The Harper Government (or the "HG") is nearing an important anniversary. It's been almost ten years since it has been entrusted by Canadians to govern. This past decade has been a watershed in terms of immigration law and policy. It's difficult to encapsulate the changes, but here's our final attempt:
Finally, the emphasis by the HG on the bottom line seeped into the family class.
Numbers were crunched even when it came to filial obligations and affections. Kenney suspended the family class (parents and grandparents) at the end of 2011 for two years, noting that older immigrants cost the system hundreds of thousands of dollars in health care costs. The program is now limited to the first 5000 applicants with increased income requirements for the sponsor in Canada. Family reunification is now for the affluent and well established.
Arguably, many of the HG changes to immigration law and policy have been mean spirited and short sighted. That being said, it is up to Canadians to determine whether that policy view should be extended or not.
The Harper Government is nearing an important anniversary. It's been almost ten years since it has been entrusted by Canadians to govern. This past decade has been a watershed in terms of immigration law and policy. It's difficult to encapsulate the changes, but here's our (fourth) attempt:
Keeping in line with this government's pro-business outlook (businesses of course want a stable, compliant work force) the temporary foreign worker program was dramatically expanded. At the same time, no thought or consideration was spared for the tens of thousands of "low skill" foreign workers for whom there is no pathway for permanent residence (in fairness, no pathway was afforded by the previous government either). Low skill temporary foreign workers remain the coolie, bonded labour, with no hope to remain permanently and with explicit limits on their stay here of a maximum 4 years.
I wrote an op-ed published last week in the Calgary Herald drawing parallels between the coolies of the early 19th century and temporary foreign workers of today. I did not anticipate the reaction that it occasioned. [Note to reader: never read on-line comments if you want to preserve your faith in humanity].
I was actually inspired to write the opinion piece because of the perfect storm that is threatening one of my clients, Rohit Nand. Rohit and I were on the Dave Taylor show yesterday to discuss the loss of his dream to build a better life for his family in this country.
Rohit is an Indo-Fijian; his ancestors were brought to Fiji as contract labourers (then referred to as "coolies"). Rohit himself then came to Canada as a contract labourer but rose to a skilled position within his organization. But for the unexpected and exponential increase in the AINP processing times, he and his family would be well on their way to permanent residency. But for one-half point shortfall on his language test, he would have been eligible under the then extant Canadian Experience Class.
...this distinction between labourers and professionals is an unwarranted one. Canada was not built by one or the other and any economy requires both.
Rohit's story is taking place within a larger context of the mass exodus of temporary foreign workers from this country starting today. Mary-Ann Salilican is another of my clients and breaks down every time she thinks of leaving Canada.
The so-called 4x4 rule is beginning, requiring all low skill TFW to leave 4 years after arrival. Thousands are expected to leave voluntarily; some speculate that many will choose not to leave and leave here illegally.
Starting next month, thousands who have made their homes in Canada, our neighbours and members of our community, will be leaving because they are coolies and somehow unfit to remain permanently, but perfectly fit to work here for years.
Sadly, I'm not sure there's sympathy in these uncertain economic times for the temporary foreign workers - already used as a convenient scapegoat by the same government that allowed them to come in tens of thousands in the first place.
One little explored aspect of this story is that temporary foreign workers have contributed to our social safety net, EI, CPP, our infrastructure through their taxes, property ownership for some and spending by all. They are not mendicants with their hands outstretched. There should have been some thought or an option for permanent residency for some of them, but neither this government nor the previous Liberal one thought to do the right thing.
The Harper Government is nearing an important anniversary. It's been almost ten years since it has been entrusted by Canadians to govern. This past decade has been a watershed in terms of immigration law and policy. It's difficult to encapsulate the changes, but here's our attempt (Part III):
The mercantile mentality of this government has extended even to the quintessential right, that of Canadian citizenship. In essence, citizenship is a commodity for this cabal of merchants, and the way to increase the value of a commodity is to decrease supply.
Citizenship under the Harper Government is harder to get and easier to lose. Ostensibly based on putative problems such as "birth tourism" and so-called Canadians of convenience, the government imposed more stringent requirements for citizenship and also provide more avenues for revoking status. Bill C-24 dramatically increases the grounds for revocation and has created different classes of citizenship. Once again, this government's legislation is headed to the courts.
The Harper Government is nearing an important anniversary. It's been almost ten years since it has been entrusted by Canadians to govern. This past decade has been a watershed in terms of immigration law and policy. It's difficult to encapsulate the changes, but here's our attempt (Part II):
The Harper Government has played politics and immigrants will pay the price. The atrociously entitled "Faster Removal of Foreign Criminals Act" dramatically lowers the threshold of removing even long term permanent residents of this country and even for penny ante criminal offences. Part of the core messaging of this government is that it is tough on crime and criminals. Hard cases make bad law, and the Harper Government is about to prove that the converse is true.
