A Canadian citizen helps an undocumented refugee claimant come to Canada without the proper documentation to seek asylum by paying for part of his transportation. A Canadian marries a foreign national, and helps bring her to Canada without going through the proper process. The couple are now staying with the Canadian’s mother, who is providing temporary accommodation while the couple looks for a place to rent. When asked to describe a human smuggler, most people are unlikely to think of the above two scenarios. Rather, they will generally describe organized criminal elements who are paid to transport people across borders. However, in Canada it was unclear until November 2015 if the offence of “human smuggling” encompassed the above two scenarios, when the Supreme Court of Canada issued its decision in R v. Appulonappa, 2015 SCC 59. Background to Appulonappa Appulonappa arose from the October 17 2009 arrival to Vancouver Island of the MV Ocean Lady, which carried 76 undocumented Sri Lankan Tamil asylum seekers to Canada. The Crown charged four individuals with human smuggling pursuant to s. 117 of the Immigration and Refugee Protection Act, S.C. 2001, c 27 (“IRPA”), which states: No person shall knowingly organize, induce, aid or … Read More
Disguised Extradition
Extradition and deportation are two different things. Extradition is the official process whereby one country transfers a suspected or convicted criminal to another country, generally for prosecution. Deportation, on the other hand, is the removal of an individual from a country generally done for the purpose of achieving an immigration objective. In Roncarelli v. Duplessis, [1959] S.C.R. 121, the Supreme Court of Canada (the “SCC”) recognized that it was an abuse of process for a government department to exercise a statutory power for a reason that is unrelated to the purpose for which that power was granted. In the immigration context, it is accordingly an abuse of process for immigration authorities to initiate removal proceedings against an individual to extradite someone. In United States v. Rogan, 2014 BCSC 116 (“Rogan”), Justice Fish summarized the principles of what is known as “disguised extradition” as follows: (Citations and paragraph numbers removed) Deportation and extradition have fundamentally different underlying objectives. Deportation is a discretionary decision made by Canadian immigration authorities aimed at protecting the public good. Extradition, which is initiated by foreign authorities, is aimed at delivering a person sought for prosecution to that foreign authority. A person subject to extradition proceedings has a panoply of constitutionally-enshrined … Read More
The Upcoming Litigation Over Immigration, the TFWP, and Privacy
Last month, a British Columbia Provincial Nomination Program (“BC PNP”) officer requested that one of my employer clients provide payroll documents for individuals who were not a part of the BC PNP application. We politely pointed out that the employer could not do this without the third party employees’ consent, as to provide the documents without their consent would be contrary to BC’s Personal Information Privacy Act. Alternatively, the BC PNP had to at least provide the statutory authority to compel the production of these third party documents The British Columbia Office of the Information & Privacy Commissioner confirmed that we were correct. The BC PNP officer respected our position, and the events left me confident in the Province of British Columbia’s respect for personal privacy. We were of course not the first to navigate the complicated intersection between the government’s administering its immigration programs the right to privacy, which pursuant to numerous Supreme Court of Canada is a quasi-constitutional right. For example, as noted in the following “Findings under the Privacy Act,” Citizenship and Immigration Canada (“CIC”) recently agreed with the Office of the Privacy Commissioner of Canada that it was an unreasonable breach of privacy for CIC to request the tax information of potential employers of … Read More
Government of Canada Overhauls the Temporary Foreign Worker Program
On June 20, 2014, Citizenship and Immigration Canada (“CIC”) and the Ministry of Economic and Social Development Canada (“ESDC”) announced significant reforms to the Temporary Foreign Worker Program (“TFWP”). The changes will affect all employers of Temporary Foreign Workers (“TFWs”) in Canada. Many of the changes take effect immediately, with the remainder being phased in over the next year in a half. The reforms are comprehensive, and include the following: Labour Market Impact Assessment Program New Labour Market Information Assessment (“LMIA”) Replaces the Labour Market Opinion (“LMO”) LMIA Application Fee of $1,000 Guaranteed 10-Day Processing For Certain Occupations Dividing LMIAs into High-Wage and Low-Wage Positions Cap on Low-Wage TFWs for Individual Companies Refusing Low-Skilled LMIA Applications in Areas of High Unemployment in Some Occupations Reducing the Duration of Low-Wage Work Permits Introduction of Transition Plans for High-Wage Positions Stronger Enforcement and Tougher Penalties Increasing the Number and Scope of Inspections Monetary Fines for Employers Who Break the Rules International Mobility Programs (“IMP”) IMP Replacing LMO-Exempt Work Permit Program New Fee and Employer Compliance System New Privilege Fee for Open Work Permit Applicants Amending Provincial Annexes International Experience Canada Program Being Restructured Intra-Company Transfer Program – New Rules for Specialized Knowledge Applicants … Read More
ETA Regulations Announced
