1 – CitizenshipHow Do You Get In?

- Born in Canadao Jus Soli – Connection to the soil (everyone born in Canada is entitled to citizenship; with

exceptions). - Naturalization

o Flow from FN to PR to Citizen. - Born Outside Canada to a Canadian Parent

o Jus Sanguinis – Law of blood. As of 2009, children born outside Canada to a Canadian parent are only Canadian

at birth if: One parent was born in Canada; or One parent became a Canadian citizen by immigrating to Canada and

was later granted citizenship through the regular citizenship grant process (also called naturalization).

- PRo Landed immigrant; something you can lose.

- FNo Temporary residents; come for a specific purpose and are expected to leave when it’s

over. Visitors: Requires a visa, some countries are visa exempt. Temporary Workers: Requires a visa and a work permit. Students: Requires a visa and a study permit. TRP (s. 24 IRPA):

Inadmissible to come to Canada permanently because of some defect (criminal, failed medical test, insufficient funds etc.)

Once you have it, and you’re able to keep clean for a number of years, Canada will let you apply for PR status. This is letting them in on H&C grounds.

Refugee Claims: Even after given status, they still have a problematic status. If IRB finds they are protected, they have Protected Person Status (have a right not to be sent back to their country). They must still apply for PR status.

- Illegal’s/status-less/undocumentedo Stay completely at the government’s discretion (can be kicked out at any time).

Naturalization

- If you naturalize in Canada, you are not subject to the second generation rule, you can pass citizenship on overseas to your children.

- General requirements are in s. 5 of the Citizenship. See above under “Questions.” Main thing is that you must be over 18 years of age.

- You’re going to appear before a citizenship judge that is going to make sure you meet the criteria. But then it’s the Minister who grants the citizenship.

o No appeal beyond the federal court decisions after the citizenship court’s decision. - You also need to write a test. We do, however, admit some people who cannot read or write as

economic migrants through H&C and family applications. - The following criteria must be met by PRs between 18-54 seeking to naturalize as citizens:

o Must have been a PR for at least 2 years of the last 4 years. o Resided in Canada for a total of 1095 days (approximately 3 years) during the four years

preceding the application for citizenship. o The issue of whether or not the applicant must be physically present in Canada to meet

the residency requirement is unresolved. o The applicant must pass a citizenship exam that tests knowledge of Canadian history,

politics and society. o May be ineligible on the basis of criminality. o The applicant must pass a citizenship exam that tests knowledge of Canadian history,

politics and society. o Citizenship is revocable if the applicant obtained it by fraud or misrepresentation.

- The citizenship ceremony requires a candidate to swear an oath of citizenship, after which they receive a certificate of citizenship that enables the citizen to apply for a Canadian passport.

o Interesting: In 2011, the Minister of Citizenship and Immigration declared that people whose faces are covered (ex. women wearing a burka) will be prohibited from swearing the oath of citizenship.

5. (1) The Minister shall grant citizenship to any person who

(a) makes application for citizenship;(b) is eighteen years of age or over;(c)  is a permanent resident within the meaning of subsection 2(1) of the IRPA and has,

within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner:

a. (i)for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and

b. (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;

(d)  has an adequate knowledge of one of the official languages of Canada;(e)  has an adequate knowledge of Canada and of the responsibilities and privileges of

citizenship; and(f)  is not under a removal order and is not the subject of a declaration by the Governor in

Council made pursuant to section 20.

Refusal

What criteria will justify the refusal of citizenship to a PR?- S. 20(1) of the Citizenship Act, basically makes it so the Governor in Council can declare that

there are reasonable grounds to believe that the person will engage in activity described in s. 19(2)(a) or (b) – It’s about security.

- S. 22(1) of the Citizenship Act, basically makes it so no one will be granted citizenship while they are (i) under a probation order, (ii) a paroled inmate, or (iii) confined in or is an inmate of any penitentiary, jail, reformatory or prison.

o If they’re charged with, on trial for, or on appeal relating to an indictable offence. o If they are under investigation for Crimes against Humanity. o If they were convicted of crimes against humanity. o If they haven’t obtained authorization to return to Canada under s. 52(1) of IRPA. Or if

during the 5 years immediately preceding the application, the person ceased to be a citizen pursuant to s. 10(1) (fraud).

Zhou (2008 FC)

Facts: The Citizenship Judge found that the residency requirement was met despite the fact that in the relevant period of time, he was physically present in Canada for 567 days and absent for 893 days. The citizenship judge was satisfied that even though he has been absent from Canada for a considerable period of time he has “established and maintained residence in Canada.”

Dunsmuir established that the standard of review for a citizenship judge’s determination of whether the applicant meets the residency requirement is “reasonableness.” There are three general tests that judges might apply in determining whether or not the residency requirement has been met:

1. Pourghasemi (Muldoon): A person cannot reside in a place where the person is not physically present.

2. Papadogiorgakis (Thurlow): Residency is more than a mere counting of days. Residency is a matter of the degree to which a person, in mind or fact, settles into or maintains or centralizes his or her ordinary mode of living, including social relations, interests and conveniences. The question becomes whether an applicant’s linkages suggest that Canada is his or her home, regardless of absences from the country.

3. Koo (Reed): An extension of Thurlow’s decision. Lays out several factors to consider (page 21 of the CB).

Decision: No matter which test the Citizenship Judge used, the decision was unreasonable. The CJ never clearly determined whether the respondent had, in fact, centralized his ordinary mode of living in Canada. The Court notes that a person’s family living there is not enough to establish residency (Elton).

Hao ( 2011 FC)

Facts: The appellant was a citizen of China who moved to Canada in 2003 when she was a 13 year old. She was repeatedly absent for prolonged periods of time. The judge found that a 123-absence during the relevant period was unacceptable.

Decision: Appeal was dismissed. While the centralized test has become preferred, a physical presence test is still acceptable and thus the judge’s determination was not unreasonable.

Mowat (2011 SCC)

The SCC really just used this case as a chance to comment on deference.

- There should be two standards of review: correctness and reasonableness. - The two step standard of review analysis is:

o First to ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question.

o Second, where this proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review.

- Dunsmuir recognized that deference is generally appropriate where a tribunal is interpreting its own home statute or statutes that are closely connected to its function and with which the tribunal has particular familiarity.

- Dunsmuir described reasonableness as a deferential standard that shows respect for an administrative decision maker’s experience and expertise.

- Dunsmuir said that where the question is one of fact, discretion or policy, deference will usually apply automatically.

International Adoptions

Children born outside of Canada who are adopted by Canadian parents have two routes to citizenship:

Route One: Direct Route

- Adopted on or after January 1, 1947 can become citizens without having to immigrate to Canada. However, at least one of the adopting parents must have been born or naturalized in Canada.

- Adopted people who become citizens through the direct route are limited in their ability to pass citizenship on to their own children. Unless the other parent was born or naturalized in Canada:

o An adopted person’s children born outside Canada will not be Canadian citizens.o An adopted person cannot apply for a citizenship grant using the direct route for their

adopted children.

Route Two: Naturalization

- Adoptive parents can sponsor their child to immigrate to Canada as a PR. Once the child’s PR status is granted, the normal process of applying for citizenship can then be followed:

o The child’s parents can apply for the child to become a citizen.o When the child turns 18, the child can apply on his or her own.

- People adopted outside of Canada who become naturalized citizens can pass citizenship to their children, even if their children are born outside Canada. If they adopt children from outside Canada, those adopted children would be eligible for a grant of citizenship through the direct route.

http://www.cic.gc.ca/english/citizenship/rules_2009/adoption.asp

S. 117(2) Adoption under 18: A FN who is the adopted child of a sponsor and whose adoption took place when the child was under the age of 18 shall not be considered a member of the family class by virtue of that adoption unless it was in the best interests of the child within the meaning of the Convention.

S. 117(3) BIC: The adoption referred to in subsection (2) is considered to be in the best interests of the child if it took place under the following circumstances:

(a) home study conducted;(b) child’s parents gave their free and informed consent to the child’s adoption;(c) a genuine parent-child relationship;(d) in accordance with the laws of the place where the adoption took place;(e) in accordance with the laws of the sponsor’s place of residence and no letter of objections;(f) the country in which the adoption took place and the child’s province of intended destination are parties to the Hague Convention on Adoption; and(g) if either is not a party to the Convention, there is no evidence that the adoption is for the purposes of child trafficking or undue gain within the meaning of that Convention.

S. 117(4) Adoption over 18: A FN who is the adopted child of a sponsor and whose adoption took place when the child was 18 years of age or older shall not be considered a member of the family class by virtue of that adoption unless it took place under the following circumstances:

(a) the adoption was in accordance with the laws of the place where the adoption took place and with the laws of the province where the sponsor then resided;(b) a genuine parent-child relationship exists; and(c) the adoption is not primarily for the purpose of acquiring a status or privilege under the Act.

- The Regulations dealing with the admission of adopted children were developed partly to comply with the Adoption Convention and the UN Convention on the Rights of the Child. These conventions impose and obligation to safeguard the best interests of the children being brought into Canada through international adoption.

- The adoption provisions also apply to the adoption of orphaned relatives. - Adopted children will not be admitted unless the intended parents have confirmed they have

obtained information with respect to the children’s medical condition (s. 118 of the Regulations).

Sources of the Law

Constitutional Framework

S. 91(52) grants exclusive authority to the federal government to enact laws in relation to “aliens and naturalization.”

- Law Society of BC v. Mangat (SCC) determined that IRPA allowed non-lawyers to represent people before the IRB. It had been argued that this conflicted with the Legal Profession Act (provincial). Given that it was an operational conflict, the federal law prevailed (paramountcy).

o This is important because it indicates that where a conflict comes up, the IRPA will be paramount.

- The federal and provincial governments have come to a variety of agreements on immigration. The most wide-ranging of these is the Canada-Quebec Accord which grants Quebec the “sole responsibility for the selection of immigrants destined to that province.”

Departmental Authority

- Authority over the movement of people vests in two different departments of the federal government:

o Citizenship and Immigration Canada (CIC): Minister of Citizenship and Immigration.o Canadian Border Services Agency (CBSA): Minister of Public Safety

- In 2004, CBSA was given responsibility for immigration operation at ports of entry. CIC deals with maintaining responsibility for functional guidance and policy development.

- S. 4(1) of IRPA sets out the distinction between Ministers. Basically, the Minister of Citizenship and Immigration is responsible for everything except what is delegated to the Minister of Public Safety in this section.

Immigration and Refugee Board

- Independent quasi-judicial federal tribunal composed of four divisions. They are appointed by the cabinet but on an independent basis.

- The Immigration Division (ID) makes decisions on cases that have been referred to it by the CBSA officials. Decisions relate to:

o Should a removal order be issued? There is very little discretion here. Sometimes removal orders can be issued by

Immigration officers but most of the time it goes to the ID.o Review of detention.

Anyone who has been detained should have access to the ID to have the detention reviewed.

- The Immigration Appeal Division (IAD) can hear appeals in a limited set of cases.o Notably where a PR has been denied entry or ordered removed where an application to

sponsor a family member has been denied. o If you can get your client into the IAD, you have won the lottery because it’s an

independent decision maker. o They have “equitable jurisdiction” which means they can make H&C decisions.

- The Refugee Protection Division (RPD) hears and determines the claims of asylum seekers. - The Refugee Appeal Division (RAD) is designed to hear appeals of some classes of individuals

whose claim before the RPD has been denied.

One thing that differentiates Immigration law: s. 72 of IRPA is the rule that Immigrants must seek leave to make a judicial review application. Whether you’re a visa applicant, whether you’re being removed or whether you’re trying to sponsor, if you’re grieving a decision that’s been made, you don’t have an entitlement to have your case heard in the federal court; you have to make a “leave application” and most of these are denied. The reasons for granting leave differ from judge to judge. S. 74 says that even if you

get to the Federal court, you’re not entitled to get to the federal court of appeal. The rule says that if the original judge in the federal court decides that there is an important issue of general legal importance, it will certify that issue and only if they do that can you have your matter heard in the court of appeal.

Statutory Interpretation

Baker (1999 SCC)

Facts: A person who is in Canada and has overstayed has a Canadian kid. She is making an application under the old Immigration Act. She was applying to stay on H&C grounds. The decision maker didn`t take into account the interest of the Canadian children. She was saying the situation of her children should be taken into account.

This case stipulates that for immigration, there are three things we have to look at:

1. The Purposes of the Acta. You have to go to s. 3. The objectives of the Act in s. 3(c) are to facilitate family

reunification. There is an obligation to take seriously and place important weight on keeping children in contact with both parents, if possible, and maintaining connections between close family members.

2. International Lawa. In this case, the Convention on the Rights of the Child recognized children`s rights.

Baker tells us that this Convention is a very important consideration. 3. Manuals

a. Look to what the Ministry itself has said should happen. There was an abuse of the power that was given. They failed to take into account a factor that, as a matter of law, they were required to take into account.

Ultimately, this case stresses a contextual approach. It was said that in order to properly exercise power in this area, it requires close attention to the needs and rights of children.

De Guzman (2006 FCA)

It is not the case that the terms of IRPA can be overridden by a conflicting international legal instrument.

Facts: De Guzman was sponsored by her mother and has two kids and she doesn’t identify one of them. If you’re applying to Canada as a PR, you have to identify all of your family members. There is a difference between bringing people with you and sponsoring someone. It’s easier to sponsor someone than to bring them with you on your application. BUT if come to Canada as a PR, and you don’t tell them that you have kids then you can never sponsor those kids.

Basically it comes down a clash between International law regarding the rights of the child, and IRPA.

Concludes that paragraph 3(3)(f) is more about resolving ambiguity and giving context then about trumping IRPA with international law. While international law will never trump Canadian law, we have to interpret Canadian law in such a way that is consistent with binding international law unless it is impossible to do so.

Medovarski (2005 SCC)

Facts: Was a case about a Stay. It’s an interpretation about when you move from one piece of legislation to the other.

Essentially, the point is that when you’re looking at it, you have to realize that some of the objectives in the legislation are going to be more important than others. The SCC is saying that “public safety” is going to be given primacy when deciding what the objectives of the legislation are. This case says, almost in passing, that the primary objective of IRPA is security.

Romans (2001 FC)

The Court granted for the sake of discussion that s. 7 Charter rights were engaged by deportation.

Concluded that the Appeal Division did a proper balancing of competing interests and that his deportation was in accordance with PFJs.

Gardiner (2011 FC)

Facts: Officer decided not to grant the Applicant PR status on H&C grounds. The Applicant was seeking to overcome inadmissibility on the basis of serious criminality. G is a 48 yr old citizen of Jamaica. His sister sponsored him to come to Canada when he was 18 in 1980. He is a schizophrenic and committed a few assault; this led to the deportation order.