The legislation doesn't differentiate between the nature of the offence, simply looking to the length of the sentence. The legislation also doesn't differentiate between a 20 or 30 year permanent resident of Canada (or someone that arrived as a child) with someone that arrived over the age of majority and committed crimes shortly after arriving in this country.
Regulation 87.1 of the IRPR deals with the Canadian Experience Class (now subsumed into the Express Entry). The CEC was a great pathway to permanent residence for (skilled) temporary foreign workers and international students (with work experience in Canada. Unfortunately, it appears that officers elevated form over substance on many occasions.
The Goldilocks principle is derived from a children's story "The Three Bears" in which a little girl named Goldilocks finds a house owned by three bears. Each bear has their own preference of food and beds. After testing all three examples of both items, Goldilocks determines that one of them is always too much in one extreme (too hot or too large), one is too much in the opposite extreme (too cold or too small), and one is "just right".
Most frustrating was this search by applicants or counsel for the Goldilocks effect in CEC applications. If the employment letter was too dissimilar from the NOC duties ("too cold") it was rejected. Conversely if the employment letter was too similar from the NOC code ("too hot") it was also rejected. The Federal Court dealt with this problem in Madadi as well as Ghannadi, infra.
Justice Phelan in Ghannadi (likely shaking his head) found "It is hardly surprising that employer's letters would closely mirror the NOC; after all, it is the information that the government says is relevant and an exercise in use of a thesaurus to find synonyms is not likely to provide any better evidence" [paragraph 12].
Madadi v. MCI 2013 FC 716 is another such instance of flawed and unfair reasoning. In Madadi, the officer rejected the application finding that the "duties described on your employment letter are either copied word for word or closely paraphrased from occupational descriptions of the NOC, diminishing the overall credibility of the employment letter".
"No interview or other fairness opportunity" was afforded to the applicant [para 5]. Justice Zinn found that this was a breach of the duty of procedural fairness and the matter was remitted back for re-determination.
It appears that there's more than one way to skin the cat on such refusals. Justice Phelan in Ghannadi framed it from the perspective that it was unreasonable for the officer to reject the letter on the basis that it was too similar but also gave a nod to the apparent breach of procedural fairness; Justice Zinn looked at it exclusively from a breach of procedural fairness perspective.
What is a Temporary Resident Permit? By way of background:
As in all discretionary decisions, the decision maker is to act in good faith. There is no such thing as "untrammeled" discretion in Canada.
Justice Teitelbaum reviewed the refusal to extend a temporary resident permit (TRP) to the applicants in Beyer v MCI 2009 FC 823. The applicants in Beyer were near octogenarians; Ms. Beyer was morbidly obese and bedridden and required the constant assistance from her husband. Their medical costs were covered by purchased insurance and financially independent. They had bought a vacation home in Canada almost 20 years prior but did not have the intention of settling permanently here. In 2006, they applied for permanent residence under s.25 of the IRPA (a "humanitarian and compassionate" application), it was denied and instead, the Respondent issued a TRP for two years. After expiry, the applicants sought an extension; there was no material change in their circumstances.
Interestingly, it appeared that at least one employee (officer) of the CBSA (not the Respondent department) recommended that the TRPs be extended/issued. However, the same (CIC) officer that issued the TRPs in 2006 refused to extend/issue them in 2008.
Justice Teitelbaum held that the reasons were not adequate (or "sufficiently detailed") [see paragraph 72]. Justice Teitelbaum also referred to the "legitimate expectations" of the applicants. As a result of the serious consequences of the decision, the legitimate expectations of the applicants, the inadequate reasons give the "appearance of an arbitrary decision". The matter was referred back for reconsideration.
The TRP allows a foreign national who is inadmissible to Canada (or does not meet the requirements of the IRPA or IRPR) to enter or remain in Canada if an officer *thinks* it's justified in the circumstances. Or, in Justice Shore's words "Basically, the TRPs allow officers to respond to exceptional circumstances while meeting Canada's social, humanitarian and economic commitments [Farhat, infra, paragraph 22].
Farhat v. Canada MCI 2006 FC 1275 dealt with the refusal to issue a TRP. Farhat had married a Canadian in 2000; however he was convicted of theft under $5000 and became the subject of a section 44 report given his criminal inadmissibility under the IRPA. He left Canada and then sought to return by obtaining a TRP.
Justice Shore began his analysis by assessing the degree of deference due to the decision maker. Given the "polycentric" nature of the decision, it is one that attracts a high degree of respect (he utilized the then relevant term "patent unreasonableness" now obviated by the SCC decision in Dunsmuir).
In Farhat, the applicant had a "history of non-compliance" which overcame his need to rejoin his wife and child in the country. Further, there was no requirement that the officer assess the "best interests of a child" (unlike a s.25 application). It is possible that Farhat did not present sufficient evidence (see paragraph 38 "..however, he did not present, in regard to the existence of his spouse and child, any "compelling reasons"... and paragraph 40 "..in light of the evidence presented, it was not patently unreasonable for the Minister to consider that the interests of the child, in this case, did not amount to "compelling reasons" ...")
