On June 17, 2016, Ralph Goodale, the Minister of Public Safety and Emergency Preparedness, introduced Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United states (short titled the “Preclearance Act, 2016”). Amongst other things, the Preclearance Act, 2016 provides for the creation of preclearance areas and perimeters in the United States by Canadian officers of travellers and goods bound for Canada. Canadians who have travelled by air to the United States during the last several years will be familiar with the concept of preclearance, as the United States already has preclearance areas at most major Canadian airports. There, passengers travelling to the United States clear customs at Canadian airports. When the passengers arrive at American airports, they disembark at domestic terminals, and do not have to again clear customs. The Preclearance Act, 2016 will allow Canada to set up preclearance areas and perimeters in the United States, and will allow the Canada Border Services Agency (“CBSA”) officials to exercise their powers under the Immigration and Refugee Protection Act in preclearance areas and preclearance perimeters whose locations will be agreed upon between the United States and Canada. Both Canada and the United States have … Read More
“Country of Origin” in the Refugee Context
Section 96 of the Immigration and Refugee Protection Act (“IRPA“) provides that: Convention refugee 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. There has recently been disagreement within the Federal Court over what the term “countries of nationality” encompasses, and on May 11, 2015, Justice Mosely certified the following question: Do the expressions “countries of nationality” and “country of nationality” in Section 96 of the Immigration and Refugee Protection Act include a country where the claimant is a citizen but where he may face impediments in exercising the rights and privileges which attach to citizenship, such as the right to obtain a passport? The Federal Court of Appeal has previously addressed the issue of the definition of “countries … Read More
Addressing Ghost Consultants
For years, Canadian politicians have been grappling with the issue of how to end untrained and unregulated people from providing immigration advice, a practice commonly known as “ghost consulting.” There appears to be a general consensus that tens of thousands of people each year are scammed by ghost consultants. As well, even though they are not licensed, ghost consultants harm the reputation of the immigration consulting profession broadly. The Government of Canada has launched numerous attempts at cracking down on ghost consultants, including, requiring licensing, creating the designated the Immigration Consultants of Canada Regulatory Council, and creating videos. As well, in June, 2010, the previous Conservative Government of Canada stepped up Canada’s efforts to regulate immigration consultants by introducing Bill C-35, also known as the Cracking Down on Crooked Consultants Act.
No Credible Basis in Refugee Claims
Canada’s Immigration and Refugee Protection Act provides: No credible basis 107(2) If the Refugee Protection Division is of the opinion, in rejecting a claim, that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its reasons for the decision that there is no credible basis for the claim. Manifestly unfounded 107.1 If the Refugee Protection Division rejects a claim for refugee protection, it must state in its reasons for the decision that the claim is manifestly unfounded if it is of the opinion that the claim is clearly fraudulent. A finding of “no credible basis” may only be made where there is no credible or trustworthy evidence on which the Refugee Protection Division (the “RPD“) could make a positive finding. It is a high threshold that limits an applicant’s subsequent procedural rights. Before determining that an applicant’s refugee claim has no credible basis, the RPD must look to the objective documentary evidence for any trustworthy or credible support for an Applicant’s claim. A lack of credibility is not the same as saying that a claim has no credible basis. Canada (Citizenship and Immigration) v. Singh, 2016 FCA 300 In Canada (Citizenship and Immigration) v. Singh, the … Read More
Polygamy and Canadian Immigration
Polygamous marriages are not legal in Canada and are an offence under the criminal code. Regulation 117(9)(c)(i) of the Immigration and Refugee Protection Regulations provides that a spouse is not a member of the family class if the spouse or sponsor was already married to another person at the time of the subsequent marriage. Canadian immigration law prohibits a second wife from being recognized as a spouse within the family class and provides that only the first marriage may be recognized for immigration purposes. Recognizing First Marriage For the first marriage to be recognized, the couple must live together in a monogamous marriage in Canada. Canadian common law imparts that a polygamous marriage can be converted into a monogamous marriage provided that the couple live together in a monogamous relationship from the time of arrival in Canada. This can be demonstrated if the couple states their intention to convert their marriage to a monogamous one, followed by some factual evidence that they have complied. Departmental Report In March 2014, a paper was prepared for the Admissibility Branch of Citizenship and Immigration Canada titled “Polygamy and Immigration.” Although it is now two years old, it is useful reading for anyone looking … Read More
Remorse in the Rehabilitation Context