Standard of Review: Standard of review for questions of law is correctness, and the standard for mixed law and fact is reasonableness. As noted in Baker, the standard of review for discretionary decisions made on H&C grounds is reasonableness. Therefore, the standard is reasonableness.

1. Did the officer draw unreasonable conclusions from the evidence before her? a. The Plan: Given that the officer’s decision was justified, transparent and intelligible, it

must stand. b. Family Support: While the applicant will face certain challenges on his return to Jamaica,

the officer’s decision was legitimate. c. Risks in Jamaica: The Officer gave thorough and detailed reasons. The decision is

intelligible, justified and transparent. The applicant has no shown that evidence was ignored or over-looked. Judicial deference is due to the decision and this Court will not interfere.

2. Is subsection 36(1) of the IRPA Contrary to s. 15 of the Charter?a. The Applicant argues that this section adversely affects PRs with mental illness because

it fails to take into account the already disadvantaged position of mentally ill FNs. b. The Respondent points out that s. 6 of the Charter distinguishes between the rights of

citizens and non-citizens to remain in Canada (relies on Chiarelli). c. Court says that they seem to be relying on a positive duty to accommodate and that this

argument is not supported by the facts of the case.

Decision: Application was dismissed.

The Right to Enter Canada

1. Citizena. A Canadian citizen has a constitutional right to enter Canada. b. Entrenched in s. 6(1) of the Charter.

i. Makes it subject to s. 1 of the Charter.c. Also acknowledge in s. 19(1) of IRPA

i. Every Canadian citizen within the meaning of the Citizenship Act …. has the right to enter and remain in Canada in accordance with this Act, and an officer shall allow the person to enter Canada if satisfied following an examination on their entry that the person is a citizen.

2. Permanent Residenta. The Charter grants PR’s some rights, including the right to interprovincial mobility and

residence, but it does not afford them the right to enter Canada. b. They have a right to enter Canada under three conditions:

i. Must maintain residence in Canada by physically being present in the country for a required number of days for each five year period.

ii. May lose status if they are deemed inadmissible according to the criteria found in ss. 34-40 of the IRPA.

iii. In some narrowly defined circumstances, PR’s are granted status only on the provision that they meet specified criteria (entrepreneurs).

c. S. 19(2) of the IRPA says that a CBSA officer can issue a removal order against a PR only on the ground that they have not met the residency requirement. However, the resident has the right to appeal to the IAD and the removal order will not come into force until the appeal is determined.

3. Foreign Nationala. Do not have the right to enter Canada but can be authorized to do so should they apply

and be granted the status of temporary resident. b. Four classes of FN’s may be granted the status of temporary resident:

i. Visitors (tourists and temporary business).ii. Temporary workers.

iii. Students.iv. TRP Holder (where it is “justified in the circumstances”).

c. FN’s may be permitted to enter and remain in Canada while their status is being determined. A person who is found eligible to make a refugee claim will be permitted entry until the claim is determined.

d. Barring exceptional circumstances, if you are an FN without TR status, you cannot enter the country.

e. FN’s seeking entry as visitors, temporary workers or students must apply for a Temporary Resident Visa (TRV).

4. *Indian Acta. S. 19(1) of IRPA equates those with Indian status to that of citizens: they have the right

to enter and remain in Canada.

2 – StatusPermanent Resident

S. 21 of IRPA tells us how FNs become a PR:

1. Applied2. Met obligations3. Not inadmissible

a. Simply receiving a PRV does not make you a PR, you have to arrive in Canada to actually be a PR.

S. 46 of IRPA tells us how one loses PR

1. When you become a Canadian citizen2. You can lose PR when you haven’t fulfilled the residency obligation3. 46.1(c) when a removal order is issued4. (d) if you lie on your refugee application

Conditions of Residence

- This is different from the residency requirement that PRs must meet to become citizens. In order to maintain their status and their entitlement to stay in the country, s. 28 of IRPA provides, “a PR complies with the residency obligation with respect to a 5 year period if, on each of a total of at least 730 days in that 5 year period, they are physically present in Canada.”

- There are three exceptions to this requirement:o They are accompanying a Canadian citizen who is their spouse or common law (or a

parent if they are a child). o They are outside Canada employed on a full time basis by a Canadian business or in the

public service of Canada or of a province. - Failure to meet this requirement doesn’t automatically lead to loss of status. A determination by

the appropriate authority must be made. Moreover, the officer may determine that H&C considerations justify the retention of status in the particular circumstances.

Chiarelli (1992 SCC)

Facts: C came to Canada as a child. He was then convicted of two crimes: (1) uttering threats: received suspended sentence (max is 10 yrs imprisonment) and (2) possession of a narcotic for the purpose of trafficking: received 6 months imprisonment (max is life). Immigration Officer filed a report identifying him as a PR who has been convicted of an offence for which a term of imprisonment of 5 yrs or more may be imposed. Adjudicator made a deportation order. The Appeal Board was adjourned because the Solicitor General and the Minister of Employment and Immigration made a report indicating that they had reasonable grounds to believe he was involved in organized crime.

Note: This decision was made under the old Act. One of C’s grounds of appeal is that if he is found convicted of an offence punishable by more than 5 years, he must be deported. Back then, the IAD had the jurisdiction to hear an appeal but was barred from using its equitable jurisdiction in relation to serious criminals. How does this differ now? He wouldn’t even get to the IAD (s. 64 IRPA) now.

C is claiming that his s. 7 rights are engaged. His argument is that in order to be compliant with the Charter, the system can’t just be automatic. Someone should hear his case and balance the factors.

1. Does deportation actually engage s. 7 of the Charter? Sopinka isn’t going to address this because he doesn’t have to.

2. PFJ: The fundamental principle of immigration law is that no one but a citizen has a right to reside here. The government is sovereign over questions of entry dealing with non-citizens.

Therefore, getting rid of C is not contrary to PFJs. Sopinka takes a contractual approach to it, “you broke your agreement, so these are the consequences.”

Medovarski (2005 SCC)

Appellant claims that her s. 7 rights are being violated by deportation. She claims that deportation removed her liberty to make person decisions, imposes psychological stress and thus imposes on her security of person and that the process was unfair and thus contrary to PFJs.

Decision: Non-citizens do not have a right to reside in Canada. Further says that even if her s. 7 rights were engaged, the unfairness is inadequate to constitute a breach of the PFJs. The H&C grounds she brings up are covered by s. 25(1) of the IRPA.

Citizen Children with Non-Citizen Parents

- Children born in Canada are Canadian citizens, whatever the status of their parents. However, the citizen-child of a PR does not have a constitutional right that their parent not be deported. In Langner v. Canada, the FCA held that the decision to deport a FN did not infringe on the constitutional rights of their citizen-child.

- The child has no Charter right to “demand” that the Canadian government not apply to their parents the penalties provided for violation of Canadian immigration laws.

- The decision of the parent to take their child or leave him in Canada is regarded as a private decision.

- On the other hand, the best interests of a Canadian child are a relevant factor that must be taken into account where the person under removal order has made an application to the Minister to be permitted to remain in Canada on H&C grounds, or where an appeal has been made to the IAD.

- In most circumstances, where a PR has been found inadmissible, this will have no bearing on the PR status of family members. There is one exception where an entrepreneur has failed to meet the conditions that qualify their status family members will also be found to have failed to meet a condition.

- The Langner case at pp. 36-38 of the CB.

3 – Visas and PermitsTemporary Resident Visa (TRV) Requirement

General Rule: FN’s seeking to enter Canada and to remain either temporarily or permanently, must first obtain a visa (s. 11(1) of the IRPA).

1. Obtaining a TRVa. Found in s. 179 of the Regulations. An officer shall issue a visa where satisfied that the

applicant:i. Has applied as visitor, worker or student;

ii. Will leave Canada by the end of the authorized period; This is the major concern. The applicants will need to convince the visa

officer that their connection to their country of origin is sufficiently strong to motivate them to return there.

iii. Holds a valid passport or similar document;iv. Meets the requirements for admission as a visitor, worker or student;v. Is not inadmissible and

Inadmissibility is determined on grounds of:1. Human or international rights violations (s. 35);2. Criminality (s. 36);3. Organized criminality (s. 37); 4. Health grounds (s. 38); 5. Financial reasons (s. 39);6. Misrepresentation (s. 40);7. Noncompliance with the Act (s. 41) and 8. Inadmissible of accompanying family member.

vi. Has submitted to a medical exam where needed.b. The current legislation (s. 22(2) of IRPA) provides for “dual intent” which allows for

people who do intend to become a permanent resident. i. “An intention by a FN to become a PR does not preclude them from becoming a

TR if the officer is satisfied that they will leave Canada by the end of the period authorized by their stay.”

1. Officer must ask: If dual intent person fails to get PR, are they likely to stay in the country after TRV expires? Look at travel plans, things to draw them back to home, ties etc.

c. Applicants who are denied a TRV can apply to the Federal Court of Canada for leave to seek judicial review of the decision. However, FN’s outside of Canada who have been denied a TRV have limited access to Canadian courts.

2. Documentation Required a. Travel document, an application form, two photographs and various other documents as

required under the specific circumstances of their arrival.

b. The applicant must be in possession of a passport or similar document (s. 52(1) of the Regulations) which must be valid for the period authorized for the stay in Canada. Except, US citizens are exempt from this provision.

c. S. 10(2) Regulations specific content requirements on visa applications. d. Form also looks to the reliability of the claim that they will depart from Canada after the

authorized time has expired. e. Asks specific questions about health, prior arrests and prior application denials/removals,

war crimes etc. f. Applicants may be represented by qualified third parties when dealing with visa officers

(must submit a form to do so). 3. Examination at Port of Entry

a. Page 47 of the CB. 4. Family Members

a. An application for a TRV may include accompanying family members (children and “partners”).

b. Dependent children are defined in s. 2 of the Regulations. 5. Place of Application

a. S. 11(2) of the Regulations says that an application for a TRV must be made to an immigration office that serves:

i. The country in which the applicant is present and has been lawfully admitted; orii. The applicant’s country of nationality, or if the applicant is stateless, their

country of habitual residence. b. Operational Manual says this section will be applied flexibly. c. OM also says that family members who are included in the application need not have

been lawfully admitted to the country where the application is submitted. 6. Exemptions from the Requirement to Obtain a TRV

a. S. 190 of the Regulations lists those citizens who are exempt from being required to obtain a TRV before seeking to enter Canada (lists a bunch of countries).

b. There is a relation between the wealth and stability of the state and its inclusion on the visa exempt list. More controversially, countries have been removed from the list when there has been an increase in refugee claims from that country (Czech Republic and Mexico were removed in 2009).

7. Issuance of TRV and Grant of Statusa. The issuance of a TRV by an officer outside of Canada does not grant TR status; the visa

holder must be examined by an officer on arrival to Canada. b. They need to determine if the person seeking status meets the requirements of ss. 20(1)

(b), and s. 22(1) of the IRPA. i. 20(1)(b): For an FN to become a TR they must establish that they hold a visa and

will leave Canada by the end of the period authorized for their stay. ii. 22(1): FN becomes a TR if the officer is satisfied that they have applied for the

status, has met 20(1)(b) and is not inadmissible. iii. 24(2): Been examined on arrival.

8. Temporary Resident Permits (TRP)a. Individuals who are found inadmissible, and therefore will not be approved for a visa,

may be approved for a TRP (s. 24 of IRPA). b. TRP may be cancelled at any time.c. Officer outside of Canada can approve one but cannot issue one, must be picked up at

port of entry. A secondary examination will occur at that time. d. S. 63 of the Regulations: A TRP is valid until any one of the following events occurs:

i. The permit is cancelled under s. 24(1) of the Act;ii. The permit holder leaves Canada without obtaining prior authorization to re-

enter;iii. The period of validity specified on the permit expires;iv. A period of three years elapses.

e. Eligibility: An FN must be:i. Inadmissible and seeking to come to Canada;

ii. In Canada and inadmissible, subject to a s. 44(1) inadmissibility report, reportable for a violation of the Act, or otherwise in breach of the Act;

iii. Not eligible for restoration of a legal status that has been lost.f. Interviews may or may not be conducted, likely not if the grounds of inadmissibility are

relatively minor and if credibility or merit is not an issue. g. TRP holder is permitted to apply for PR status from within Canada after either 3 or 5

years depending on the ground of inadmissibility, but only if they haven’t become inadmissible on another ground since the permit was issued.

h. Been described as a “highly discretionary tool” to be used only in compelling cases.

Permanent Resident Visa (PRV) Requirement

1. Obtaining a Permanent Resident Visa (PRV)a. Typically, a FN seeking to enter and remain in Canada must first apply for a PRV. Only

in exceptional cases may a FN who is already in Canada apply for permanent status. b. Like a TRV, a PRV requires that the person present themselves for examination at a port

of entry (s. 20(1) of IRPA). c. S. 6 of the Regulations: A FN may not enter Canada to remain on a permanent basis

without first obtaining a PRV. 2. Family Members and PRVs

a. The principal applicant can name a spouse, common law partner, dependent child and dependent child of a dependent child.

b. S. 2 of the Regulations: A dependent child, in respect of a parent, means a child who i. Has one of the following relationships with the parents, namely,

1. Is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common law partner of the parent, OR

2. Is the adopted child of the parent; ANDii. Is in one of the following situations of dependency:

1. Is less than 22 years of age and not a spouse or common law partner OR

2. Has depended substantially on the financial support of the parent since before the age of 22 – or if the child became a spouse or common law partner before the age of 22, since becoming a spouse or common law partner – and, since before the age of 22 or since becoming a spouse or common law partner, as the case may be, has been a student:

a. Continuously enrolled in and attending a post-secondary institution that is accredited by the relevant government authority, and

b. Actively pursuing a course of academic, professional or vocational training on a full-time basis, OR

3. Is 22 years of age or older and has dependent substantially on the financial support of the parent since before the age of 22 and is unable to be financially self-supporting due to a physical or mental condition.

c. The relevant date for determining the age of a child is the date when an application is made. The relevant for determining whether they are enrolled in an educational institution is the date when the application is considered by a visa officer (s. 11(1) of the Regulations).

3. Place of Application a. Must be made either at to the immigration office that serves the country in which the

applicant is residing if the applicant has been lawfully admitted to that country for at least a year; or to the office serving the applicant’s country of nationality. Stateless individuals can go to the office that serves their country of habitual residence.