The officer's decision making is guided by the Immigration Manual; in this case, Justice Shore found that the officer had regard to the relevant factors and ultimately, it was not "irrational or perverse or so gratuitous and oppressive that no reasonable person could think it justified.
The main take away from this decision is that it is essential that in seeking this discretionary relief that the applicant put his best foot forward. Adduce all relevant evidence, ensure that you meet the (high) threshold of compelling reasons. Conrad Black was able to do it, within moments of his release from a lengthy jail sentence for a far more serious crime than poor Mr. Farhat.
I am appearing before the Chief Justice of the Federal Court tomorrow on a refused "H&C" application. I have written about H&C applications in the past; here's a link to a recent CanLII Connects Summary. Justice Campbell, who wrote the decision in Paul v. MCI 2013 FC 1081 is a "softie". That subjective term is based on the fact that he grants leave at the highest rate; that as an applicant, you are more likely to have leave granted by Justice Campbell, and if leave is granted by another justice but heard before Justice Campbell, more likely to succeed than before any other Justice. Justice Campbell, more than all the Justices of the Federal Court is alert, alive and sensitive to the fragilities of the human condition.
In my case, the applicant and his (now deceased) common-law partner entered Canada almost six years ago. While they made a refugee claim, it was deemed abandoned since they (operating under a misapprehension) only notified CIC as to their change of address. They submitted an application for humanitarian and compassionate relief in December 2012, after the principal applicant was diagnosed with a serious form of cancer (missed by her physicians here in Canada). As a result, much of the submissions within the H&C dealt with the quality of medical care and the negligence of her physicians. The principal applicant passed away in September 2013.
Taken without context, the officer's decision and reasons appear sound. It is true that the (former) principal applicant passed away making many of the issues canvassed in the submissions moot.
The officer gave token genuflection to the applicant's circumstances "I am sympathetic to the applicant's current plight" and "I recognize that the applicant has likely suffered a significant emotional loss in the passing of his spouse. However, this is little in this application that articulates his loss..." This was the same (flawed and hard hearted) analysis in Paul:
"I can understand and empathize with the fact that their son in India left a huge emotional whole [sic] ... However, I am not satisfied fully what extent their suffering actually was due to lack of evidence about this..."
Justice Campbell gave that analysis short shrift:
"Having found a huge emotional hole left in the Applicants' lives by the death of their son ... in the very next breath the Officer discounts that very response..."
What is not referenced in the officer's reasons is the correspondence sent to their office to urge finalization given the grave state of the applicant's partner's health. Knowing that death was weeks away, and rather than deal with the request while she was alive, CIC appears to have stalled and rendered a decision after she passed away and proffered their sympathies in their refusal letter.
Further, the officer noted on more than one occasion that the applicants were expected to leave Canada after the refusal (or abandonment) of their refugee claim and thus discounted the establishment that occurred subsequent. That does not take into account that the applicant's health issues began in 2011 and the couple could not leave Canada as a result of medical treatment. That in itself is a reviewable error.
In Paul, Justice Campbell referred to his judgment in Damte (2011 FC 1212) at paragraphs 33 and 34. H&C applications requires that the facts
"be viewed from the applicant's perspective. .. a[n] .. analysis must reflect an understanding of the reality of life a person would face, in body and mind, if forced to leave Canada ... Applying compassion requires an empathetic approach. This approach is achieved by ... stepping into the shoes of an applicant and asking the question: how would I feel if I were her or him? In coming to the answer, the decision-maker's heart, as well as analytical mind, must be engaged."
The humanitarian and compassionate regime in IRPA will remain a necessary and important 'safety net' but only if the officers give voice to its substance, and not merely its form.
The Harper Government is nearing an important anniversary. It's been almost ten years since it has been entrusted by Canadians to govern. This past decade has been a watershed in terms of immigration law and policy. It's difficult to encapsulate the changes, but here's our attempt:
The most comprehensive changes enacted were those to Canada's refugee determination system. There were, undoubtedly, worthwhile aspects to these changes. For example, under the previous system, claimants often waited years for their claims to be heard. Even after refusal, failed claimants had recourse to various avenues of appeal and applications prior to deportation. But the Harper Government compounded the problem by failing to appoint or re-appoint the decision makers. The resulting 'broken system' was then streamlined through the "Balanced Refugee Reform Act" which significantly expedites the determination of claims while denying recourse to failed refugees (that the Minister calls "bogus") and those individuals that are from certain countries (conveniently designated by the Minister himself).