In Chung v. Canada (Citizenship and Immigration), 2015 FC 1329, the Federal Court certified the following rather interesting question of general importance: Does the Immigration Appeal Division of the Immigration and Refugee Board, in the exercise of its humanitarian jurisdiction, err in law in considering adverse to an appellant lack of remorse for an offence for which the appellant has pled not guilty but was convicted? The issue of whether one should express remorse for a crime that they are adamant they did not commit frequently arises in the rehabilitation and humanitarian & compassionate context. Applicants who have criminal records frequently deny guilt, even when convicted, and even including when they entered into a plea bargain (which is perhaps not surprising given the leverage that the state has during plea bargaining). In Chung v. Canada (Citizenship and Immigration), 2015 FC 1329, the applicant argued that when an accused pleads not guilty, it is an error of law to consider lack of remorse as an aggravating factor for the purpose of sentencing, and that this principle should be extended to the immigration context. Justice Russell disagreed, stating that in the immigration context, the lack of remorse and failure to take responsibility for past crimes goes to … Read More
Who Can Be Sponsored
One of the questions that we are most frequently asked is which family members can be sponsored under Canada’s family reunification programs. Most people rightly assume that Canadian citizens and/or permanent residents can sponsor their spouses, children, and parents. However, many also wonder about sponsoring siblings, cousins, nieces, nephews, etc. Canada’s Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRPR“), provide that a Canadian citizen / permanent resident (the “Sponsor“) may sponsor the Sponsor’s spouse, common-law partner or conjugal partner. A “spouse” is the Sponsor’s husband or wife. A “common-law partner” is someone who the Sponsor has cohabited with in a conjugal relationship for a period of at least one year. A “conjugal partner” is someone who the Sponsor has been in a conjugal relationship with for a period of at least one year, but who for exceptional circumstances the Sponsor has neither been able to marry nor cohabit with. It most commonly applies to same-sex relationships where the couple is unable to cohabit or marry due to fear of persecution or penal control. IRPR also provides that a Sponsor may sponsor the Sponsor’s dependent child. A “dependent child” is a child who is the biological or adopted child of the Sponsor, and who is under the age … Read More
Five Reasons IRCC Rejects Express Entry Applications
Since January 1, 2015, almost all prospective economic immigrants to Canada must apply through Express Entry. Express Entry is an application intake management system in which Immigration, Refugees and Citizenship Canada (“IRCC”) controls immigration application intake by requiring applicants be issued an invitations to apply for permanent residency (“ITAs” before they can actually submit their applications. The purpose of Express Entry is to minimize processing times. Indeed, when Express Entry was launched IRCC guaranteed that it would be able to process permanent residence applications within six months. On March 31, 2016, IRCC released its Express Entry Year-End Report 2015 (the “Express Entry Report”). The Express Entry Report shows that IRCC in 2015 met its six-month processing goal. However, the Express Entry Report also revealed that IRCC has been bouncing (or rejecting, as IRCC likes to describe it) many Express Entry applications due to incompleteness. Prior to the introduction of Express Entry, while a bounced permanent residence application was frustrating for applicants, they could for the most part easily simply re-submit their applications. However, with Express Entry there is no guarantee that an individual whose permanent residence application is rejected for incompleteness will be issued another Invitation to Apply. As such, … Read More
Certified Questions After Kanthasamy
Section 74(d) of Canada’s Immigration and Refugee Protection Act provides that an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the Federal Court certifies that a serious question of general importance is involved and states the question. Certified questions have traditionally resolved divergent jurisprudence at the Federal Court, and have typically provided certainty on how immigration law is to be interpreted. However, as a result of recent Supreme Court of Canada decisions, this is changing. In Agraira v. Canada (Public Safety and Emergency Preparedness), the Supreme Court of Canada applied the reasonableness standard to answer the following certified question: When determining a ss. 34(2) application, must the Minister of Public Safety consider any specific factors in assessing whether a foreign national’s presence in Canada would be contrary to the national interest? The decision to not provide a definite answer caused some confusion at the Federal Court of Appeal, which declared in Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113, that: A decision made under the Act is subject to judicial review only if leave is granted by the Federal Court (subsection 72(1) of the Act). The Federal Court’s decision on the judicial review cannot be appealed unless the Federal … Read More
Overview of PRRA Changes
The purpose of this blog post is to provide an overview of the changes to Pre-Removal Risk Assessments (“PRRAs“) resulting from Bill C-31 which are now in effect. A PRRA is a paper application in which individuals can submit that they would be at risk of persecution, risk to life, or risk of cruel and unusual treatment or punishment if returned to their countries of origin. For most applicants, a positive determination results in the granting of refugee protection and the opportunity to apply for permanent residence as a protected person. Bill C-31, the Protecting Canada’s Immigration System Act, introduced several restrictions on the ability of people to apply for PRRA. One Year Bar A person may not apply for a PRRA if less than 12 months have passed since the Immigration and Refugee Board (“IRB“) rejected their refugee claim, or determined the claim to be abandoned or withdrawn. A person may also no longer apply for a PRRA if less than 12 months have passed since Citizenship and Immigration Canada (“CIC“) rejected the individuals previous PRRA application, or determined it to be withdrawn or abandoned. The above bars apply retroactively to PRRAs currently being processed. Applicants from certain countries are exempted … Read More