On June 10, 2010, the Federal Court of Appeal (“FCA“) issued its decision in Canada (Citizenship and Immigration) v. Arif, 2010 FCA 157. The majority and concurring opinions discussed two procedural rules that will interest immigration practitioners The first issue was when a Federal Court determination regarding a Citizenship Judge’s decision can be appealed. The second was the relationship between section 399(2) of the Federal Court Rules and the principle of functus officio. When can a Federal Court Order Regarding a Citizenship Judge’s Opinion be Appealed to the Federal Court of Appeal? Section 14 of the Citizenship Act regulates appeals from Citizenship judges. Subsections 5 and 6 provide that: Appeal (5) The Minister or the applicant may appeal to the Court from the decision of the citizenship judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which (a) the citizenship judge approved the application under subsection (2); or (b) notice was mailed or otherwise given under subsection (3) with respect to the application. Decision final (6) A decision of the Court pursuant to an appeal made under subsection (5) is, subject to section 20, final and, notwithstanding … Read More
Section 24 of the Charter and Immigration
On June 11, 2010, the Supreme Court of Canada released its decision in R v. Conway, 2010 SCC 22 (“Conway“). Conway explored the relationship between the Charter, its remedial provisions, and administrative tribunals. Sections 24(1) and 24(2) of the Charter deal with remedies. Section 24(1) states that anyone whose Charter rights or freedoms have been infringed upon or denied may apply to a “court of competent jurisdiction” to obtain a remedy that is “appropriate and just in the circumstances.” Section 24(2) states that in those proceedings, a court can exclude evidence obtained in violation of the Charter if its admission would bring the administration of justice into disrepute. In Conway, the appellant argued that several of his Charter rights were breached when he was detained in mental and health facilities, and sought an absolute discharge as the remedy. The Ontario Review Board (the “Board“) found that it had no Charter jurisdiction to issue a s. 24(1) remedy. The Ontario Court of Appeal found that the Board lacked jurisdiction to grant an absolute discharge as a Charter remedy because granting such a discharge would, in the appellant’s case, be a significant threat to the public and frustrate the intent of Parliament. After reviewing … Read More
Racial Profiling at Citizenship and Immigration Canada?
Charlie Gillis has an interesting article Macleans Magazine today titled “Who Doesn’t Get Into Canada”. The article analyses a government report titled “Social and Economic Outcomes of Second Generation Youth” in the context of broader trends in Canadian immigration patterns. The government report makes many very blunt observations, including that: Chinese and South Asians are the most likely to have university degrees or higher, and to be employed in high-skilled occupations; and Second-generation youth of Caribbean and Latin American origin don’t fare as well. They tend to obtain lover levels of education than native-born Canadian kids and wind up in less skilled jobs. Mr. Gillis uses this information to provide the first discussion (that I have seen) on the effects of Bill C-50. Passed in 2008, this Bill provided, amongst other things, the Minister of Immigration with the power to: Limit the number of new applications; Reject applications; Decide the order in which new applications are processed; Delay the processing of applications from specific missions abroad in order to speed those from others; and Give priority to qualified skilled professionals applying under the economic class categories. Mr. Gillis notes that the impact has appeared to have been increased wait times for … Read More
PRRA Officer Did not Consider Important Country Report
On June 7, the Federal Court released its decision in Ariyaratnam v. Canada (Citizenship and Immigration), 2010 FC 608 (“Ariyaratnam“) The case involved a 28 year old from Sri Lanka whose Pre-Removal Risk Assessment (“PRRA“) and Humanitarian & Compassionate applications were refused. The appellant argued in Federal Court that the assessing officer (the “Officer“) had a duty to consider a UNHCR report that would have bolstered the applicant’s claim (the “Report“). The Report was released a few weeks before the Officer released her decision, and the Officer did not consider it.
Bill C-37, the Strengthening the Value of Canadian Citizenship Act
On June 10, the Conservative government introduced Bill C-37, also known as the Strengthening the Value of Canadian Citizenship Act (“Bill C-37“). The legislation will result in five changes if passed. These are: Regulate Citizenship Consultants Increases Penalties for Citizenship Fraud Strengthen Rules For Residence Requirement Expand Ban on Criminals Becoming Citizens Crown Exception to First Generation Limit Streamlining the Revocation Process 1) Regulate Citizenship Consultants Citizenship consultants are not currently regulated or licensed. Bill C-37 will change this. The amendments will introduce a new s. 21.1 of the Citizenship Act, which will state: 21.1 (1) Every person commits an offense who knowingly represents or advises a person for consideration — or offers to do so — in connection with a proceeding or application under this Act. The offense will be a hybrid offense. If the Crown elects to proceed by way of indictment, the maximum penalty would be a fine of $50,000 and/or two years imprisonment. There will be exceptions for lawyers, members of a designated body, and other exceptions similar to those for immigration consultants. In fact, the language in Bill C-37 regarding the regulation of citizenship consultants largely mirrors that in Bill C-35, the Cracking Down on Crooked … Read More
Family Class Undertakings
The spousal sponsorship undertaking is a binding contract between sponsors (and co-signers) and the Minister of Immigraiton, Refugees and Citizenship Canada. Sponsors must provide the sponsored person with basic requirements from the day they enter Canada until the end of the undertaking. They are obligated to repay the government any social assistance payments made to the sponsored person during the undertaking period. In spousal sponsorship applications, the length of the undertaking is 3 years (36 months) from the date of becomming a permanent resident. The Supreme Court in Mavi On June 10, 2011, the Supreme Court of Canada released its decision in Canada (Attorney General) v. Mavi, 2011 SCC 30. The case involved an appeal from numerous Ontario residents regarding relief from the sponsorship undertakings that they had signed to sponsor a family class member. Potential immigrants under the family class are only eligible to apply for permanent residency once a Canadian citizen’s or permanent resident’s application to sponsor them has been approved. Family class immigrants are not assessed independently on their ability to support themselves, as is the case with other immigrants. The burden of showing sufficiently financial wherewithal lies with the sponsor. I have yet to witness a … Read More
Ineligibility to Make a Refugee Claim
Section 101(d) of the Immigration and Refugee Protection Act states: 101. (1) A claim is ineligible to be referred to the Refugee Protection Division if (a) refugee protection has been conferred on the claimant under this Act; (b) a claim for refugee protection by the claimant has been rejected by the Board; (c) a prior claim by the claimant was determined to be ineligible to be referred to the Refugee Protection Division, or to have been withdrawn or abandoned; (d) the claimant has been recognized as a Convention refugee by a country other than Canada and can be sent or returned to that country; (e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence; or (f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c). Serious criminality (2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless (a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is … Read More