In conjunction with the Balanced Refugee Reform Act, the Minister sought to implement other disincentives to individuals coming to Canada and making refugee claims. These disincentives ranged from the farcical (putting up billboards in foreign countries) to the tragic (denying refugee claimants health coverage). The latter best betrays the Harper Government worldview. The widespread changes (at present reversed by the Federal Court as infringing basic freedoms) denied healthcare coverage to children, pregnant woman, cancer patients among others on various specious grounds including the false assertion that refugee claimants were receiving better healthcare than Canadians. In reality, this was a disincentive plain and simple to drive down the numbers of refugee claimants received by this country (the only metric that seems to matter to the Harper Government and the one that was touted as the basis to conclude that the refugee reforms were "successful").
Justice Boswell of the Federal Court, appointed by the current Government and a thirty year card carrying Conservative, ruled in favour of Zunera Ishaq who wanted to wear a niqab at her citizenship oath ceremony. Zunera challenged the policy that Jason Kenney, the then Minister of Citizenship and Immigration, promulgated (without legislative basis) that prevented veiling at the ceremony. She had no issue with the actual policy, which required her to unveil for the purposes of establishing her identity prior to the oath (as per section 13.2 of CIC’s policy manual, CP 15: Guide to Citizenship Ceremonies). The Minister however targed veiled Muslim women (I can't imagine any other group that is affected by this action):
My interpretation is that the Minister would like this done, regardless of whether there is a legislative base and that he will use his prerogative to make policy change.
The above is from a redacted email from a CIC official.
Whatever the Minister wants, he can't rule by fiat. Canada is still a country governed by laws, not individuals:
 Despite the mandatory intentions behind the Policy though, it is the Act and the Regulations that ultimately determine whether a citizenship judge has any discretion with respect to applying the Policy.
Justice Boswell had the Rule of Law foremost in his analysis:
 Insofar as a citizenship judge has no discretion but to apply the Policy, the imposition of this mandatory duty upon a citizenship judge is contrary to paragraph 17(1)(b) of the Regulations, which requires a citizenship judge to “administer the oath of citizenship with dignity and solemnity, allowing thegreatest possible freedom in the religious solemnization or the solemn affirmation thereof” (emphasis added)
 Citizenship judges cannot exercise that function to determine what degree of freedom is possible if they instead obey the Policy’s directive to ensure that candidates for citizenship have been seen, face uncovered, taking the oath. How can a citizenship judge afford the greatest possible freedom in respect of the religious solemnization or solemn affirmation in taking the oath if the Policy requires candidates to violate or renounce a basic tenet of their religion? For instance, how could a citizenship judge afford a monk who obeys strict rules of silence the “greatest possible freedom” in taking the oath if he is required to betray his discipline and break his silence? Likewise, how could a citizenship judge afford a mute person the “greatest possible freedom” in taking the oath if such person is physically incapable of saying the oath and thus cannot be seen to take it?
The Conservative government has already stated that they will appeal Justice Boswell's reasoned decision. They will fail. This is electioneering, plain and simple. This stance on the niqab plays well in certain (vote rich) areas of this country. This is beyond unfortunate.
Playing politics is affecting innocent individuals. Judge Marengo of a Quebec court refused to hear a Rania El-Alloul, who was wearing a hijab. On welfare, she is raising three children. One of them drove while suspended and her car was impounded. She was seeking its release. This audio got my blood boiling. Rather than facilitating access to justice, the judge frustrated it. This is particularly egregious when the person concerned is impecunious and can't afford a lawyer. One of my associates, Suha Abu-Jazar wears a hijab and represents her clients in court every day. I really can't believe that this happened in Canada in 2015.
The reality is that there is a poisoned atmosphere and Muslim women are bearing the brunt of this atavistic attitude.
Minister Tim Uppal is Minister of State for Multiculturalism. His wife is also a baptized Sikh and is a lawyer for the Department of Justice (meaning she also wears a head covering). His only response to the niqab ruling and now the discreditable conduct of a Quebec judge denying a hijabi Muslima access to justice was a tepid tweet sent to me this morning after my appearance on Calgary's South Asian Radio station RedFM 106.7.
I'm really hoping that politicians, particularly in the ruling party, stop drinking the partisan Kool-Aid for a moment and defend the ability of religious minorities to access the courts and access to the full panoply of the rights and freedoms. Just because they look or comport themselves differently does not make them any less Canadian.
The following is a guest post by Arman Chak
For those of us who work with legislation, we sometimes get caught up in the rigidity of the rules we create to organize our lives. The Divorce Act is one of those trusted pieces of legislation which allows us to look at the order we seek to achieve in one of the most complicated issues we face, the end of a relationship. Specifically, the end of a formalized relationship. With its mixture of romanticism and ultimately the search for dignified closure, the Divorce Certificate becomes almost more important than the wedding vows themselves.
