caregivers to provide a pathway to permanent residence for caregivers who do not qualify under the 2014 Ministerial Instructions Establishing the Caring for Children Class and the Caring for People with High Medical Needs Class. This is a 3-month interim pathway, with no cap on volumes. To be eligible, caregivers have to meet all the following conditions: At the time of application, they are authorized to work in Canada on a work permit other than a Live-in Caregiver Program work permit; They intend to reside in a province or territory other than Quebec; Since November 30, 2014, they have acquired at least 1 year of full-time Canadian work experience in an eligible caregiver occupation. These occupations are National Occupational Classification (“NOC”) 4411 – Home Childcare Providers and NOC 4412 – Home Support Workers and Related Occupations (other than Housekeeper); They meet the minimum education requirement; and They meet the minimum language proficiency requirement. Experience Only home child care providers are eligible under NOC 4411. Applicants with work experience under NOC 4411 must have provided in-home care to children under the age of 18 … Read More
What Happens at CBSA – The Port of Entry
A main purpose of the Canada Border Services Agency (the “CBSA“) is to determine whether people are inadmissible to Canada and, if they are, next steps. Section 15(1) of Canada’s Immigration and Refugee Protection Act (the “IRPA“), read in conjunction with r. 28(b) of Canada’s Immigration and Refugee Protection Regulations (the “IRPA”) authorizes Border Services Officers (“BSOs“) to examine people who are entering Canada to determine their admissibility. As well, IRPA s. 18(1) provides that every person seeking to enter Canada must appear for an examination at CBSA to determine whether that person has a right to enter Canada or is or may become authorized to enter and remain in Canada. This post is a summary of the training manual from the CBSA’s Officer Induction Training Program. A full copy can be found at the bottom of the post. Examination Timeline Regulation 37 of the IRPR define when a CBSA examination at a port of entry (a “POE“) ends. It states that an examination ends once one of the following occurs: A final determination is made that the person has a right to enter Canada, or is authorized to enter Canada, and leaves the port of entry. It is important to note that an examination is not over simply … Read More
Distinguishing PRRA and H&C
Failed refugee claimants, and some other types of inadmissible people within Canada, often submit both Pre-Removal Risk Assessment (PRRA) applications, as well as Humanitarian & Compassionate (H&C) ones.
The Caring for Children Class, and the Caring for People with High Medical Needs Class
The Government of Canada has very quietly announced that it is closing the Caregiver programs described below on November 29, 2019. Applicants who did not start working as caregivers prior to that date will be unable to apply under these programs. [ORIGINAL POST] On November 28, 2014, the Government of Canada issued Ministerial Instructions completely overhauling Canada’s caregiver immigration programs. The changes consist of: Suspending the in-take of applications under the existing Live-in Caregiver Program; Establishing the Caring for Children Class; and Establishing the Caring for People with High Medical Needs Class. The above changes all take effect on November 30, 2014.
A Common Sense Approach to A44 Reports
Canada’s Immigration and Refugee Protection Act (the “Act“) provides that an officer who believes that a foreign national or permanent resident in Canada is inadmissible to Canada (for criminality, health, overstay, working without authorization, etc.) may prepare a report alleging the inadmissibility (commonly known as an “A44 Report“). The Act further provides that once an officer prepares an A44 Report, then the Canada Border Services Agency (“CBSA“) (the agency generally responsible for this) may commence removal proceedings, or, when necessary, refer the matter to the Immigration and Refugee Board, an independent administrative tribunal. The use of the term “may” in the Act has caused much confusion. In Cha v. Canada (Minister of Citizenship and Immigration), 2006 FCA 126 (“Cha“), the Federal Court of Appeal (the “FCA“) declared that the use of the word “may” did not actually grant CBSA officers broad discretion to exercise or not to exercise the power to write A44 Reports and to commence removal proceedings when it believed that someone was inadmissible to Canada. The FCA stated (citations removed for ease of reading): In Ruby v. Canada (Solicitor General) at pages 623 to 626, Létourneau J.A. reminded us that the use of the word “may” is often a signal that a margin of discretion … Read More
Sponsoring a Common-Law Partner
Canadian immigration law allows Canadian citizens and permanent residents to sponsor their common-law partners. It requires that: people in relationships who have not married to have cohabited together for at least one year in a conjugal relationship; that the cohabitation during that year be continuous rather than intermittent cohabitation adding up to one year; that the relationship be genuine; and that the relationship not be entered into to acquire an immigration benefit. While cohabitation means living together continuously, short periods of separation due to work, business travel, family obligations, etc., are permitted. After the one-year period of cohabitation has been established, the partners may live apart for periods of time without legally breaking the cohabitation, provided that there is evidence that both parties are continuing the relationship. In Chantladze v. Canada (Citizenship and Immigration), 2018 FC 771, Justice Fothergill stated that it was a reviewable error for an officer to consider the reasons why a couple had lived apart after they had previously lived together for one year continuously. As the Immigration, Refugees and Citizenship Canada guidelines note: “According to case law, the definition of a common-law partner should be read as “an individual who is (ordinarily) cohabiting.” After the … Read More