4. Classes of Applicationa. S. 12 of IRPA outlines that an application for a PRV shall be considered under one of

three general headings:i. (1) Family Reunification

ii. (2) Economic Immigrationiii. (3) Refugees

b. Regulations specify that under the Economic class, there are: federal skilled workers, the Quebec skilled workers, the provincial nominee class, the investor class, the entrepreneur class, the self employed person class and the Canadian experience class.

c. S. 70 of the Regulations specifies the conditions for issuance:i. 70(1) An officer shall issue a PRV to a FN, following an examination, if it is

established that (a) the FN has applied in accordance with these Regulations for a PRV as

a member of a class referred to in subsection (2); (b) the FN is coming to Canada to establish permanent residence; (c) the FN is a member of that class; (d) the FN meets the selection criteria and other requirements applicable

to that class; and (e) the FN and their family members, whether accompanying or not, are

not inadmissible. b. Applicants applying under the family class category must satisfy the visa officer that they

are in the identified relationship with the person seeking to sponsor them. The sponsor

must submit an application showing that they meet the definition of a sponsor and also meet additional criteria related to their ability to support the applicant.

c. Applicants under the economic class must satisfy the officer that they meet the requirements that relate to past experience and in addition must meet criteria that relate to age, education, skills, linguistic ability, past experience and adaptability.

5. Exemptions for FNs Already in Canadaa. There are five classes of applicants who can apply for PR status from within Canada

without applying for a PRV:i. Live-In Caregiver;

Admitted as TRs and after a specified period of work, they are permitted to apply for PR status from within the country.

ii. Spouse or Common Law Partner in Canada; FNs who are in Canada and who are in a relationship with a PR or

citizen. iii. Permit Holderiv. Protected Temporary Residents; and

Granted a TRP after making a claim for refugee protection outside of Canada

v. Canadian Experience Class.b. A temporary foreign worker with at least two years of full-time skilled work experience

in Canada, OR a foreign graduate from a Canadian post secondary institution with at least one year of full time skilled work experience in Canada are also permitted to apply for PR status from within the country as long as the plan to live outside of Quebec.

c. S. 72(1) of the Regulations outlines the factors that determine whether PR status should be granted in Canada:

i. 72(1) A FN in Canada becomes a PR if, following an examination, it is established that

(a) they have applied to remain in Canada as a PR as a member of a class referred to in subsection (2);

(b) they are in Canada to establish permanent residence; (c) they are a member of that class; (d) they meet the selection criteria and other requirements applicable to

that class; (e) except in the case of a FN who has submitted a document accepted

under subsection 178(2) or of a member of the protected TR class, - (i) they and their family members, whether accompanying or not,

are not inadmissible, - (ii) they hold a document described in any of paragraphs 50(1)(a)

to (h), and- (iii) they hold a medical certificate, the most recent within 12

months, that indicates that their health condition is not likely to be a danger to public health or public safety and, unless subsection 38(2) of the Act applies, is not reasonably expected to cause excessive demand; and

(f) in the case of a member of the protected TR class, they are not inadmissible.

6. Documents Requireda. Generic application form, photocopy of personal data pages of their passport, background

form identifying education, military service, convictions and the names of organizations that they have been members of. Make a declaration that the form is complete and true.

b. May be represented by qualified third parties but must submit a form. c. Must submit a medical report completed by a doctor authorized by the CIC.

i. More relaxed medical criteria apply to members of the family class who are the spouse, common law partner, or child of a sponsor. And to convention refugees and protected persons.

ii. They are not requirement to show that they will not likely cause excessive demand on health or social services.

7. Port of Entrya. Holders of a PRV may obtain status only after examination at a port of entry. Ss. 20 and

21 of the IRPA identify the requirements that must be met. b. S. 20(1)(a) hold a visa or other document required and have come to Canada in order to

establish permanent residence. S. 20(2) provincially selected FN; must show they have a document issued by the province. S. 21(1) FN met above criteria and are not otherwise inadmissible.

c. Page 47 of the CB. 8. Loss of PR Status

a. PR’s will lose their status if there is a final determination that they have failed to comply with the residency requirement.

b. Also, if they are deemed inadmissible and a removal order is issued (inadmissibility for FNs and PRs is essentially the same).

i. The inadmissibility of a PRs family member will not make them inadmissible, but it will for an FN.

ii. Only FNs are inadmissible on the ground that they are unable to financially support themselves, or do not meet the health requirements, or on grounds of mere (as opposed to serious) criminality.

c. When deciding the inadmissibility of a PR, the ID doesn’t have the discretion to consider the length of time the individual has been residing in Canada.

d. Can be appealed to the IAD, except for when it’s about criminality or security. i. The IAD may allow the appeal where it finds that the original decision was

wrong in law, in fact, or mixed law and fact; where it finds that a principle of natural justice was not observe; or where sufficient H&C considerations warrant special relief, taking into account the BIC.

Refusal and Review

Reconsideration

Kurukkal (2010 FCA)

Minister of Immigration is appealing from a judgement of the Federal Court. The FC Judge allowed the respondent’s application for judicial review of the decision of an immigration officer. The respondent made an application under H&C grounds to be relieved of the requirement to apply for PR status from outside Canada.

The question was whether or not an officer is precluded from reconsidering an application when there is new evidence on the basis of the doctrine of “functus officio” which says, “ once a decision is taken, the decision-maker no longer has authority in the matter.”

This court agrees with the Judge that the doctrine doesn’t apply. Concluded, however, that the judge shouldn’t have directed the officer to reconsider. The Judge should have told the officer that they had the discretion to reconsider if they so choose. Thus, the appeal was allowed in part; the application for judicial review is allowed and the matter is remitted to an immigration officer for reconsideration.

Judicial Review

- Canadian law offers two sources of procedural protection for individuals who are subject to government decisions relating to entry, residence and removal:

a. S. 7 of the Charter guarantees the right not to be deprived of the right to life, liberty and security of the person except in accordance with the PFJs. Where a court accepts that the substantive rights of an individual are engaged by a legal decision, then it will examine and evaluate the legal procedures that were followed.

b. The Federal Court Act identifies that the Federal Court may grant relief where a decision-maker “failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe.” In applying this section, the Federal Court relies on the CL doctrines of procedural fairness that have been developed by the judiciary.

Constitutional Protections

- In Charkaoui, the SCC determined that the PFJs are context dependent, and that their content will depend on the matters that are at stake.

- The SCC has also determined that the PFJs apply to non-judicial decisions. The court held that the Minister was obligated to abide by the PFJs in deciding whether to remove a person from Canada and expose them to risk of torture.

- In deciding the ambit of these principles, Baker indicated that procedural protections will play a role.

Procedural Fairness

- Baker is a seminal case in which the SCC fine-tuned an approach to administrative due process. - The Court determined that, where legislation does not specify particular procedures to be

followed by a decision-maker, when making a determination relating to the interests or rights of a party, it is appropriate to apply CL standards of procedural fairness.

- The Court specified a non-exhaustive list of factors that can be considered when deciding the level of procedural protection that should be accorded:

a. The nature of the decision made and the procedures followed in making it, that is, “the closeness of the administrative process to the judicial process,”;

i. The closer the resemblance the more the procedural safeguards should resemble those accorded in a formal trial.

b. The role of the particular decision within the statutory scheme;i. In particular the scope for an appeal. Where no appeal is available, the safeguards

need to be better. c. The importance of the decision to the individual affected;d. The legitimate expectations of the person challenging the decision where undertakings

were made concerning the procedure to be followed; andi. There is reason to accord particular protections where the person was made to

believe that they would be available. e. The choice of procedure made by the agency itself.

i. Should be accorded a level of deference. - The impact of Baker has been significant. The decisions of officers at every point of the

immigration process, from visa officers to enforcement officers, have been challenged for failing to accord procedural fairness. The cases have revolved primarily around some central issues:

a. Whether the individual has been given adequate notice of the issue to be decided or the concerns of the decision maker (Yuan).

b. The individual must be informed if outside information is being taken into account. c. Bonilla: The Officer refused based on a determination that attending high school in

Canada would be detrimental to her sense of culture and lead her to want to stay in Canada. It was found that this determination was based on a stereotype. The visa officer’s failure to give the applicant an opportunity to respond amount to a breach of the rules of fundamental justice.

d. Whether the individual has had sufficient opportunity to present his/her case and to respond to the case against him/her (Chiau).

e. Accorded the opportunity to be represented by counsel.f. Provided the services of an interpretor. g. Prejudiced by delay.

- The Court has determined that the standard of review for issues of procedural fairness is correctness.

Baker (1999 SCC)

Facts: The Appellant is arguing that she had been treated unfairly by an officer considering her application on H&C grounds to be allowed to apply for PR status from within Canada.

She based her argument on the fact that she had Canadian children who would be affected by the result of her application and advocated that she was entitled to an oral interview before the decision-maker and a bunch of other things involving the interview itself. She also alleged that procedural fairness required the provision of reasons by the decision-maker, and that comments in the notes of the officer give rise to a reasonable apprehension of bias.

The Court concluded that she was not entitled to an oral hearing, and that procedure that allowed for written submission was sufficient in the circumstances.

The Court did conclude that she was entitled to written reasons as they were an important component of procedural fairness. The Court, however, concluded that Baker had actually received adequate reasons.

The Court also concluded that comments made by the officer about Baker and her circumstances gave rise to a reasonable apprehension of bias. “Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker.” The Court found that in looking at his notes, the officer was not disclosing the presence of an open mind or a weighing of particular circumstances of the case free from stereotypes.

Labrador Nurses (2011 SCC)

Issue: The Arbitrator’s reasons when looking at the collective agreement amounted to “no reasons” and therefore there was an issue of procedural fairness, and therefore the standard is one of correctness.

Court concluded that Baker stands for the proposition that “in certain situations” procedural fairness will call for reasons, not that reasons were always required. They found that the arbitrator was alive to the issue and came to a result correctly.

Huang (2012 FC)

Facts: Application by H for judicial review of refusal of a temporary work permit by the Canadian embassy in China. He was single, his stepmother and three sisters lived in Alberta; two siblings lived in Tibet. No interview was conducted when his application was refused for a second time. The visa officer was not convinced that he would leave once his stay was over. The Officer cited his lack of ties to China and the financial incentive to stay in Canada.

Held: The application was dismissed. The failure to interview the applicant was not a breach of procedural fairness. No oral hearing was required under the circumstances. The refusal was not based on unreasonable inferences and did not result from a denial of procedural fairness.

Li (2008 FC)

Facts: Application by L for leave to commence an application for judicial review of a decision of a visa officer where the officer determined that Li didn’t meet the requirements for the issuance of a work permit. Li was a 34 year old citizen of China who was offered a job in Halifax. The visa officer denied the work permit on the basis that he was not satisfied that Li would leave after the permitted stay. He was not well established in China and he would be earning significantly more in Canada. The denial of the work permit was on paper and he was not interviewed.

Held: Application was allowed and the matter was referred to a different visa officer. In determining whether the officer erred in his factual assessment of the application, the appropriate standard of review was one of reasonableness. The standard for procedural fairness is correctness. The officer erred in his factual assessment of the application. He made no serious attempt to determine the strength of the applicant’s family ties to China. The officer also breached the rules of procedural fairness in failing to give the applicant an opportunity to respond to his concerns. An interview would have been appropriate given the applicant’s extensive family ties to China.

Substantive Review

Thomas (2009 FC)

Issue: Application for Judicial Review. Thomas was told that he did not meet the requirements to obtain a temporary work permit.

Facts: 20 year old citizen of India presently employed as an Auto Shop Helper. The visa officer denied the application on the grounds that the applicant had not shown that he was well established in India and that he had not shown that he would return to India at the end of the authorized period. He was not afforded the opportunity to respond before the refusal letter was communicated.

The Court notes that the visa officer’s factually intensive analysis and application of discretion are central to his role as a trier of fact. As such, they must be afforded significant deference when being reviewed. “The visa officer’s factual findings should stand unless the reasoning process was flawed and the resulting decision falls outside the range of possible, acceptable outcomes which are defensible in respect of the facts and the law” (Dunsmuir). In a case like this, there may be more than one reasonable outcome. However, as long as the process adopted by the visa officer and the outcome fit comfortably with the principles of justification, transparency, and intelligibility, the court should not intervene (Khosa).

In this case, the visa officer’s failure to consider the applicant’s property holdings and valuations leads to the inference that the visa officer made an erroneous finding of fact without regard to the evidence. The visa officer also erred in putting excessive weight on language. As such, the reasoning process was flawed and the decision falls outside of the realm of possible, acceptable outcomes.

Decision: Application must be granted and the matter reconsidered by a different visa officer.

Misrepresentation

Mescallado

Facts: Application by M for judicial review of an immigration officer’s decision which denied his application for a PRV. M applied under the Skilled Workers class. His application was denied on the basis that he lied on the application when he stated there were no criminal charges outstanding against him. The VO discovered that he actually had charge for “slight physical injuries” that had been provisionally dismissed. He also rejected M’s claim that he had been permanently dismissed of the charge in 2009.

Held: Application allowed. The VO erred in failing to seek legal advice in determining the effect of the provisional dismissal of the charge against M. he had an obligation to inquire further, since the concept of a provisional dismissal had no equivalent in Canada. The Officer’s reasons lacked transparency and proper factual foundation.

Accompanying Family

Eligibility of Family Members

Hamid (2007 FCA)

Facts: Dad applying as a skilled worker and wants to bring his son and wife. We have to figure out who are the family members that he can name on his application. The question is “who is a dependent child” and at what stage do we ask this question? The issue is that two of his children were over 22 at the time of the application BUT they were full time students. By the time the decision was made, they were no longer students.

Issue: Lock in dates for joining a primary application. At what point in the application process do we actually judge whether the characteristics are present? (A) When they made the application? (b) At the time the decision is being made? When it comes to the AGE of the person, the jurisprudence indicates that the age of the applicant is “locked in” at the time the application was submitted. The question is about whether or not this applies to “student status.”

Relevant Legislation:

1. Definition of a dependent child on page 4 under PRV. 2. S. 1(3) of IRPA defines family member means (a) the spouse or common law partner of the

person; (b) a dependent child of the person or of the person’s spouse or common law partner and (c) a dependent child of a dependent child referred to in paragraph (b).

3. As an applicant for a visa in the federal skilled worker class, Mr. Hamid had to meet the definition set out in s. 75 of the Regulations and the selection criteria in s. 76.

a. S. 77 is relevant to the case: For the purposes of part 5, the requirements and criteria set out in ss. 75 and 76 must be met at the time an application for a PRV is made as well as at the time the visa is issued.

4. Also to provide context, they look to s. 121 of the Regulations. This deals with family class sponsorship (not what’s at issue in this case, but it may provide some insight). Under these regulations, you have to be a family member at the time the application is made and at the time of the determination of the application. You cannot, for example, sponsor someone who was your spouse when you made the application but no longer is at the time of the decision.

a. S. 121, however, states that age is the only selection criteria that need not be met when an application is determined.

