Question & Answer – Expungements and Inadmissibility (IR-05)

21st Sep 2013 Comments Off on Question & Answer – Expungements and Inadmissibility (IR-05)

The following is an e-mail exchange between an immigration representative and Citizenship and Immigration Canada regarding the immigration consequences of foreign expungements for individuals who otherwise may be inadmissible to Canada.  

Please note that what I have reproduced below should not be viewed as legal advice.  The adaptation of the 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 7, 2013

Greetings,

My name is __________ and I am a Canadian Immigration Lawyer based in ______.

When Burke Thornton was the Program Manager in Buffalo he had confirmed with headquarters that the state of California expungment (under s. 1203.4) is equivalent to a full expungement in Canada. Could you kindly confirm that California’s expungement procedure (1203.4) which allows you to state to any private individual/institution that you were never convicted of an offence for which you received an expungement is equivalent to a Canadian pardon?

Thank you very much.

Answer – May 27, 2013

Good day and thank you for your question.

CIC assesses inadmissibility on a case by case basis.

In cases of a foreign expungement, a criminal equivalency is usually done to establish whether the foreign country’s legal system is based on similar foundations and values as Canada’s and to look at the circumstances under which the expungement was granted and if it can be accepted as mitigating circumstances in Canada.

An expungement in the State of California is not automatically an equivalent to a record suspension (formerly called “pardon”) in Canada. Getting a foreign pardon or expungement, is not an automatic equivalency to Canada’s system nor is it a “green light”

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RIMbits Revealed (May 2010)

9th Jun 2013 Comments Off on RIMbits Revealed (May 2010)

The following are some excerpts from the May 2010 RIMbits.  RIMbits are messages sent from National Headquarters to missions overseas.  The May 2010 RIMbits on admissibility consisted of seven questions and answers.  I have reproduced three of them for free below.

Please note that the questions and answers below should not be viewed as legal advice.  Rather, they are simply reproductions of how CIC senior management answered specific questions from visa offices in May 2010.

Seized Travel Document

Q) We were notified by the authorities that a permanent resident travelling on a Canadian travel document has been charged with: (1) ______ (2) _____ and (3) _____. According to local authorities, the permanent resident has been released on bail with the condition that she surrender her travel document and that “Stop Orders” are placed with the Immigration exit controls at airports.  We have been formally requested not to issue a new travel document to this permanent resident “until the matters have been disposed.”  

As the charged person is not a Canadian, the Consular Section has referred this case to us.  Although she has not done so at this point, it is possible that in the near future, this permanent resident may request from the visa office a Permanent Resident Travel Document or other documents to facilitate her return to Canada.  Would you have any advice on what we may and may not consider if the permanent resident applies for a PRTD before the judicial proceedings have come to a conclusion? 

(A) The permanent resident’s Canadian travel document has been seized by local authorities in connection with a legal matter.  It is not lost or stolen, and she will get it back when the legal process is completed.  

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Data Confirms Removals from British Columbia Up Since Conservatives Took Office

Data Confirms Removals from British Columbia Up Since Conservatives Took Office

29th Mar 2013 Comments Off on Data Confirms Removals from British Columbia Up Since Conservatives Took Office

We have obtained through an Access to Information and Privacy Act request data showing the Canada Border Services Agency’s removal statistics for people in British Columbia from 2003 – 2012 (2012 is partial).  I have reproduced below two pages of the data.  We have also obtained a chart showing Removal Orders from British Columbia by Country of Birth by Year, which I have not published.  If you wish to see it please contact me and I will send it to you by e-mail.

As the chart below demonstrates, removals from British Columbia has increased under the Conservatives.  Interestingly, it peaked in 2008 and 2009, before begin to decline.
removals

There is a lot of interesting information contained in the data below, including tables showing:

  • Removal Orders by Type;
  • Removal Orders by Refugee Claimant vs. Non Refugee Claimant;
  • Removal Orders by Status in Canada;
  • Removal Orders by Inadmissibility Ground;
  • Removal Orders by Gender; and
  • Removal Orders by Age.  

Please note that the Tables below are a copy of an official work by the Government of Canada which was obtained through an Access to Information and Privacy Act Request, and to my knowledge is not otherwise publicly available.  While I believe that the data is still current, I cannot be assured of this.  The reproduction of this document has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.

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The “Innocent Mistake” Defence to Misrepresentation

6th Jun 2012 Comments Off on The “Innocent Mistake” Defence to Misrepresentation

Last updated on December 11th, 2019

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.  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.

Misrepresentation can occur without an applicant’s knowledge.

In Jiang v Canada(Minister of Citizenship and Immigration), Justice Russell stated that:

With respect to inadmissibility based on misrepresentation, this Court has already given section 40 a broad and robust interpretation. In Khan, above, Justice O’Keefe held that the wording of the Act must be respected and section 40 should be given the broad interpretation that its wording demands. He went on to hold that section 40 applies where an applicant adopts a misrepresentation but then clarifies it prior to a decision. In Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059, this Court held that section 40 applies to an applicant where the misrepresentation was made by another party to the application and the applicant had no knowledge of it. The Court stated that an initial reading of section 40 would not support this interpretation but that the section should be interpreted in this manner to prevent an absurd result.