I had the opportunity to work with my good friend Raj Sharma on an interesting family law matter which intermixed international law, the Divorce Act, the rules of comity and conflicts of laws. Mr. Sharma’s client faced a problem of the recognition of his foreign divorce decree and having it recognized in Canada. [Raj: it is an unfortunate fact in immigration law that visa officers take it upon themselves to be the judge, jury and executioner and have little hesitation in expounding on the validity or the lack thereof of foreign judgments, particularly divorce certificates that impinge on the validity of the marriage before them. A refusal on the grounds of validity is a complicated issue at appeal and anyone denied on this basis needs to consult with an experienced lawyer]
While some would have suggested that it is simply a procedural matter if there are no disputes and no real barriers to acquiring a Canadian Divorce, the question for Mr. Sharma and I was more basic. Why shouldn’t he have the recognition of the foreign divorce decree as he and the parties had intended. There was no doubt that both parties had moved on as if they were divorced and had taken whatever symbolic legal steps they had to do to gain that closure in their land of domicile. Who were we (or anyone else) to deny them the validity of their actions? [Raj: Faced with an intractable visa officer what was the client to do? His sponsorship refused, he retained us to file the Notice of Appeal to the Immigration Appeal Division. To resolve his matter in the most expeditious manner, I contacted Mr. Chak to obtain a judgment from a Court in Canada recognizing the foreign divorce. If successful, this would be game, set and match to set aside the visa officer's erroneous finding).
The answer was very easy to find, but more difficult to execute. The nature of the questions asked in Canada regarding the application of the Divorce Act in this matter was a question of certain ‘magical’ questions. This revolved about domicile, the substantial connection, the lack of any public policy concerns as well as ultimately the decision making abilities of the foreign jurisdiction. Documents had to be gathered and sworn evidence put before the Court, it also helped that Madame Justice Veit had provided some helpful guidance on the subject as well as a series of simplified principles stated by a leading legal scholar from the University of Calgary.
The submissions were about presenting those facts and law and jurisprudence and asking the Court for a relief that was clearly within the jurisdictional limits of the Divorce Act. The result was a well-reasoned and careful deliberation which led to the declaratory relief that this new Canadian was seeking, a recognition of his dignified closure of his relationship.
The magic that I am referring to is not within the words of the legislation, but in the fact that there should always be this recognition that the rigidity of our rules should never take away from the societal understanding of the phenomenon (problem) which we are trying to provide a solution to.
Those who are faced with similar issues with recognition of foreign divorce decrees feel free to contact Raj or myself and we can fill in any of the blanks.
Justice Harrington is an eloquent jurist. Hamadi, a Lebanese widow with pro-Israel beliefs, made a refugee claim which was dismissed by the RPD (which found that "there were some credibility issues"). Eight years later, she was presented with a Pre-Removal Risk Assessment (PRRA) which was also dismissed (in 2010). It was this decision that was the subject of judicial review.
The PRRA Officer gave additional and new evidence proffered by Hamadi "minimal weight" and (typically) found that there was insufficient evidence to find that Hamadi faced more than a mere possibility of persecution upon return.
Justice Harrington had no qualms in characterizing the matter as one of credibility as opposed to one of insufficiency of evidence (para 6). In essence, the evidence (the new evidence given minimal weight) was "central to the decision with respect to protection and if accepted would certainly have justified allowing the application".
What was the evidence that the PRRA Officer gave minimal weight to?
A "to whom it may concern" letter not on letterhead but apparently signed by the Secretariat-General of Hezbollah in 2003 stating that Hamadi was facing both legal and religious prosecution; and
Another letter (this time on Hezbollah letterhead but not dated) stating there is a judgment of death against Hamadi. The English translation was both "unofficial and informal".
Justice Harrington took issue with the PRRA Officer's analysis that resulted in minimal weight accorded to the letters (in effect substituting his analysis for the Officers ...) Eloquent as always, Justice Harrington gave short shrift to the analysis of the second letter:
"One cannot give minimal value to a death sentence. One must give it considerable value, or no value whatsoever. If one gives no value to it, it follows that the officer considered it a forgery, and therefore considered Mrs. Hamadi a liar".
As the evidence raised a serious issue of the applicant's credibility; was central to the decision and if accepted would justify allowing the application for protection, Justice Harrington set aside the decision and sent it back for redetermination.
Finding out that you are being investigated by the CBSA is stressful. Such investigations are sparked by poison pen letters or complaints; they may involve investigating a previous marriage by which you obtained status in this country or allegations that you committed misrepresentation before you came to Canada.
Other than criminal convictions which spark (usually) prompt CBSA action (and for a permanent resident, the right of an appeal -- now restricted -- to the Immigration Appeal Division) any other allegation may take years to resolve.
There were ointments and garlands; perfumes were burned; tables provided with the most exquisite meats. Damocles thought himself very happy. In the midst of this apparatus, Dionysius ordered a bright sword to be let down from the ceiling, suspended by a single horse-hair, so as to hang over the head of that happy man.
After which [Damocles] neither cast his eye on those handsome waiters, nor on the well-wrought plate; nor touched any of the provisions: presently the garlands fell to pieces. At last he entreated [Dionysius] to give him leave to go, for that now he had no desire to be happy. Does not Dionysius, then, seem to have declared there can be no happiness for one who is under constant apprehensions?