Arguments:

5. The argument made by Hamid’s lawyer is that because the family class sponsorship regulations specifically address this point, we can strongly infer that by not addressing it, the regulations involving family members on a PRV do not follow the same criteria. .

6. Minister makes the argument that it would be contrary to underlying legislative policy to require visa officers to issue visas to an applicant’s children who were 22 or over at the date of application, but do not meet the criteria of financial dependence and student status when the application is determined.

7. Hamid’s lawyer then counters by saying that to have it determined at the point the decision is made will lead to arbitrary results that have no rational connection with the legislative intent.

8. Judge determines that no matter how you decide this, a certain amount of arbitrariness is unavoidable (para 40).

9. The Minister also points out that student status is different from age because it relentlessly marches on and is beyond the control of the applicant. Jurisprudence has indicated that the Minister has discretion to determine what criteria must be met. Most ministers have chosen as a matter of policy to treat age, but not enrolment in education, as locked in.

Decision: Judge ultimately decides that it is line with policy to treat the facts as they are when the application is determined.

Admissibility of Family Members

For notes on inadmissibility due to health, see notes under 9 – Inadmissibility and Enforcement

Hillewitz (2005 FCA)

Issue: Balancing grounds of eligibility with grounds of inadmissibility. The issue is whether the financial resources that otherwise qualified the family for admission to this country could nonetheless be disregarded in assessing the impact of their child’s disabilities on Canada’s social services.

Facts: Mr. Hilewitz applied for PR status under the “investor” class set out in the legislation. Under these categories, you must have substantial financial resources to qualify. He was, however, denied admission by the Minister of Citizenship and Immigration because of the intellectual disability of a dependent child.

Considerations:

1. Constitutional arguments were made (but not addressed);2. Standard of review is considered (everyone agrees that it’s correctness);3. Procedural fairness is considered (letter/unread reply);4. Statutory interpretation (the heart of the issue).

Analysis:

- Prior to Hilewitz, there were three independent questions that needed to be answered when an applicant was applying for a visa:

o (1) Does the applicant meet the pre-requisites? o (2) Does the applicant meet the selection criteria?o (3) Is the person admissible?

- Previously, the questions were considered independently of each other because the risks associated with admissibility are so problematic (and important) that there is good reason not to ask whether they are outweighed by any particular benefits.

- Question number two is not meant to identify the best candidates, simply the acceptable candidates. Acceptable candidates are then assessed on their admissibility.

- Excessive Demand: Might reasonably be expected to cause excessive demand on health or social services. Defined in the Regulations as either:

o Anticipated costs that would likely exceed the average per capita health and social services costs over a period of five years; OR

o A demand that would add to existing waiting lists and would increase the rate of mortality or morbidity for PRs and citizens as a result of denials or delays in the provision of services.

- As per the guidelines of these procedures, Mr. Hilewitz was given a letter detailing the reasons for his inadmissibility. He wrote back stating his position that he did not disagree with the medical analysis but did disagree with the designation of “excessive demand” because he would be paying for everything.

o The letter isn’t read. - Abella’s factors:

o Since they are applying under the investor/self-employed categories, it would be incongruous to discount their financial position in determining admissibility;

o There are clear references in the legislative history to the defeasibility of the admissibility criteria;

o Individualized assessments called for by the SCC and a ruling that the determination of admissibility cannot be based on speculation;

o SCC also upset that no one read his letter;o The wealth of the parents and willingness to self-support are relevant factors.

- Central reason for the outcome: Immigration officials cannot employ “cookie-cutter” methods of determining admissibility. There is something problematic about denying all seriously disabled persons entry to Canada because of potential expense and/or burden on the welfare services of Canada (almost appears to be a masked s. 15 Charter analysis).

Decision: Appeal is allowed and sent back to the Minister for reconsideration.

Dissent: Argues that the merging of the two enquiries (individual assessments), is contrary to the scheme of IRPA. Majority didn’t take into consideration the fact that there is a way for the Hilewitz family to get their disabled son in regardless. They could have recourse under s. 24(1) whereby a FN who is inadmissible, can become admissible as a temporary resident if the officer is of the opinion that it is justified in the circumstances. We shouldn’t tamper with the entire provision in order to let this family in.

The majority doesn’t get on board with this because TRP can be revoked at any time. Also, they’re thinking that families like the Hilwitz’s deserve permanent resident status and to give them anything less would be improper.

Post Hilewitz

- While it was originally thought that it would only be applied to the investor/self-employed class. However, Colaco (2007 FCA) extended the Hilewitz approach to skilled workers. DeSouza (2008 FCA) extended the Hilewitz approach to family sponsorship in the case of an orphaned sibling.

- New Process: o Applicant must sign a statement of “intent and ability” and provide a concrete plan on

how excessive demands are going to be avoided.o The visa officer and the medical officer are going to pass the file back and forth.o The medical officer will then offer a conditional opinion on whether excessive demand

exists based on the proposed plan. o Visa officer may decide that the plan is not viable.

- How far does this go? Will it apply to cases where the excessive demand is tied to health services and not social services?

Health Cases: Lee (2006 FC) and Companioni (2009 FC)

- Likely to make a demand on services (if they are entitled to pharmaceuticals) because of the cost of the medications that they would need.

- It looks like these individuals are in the excessive demand category. Particularly because prescription drugs are in the definition of excessive demand.

- But our health care system doesn’t usually cover this. Unless you have a private system, you normally are not covered for prescription drugs in Canada (or at least not for this amount). Therefore, it looks like they might escape the excessive demand requirement.

- But then they’re intending to go to Ontario and realize that there is a better service for people who need prescription drugs.

- The determination of what is a “health service” is going to come down to a provincial regulation and not the federal one.

- The visa officer made a mistake by not inquiring fully into whether the person can get health insurance through their work.

- The fairness letter that is going out to the individual should be very clear that we want to know what their plans are in terms of employment and what the possibilities are of them getting a prescription drug plan through their employer.

o The decision maker was basically saying that there are two individuals that would not be able to get insurance through work because they already have the illness.

o But then the Court is saying “prove it.” Work insurance is often granted without inquiring into the pre-existing condition of the individual.

- The argument from the Court is that not enough inquiry was done and the applicant wasn’t given enough information about what was being decided.

- Concludes that financial ability does not change entitlement or access to health care, and this, compounded with the reality that there is no private health care available, results in the

conclusion that the Applicant’s financial ability to pay for health care is not a salient consideration in granting PR status.

4 – Family ClassDefinitions

- Definition of “dependent child” can be found under the PRV requirement. o “Biological child” includes children who are born with the help of ARTs, so long as the

applicant or the applicant’s spouse, common-law partner or conjugal partner, gave birth to the child. Where it is done through surrogacy, a parental relationship must be established through adoption.

- “Spouse” is not defined in the Regulations but a definition of “marriage” is found in s. 2. If the marriage took place outside of Canada, it means a marriage that is valid both under the laws of the jurisdiction where it took place and under Canadian law.

o This includes same sex marriage where the conditions of mutual legality are met. - Common Law Partner: In relation to a person, an individual who is cohabiting with the person

in a conjugal relationship, having cohabited for a period of at least one year. OR an individual who has been in a conjugal relationship with a person for at least one year but is unable to cohabit with the person, due to persecution or any form of penal control (s. 1(1) of the Regulations).

- Conjugal Partner: In relation to a sponsor, a FN residing outside Canada who is in a conjugal relationship with the sponsor and has been in that relationship for at least one year (s. 1(1) of the Regulations)).

o This definition is meant to capture “marriage-like” relationships where cohabitation is impossible, typically because of immigration law.

- To show that you’re a common law partner, you need to show that you’re economically connected. You need to show that you have combined your affairs and set up a household together.

o In reality you have to go a little further (e-mails, photos etc.). o The real difficulty is showing when it started (to show that it was an uninterrupted 12

month period prior to the application).- The show that you’re a conjugal partner, you have maintained a conjugal relationship with your

sponsor for at least one year and you have been prevented from living together or marrying because of:

o Immigration barrier.o Marital status (live somewhere where divorce is impossible).o Your sexual orientation.o You can provide evidence there was a reason you could not live together.

M. v. H (1999 SCC)

The SCC adopts the list of factors that must be considered in determining whether any two individuals are actually in a conjugal relationship (which is a definitional element for both common law partnerships and conjugal partnerships). Cites the decision of Moldowich v. Penttinen (ONCA):

o Shared shelter (sleeping arrangements);o Sexual and personal behaviour (fidelity, commitment, feelings towards each other);o Services (conduct and habit with respect to the sharing of household chores);o Social activities (their attitude and conduct as a couple in the community and with their

friends);o Economic support (financial arrangements, ownership of property);o Children (attitude and conduct concerning children);o The societal perception of the two as a couple.

- From the language used by the Supreme Court throughout M. v. H., it is clear that a conjugal relationship is one of some permanence, where individuals are interdependent – financially, emotionally and physically – where they share household and related responsibilities, and where they have made a serious commitment to one another.

- IMPORTANT: There is a difference between “family members” that you can attach to your application (Hamid) and “members of the family class” (those that can be sponsored).

o You can bring in spouses and common law partners as an attachment to your PA. When you’re sponsoring, you can bring in spouses, common law partners and conjugal partners.

- Members of the family class are admitted due to their relationship to a Canadian citizen or a PR. - There is a distinction between “family members” and “members of the family class.” Principal

applicants in the economic, family and refugee class are permitted to bring with them accompanying “family members.”

o Category of “family members” includes: Spouses, common law partners (same or opposite sex), dependent children, and

children of dependent children. - Due to backlog in the processing of sponsorship applications for parents and grandparents, the

government announced a “temporary suspension” of this category (as of Nov. 5. 11, for up to 24 months).

- The regulation of family class migration is animated by two concerns:o Defining which relationships qualify as sufficiently proximate to warrant inclusion;o Defining the financial obligations of Canadian citizens and PRs who sponsor family class

members, with a view to ensuring that newly admitted family members do not impose a fiscal burden by accessing Canada’s income assistance programs.

- To be admitted through the family class, a FN who is the principal applicant must:o Have a relative who is a Canadian citizen, PR, or registered Indian willing and eligible to

sponsor them;o Prove their identity, age, and relationship to the sponsor through documentation, by

answering truthfully in the course of an examination, or, in the last resort, through a DNA test;

o Not be inadmissible, nor have family members (accompanying or non-accompanying) who are inadmissible; and

o Have valid passports or travel documents.

If a non-accompanying family member is not examined as part of the application, or explicitly exempted from examination, he or she may not be sponsored later on.

- Omitted are fiancées and siblings. Fiancées used to be included under former legislation, but they must now apply either under s. 25 of the IRPA for H&C review or, if they qualify, as common law or conjugal partners.

o At present, siblings may qualify and enter only as accompanying family members of a parent who is the PA.

Three Main Concerns:

1. Determining Genuine Relationships2. Who is a Member of the Family Class?

3. Who Can Sponsor?

1 – Determining Genuine Relationships

Bad Faith

S. 4 of the Regulations: Two Part Bad Faith Test

1. A FN shall not be considered a spouse, CL partner, conjugal partner or adopted child if the relationship is not genuine OR

2. Was entered into primarily for purpose of acquiring a status or privilege.

In determining genuineness, Chavez (2005 IAD) says that the factors that should be taken into account include (1) intent of parties; (2) length of relationship; (3) amount of time spent together; (4) conduct at the time of meeting; (5) engagement and wedding; (6) subsequent behaviour; (7) the level of knowledge of each other’s relationship histories; (8) level of contact; (9) provision of financial support; (10) children; (11) knowledge of each other’s daily lives.

S. 4.1 of the Regulations: Anti-Scam Test – Applies where someone applying to come to Canada (i.e. as a skilled worker) but they have a partner that is inadmissible so they divorce the partner and come to Canada as a single person and get status and then sponsor the partner (b/c criteria is different).

- IAD Appeal: Onus is on the appellant to show that s. 4 doesn’t apply. S. 63 and 65 of IRPA make it possible to appeal, but no on H&C grounds (because they have been determined not in the family class).

- S. 4 used to be an “AND” but now it’s an “OR.” The government saw this as a way of deterring fraud.

- There’s no balance taking place between the interests of family reunification and the interests of deferring fraud; they’re just paying attention to the fraud element.

Champagne (2008 FC)

Facts: Applicant and Sponsor met in 1999 when she was 19 and he was around 39. They were married in 2003 (she was 23 and he was 43). They spent two weeks together and then proceeded to only communicate via phone and internet. He planned a visit in 2005 but it was made impossible due to a heart surgery. He sends support of $50 a month. The visa officer determined that it was a “bad faith” relationship.

Issue: How do you actually determine that a relationship is not genuine?

The interesting factors that come out of Champagne are the factors about the nature of the relationship, depth, cultural similarity etc. Some reasons cited were difference in language (and cultural norms); difference in age; the health of one of the partners.

IAD said that it was a genuine relationship. Standard of review is one of patent unreasonableness. The issue on judicial review is the relative weight of trustworthiness of the sponsor and applicant.

JR held that the relationship was patently unreasonable because of age, was arranged by aunt, inability to communicate, and the number of contradictions.

New Regulations

Devised an adequate means of dealing with the problem apparently

- S. 72(1) of the Regulations: A PR is subject to the condition that they must cohabit in a conjugal relationship with their sponsor for a continuous period of 2 years after the day in which they become a PR.

- Not only do they have to continue their relationship, they must cohabit. - S. 72(2) lists who it applies to. The PR is a person who was a FN who

o Became a PR after making an application for PR as a member of the family class, or an application as a member of the spouse or CL partner in Canada class to remain in Canada as a PR, as applicable;

o At the time the sponsor filed, has been a partner of the sponsor for a period of 2 yrs or less;

o Don’t share a child. Realistically the easiest way to defraud the government is to have a child

together.- The Canadian Counsel for Refugees has critiqued these provisions. The most interesting is that

you will actually see an increase in advertisements for mail order brides by individuals who are “testing the water.” Basically it gives you two years to “test out the product.”

- Access to IAD? The answer will most likely be yes. Even though they are “conditional” PRs, they are still PRs; would therefore have access to H&C jurisdiction.

2 – Who is a Member of the Family Class?

S. 117(1) of the Regulations: A FN is a member of the family class if they are:

- Spouses, common-law partners, and conjugal partners (including same sex);- Dependent children under 22 or, in stipulated circumstances of dependency, over 22;

- Mothers and fathers;- Grandparents;- Orphaned minors who are the sponsor’s sibling, niece or nephew, or grandchild;- A minor child who the sponsor intends to adopt;- Any relative if there is no aunt, uncle, or family member from the list above who is already a

Canadian citizen, Indian, or PR or any relative from the list above who could be sponsored (the “wild card” relative).

