Canadian immigration law provides that a person who makes an application must answer truthfully all questions put to them for the purpose of the examination. One of the most difficult issues to resolve when an individual is immigrating to Canada are allegations from the Government of Canada about misrepresentation. Section 40(1)(a) of Canada’s Immigration and Refugee Protection Act states provides that a permanent resident or a foreign national is inadmissible to Canada for misrepresentation for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of Canadian immigration law. Every visa applicant has a duty of candour to provide complete, honest and truthful information when applying for entry to Canada. Any misrepresentation, whether direct or indirect, that either induces, or could induce, an error by a visa officer in the performance of his or her duties, can result in a person being barred from Canada for five years. Intention A significant issue that often arises is whether or not a misrepresentation has to be intentional. The jurisprudence consistently provides that in order for a finding of misrepresentation to be made an applicant does not have to intend to … Read More
Espionage and Immigrating to Canada
Section 34(1) of Canada’s Immigration and Refugee Protection Act provides, amongst other things, that a foreign national or Canadian permanent resident is inadmissible to Canada for engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests, or being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in espionage against Canada or that is contrary to Canada’s interests. It is one of the most serious inadmissibilities in Canadian immigration law. Guidelines Immigration, Refugees and Citizenship Canada’s (“IRCC”) Enforcement Manual 2 – Inadmissibilities contains the following definitions and guidance to officers regarding how immigration officials are to determine whether someone is inadmisisble to Canada for espionage. Espionage is defined as a method of information gathering by spying; that is, the gathering of information in a surreptitious manner, secretly seeking out information usually from a hostile country to benefit one’s own country. Paragraph A34(1)(a) contains two possible allegations that could render a permanent resident or foreign national inadmissible to Canada for acts of espionage: 1. if the act of espionage is against Canada, or 2. if the act of espionage is contrary to Canada’s interests. Espionage “against Canada” … Read More
Borderlines Podcast Episode 39 – Immigration Detention Hearings after Brown v. Canada, with Aris Daghighian
Aris Daghighian is a senior associate with Green and Spiegel LLP in Toronto. He represented the Canadian Association of Refugee Lawyers as intervenors in Brown v. Canada, 2020 FCA 130. In this episode we discuss the issues raised in the case, including how immigration detention works in Canada, what the disclosure obligations should be on the government in an immigration detention proceeding and whether there should be a maximum time that someone can be held in immigration detention. On April 1, 2021 the Immigration and Refugee Board issued updated detention guidelines in response to the Brown decision. They stated: As a result of the FCA decision in Brown and the feedback received through our consultations, the IRB has revised the Guideline in the following ways: Clarify that there must be a nexus to an immigration purpose for detention to continue. Reinforce the Division’s obligation to consider sections 7, 9 and 12 of the Charter in exercising its discretion concerning whether or not detention is warranted. Confirm that consideration of conditions of detention is an extension of the ID’s Charter jurisdiction. Reinforce that the Minister has the legal burden to establish that detention is lawfully justified and remains on the Minister throughout the … Read More
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
Refugees, Article 1F, and Rehabilitation
Article 1F of the 1951 Refugee Convention excludes individuals who have committed serious crimes from being eligible for refugee status under the Convention. It states: Article 1F of the 1951 Refugee Convention states: F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: ( a ) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; ( b ) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; ( c ) He has been guilty of acts contrary to the purposes and principles of the United Nations. Section 98 of Canada’s Immigration and Refugee Protection Act (the “Act“) provides that a person encompassed by the 1951 Refugee Convention is not a Convention refugee or a person in need of protection pursuant to the Act. In Hernandez Fables v. Canada (Citizenship and Immigration), 2011 FC 1103, the Federal Court certified the following question: When applying article 1F (b) of the United Nations Convention relating to the Status of … Read More