Cicero (Tusculan Disputations 5.21.61-62, tr. C.D. Yonge, emphasis added)
In my experience I've seen CBSA dither on many investigations to the point where I counsel my clients to compel action using the prerogative writ of mandamus. If a report is written and referred, the CBSA will have to establish that the report is well-founded before the Immigration Division. Even if a removal order results, a Permanent Resident can seek to remain at the Immigration Appeal Division. In the past, this usually sparked action by the CBSA (many times, they simply dropped the matter). That's changed. The Department is intransigent and there's push back. They are intractable in their position that they will not be dictated to. That means an investigation for a "non-priority" matter (read: everything that's not criminal or national security) may in fact take years, and the person concerned will have the Sword of Damocles hanging over his head, stymieing applications for citizenship or sponsorships for family members.
If you are being investigated by CBSA, be patient and take counsel.
If a Permanent Resident fails to disclose a family member at any time prior to or at landing, he or she will be barred from sponsorship under the family class for the undisclosed individuals. This seems to happen regularly and for a variety of reasons. Sometimes there's an issue with the custody of a child; sometimes they get bad advice; sometimes they make an assumption that they'll sponsor their husband/wife/child after they've settled in Canada. R117(9)(d):
(9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if
(d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined
There is a possibility that a report alleging inadmissibility will be sought against the sponsor on the grounds of misrepresentation. The PR does have the ability to appeal against any resultant removal order to the IAD.
In any event, if the sponsor wants to bring his or her (excluded) family members to Canada, they need to submit a "H&C" or humanitarian and compassionate application relying on s.25.1(1) of the IRPA.
25.1 (1) The Minister may, on the Minister’s own initiative, examine the circumstances concerning a foreign national who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
In regards to H&C applications, a number of factors are to be considered (and raised in your submissions) as per the CIC website. There are a number of cases that should also inform the submissions, such as David v. Canada (Minister of Citizenship and Immigration) 2007 FC 546 (CanLII):
 The exclusion mentioned at paragraph 117(9)(d) of the Regulations is a very harsh one, but does not prevent a sponsor from invoking H & C grounds considerations. Indeed, the very reason why the Court of Appeal in De Guzman found that this provision is compliant with the international instruments to which Canada is signatory is that section 25 of the Act enables the Act to be administered in a compliant manner (De Guzman, at paragraphs 102 to 109).
Friday the 13th. An inauspicious date for an admissibility hearing.
I'm attending an admissibility hearing today concerning "marriage fraud" under the new Regulations that require the sponsored person to live with their sponsor for a period of two years after coming to Canada. According to CBSA here in Calgary, this is the first such hearing. I'm representing the victimized Canadian spouse who will be testifying.
The general process is this: A report alleging inadmissibility is written and referred by CBSA to the Immigration Division. The Immigration Division holds a hearing and CBSA bears the onus to establish that the report is well-founded. The Immigration Division, if it is satisfied on a balance of probabilities that it is, will issue a removal order (specifically, an exclusion order). If the person concerned is a Permanent Resident, they have the right to appeal (an exclusion order) to the Immigration Appeal Division which can consider humanitarian and compassionate considerations (such as time in Canada, family in Canada, nature and extent of the non-compliance/inadmissibility, hardship upon return, and the best interests of any children affected by the decision). If the IAD allows the appeal, the Permanent Resident gets to stay; if the IAD dismisses the appeal, the removal order becomes enforceable and the Permanent Resident loses his or her status in this country.
There are exceptions to the requirement that the sponsored person live with the sponsor for two years. It includes abuse, so look for unfounded, bald faced assertions of same. If someone has decided to commit marriage fraud, what's a few allegations of suffering abuse at the hands of your 95 lbs wife? I'm not sure where the right balance is between the rights of those that are sponsored, the integrity of our immigration system, and the rights of the sponsor. I would suggest that the allegations of abuse must necessarily be serious and well-founded. It remains to be seen how the CBSA Hearings Officer presents her case, and how the Immigration Division splits the baby.
Has Jason Kenney thrown a lifeline to temporary foreign workers facing the end of their road in Canada?
I discussed this with Doug Dirks of CBC's Homestretch on February 3, 2015.
A couple of points to consider:
Harlequin romance, western ethnocentrism and arranged marriages don't seem to mix.
It's important to confront stereotypes, assumptions and the (unfounded) inferences that flow from them when dealing with refused spousal sponsorships. The reality is that the Immigration Appeal Division ("IAD") is presented with non sequitur arguments on a regular basis.
It has jurisdiction to hear appeals from the refusal to grant a permanent resident visa to spouse, common-law, partner (at least applications submitted outside of Canada). In Gill v. MCI; the Appellant (Gurbux Kaur Gill) had sponsored her husband, Sarabjit to Canada. The visa officer refused the application, noting that the marriage was done in haste, that there was no engagement ceremony, that there was an absence of honeymoon or post-wedding outings, and the lack of knowledge by the applicant (the husband), among other concerns.