S. 117(9) of the Regulations: Excluded Relationships

- FN is the sponsor’s spouse, CL partner, or conjugal partner and is under 16 years of age;- FN is the sponsor’s spouse, CL partner, or conjugal partner and has an existing sponsorship

undertaking in respect of a spouse, CL partner, or conjugal partner;- FN is the sponsor’s spouse (polygamy) and

o The sponsor or the FN was, at the time of their marriage, the spouse of another person, oro The sponsor has lived separate and apart from the FN for at least one year AND

The sponsor is the CL partner of another person or the conjugal partner of another FN, or

The FN is the CL partner of another person or the conjugal partner of another sponsor; or

- The sponsor previously made an application for PR and became a PR and, at the time of that application, the FN was a non-accompanying family member of the sponsor and was not examined (misrepresentation).

Misrepresentation and Family

S. 117(9)(d) A FN shall not be considered a member of the family class by virtue of their relationship to a sponsor if subject to subsection (10), the sponsor previously made an application for PR and became a PR and, at the time of the application, the FN was a non-accompanying family member of the sponsor and was not examined.

De Guzman (2006 FCA)

Fact (recap): The sponsorship of her sons refused because they were not made available for examination at POE.

Arguments:

- The Regulations are ultra vires (rejected).- Charter argument (rejected).- Interpretation and International law.

o S. 3(3)(f) of the IRPA: This Act is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory.

Key: s. 117(9)(d) is compliant with International Law because it is subject to s. 25 which allows H&C considerations to be taken into account.

Sultana (2009 FC)

Facts: Sultana advised by consultant that it would be easier to sponsor his family later instead of including them on his application; s. 117(9)(d) is applied.

Considerations:

- The officer considered failure to disclose as a paramount factor precluding any possibility that H&C grounds could overcome the exclusion. (Generally, once there is a breach of this kind, you can consider whether or not you should ignore the breach on H&C grounds).

- Court wants to find that there is “fettering of discretion,” but the visa officer is convinced that it was intentional failure to disclose which would require a really good excuse.

- Considerations of BIC fall short:o They have to make agency application and it didn’t make any reference to age and

gender; it simply asked for H&C consideration. o Made an argument that conclusion was commensurate with the evidence provided. This

was rejected: it’s up to the decision maker to infer when exercising discretion. The applicant can’t be expected to make all of the arguments.

Conclusion: Court emphasizes that the section is not contrary to international law because we have s. 25 H&C grounds that provide a safeguard. However, immigration officers must do more than “pay lip service” to the H&C factors brought forward. They must truly assess them with a view to deciding whether they are sufficient to counterbalance the harsh provision of s. 117(9)(d).

Dependent Children: Can be found in section on PRV and in Hamid.

3 – Who Can Sponsor?

S. 130 of the Regulations: A sponsor, for the purpose of sponsoring a FN who makes an application for the PRV as a member of the family class or an application to remain in Canada as a member of the spouse or CL partner in Canada class under subsection 13(1) of the Act must:

- Be a Canadian citizen or PR;- Be at least 18;- Reside in Canada (flexible for partners or dependent child);- Have filled out an application in accordance with requirements.

S. 133: Requirements for Sponsorship – (1) A sponsorship shall only be approved by an officer (on the day on which the application was filed and from that day until the day a decision is made) if:

1. Person is a sponsor as defined in s. 130;2. Intends to fulfil undertaking;3. Not subject to a removal order;4. Not in jail;5. Has not been convicted under the CC of a sexual offence, or an offence causing harm to a

relative;

6. Has not been convicted outside Canada of a sexual offence, or an offence causing harm to a relative;

7. Not in default of another undertaking or support order;8. Not in default of a debt owed to Canada;9. Not an undischarged bankrupt;10. Has minimum income;11. Not in receipt of social assistance.

Important: You are still a sponsor if you don’t meet the elements. The Application just won’t be approved. This is relevant because you need to be a sponsor to go to the IAD.

S. 130 versus S. 133: If you don’t meet the criteria under s. 130, you can always apply under s. 25 H&C grounds. Under s. 133 you can first go to the IAD and they can consider H&C grounds and then you can make an application under s. 25 (it’s highly unlikely the IAD will recognize your H&C argument).

S. 132: Undertaking – The sponsor’s undertaking obliges the sponsor to reimburse Her Majesty in right of Canada or a province for every benefit provided as social assistance to or on behalf of the sponsored FN and their family members for a period of:

- 3 years for partner/spouse;- 10 years or age 25 for dependent children;- 10 years for others

Leading case is Mavi (2009): Province and feds have a case-by-case discretion to not enforce undertaking. Argument made by sponsor that they could not meet undertaking they had made (person went onto welfare) and it was beyond their control; argued that they should not be held to undertaking because it wasn’t their fault.

5 – Economic Classs. 12(2): FN may be selected as a member of the economic class on the basis of their ability to become economically established in Canada

Categories under the Economic Class:

- Skilled workers;- Business Immigrants;

o Entrepreneurs: Expected to set up a business that will hire Canadians. If they fail to meet those conditions, they lose their status.

o Investorso Self-Employed: Athletes, artists, farmers

- Canadian Experience (s. 87.1 of the Regulations)o People that have come to Canada on a TWP or as students and are able to apply for PR

(must apply from outside the country)- Provincial Nominees (s. 87 of the Regulations)

o Live-In Caregivers: After a certain number of years in the country you can apply to be a PR.

Skilled Workers

- They are selected on the basis of their ability to become economically established in Canada. - The federal skilled workers program applies to anyone who intends to reside in any Canadian

province other than Quebec. - Three main requirements for admission under the skilled worker class:

1. A period of continuous qualifying employment (s. 75(2)(a) of the Regulations);2. An award of points no less than the prescribed pass mark (67) based on prescribed factors

(listed in s. 76(1) of the Regulations); and3. Proof of adequate settlement funds or “arranged employment in Canada” (s. 76(2)(b) or s.

82 of the Regulations).

1 – Continuous Qualifying Employment

s. 75(2) of the Regulations: FN is a skilled worker if:

(a) within the 10 years preceding the date of their application for a PRV, they have at least one year of continuous full-time employment experience, as described in subsection 80(7), or the equivalent in continuous part-time employment in one or more occupations, other than a restricted occupation, that are listed in the National Occupational Classification matrix;(b) during that period of employment they performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the National Occupational Classification; and(c) during that period of employment they performed a substantial number of the main duties of the occupation as set out in the occupational descriptions of the National Occupational Classification, including all of the essential duties. Huge amount of discretion to visa officer – assess “substantial number”, deciding what are the

“main” duties and the “essential” duties; matter of discretion, not law

S. 75(3) of the Regulations: if a skilled worker doesn’t meet the definition of an HRSDC listed occupation, no further assessment

2 – Point Assessment

S. 76(2) of the Regulations: the minister shall fix & make available to the public the minimum number of points required of a skilled worker: currently 67 (seems rather arbitrary)

o In determining whether a skilled worker will be able to become economically established in Canada, they may be assessed on the following criteria (S.76(1)): (a) the skilled worker must be awarded not less than the minimum number of required points

(67), on the basis of the following factors: (i) education (s. 78 CP p.212) – max of 25 points

Based on credential achieved and number of years educated Don’t the smartest people skip grades? – why should years of education count?

Policy Manual suggests that if more education is obtained before assessment, it should be considered.

Canadian criteria should not be used to assess education credentials Law degrees are a first level degree – 20 points (treated as if it is a first degree, not a

masters)

(ii) proficiency in the official languages of Canada (s.79 CP p.213) – max of 24 points 24 points if fluent in both official languages (16 for one) Can be tested or have an interview, but interviews are not necessary

The interview is not an opportunity to test language proficiency, but integrity issues may be raised (perfect proficiency test score but cannot speak English in person may raise fraud concerns)

(iii) experience (s. 80 CP p.216) – max of 21 points 21 points (4 yrs); 17 points (2 yrs); 15 points (1 yr) Should we not also look at the success of the experience? Look at student evaluations

for teachers etc. (iv) age (s. 81) – max 10 points

Must be over 16 or under 54 to get any points Likely a calculation of projected work expectancy – can you make these calculations

now that mandatory retirement is gone? N.B.: Lock in date is date of application – still getting points for optimal age even if

you are no longer that age when you come We are discriminating on the basis of age

(v) arranged employment (s. 82) – max of 10 points; and only allowing in 10-15% in this category – This means that 85-90% of people we are

letting in have no secured employment (vi) adaptability (s. 83) – max of 10 points

Will look at spouse and whether they have experience in Canada Not recognizing dual income even though this is a norm in Canada – focuses on

principle applicants and dependents 5 points if you have a relative in Canada – notion of relative defined very broadly

(parents, siblings, neice/nephew, aunt/uncle) – this is a different definition than the “family” members that you can sponsor and bring into the country under family class if the family unit is so important here – why is it not as important when looking

at who you can bring in under the family class?

3 – Funds

(b) and the skilled worker must:

i. have an amount of funds necessary to support themselves and family for 6 months (where no arranged employment); OR

ii. be awarded the number of points referred to in s. 82(2) for arranged employment.

2. S. 76(3) of the Regulations: Whether or not the skilled worker has been awarded the minimum number of required points, an officer may substitute the point assessment for their evaluation of the likelihood of the ability of the skilled worker to become economically established in Canada.

o They need concurrence from a second officer (s. 76(4)). o It’s odd that it’s considered a benefit rather than an exercise of power that the

government should be held accountable to. o We have granted broad discretion to officers; but what does procedural fairness mean in

this context? - S. 77 of the Regulations: Criteria must be met at the time of the application and at the time of the

assessment. - Standard of Review: Universally acknowledged as reasonableness. - Problems and solutions re: the skilled worker class can be found on page 27 of your example

outline.

Business Immigrants

1. Investors: Investors are FNs who indicate in writing that they have made or intend to make a government investment of $400,000. Investments are locked in upon visa issuance for five years and are distributed by the Minister among venture capital funds controlled by the provinces. These funds are supposed to be invested in small and medium sized Canadian businesses.

2. Entrepreneurs: Has been suspended since 2011. This is an applicant with qualifying business experience, a legally obtained net-worth of $300,000, who provides a written statement that they will meet the following conditions upon admission to Canada:

a. Control at least a third of the equity of a qualifying Canadian business for at least one of their first three years in Canada;

b. Provide active and ongoing management of that business;c. Create at least one full time position in that business for a Canadian citizen or PR, other

than a family member i. Previous experience is considered key.

3. Self-Employed: Currently only recognizes artists, athletes and farmers. Must have two years’ related experience, the intention and ability to continue in that line of work, and the potential to contribute significantly to that field once in Canada.

If applicants under these programs meet the definitional criteria, they are then assessed according to a point system tailored for business immigrants (described on page 116 of the DT).

Provincial Nominee Program

- Gives provinces and territories that enter into an agreement with the federal government a direct role in nominating economic-class immigrants. All the provinces except Quebec and the Yukon have entered into the program.

- It remains the federal governments’ power to determine general classes of admissibility and inadmissibility and to make final determinations in individual cases.

- The Quebec Accord supplants the federal economic class immigration program. - Some provinces operate temporary worker programs and use the PNP as a transitional program to

grant PR status. - A common feature of all provincial programs in that once a FN obtains PR status, he or she has a

constitutionally protected right under s. 6(1) of the Charter to move anywhere in Canada. - Once an individual has been nominated by a province, he or she must submit a separate

application to Citizenship and Immigration Canada for PR. An officer may issue a PR visa so long as:

o The FN is named in a PNP certificate;o The FN intends to reside in the nominating province;o The FN has not been nominated solely because he or she has provided capital or has

participated in an “immigration-linked investment scheme”;o The FN is not inadmissible; ando None of the FNs family members, accompanying or not, are inadmissible.

Choi (2008 FC)

Facts: Application for judicial review of a VO’s decision refusing the applicant’s application for PR in Canada. The officer found that the 38 year old applicant failed to accumulate enough points as a skilled worker and would not likely become economically established in Canada. The sole issue was whether or not the officer erred in concluding that the points were a sufficient indicator of the applicant’s ability to become economically established in Canada. She had an offer of employment as a music teacher.

Held: Application allowed and VO’s decision was set aside. The officer failed to take into account a letter from the principal assuring him that she would be able to fulfil the requirements of the job and that her English would soon rise to the occasion. This was unreasonable. The VO also did not consider settlement funds she had in the amount of $699,000.

6 – Students and Temporary WorkersStudents

- Foreign students are seen as a pool of potential economic class immigrants to Canada. Entry of students into Canada is listed in the Act as one of the objectives of Canada’s immigration policy and it is considered a priority by the Ministry.

- Study permits are required for full time or part time studies undertaken at a University or College, or for any academic, professional or vocational training.

- The basic rule for FNs who wish to study in Canada is that they must apply for a study permit from outside the country concurrent with their application for a temporary resident visa, if

required. FNs from U.S., Greenland and the French-held island may apply for study permits at port of entry.

- People who have a study permit that is about to expire, holders of work permits, and refugee claimants can apply from within Canada.

- Permits are not required for minor children of legally admitted FNs for pre-school, primary, or secondary school.

- The FN must not be inadmissible. - Permits can be denied if an immigration officer doubts the applicant’s intention to study, but any

such denial must be based on information related to the specific case. Applicants must be made aware of an officer’s concerns and given an opportunity to address them. The OP recommends taking into consideration:

o Length of stay;o Means of support;o Obligations or ties to home;o Likelihood of leaving Canada should an application for PR be denied.

Temporary Workers and Live-In Caregivers

Benefit: Sending countries benefit through remittances and return of workers with more skills. Migrant benefit: have increased access to legal employment.

Concerns: Unequal society; if workers are let in and given work and then given a date that they are prevented from working any longer and not entitled to security benefits, it is creating an unequal society. They are completely dependent on others for work and security. There is also separation of the worker from their family; if you bring your family across then you have to show that you are able to support them. Also a major concern about exploitation; work permits are specific to a job and an employer which thereby creates an asymmetrical relationship of dependence.

- Until recently, TWP were an instrument to enable FNs to fill temporary gaps in the labour market caused by insufficient numbers of qualified Canadian citizens and PRs.

- Subject to two exceptions, the system was not designed to fill chronic gaps in the labour market caused by the unwillingness of employers to offer wages and good work conditions to attract Canadian citizens. The two major exceptions were:

o Live in caregiverso Seasonal agricultural workers.

- In the last decade, however, the Canadian government has created a new TWP for skilled workers that enable transition to PR status. Secondly, the government has eased the restrictions on private employers’ requirement to demonstrate adequate efforts to recruit, train, and employ Canadians and PRs. Thirdly the federal government has entered into agreements that devolve authority to provinces.