In Baro v Canada (Minister of Citizenship and Immigration), the Court further held that:

Even an innocent failure to provide material information can result in a finding of inadmissibility;

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Useful Rehabilitation Decision

6th Feb 2012 Comments Off on Useful Rehabilitation Decision

Last updated on July 22nd, 2018

It’s not often that you see a Federal Court decision specifically discussing whether an officer’s decision to reject an Application for Criminal Rehabilitation was reasonable.  That’s why I read the just released decision in Hadad v. Canada (The Minister of Citizenship, Immigration, and Multiculturalism), 2011 FC 1503, with much interest.

The case affirmed several important principles of rehabilitation applications, including that:

  • The Minister should take into consideration the unique facts of each particular case and consider whether the overall situation warrants a finding that the individual has been rehabilitated.
  • That rehabilitation is forward looking.
  • That an officer commits a reviewable error if he/she attributes too much importance to the fact that an applicant has past criminal activity as opposed to the likelihood that the applicant would be involved in future or unlawful activity.

I have embedded in this post Justice O’Keef’s discussion of these principles.

 

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Inadmissibility Due to Non-Compliance with the Act

14th Aug 2011 Comments Off on Inadmissibility Due to Non-Compliance with the Act

Last updated on April 16th, 2020

Individuals can be inadmissible to Canada for numerous reasons, including criminality, misrepresentation, medical issues, and non-compliance with Canadian immigration legislation.  The latter reason, non-compliance with the Canadian immigration legislation, can seem extremely vague.

Fortunately, the Immigration, Refugees and Citizenship Guidelines contains a list of the different frequently used reasons for declaring someone inadmissible for non-compliance with the Act.

They are:

  • Entering Canada to remain on a permanent basis without first obtaining a permanent resident visa.
  • Entering Canada to remain on a temporary basis without first obtaining a temporary resident visa.
  • Entering Canada to study without first obtaining a study permit.
  • Entering Canada to work without first obtaining a work permit.
  • Not answering questions truthfully or producing required relevant documents.
  • Not submitting to a medical examination.
  • Not holding a medical certificate that is based on the last medical examination.
  • Not holding the required documents to enter Canada.
  • Not establishing that the person will live Canada by the end of the authorized period.
  • Where a person is subject to an enforced removal, returning to Canada without authorization.
  • Working without authorization.
  • Studying without authorization.
  • Not leaving Canada at the end of the authorized period.
  • Not reporting to a port of entry examination without delay.
  • Being a permanent resident and not complying with the residency requirement.

Non-compliance is the most common reason why a removal order is issued. 

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Determining Equivalency – Whether a Criminal Offence Will Make You Inadmissible to Canada

6th Mar 2011 Comments Off on Determining Equivalency – Whether a Criminal Offence Will Make You Inadmissible to Canada

An individual who has been convicted of offense outside of Canada needs to determine what the equivalent offense would be in Canada.

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Income Tax Statements and Inadmissibility

20th Dec 2010 Comments Off on Income Tax Statements and Inadmissibility

On December 8, 2010, the Federal Court released its decision in Masych v. Canada (Citizenship and Immigration), 2010 FC 1253 (“Masych“)  The case involved an individual whose temporary work permit application was denied because she did not produce income tax statements from 2002-2006 after an immigration officer (the “Officer”) requested that she do so.  The reason that the Officer wanted copies of her tax statements was not to confirm her employment history for determining whether or not she was qualified for the job that she was applying for, but rather to determine whether or not she was inadmissible for having ever committed tax evasion.

The applicant had never been convicted of a criminal offense.  No evidence was ever presented that she had been charged with a criminal offense.  Finally, it is important to note that the applicant lived in the United Kingdom from 2002-2006, a country with a legal system similar to Canada’s.

The applicant did not produce the income tax statements as requested, and her application was rejected on the grounds that the Officer was unable to determine whether or not she was inadmissible to Canada for having committed an offense abroad that would constitute an indictable offense in Canada (tax evasion). The Federal Court upheld the Officer’s decision.  The Court noted that the Officer had a duty to be satisfied that the applicant was not inadmissible, and that tax evasion could result in an applicant being inadmissible.

A reading of the case suggests that the only argument that the applicant’s counsel made was that the applicant had provided a statement stating that she only worked part time, confirmed by the employer, and that this should have satisfied the visa officer.  The Federal Court quickly punted this decision aside noting that such a response did nothing to alleviate the officer’s concern. 

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Immigration Consequences of a Conviction and Sentence in Canada

2nd Dec 2010 Comments Off on Immigration Consequences of a Conviction and Sentence in Canada

A person who has been found to be inadmissible to Canada on the grounds of serious criminality may not appeal to the Immigration Appeal Division.

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SSNP Members Immigrating to Canada

15th Sep 2010 Comments Off on SSNP Members Immigrating to Canada

The Federal Court has affirmed that membership in the Syrian Socialist Nationalist Party (“SSNP”) can render an individual inadmissible to Canada pursuant to s. 34(1) of the Immigration and Refugee Protection Act.

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