In an appeal of a visa officer's decision, the Appellant has to establish, on a balance of probabilities that neither prong of s.4(1) of the IRPR apply. That is, the Appellant needs to establish that the relationship is genuine and was not entered primarily for the purposes of gaining status in Canada.
The Panel in Gill sets out the (non-exclusive) factors in determining "genuineness at paragraph 11:
These can include, but are not limited to, such factors as how the relationship developed; the intent of the parties to the marriage; the length of the relationship; the amount of time spent together; conduct at the time of meeting, at the time of an engagement and/or the wedding; behaviour subsequent to a wedding, the level of knowledge of each other’s relationship histories; levels of continuing contact and communication; the provision of financial support; the knowledge of and sharing of responsibility for the care of children brought into the marriage; the knowledge of and contact with extended families of the parties; as well as the level of knowledge about each other’s daily lives. All of these factors can be considered in determining the genuineness of a marriage. The second prong of the test – whether the relationship was entered into primarily for the purpose of acquiring any status or privilege under Immigration and Refugee Protection Act (the IRPA) – is self-evident and self-explanatory.
The key analysis in Gill is the repudiation of western ethnocentrism in assessing arranged marriages. That is, at paragraph 34:
In the panel’s experience the parties to a marriage will have varying opinions about and differential awareness of the aspects of the other's life based entirely on the things that they consider to be important to them as opposed to what is important to a visa office. Thus, the applicant says he was “shy” or reluctant to ask about what the appellant was earning suggests less that he is disingenuous and more about his perception that such a question would be misconstrued by the appellant calling into question his motives. The panel is reminded that the “genuineness” of the relationship must be examined through the eyes of the parties themselves against the cultural background in which they have lived.
Or, at paragraph 40:
The applicant also was almost singularly unsmiling and serious in the photographs taken at the time of the marriage. That having been said, when the other celebrants at the wedding are considered, they too wore visages that convey more of mourning than of marriage. The panel is reminded that “western harlequin romance ideals do not apply to everyone” and they should not be determinative of a genuine relationships. It should also not impose its own western cultural values on the assessment of foreign marriages. To infer adversely simply from the fact that the bride and groom at a Sikh wedding did not evidence the besotted star stuck expressions that one expects to find on the faces of the happy newlyweds in Canada would be an example of such ethro-centric reasoning.
This analysis is of great assistance to practitioners that deal with similar cases before the IAD and are confronted with stereotyped thinking and assumptions by the visa officer and, at times, by Minister's counsel at the proceeding.
Many law students have chosen the profession because they imagine that they can change the world. Cynics will laugh at such perceived naïveté but the absence of meaning and purpose or choice in our demanding profession leads to burnout, substance abuse and nihilism. It is thus important to create meaning; mythology or cultural touchstones may work for some, religion and its parables will work for others. Create your own astrolabe and choose your own navigational stars and understand that everyone's journey will be unique:
The waves I take were never sailed before;
Minerva breathes, Apollo pilots me,
and the nine Muses show to me the Bears.
The Divine Comedy, Dante Alighieri, Paradiso Canto II.
Follow your desire; pursue that which resonates within you.
...To follow knowledge like a sinking star,Beyond the utmost bound of human thought....Ulysses, Alfred Lord Tennyson
Few men can oppose tyrants and face insurmountable odds like the indomitable Gobind Rai.
Cu kar az hama hilate dar guzast
halal ast burdan ba samsir dast
(When all avenues have been explored, all means tried,
it is rightful to draw the sword out of the scabbard and wield it with your hand
-- Guru Gobind Singh, Zafarnama, as quoted in A History of the Sikhs Volume I : 1469-1839 by Khushwant Singh.
Choose your touchstones. The concept of "Charhdi Kala" resonates with me - it is the mental state of optimism even in the face (or perhaps especially) of adversity.This concept can perhaps be traced to Guru Tegh Bahadur (1621-1675) Guru Gobind's father, who wrote:
He who in adversity grieves not
He who is without fear
He whom nothing moves,
Neither good fortune nor ill,
And accepts what comes his way as it comes,
On such a man does the Guru's Grace descend...
his soul mingles with the Lord
As water mingles with water.
Lead a purpose driven life. In my own case, as a litigator I can marry my desire to address injustice challenge the power of the executive. Insight, and the selection of appropriate Pole stars, is an anchor or safe port against the winds and waves of discontent.
All Permanent Residents of Canada must comply with a residency requirement. That requirement, as of now, is 730 days in every 5 year period.
Many individuals want to have their cake and eat it too. Others are constrained by circumstances beyond their control. I have been consulted by both the former and latter regarding the residency requirements.
In this blog post, I'll discuss one of the exemptions from the residency requirement. Section 28(2)(iii) allows a permanent resident to comply with the residency requirement even if they're outside Canada as long as they are employed on a full-time basis by a Canadian business or in the federal or public service (of a province).