- An officer “shall” issue a work permit if: it has been properly applied for, is satisfied the FN will leave at the end of the authorized stay; the FN has been screened medically if need be; and if the FN has been offered employment and the officer has determined that the “offer is genuine and

that the employment is likely to result in a neutral or positive effect on the labour market in Canada” (labour market opinion: LMO).

o The purpose of an LMO is to ensure that a Canadian is given work before a foreign worker. An employer must usually advertise for Canadian workers and must apply for an LMO from Service Canada. LMO will most often have to be obtained first before the application is considered.

- Various humanitarian exceptions exist to the LMO requirement. Permits will be issued without one if the applicant is a refugee claimant or a FN subject to an unenforceable removal order; students who have become destitute through no fault of their own; and holders of a temporary resident permit under s. 24(1) of the IRPA.

o Permits will also be issued without an LMO to members of specialized immigration classes able to apply for PR from within Canada:

Live-in caregivers; Protected persons; Members of the spouse-in-Canada class; Individuals who have applied for PR status on H&C grounds, so they can work

while their application is being processed. - More info about LMOs can be found at page 85 of the CB.

Live-In Caregivers

- Since the early 1970s, live-in caregivers were confined to temporary work permits, with no prospect of PR status. Job loss led to deportation.

- The government reformed its policy in 1981. Under the new Foreign Domestic Movement Program, foreign domestic workers could apply for PR from within Canada after two years of live-in domestic work. Although the worker could change employers, she could not change employment.

- Live-in care under the Regulations involves three components:o The FN must provide child care, senior home support care, or care of a disabled person;o Without supervision;o In a private household in which he or she also lives.

- The government consistently defends the “live-in” requirement by claiming that there is no shortage of “live-out” care in Canada.

- According to the government, 90% of the participants acquire PR status. - Live-in caregivers enter as temporary workers, and so must apply for a live-in caregiver work

permit and also a temporary resident visa, if required. To receive a temporary work permit, the applicant must have:

o Completed the equivalent of Canadian secondary school;o One year’s paid work experience or six months training under a formal educational

program related to the employment sought, such as training in early childhood education or geriatric care;

o Sufficient knowledge of English or French to be able to communicate effectively in an unsupervised setting;

o An employment contract that complies with the program’s requirements as well as a LMO.

- Live-in caregivers are not normally allowed to bring family, unless they can show they can support them and have permission from their future employer.

- Technically, they are temporary foreign workers until they apply for PR under the program, at which point they become part of the “live in caregiver class” of PR applicants.

o They may apply after two years of full-time employment provided they meet the requirements of s. 113(1) of the Regulations: A FN becomes a member of the live-in caregiver class if

They have submitted an application to remain in Canada as a PR; They are a temporary resident; They hold a work permit as a live-in caregiver; They entered Canada as a live-in caregiver and for at least two of the four years

immediately following their entry, or, alternatively, for at least 3,900 hours during a period of not less than 22 months of those four years,

Resided in a private household in Canada, and Provided child care, senior home support care, or care of a disabled

person in that household without supervision; They are not, and none of their family members are, the subject of an enforceable

removal order or an admissibility hearing under the Act or an appeal or application for judicial review arising from such a hearing;

They did not enter Canada as a live-in caregiver as a result of misrepresentation concerning their education, training or experience; and

Where they intend to reside in the Province of Quebec, the competent authority of that Province is of the opinion that they meet the selection criteria of the Province.

- In Turingan (1993), the Federal Court found that officers have limited discretion to refuse PR status once it has been determined that a participant has worked the required 24 months.

Concerns of Abuse:

- “Their precarious status, the obligation to live in the home of the employer and their general situation of dependence on their employer make for an often highly stressful and potentially abusive workplace environment” (Aiken).

- The requirement that the employment contract exist with specified criteria was one way to mitigate some of these concerns (for example, the contract must expressly provide that they will be given a private room with a lock).

- They are also now able to change employers more readily (but they need to get a new work permit for each new employer).

- Also a concern that they’re leaving their own children behind to come here. - Caregivers are isolated because they have to live and work in a private home, little room to form

a life and connections outside of the home. - Health issues arising from chemicals and poor working conditions. Anomaly: sometimes they are

denied PR status at the end of their work term because their health has deteriorated from the working conditions.

5 Issues That Lawyers Face Dealing With Temporary Workers:

1. Does your client need a work permit?a. Initial answer is, “only if it is work defined in regulation number 2”b. Second answer is, “not if you have an exemption in s. 186) Ie a concert

2. Labour Market Opinion?a. Usually required but you can avoid it without a LMO (S. 200 regulations)b. If you can’t avoid it identify what the criteria are

3. Where do you apply for your work permit if you need it?a. Usually you apply from outside Canada, some situations where you can apply inside

Canada or the port of entry. As a lawyer you have to be familiar with the divisions the regulations make

4. Open Work Permit: a. Normally the work permit ties you to a particular job but there is an open work permit. A

refugee or student who is destitute can apply for a work permit from within Canadab. We give work permits to individuals who are here so that they can find work so that they

are not reliant on social services5. Skilled Temporary Workers: typically researchers or academics

a. Usually treated much better, they are easily able to bring family and get open work permits for their family members. There is a broad grant of discretion of the minister on this category.

7 – Inadmissibility and EnforcementSections 33-42 of the Act lists substantive grounds of inadmissibility, including grounds related to health, criminality, and security. If found inadmissible on one of these grounds, entry to Canada as a FN or PR may be refused, temporary or permanent legal status may be lost, and removal from Canada may result.

Considerations against deportation include: if doing so would lead to persecution or torture, the best interest of children, and a duty under the Charter to ensure that no person is deprived of their s. 7 rights.

Grounds of Inadmissibility

The IRPA contains a set of 10 grounds that render a person inadmissible to enter or remain in Canada:

1. Security2. Human or International Rights Violations3. Serious Criminality4. Criminality5. Organized Criminality6. Health7. Financial Reasons8. Misrepresentation

9. Non-Compliance with the Act10. Inadmissible Family Member

Security

s. 34(1) A PR or FN is inadmissible on security grounds for,

(a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;(b) engaging in or instigating the subversion by force of any government;(c) engaging in terrorism;(d) being a danger to the security of Canada;(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), or (c).

s. 34(2) The matters referred to in (1) do not constitute inadmissibility in respect of a PR or a FN who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.

Definitions:

1. Espionage: Method of information gathering by spying/acting in a covert way (Qu)2. Subversion: Accomplishing change by illicit means or for improper purposes related to an

organization (Qu)3. Democratic government, institution or process: Interpreted broadly, doesn’t mean simple

institutions that exercise governmental authority (Qu)4. Danger to security of Canada: Not defined, Minister of Public Safety oversees this.5. Terrorism: Accepted definition found in Article 2(1)(b) of the International Convention for

the Suppression of the Financing of Terrorism (Suresh – p. 177 of DT).

Suresh (2002 SCC): Determined that this section of the Act is not intended to include the class of suspect persons who have innocently contributed or been coerced into participation in terrorist organizations.

Poshteh (2005 FCA): Issue was whether or not Poshteh (irrespective of his age), was a member of MEK (an organization which there was reasonable grounds to believe engages, or has engaged in, or will engage in terrorism). Also, whether or not his status as a minor was a relevant consideration under paragraph 34(1)(f) of IRPA. Court concluded that the Immigration Division had reasonable grounds to declare him inadmissible despite his age (he knew of the violent nature of the organization and only quit when he was arrested).

Agraira (2011 FCA)

Facts: He was a FN from Libya who was found to be inadmissible on security grounds. He had made a refugee claim in both Germany and Canada. Both claims were denied because they didn’t believe that he was part of an organization whose aim was to overthrow Gadhafi. He then married a Canadian woman

and she sponsored his application for PR. His PR application was then denied under s. 34 because it was believed he was a part of this organization. He then sought ministerial relief under s. 34(2) but this was denied. He applied to the Federal Court for judicial review; this was successful. This is an appeal by the Minister of Public Safety.

Discrepancy: How can he be lying about both? The absurdity is more apparent than real, it arises out of his own lies.

Review of Minister’s Decision

- Application judge (AJ) described the issue as whether the Minister’s decision was reasonable. In his view, significant deference should be accorded to discretionary ministerial decisions.

- AJ found that the five questions asked in Abdella re: s. 34(2) decisions were not considered by the Minister in making his decision (p. 177 of CB). As well as other factors that had been considered in prior decisions.

- AJ agreed that there were concerns re: whether the Minister’s decision “turned on the simplistic view that the presence in Canada of someone who at some time in the past may have belonged to a terrorist organization abroad can never be in the national interest of Canada.”

- The AJ allowed the application for judicial review; believed decision was unreasonable.

Issues Addressed by the FCA

1. The standard of review of the Minister’s decision:o What is the meaning of “national interest?” Court determined this is a question of law

that does not involve a review of the Minister’s decision making. In reviewing the Minister’s decision that a FN’s presence in Canada is detrimental to the national interest, the standard is one of reasonableness.

2. Burden of proof:o Onus on the applicant to satisfy the Minister.

3. Interpretation of s. 34(2) of IRPAo Parliament intentionally separated considerations of national interest from H&C

considerations. Proper forum in which to advance an application based on H&C grounds is under s. 25 of IRPA, not in an application for ministerial relief under s. 34(2).

o Parliament has placed the consideration of national interest within the context of national security and public safety. The principal, if not only, consideration in the processing of applications for ministerial relief is national security and public safety, subject only to the Minister’s obligation to act in accordance with the law and the Constitution.

o The assessment of application does not require the Minister to engage in a balancing exercise because the test is not a net-detriment test.

4. Scope of s. 34(2)o Does the emphasis on national security and public safety mean that individuals who

commit an act described in s. 34(1) cannot obtain ministerial relief because they committed the very act that confers jurisdiction on the Minister to exercise the discretion conferred by s. 34(2)?

o Suresh-saving provision would apply to persons who innocently joined or contributed to terrorist organizations (ex. coercion).

5. Reasonableness of the Ministers Decisiono Department of CIC guidelines (including Abdella factors) are neither exhaustive nor

determinative of what evidence is relevant or that must be considered. o A’s lack of credibility was fatal to his application as the Minister can have no faith in any

of his representations; cannot be said to have acted unreasonably in denying the application.

o The absurdity issue was a result of A’s own lies.

Decision: FCA allowed the appeal and set aside the judgement of the Federal Court and dismissed Mr. Agraira’s application for judicial review. It will be interesting to see how this plays out in the SCC given the Canada was involved in the overthrow of Gadhafi.

Criminality and Serious Criminality

- Inadmissibility under one of these provisions can have far-reaching effects: o Harsher forms of removal; o Serious, organized, or international criminality may make a FN ineligible to apply for

refugee status in Canada; o Determinations of inadmissibility on these grounds cannot be appealed to the IAD.

- For all heads of criminal inadmissibility, the burden of proof is reasonable grounds of belief (s. 33 IRPA). SCC said that “reasonable grounds” for belief “will exist where there is an objective basis for the belief which is based on compelling and credible information.” The demand is less onerous than BoP.

- PRs can only be deemed inadmissible for an act committed outside of Canada for which they were not convicted if the commission of the criminal act has been determined based on a BoP. In all other cases, the standard is reasonable grounds of belief.

- The legitimacy of exclusion on criminal grounds has been recognized by the SCC in Chiarelli.

36(1) A PR or FN is inadmissible on grounds of serious criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than 6 months has been imposed;

(b) having been convicted of an offence outside of Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of at least 10 years; or

(c) committing an act outside of Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of at least 10 years.

36(2) A FN is inadmissible on grounds of criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;

(b) having been convicted outside of Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;

(c) committing an act outside of Canada that is an offence in the place where it was committed and that, if committed in Canada would constitute an indictable offence under an Act of Parliament;

(d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.

a. The Criminal Codeb. IRPAc. The Firearms Actd. The Customs Acte. The CDSA

- S. 36(3)(b) of the Act states that a person will not be deemed inadmissible if he or she has been pardoned for a Canadian offence under this country’s Criminal Records Act.

- Neither the Act nor the Regulations address the effect of a foreign pardon, but the courts have said that officers cannot ignore a valid pardon given in a country if the following three conditions are met:

o The foreign legal system as a whole must be substantially similar to Canada’s;o The aim, content and effect of the specific foreign law under which the pardon was

granted must be similar to and consistent with Canadian law; ando There must be no valid reason to not recognize the effect of that law.

- Under s. 36(3)(c) of the Act, individuals otherwise inadmissible for criminality (under ss. 36(1)(b) and (c) and 36(2)(b) and (c)) may apply to the Minister to be deemed rehabilitated once 5 years, without subsequent conviction, have passed since completion of an imposed sentence or since commission of the original act.

o Look at ss. 17(1) and 18(1) of the Regulations to find the prescribed period (5 years) and the definition of a rehabilitated person.

- When the offence is committed abroad, in determining equivalency, they look at both characteristics of the offences and defences. They’re not looking at the procedural aspects, it would be too easy to say that the person wouldn’t get convicted based on how the evidence was gathered for example.

o If the foreign offence is broader than its Canadian counterpart or if the scope of it is unclear, an officer can look at the facts of the case to determine whether the individual would have been convicted in Canada.

Li (1997 FCA)

Facts: Li was a former chairman of the HK Stock Exchange. He was convicted there of two offences under the HK Prevention of Bribery Ordinance and was sentenced to 4 years imprisonment. It was alleged

that he fell into category of inadmissible persons (FN serious criminality). Found that Li’s conviction would be an offence in Canada under s. 426(1) of the CC. The Motions Judge dismissed the application for judicial review but some questions were certified.

Point: This case is about equivalency. How do you compare offences abroad with Canadian offences?

Analysis:

1. Are Defences a Measure of Equivalence?a. Discusses different ways of comparing/presenting the case. Two main ways:

i. Lead evidence of the particulars as charged of the actual offence committed. In Brannson, the U.S. offence was broader than the similar Canadian one.

ii. Consider acts actually committed. b. Court determined that we’re concerned with the definitions of the offences. A definition

is similar if it involves similar criteria for establishing that the offence has occurred (could be determined through looking at “elements” or “defences”).

c. What’s important is the comparability of offences, NOT the comparability of possible convictions.

2. Is Burden of Proof a Matter of Equivalence?a. The burden of proving a defence of lawful authority or reasonable excuse shall lie upon

the accused. b. The appellants argue that no such burden should lie on them because of s. 11(d). But the

Court stresses that this is not a question of likelihood of conviction, it’s a comparability of offences.

c. “An adjudicator should not compare the procedural or evidentiary rules of the two jurisdictions, even if the Canadian rules are mandated by the Charter.”