On August 1, 2015, Canada will adopt an Electronic Travel Authorization (“eTA“) program that is similar to the Electronic System for Travel Authorization (“ESTA“) that the United States currently has, and the Electronic Travel Authority that Australia has. In order to minimize impacts on the travelling public and Canadian travel and tourism industries, eTA-required travellers will be exempted from this new entry requirement until March 15, 2016. The eTA will impact nearly all travellers to Canada who do not have to apply for Temporary Resident Visas (“TRV“) to visit Canada. According to the Gazette, TRV-exempt foreign nationals, excluding U.S. citizens, represent approximately 74% of foreign nationals who arrive by air in Canada. Citizenship and Immigration Canada (“CIC“) does not currently screen these individuals for admissibility until they arrive at a Canadian port of entry (“POE“). Rather, TRV-exempt nationals are examined by the Canada Border Services Agency (“CBSA“) only upon arrival at a POE . As noted in the The Canadian Immigrant excerpt above, the eTA will change this. However, on June 21, 2014, the Government of Canada (“GoC“) in the Canada Gazette (the “Gazette“) published proposed amendments to the Immigration and Refugee Protection Regulations (“IRPR“) pertaining to the eTA. On April 22, 2015, the final version of the IRPR amendments were published. … Read More
Service Canada Ends the International Graduate LMO
More to follow.. http://www.esdc.gc.ca/eng/jobs/foreign_workers/higher_skilled/students/index.shtml Effective immediately, the Department is ending the Recruitment and Advertisement Exemption for employers wishing to hire international students who have graduated from recognized Canadian post-secondary institutions and whose Post-Graduate Work Permit (PGWP) is expiring. Employers submitting a labour market opinion (LMO) to hire an individual transitioning from the PGWP must now ensure that they meet all of the Program requirements for the applicable stream:
Security Certificates and the Harkat Decision
On May 14, 2014, the Supreme Court of Canada (“SCC”) issued its decision in Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37 (“Harkat“). While the SCC upheld the constitutionality of Canada’s security certificate regime, it provided detailed guidance to the Federal Court on applying the process. Mohamed Harkat and the Security Certificate Regime Mohamed Harkat (“Mr. Harkat”) entered Canada in 1995, and obtained refugee status shortly thereafter. In 2002, the Government of Canada detained him under a security certificate (described in more detail below). It declared that Mr. Harkat was a threat to Canada for allegedly being an al-Qaeda sleeper agent, and sought to have him declared inadmissible to Canada. During the past decade, Mr. Harkat has either been detained or living under strict conditions. At the SCC, Mr. Harkat argued that the Immigration and Refugee Protection Act, SC 2001, c27, did not provide him a fair opportunity to defend himself against the Government of Canada’s allegations. His arguments were similar to those that Adil Charkaoui successfully made when the SCC struck down Canada’s previous security certificate regime as being unconstitutional. The Security Certificate Regime Canada’s security certificate regime compared to its criminal justice system offers the Government of Canada numerous procedural advantages. As the SCC noted in Harkat: From a practical … Read More
The Doctrine of Legitimate Expectations
The doctrine of legitimate expectations is a procedural doctrine which has its source in the common law. Because the doctrine of legitimate expectations is a common law principle, it does not create substantive rights.
Moratorium on Labour Market Opinions for the Food Services Sector
On April 24, 2014, Jason Kenney, the Minister of Employment and Social Development, abruptly announced a moratorium on the Food Services Sector’s ability to participate in the Labour Market Opinion (“LMO”) program. Effective immediately, Service Canada will refuse to process LMO applications from employers in the Food Services Sector. As well, all current LMOs for employers the Food Services Sector are suspended. The Businesses that are Affected The businesses that are affected are employers that are classified in the 2002 North American Industrial Classification System as Food Services and Drinking Places. This industry comprises establishments that are primarily engaged in preparing meals, snacks, and beverages for immediate consumption on and off the premises. It does not include food services activities that occur within establishments such as hotels, civic and social associations, amusement and recreation parks, and theatres. However, leased food-service locations in facilities such as hotels, shopping malls, airports, and department stores are included. Examples of businesses which are included include: Full-Service Restaurants Limited-Service Eating Places Mobile Food Services Food Services Contractors (such as establishments that provide food services to airlines, and operations that run food concessions at sports and similar venues) Caterers Drinking Places Examples of businesses which are not … Read More
Language Requirements for Immigration (IR-11)
During the time that I have been writing this blog the most frequently asked question that readers have asked me is whether their IELTS band scores are sufficient for certain immigration programs. Some people have even offered to book initial consultations with me just so that I would review their IELTS scores. This has always been somewhat surprising to me given that the Immigration, Refugees and Citizenship Canada (“IRCC) website publishes each of its program’s respective language requirements in a clear and concise manner. Indeed, it is not just members of the general public that seem to be confused. As shown in the exchange below, which I obtained through an Access to Information Act request, some immigration lawyers are unclear of the requirements. (Please note that what I have reproduced below should not be viewed as legal advice. The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.) Question – May 21, 2013 Dear Sir/ Madam, I have been referred to your office, by Karen Flynn, of NHQ-Immigration in Ottawa, her phone number is _______. I practice immigration law in Toronto, and I have the … Read More