Kharchi (2006 FC)

Facts: A woman from Paris’ application for a PRV was refused because her husband was determined inadmissible on grounds of serious criminality. In Algeria, he had been convicted of involuntary manslaughter and sentenced to three months imprisonment and $44. The visa officer compared this offence so s. 249(4) of the CC (which would make him liable for a term not exceeding 14 years).

Analysis:

- The Algerian law was very broad. S. 288 of the Algerian CC applies where someone causes the death of another person by clumsiness, carelessness, inattention, negligence or breach of a regulation.

- S. 249(4) of the Canadian CC indicates that a trier of fact must be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s situation.

- Mr. Sayoud was convicted of “manslaughter by carelessness” which is not punishable under an Act of Parliament. Given his light sentence, it seems the court considered his blameworthiness relatively low.

Decision: The immigration officer committed an error in determining that the two offences were equivalent. The application for judicial review is allowed.

Organized Criminality

S. 37(1) A PR or FN is inadmissible on grounds of organized criminality for

(a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or(b) engaging, in the context if transnational crime, in activities such as people smuggling, trafficking in persons or money laundering.

- This section includes two grounds of inadmissibility:o (1) Membership in a criminal organization or o (2) Engaging in organized criminality, which need not involve membership.

- “Membership” may include those who devote themselves full-time to criminal activity but also those who only peripherally involve themselves.

o Ex. Individuals working for a legitimate company that they know is controlled by a criminal organization. It also encompasses past membership.

- The “reasonable grounds” standard from s. 33 of IRPA applies to all of this. - In deciding whether a group is a “criminal organization” the courts will look for certain

identifying characteristics, such as identity, leadership, a loose hierarchy, and a basic organizational structure.

- The Minister of Public Safety has the discretion under IRPA to determine whether admission of persons otherwise covered by this ground would not be detrimental to the public interest (s. 37(2)(a)).

International Criminality

S. 35(1)(a) of the Act provides for the inadmissibility of PRs or FNs who, inside or outside of Canada, commit genocide, a crime against humanity, or a war crime as these offences are set out in the Crimes

Against Humanity and War Crimes Act.

- Definitions for “crimes against humanity,” “genocide,” and “war crime” can be found on page 173 of the DT.

- Persons who conspire or attempt to commit such crimes; accessories after the fact to such crimes; and persons who counsel in relation to such crimes are also covered by s. 35(1)(a).

- The Federal Court of Appeal has also found that the provision includes persons complicit in such crimes, although complicity cannot be established by mere membership in a brutal organization.

- It also covers military commanders or non-military superiors if such international crimes are committed on their watch.

o Also inadmissible are senior military or civilian officials in a government that, in the opinion of the Minister of Public Safety, engages or has engaged in terrorism, systematic or gross human rights violations, genocide, a war crime or crimes against humanity.

- No provisions re: rehabilitation. - Defence of superior orders is not available to individuals challenging inadmissibility; only

defence recognized is duress. - Except in cases of individual responsibility, FN may be admitted if they satisfy the Minister of

Public Safety that their entry would not be detrimental to the national interest.o Esse: The Minister must be satisfied that notwithstanding his or her position as a deemed

senior member or official in the service of a government, that there was no complicity in the objectionable acts of the government.

- Ministerial power cannot be delegated.

Mugesera (1995 SCC)

Facts: Had spoken at rally of 1000 people in Rwanda in 1992. His words were found to constitute an incitement to murder, genocide, hatred and crimes against humanity. He became a PR in Canada, deportation proceedings began.

Four factors support a finding of a crime against humanity: (1) enumerated proscribed act was committed; (2) act committed as part of a widespread or systematic attack; (3) attack was directed against any civilian population or any identifiable group of persons; (4) person committing act knew of the attack and knew or took the risk that his or her act comprised a part of the attack.

Health

s. 38(1) A FN is inadmissible on health grounds if their condition

(a) is likely to be a danger to public health;(b) is likely to be a danger to public safety; or (c) might reasonably be expected to cause excessive demand on health or social services.

- Requires a current health condition; past health conditions are not relevant.- Medical examinations are required for all FNs seeking permanent residency or refugee status, not

for those seeking temporary residence. This rule, however, has several broad exceptions:o FNs coming to Canada to work in an occupation for which protection of public health is

essential;o FNs who have lived or sojourned in an area determined by the Minister, in consultation

with the Minister of Health, to have a higher incidence of serious communicable disease than Canada;

o All FNs entering Canada who may apply for protection through a pre-removal risk assessment.

- Also, an officer can require that a FN undergo medical examination if there are reasonable grounds to believe that they are inadmissible on health grounds (IRPA s. 16(2)(b)).

- If an FN is required to take a medical examination, with very few exceptions, family members (accompanying or not) are required to too.

- When someone arrives by land or ferry, medical examinations are conducted outside of Canada. For applicants arriving at airports, temporary entry can be granted conditional on a completion of a medical examination. If an applicant appears to be an immediate public health or safety risk, he or she may be detained.

- Medical examinations must be conducted by Ministry-approved physicians. The results of examinations are reviewed by a medical officer, who provides an opinion on admissibility to the reviewing immigration officer or possibly the ID of the IRB.

- Any concerns that are raised must be relayed to the FN so that he or she has an opportunity to respond. The ID must consider the communicability of the disease.

- Applicants may be admitted to Canada under “medical surveillance.” Medical officers can also decide that a person will be admissible if they undergo treatment.

- Ability to pay for care and treatment available through government-funded health services is not a relevant factor.

o However, ability to pay for social services is. - In the past, the courts have found that assessment on this ground must vary depending on whether

the FN is seeking to come to Canada as a TR or a PR (Ahir [1984]) and on whether the FN is a principal or a dependent (Chu [1996]).

o However, given that the current Regulations clearly define “excessive demand” it is not clear that the principles continue to apply.

Definitions:

- Health Services: Means any health services for which the majority of the funds are contributed by governments, including the services of family physicians, medical specialists, nurses, chiropractors and physiotherapists, laboratory services and the supply of pharmaceutical or hospital care.

- Social Services: Means any social services that are funded primarily by the government, such as home care, specialized residence and residential services, special education services, social and vocational rehabilitation services, personal support services and the provision of devices related to those services.

- Excessive Demand: demand for either health or social services the cost of which exceeds average per capita costs over a 5-10 year period (Regulations s. 1(1)). It might also be a demand that would add to existing waiting lists and result in a rise in the rate of mortality and morbidity among PRs and citizens.

Exceptions

- S. 38(2) of IRPA exempts two groups from inadmissibility due to potential excessive demand on health and social services:

o Protected persons or refugee claimants; and o Spouses, common law partners, and children who are members of the family class.

- Accompanying family members (i.e., those who are not family-class members), are not exempted, unless they are the spouse, common law partner, dependent child or other prescribed family member of a FN falling into one of the two exempted categories.

Threshold

- The standard is one of reasonable possibility, not of remote possibility.- The courts have negatively reviewed decisions by officers in which individuals have been

deemed inadmissible due to the mere possibility of excessive demand (Hillewitz). - Evidence of both ability and intent to mitigate the cost of social services must be considered. - Since 1991, people with HIV/AIDS are no longer considered a danger to public health or safety.

However, they may be inadmissible on the ground that they would impose excessive demand.o They will be assessed individually based on their current health and what treatment they

are taking.

8 – Enforcement, Removal and DetentionGeneral Criteria for Refusal of Entry

1. Identity and Claimed Statusa. Most basic is that the principal applicant or family member is not who they claim to be or

does not have the required status that they claim to have. b. This would happen where the individual has insufficient documentation to prove their

status or where the officer has reason to suspect their authenticity of documentation.2. Prerequisites Not Met

a. FN who has failed to obtain a visa where required. b. A person holding a single entry visa who has already entered the country. c. A person intending to take up employment or study and has failed to get the permit. d. Or the person has failed to meet the necessary substantive requirements:

i. Visa-exempt individual who is inadmissible may be refused a TRP on the ground that they have shown insufficient reason why their inadmissibility should not operate to exclude them.

3. Likelihood of Meeting Conditions4. Inadmissibility

a. Ten grounds, listed earlier.

Procedure

- S. 44 of the IRPA provides that the officer should decide whether to prepare a report setting out the facts of the case for the consideration of another officer who exercises delegated authority from the Minister to refer the report for an admissibility hearing before the ID of the IRB, OR, in limited cases to make a removal order.

- The second officer determines whether the facts determined are well-founded.

- S. 44(1) deals with the decision of the first officer, s. 44(2) deals with the decision of the second. - There is no requirement that a report be prepared, or when it is prepared, that it be referred to the

ID, or that it lead to a removal order. S. 42 of the Regulations addresses one situation where a report will not be prepared:

o Where an individual who is seeking to enter Canada indicates they want to withdraw their application.

- The use of the word “may” in s. 44 suggests that the officer has the discretion to permit the individual to enter and stay. The Federal Court of Appeal has considered the extent of the discretion accorded in Cha.

- The OM identifies a lengthy list of extenuating factors that should be taken into account when determining whether a report should be written. The list focuses on matters such as the person’s level of involvement in Canadian social life, whether there is a pattern of flouting immigration regulations and whether the person has been counseled on the topic of their inadmissibility.

- The applicant must be afforded procedural fairness at the POE. In Hernandez, the Federal Court found that the applicant, a PR, was not afforded procedural fairness. There were three main reasons for this decision:

o The applicant was not advised of the purpose of the interview;o He was not allowed to make submissions; ando He was not given a copy of the officer’s report.

- S. 44(2) of the IRPA indicates two situations where a removal order may be issued at POE:o Where a PR has been found inadmissible for failing to comply with the residency

obligation; and In this case, the PR has a right to appeal to the IAD. A removal order comes into

force the day the appeal period expires (30 days) and no appeal is made, or the day of the final determination of the appeal.

o Where a FN has been found inadmissible, unless the case falls within an exception recognized by the Regulations.

Removal order here can be issued where they are inadmissible on grounds of: Criminality or serious criminality; Misrepresentation; Failure to comply with a requirement of the Act or regulations by, for

example, failing to establish that they hold a visa when required; An inadmissible accompanying family member.

In all other cases of inadmissibility, the case will be referred to the ID of the IRB.

Cha (2006 FC)

- Issue: Addresses the extent of the discretion afforded by s. 44(2) of the Act dealing with inadmissibility.

- “The scope of the discretion, therefore, may end up varying depending on the grounds alleged, on whether the person concerned is a PR or a FN and on whether the report is referred or not to the ID.” The Court goes on to conclude that when the ground of inadmissibility is criminality, it is not permissible for an officer to take into account individual circumstances.

Detention

- S. 55 of the IRPA provides that an officer conducting the POE examination may order that a person seeking entry be detained.

- Where an individual has been detained, notice must be given to the ID of the IRB without delay. The detention order must be reviewed within 48 hours. A second review is required within 7 days, and thereafter at least once every 30 days.

The Inadmissibility Hearing

- When a report has been filed with the ID, it must hold a hearing to determine the issue of inadmissibility. It is adversarial in nature, but, the member of the ID is not bound by legal rules of evidence. The party is entitled to be represented by counsel.

- S. 45 of the IRPA: At the conclusion of an inadmissibility hearing, the ID shall make one of the following decisions:

o Recognize the right to enter Canada;o Grant PRS or TRS to a FN if it is satisfied that the FN meets the requirements;o Authorize a PR or FN, with or without conditions, to enter Canada for further

examination; oro Make the applicable removal order against a FN who has not been authorized to enter

Canada According to s. 45(d) there is a difference in the burden of proof as between

cases where the person is seeking entry and cases where the person is being removed.

Types of Removal Orders

There are 6 ways an inadmissible person who must leave Canada can do so: (1) through voluntary departure if the officer chooses not to prepare an inadmissibility report; (2) through extradition; OR through one of the four types of removal orders:

1. Departure Ordera. S. 244 of the Regulations: Person who leaves under a departure order does not require

special authorization to return.i. May become a deportation order if person doesn’t appear for departure within 30

days. Exception: People in jail.b. Who gets one?

i. PRs who fail to comply with residency obligations or conditions attached to their status.

c. Becomes a deportation order when departure is not confirmed within 30 days. 2. Exclusion Order

a. S. 255 of the Regulations: Must get written authorization to return to Canada during a one year period after order is enforced.

b. UNLESS the ground for the order is inadmissibility by reason of misrepresentation, in which case the period is two years.

c. Must leave Canada as soon as reasonably practicable. d. S. 277 of the Regulations: Where the ground of inadmissibility is that they are

accompanying an inadmissible family member, they may return without written permission.

i. Same order applies to whole family, with different consequences for accompanying member.

e. Who gets one? i. If an individual is inadmissible for failing to appear for further examination or for

an admissibility hearing; health grounds; financial reasons; grounds of misrepresentation; failing to establish that they hold a visa or other document required; failing to leave Canada at the end of an authorized stay; or failing to show they have come to Canada to establish PR; failing to establish that they will leave at the end of the prescribed period(Regulations s. 228).

3. Deportation Ordera. S. 266 of the Regulations: FN must obtain written authorization before return. b. This is the most serious.c. Who gets it?

i. Unauthorized entry by an individual who has previously been ordered removed from Canada.

ii. Where the IRB has vacated refugee status obtained through misrepresentation.iii. Inadmissible on serious or non-serious criminal offences committed in Canada. iv. Failed to comply with a condition or obligation imposed under the Act.

4. Security Certificates

The ID of the IRB

- Both the ID and the IAD are intended to deal with cases quickly, informally, but in keeping with the requirements of fairness and procedural justice.

- Under s. 86 of the Act, the Minister may apply to the ID or IAD to bar disclosure of certain information or evidence considered potentially injurious to national security or to the safety of any person.

- Under s. 87, the Minister may also apply for non-disclosure on judicial review of the IAD decision before the federal court, which again may be granted in keeping with the provisions governing security certificates.

- In Sogi, the FCA found that the non-disclosure provisions were constitutional. Since then, the Federal Court has been given the power to appoint a special advocate to represent the person subject to the proceedings.

- Well-founded s. 44(1) Reports may be referred to the ID for admissibility hearing (see above). The ID also deals with detention review.

Appeals to the IAD

- The IAD performs several review functions, including review of removal orders made by the ID or by delegates of the Minister of Public Safety under s. 44(2) of the Act; review of refusals of

sponsorship within the family class; and review of decisions made outside Canada to strip a PR of his/ her status based on residency obligations.

- The Minister may appeal a decision of the ID from an admissibility hearing. Further, a right of appeal of removal orders issued by the ID or an officer is granted to:

o FNs holding a valid PRV;o PRs;o Protected persons.

- When the inadmissibility decision deals with a member of the family class abroad, the sponsoring citizen or PR has a right to appeal.

- No appeal can be made whereby the person was found inadmissible on grounds of security, or any of the criminalities.

- IAD hearings are not restricted to a review of the evidence that led to the removal order in the first instance, the IAD can take into account H&C grounds involving the family class.

o In Chieu: the SCC held that the scope of this equitable jurisdiction should be interpreted broadly to include “the greatest possible number of factors” faced by an individual upon removal including hardships.

o The court reaffirmed the Ribic factors: length of time spent in Canada and the degree to which the appellant is established; family in Canada and the dislocation to that family that deportation would cause; the support available.

Ramnanan

Issue: About the power of the IAD to determine issues of constitutionality. The claimant was arguing that the IAD should be able to determine it.

The Court rejects this argument stating that s. 68(4) operates beyond the jurisdiction of control of the IAD, it is common for questions of jurisdiction to be at issue with respect to IAD.

Khosa

Facts: Street racers caught and charged were PRs and not citizens – received conditional discharge - having committed the crime, he can be deported Khosa wants to launch an appeal o K appealed order under H&C grounds (s.67.1(c) IRPA) to IAD; however, majority IAD decision

denied him this “special relief”o Appealed to FCA and majority of court overturned IAD decision saying the IAD acted unreasonably

in denying relief

SCC McLachlin for majority – there was no proper basis for the FCA to interfere with the IAD decision to refuse special relief in this case

o It has been established that, with our without a privative clause, a degree of deference is to be paid to a decision maker in matters relating to their special role, function and expertise (Dunsmuir)

o The general principles of judicial review as stated in Dunsmuir are not ousted by s.18.1 of the Federal Courts Act which deals with grounds of review of administrative action, not standards of review

o A legislature has the power to specify a standard of review if it manifests a clear intention to do so, however, where the legislative language permits the Court will

a) not interpret grounds of review as standards of review, b) still apply Dunsmuir principles to determine the appropriate approach to judicial review in

the circumstances, and c) will presume the existence of a discretion to grant or withhold relief based in part on

Dunsmuir including a restrained approach to judicial intervention in administrative matterso S.81.1 sets out general threshold grounds, but the appropriate judicial basis for its exercise includes

the principles dealt with in Dunsmuir With regard to s.67(1)(c) H&C grounds, a standard of review inquiry points to a reasonableness

standardo No authority cited suggesting “correctness”o Relevant factors:

Privative clause Purpose of IAD – decisions only reviewable if FC grants leave Nature of question – leg has given IAD power to assess based on fact and policy Expertise of IAD in this situation

When a reasonableness standard applies, it requires deference; Courts ought not to reweigh the evidence or substitute their own solution, but must rather determine if the outcome falls within a range of reasonable outcomes

In this case, the question of whether K had established “sufficient H&C considerations” to warrant relief from his removal order was a decision which Parliament confided to the IAD, not to the courts

IAD decision fell within this range of reasonable outcomes; there was no proper basis for FCA to interfere

o IAD weighed facts properly and provided clear reasons for their conclusiono While findings of criminal court suggest that street racers can be rehabilitated, the IAD has a mandate

different from the criminal courts Not whether there was potential for rehabilitation, but whether the prospects for rehabilitation

warranted a special discretionary reliefRothstein Concurring – The Dunsmuir standard of review principles should be confined to cases in which there is a strong privative clauseo In the absence of a privative clause, courts must give effect to the legislature’s words such as

s.18.1(4) of Federal Courts Act which explicitly states that findings of fact are to be reviewed on a highly deferential standard – courts are only to interfere with a decision based on erroneous findings of fact where the decision-maker’s finding was “made in a perverse or capricious manner or without regard for the material before it”

o The IAD’s decision not to grant relief in this case should be upheld: the factual findings were not perverse or capricious and were not made without regard to the evidence

o Deschamps – There is an agreement with Rothstein that since s.18.1(4) of the Federal Courts Act sets legislated standards of review, those standards oust the common law

Fish J. – dissenting – The standard of review applicable is reasonableness and the IAD’s decision does not survive judicial scrutiny under that standardo IAD focused on 3 factors: K’s remorse, rehabilitation and likelihood of reoffence

o Despite evidence that K was extremely unlikely to reoffend (from sentencing judge), IAD put the most weight on the fact that K denied he was “street-racing” in the first place, thus showing lack of remorse – unreasonable finding

o The IAD’s conclusion that there was insufficient evidence upon which a determination could be made that K does not represent a risk to the public is not only incorrect, but unreasonable

o Decisions of the IAD are entitled to deference, but deference ends where unreasonableness beingsConclusions:o Where the standard of review is correctness (issues of law that jurisdictional or general in nature), it is

relatively easy to mount an argument on behalf of the applicant (statutory interpretation)o Where the standard of review is reasonableness, it is more difficult to do soo Essentially, one must mount a statutory interpretation argument that the legislature imposed limits on

the discretion of the decision maker it is therefore unreasonable that certain factors be taken into account and unreasonable that certain factors not be taken into account

9 – Other GroundsVarga

This case tells us that the main concern is danger in a PRRA. If the individual has Canadian kids, then it should be going under an H&C ground. Under an H&C ground you’re dealing with hardship.

s. 48 allows discretion with the removal over. where there’s discretion, there can be abuse. Varga basically says that is would be quite reasonable to require that an officer delay enforcing the removal order until a child has finished a school term. That involves a narrow assessment of the BIC.

Hinzman

They decided that he isn’t a refugee and doesn’t face danger in his country of origin. He was a deserter facing punishment, but that doesn’t count as persecution. What we’re being told is that it’s a separate inquiry into whether or not he’ll be facing hardship, even if it doesn’t amount to danger. Because he’s a conscientious objector, the punishment will have a greater effect on him than it would on other people. This level of hardship is something that can be considered under H&C grounds.

Ali

The individual is saying that just at the point of me being removed, I think it’s important that the officer look at the danger in the country of origin. Some issues that may have been dealt with by the PRRA officer may come before the enforcement officer at the last possible moment (if there’s a change in the country’s condition).

There is clearly overlap in the decision making powers.

The Pre-Removal Risk Assessment

- S. 232 provides a temporary stay when an individual is notified of his or her eligibility to apply for protection under the PRRA. Such stays remain in effect until the protection needs of the individual have been finally determined.

- Is in most cases a paper-review process through which FNs may establish that they are entitled to protection from removal to a country because once there they would face either persecution for reasons of race, religion, nationality, membership in a particular social or political group; a risk to their life, a risk of cruel and unusual treatment or punishment, or threat of torture.

- Applicants may present “only new evidence that arose after the rejection of their claim or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of rejection.

- For most refugees, positive decisions result in eligibility to apply for PR status within 180 days.

The H&C Application

- S. 233 imposes a stay where the Minister is of the opinion that it is warranted for H&C or public policy reasons under s. 25(1) of the IRPA. Available only to FNs, not PRs.

- Under s. 25(1) of the IRPA, inadmissible foreigners may apply for PR status or an exemption from any applicable criteria or obligation under the Act if they can persuade the Minister that such relief is “justified by humanitarian and compassionate considerations relating to them, taking into account the BIC directly affected, or by public policy considerations.”

Getting a Stay of a Removal Order

- Removal orders can be stayed under the Act through judicial injunction, or through the imposition of discretionary stays by the Minister of Public Safety.

- S. 50 Stays removal orders if:o A decision has been made in a judicial proceeding, at which the Minister was given the

opportunity to make submissions, that would be contravened by removal;o If removal would interfere with a term of imprisonment including a conditional sentence;o If the IAD has issued a stay or if any competent court has;o If a stay has been imposed on the removal of a FN inadmissible to Canada on grounds of

security, seriously criminality etc. pursuant to a pre-removal risk assessment; oro If the Minister of Public Safety has imposed a stay which may include ministerial

undertakings not to remove FNs during litigation in other cases. - S. 230 of the Regulations provide for temporary stays of removal to so-called moratorium

countries where circumstances of general danger obtain. Currently, these countries include Afghanistan, the Democratic Republic of Congo, Haiti, Iraq and Zimbabwe.

- S. 231 imposes a stay if an individual has filed an application for leave for judicial review of a negative decision by the RPD.

o Such stays remain in place until the application for leave is refused or the claimant has exhausted all of their avenues of appeal.

- Finally, FN can apply for a court-ordered stay on removal if the Act or Regulations don’t impose one automatically. This may be necessary if the decision challenged on review is the rejection of a PRRA application.

- The criteria for imposing a judicial stay are three fold:o That he or she has raised a serious issue to be tried;

This threshold is generally pretty low. o That he or she would suffer irreparable harm if no order were granted;

Must be personal, non-speculative harm that a FN might experience or the harm to his/her legal case.

o That the balance of convenience considering the total situation of both parties, favours the imposition of a stay.

10 – Judicial Review- We want to start with the Federal Courts Act.

o Even before we look at s. 72 of IRPA.- In s. 2 there are a bunch of definitions, we have a definition of what bodies that the federal court

can review. “Federal board, commission, or other tribunal”; for our purposes, we should recognize how broadly this term is, in fact, defined.

o Means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of province or under s. 96.

- Applies to all immigration decision makers. - S. 18 and 18.1 are the important sections to deal with the powers of the Court.

o 18.1: “Powers of the Federal Court” in order that you see how broad the decision making is.

o 18.1(3) general power to review: This is what we will mostly be referring to. By far the most numerous judicial reviews relate to quashing.

- One of the ways of explaining the powers of the federal court is to go to s. 18. Describes in reference to the prerogative risks known to common law. It tries to describe the CL powers that are being transferred to the statutory body.

- In the Draft Text, order such as Mandamus (require someone to do what they have a legal duty to do) will only be issues when a number of conditions have been met. These conditions usually relate to the seriousness of the issue; the person seeking the order is directly affected; the balance of convenience requires it.

- 18.1(4): mistakes giving rise to make an order. These are the statutory statements of the jurisdiction of the federal court. Sub (a) “acted without jurisdiction” (Dunsmuir). Etc. We’ve seen a lot of these illustrated in the cases.

- Until a few years, s. 18.1(4) was creating a bit of consternation amongst administrative lawyers. The question was whether this section was contrary to cases such as the Dunsmuir case that suggested that there were different standards of review that would be applied based upon the nature of the mistake that was made. The argument that was made was that this was an example of the legislature stepping in to tell us that any of these mistakes give rise to the possibility of

judicial review. The argument was made that any case brought to the federal court was not subject to the Dunsmuir type of analysis that suggests there are different standards that apply to different mistakes that have been made.

o Khosa is an important decision ensures that that argument would not go any further. This case says that there is a difference between grounds of review and standards of review. Grounds are the reasons why the court can step in. That’s what s. 18.1(4) is stipulating.

The standard of review is not being overshadowed by these grounds of review. Dunsmuir is not being rendered historical, the two coexist.

Dunsmuir applies to federal court. It says that sometimes the court will show deference on some matters. They will shy away from a correctness standard and use a reasonableness standard.

- First go to s. 18.1(4) and see if it fits into one of the mistakes, and then you check with Dunsmuir for the standard (correctness vs. reasonableness). Khosa clarifies this entire issue.

18. (1) Subject to section 28, the Federal Court has exclusive original jurisdiction

o (a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamusor writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

o (b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

Extraordinary remedies, members of Canadian Forces

(2) The Federal Court has exclusive original jurisdiction to hear and determine every application for a writ of habeas corpus ad subjiciendum, writ of certiorari, writ of prohibition or writ of mandamus in relation to any member of the Canadian Forces serving outside Canada.

Remedies to be obtained on application

(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.

Application for judicial review

18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.

Time limitation

(2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.

Powers of Federal Court

(3) On an application for judicial review, the Federal Court may

o (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or

o (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

Grounds of review

(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal

o (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;o (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was

required by law to observe;o (c) erred in law in making a decision or an order, whether or not the error appears on the face of the

record;o (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious

manner or without regard for the material before it;o (e) acted, or failed to act, by reason of fraud or perjured evidence; oro (f) acted in any other way that was contrary to law.

Defect in form or technical irregularity

(5) If the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Federal Court may

o (a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; ando (b) in the case of a defect in form or a technical irregularity in a decision or an order, make an order

validating the decision or order, to have effect from any time and on any terms that it considers appropriate.

Leave from the Federal Court

- You need to get leave from the FC to actually hear the argument. Again, you’ll see some analysis of this in the Draft Text.

- The first thing is that you don’t get automatic entry into the court, you must seek leave. - There is nothing in s. 72 of IRPA that says when the Court will actually grant leave. You don’t

really know when you are seeking how likely it is that you’ll be able to; you don’t know which sort of arguments are likely to be successful.

- P. 242 of the DF: Saleh, the FC said that on an application for leave one should grant such a request unless it is plain and obvious that the complainant would have no reasonable chance of success.

o Suggests a hugely embracing test. You’re going to the FC judge and they’re being told that they have an obligation to grant it unless your argument is a total joke.

- You would think that your application for leave is going to be granted. But the truth is that only about 13 or 14% of the cases are actually accepted. That suggests that something is going on in the minds of the FC judges about what the test actually is.

o In that percentage, you also find that some judges are granting leave in 80% of cases and other judges are only granting in 1% of cases.

o You’re engaging in something of a lottery.

- If you are one of the lucky ones, you proceed with your judicial review. At this stage, you hit the issue of mootness. This is a serious problem that has caused some difficulties with federal court decision making. A decision becomes moot when there is no continuing conflict between two parties. How could that happen in an immigration context?

o It might happen where the government concedes in a particular case that it has made a mistake.

Say an argument is being made about detention; that someone was being detained improperly. Once they get into FC, the government may release the individual and make the claim that the issue shouldn’t be considered any further because the matter has become moot.

For other individuals who have been detained and my still be detained that is going to create a real problem. Sometimes you want to get into court not just to argue your own case but to argue the point of principle that the policy is, more largely, improper.

If you allow mootness, the general issue will not be considered by the Court. The FC has resisted relying on the notion of mootness as a general bar to proceeding. It will, even though an issue has become moot, it will consider the issue before it if the issue is a matter of serious concern that raises an adjudicative point and isn’t seen as treading on the legislative sphere.

The issue of mootness has also become connected with the issue of Public Interest Standing. What you see since the downtown eastside sex workers case is a recognition that just because there is no adjudicative dispute between two parties, that is not going to prevent the courts from dealing with the issue.

You’re seeing a connection between the idea of mootness and PIS. o They want to hold the government to account.

- If you fail in the FC level, you will only get to the Federal Appeal level if the judge certifies issue of general importance. You make it as a motion at the end of your FC case. That’s an IRPA only stipulation.

o You can pick a few different issues and present them.