Regulation 61(1) provides additional guidance as to what constitutes a Canadian business (lest anyone start incorporating shelf/shell companies to allow them to skirt s.28). The business must be incorporated under the laws of Canada or of a province and have an ongoing operation in Canada or it can be an enterprise that has an ongoing operation in this country and is capable of generating revenue and is carried on in anticipation of profit and in which a majority of voting or ownership interests is held by Canadians, permanent residents or Canadian businesses. It goes without saying, but s.61(2) makes it explicitly clear that a "Canadian business" does not include a business that serves primarily to allow a permanent resident to comply with their residency obligation.
Case law gives us some additional details. There should be a position for the permanent resident in Canada should the work abroad cease; in other words the work abroad must be an "assignment". There should be connecting factors to Canada including work duties, payment of taxes and other deductions and control of his assignment from Canada (Wei v. MCI (2012), 12 Imm. L.R. (4th) 256). The Federal Court in Jiang 2011 FC 349 seems to concentrate on the temporary nature of the assignment abroad. In terms of whether the business has an "ongoing operation" in Canada, no one indicia is determinative (Durve v. MCI 2011 FC 995).
In my experience, visa officers on applications for a travel document tend to be skeptical of smaller operations, but there is no requirement as to the size of the business or numbers of employees. If there is a negative residency requirement, officers are obliged to provide a travel document to a Permanent Resident as long as an appeal is filed with the IAD, or if the permanent resident had spent at least one day in Canada in the previous 365. The IAD is the ultimate arbiter, and it is imperative that sufficient documentation and evidence is provided to enable the tribunal to assess the facts and the applicability of legislation, regulation and jurisprudence.
It was my pleasure to accompany Mr. Harjap Bhangal, famed UK immigration lawyer to Calgary's top South Asian radio station, RedFM. The interview was conducted by Mr. Rishi Nagar. The interview is mostly in Punjabi and is embedded below. Besides this interview, Mr. Bhangal and I attended at Chakde TV (interviewed by Devinder Toor), Radio Awaaz with Harbans Buttar, Radio Sursangam, Loksat with Dan Sidhu, Sabrang Radio with Rajesh Angral and gave a presentation at a Sikh Senior Centre during his whirlwind tour of this city.
Life's but a walking shadow, a poor player
That struts and frets his hour upon the stage
And then is heard no more: it is a tale
Told by an idiot, full of sound and fury,
Shakespeare, Macbeth, Act 5, Scene V
This is one of my favourite lines from Shakespeare and applicable to a lot in modern life, particularly the bloviation of politicians.
I have discussed the scourge of marriage fraud in previous articles. Marriage to a Canadian citizen or Permanent Resident is one of the easiest and fastest ways to get permanent residence in Canada. There is no income requirement on the sponsor; there is no requirement that the applicant pass a language exam or show any particular skill or funds to assist in settling in this country. That meant that people were deceiving their sponsors, or sponsors were complicit and taking money to facilitate fraud on Canada's immigration system. Where the sponsor was an innocent, fraud led to tragic consequences. In at least one case, a sponsor committed suicide after learning that he was used by his wife. Marriage fraud is not ad hoc or simply one off in many instances.
Our government has had to expend considerable resources combating marriage fraud in a cat-and-mouse game in India, China and other countries. Jason Kenney responded by introducing "conditional" permanent residency requiring sponsored individuals to live with their sponsor for 2 years after coming to Canada with exceptions.
However, these new rules obviously require enforcement.
Very few have been charged. I have discussed this myself on a number of occasions.
The then Minister of Immigration, Jason Kenney, appeared to listen to the concerns. Here's just some of the articles discussing the so-called crackdown on marriage fraud: Download 2015_01_20_15_39_14 articles
Victims of marriage fraud may have taken heart from these public statements, that the activist and transformational Minister of Citizenship and Immigration, the indefatigable and seemingly inexhaustible, Jason Kenney had heard their cries for succour.
I too, thought that the cavalry had arrived.
Victims of marriage fraud consult with me on a regular basis regarding their efforts to have their voices heard. I have helped dozens of individuals submit detailed complaints along with evidence establishing that the were the victims of marriage fraud; that they were used by their spouses simply to come to Canada. I was dismayed to see that very little was being taken on seemingly clear cases of marriage fraud. The reality, confirmed by affidavits from the CIC and CBSA officers, is that marriage fraud is the lowest priority for investigation and enforcement.
I cast around seeking a solution or another avenue for my client's to be heard. I contemplated action at the Federal Court, but hesitated, given a number of considerations including foundational principles of administrative law like standing and justiciability.
I was approached in the fall of 2013 by another victim of marriage fraud and after great thought filed an application for judicial review and for mandamus despite some misgivings. I knew that the Federal Court would be loathe to interfere in the investigation of any particular tool. That being said, my client evoked a great deal of sympathy. He is an unsophisticated individual and was taken advantage of. The application was perfected; I was pleasantly surprised to see leave being granted by Justice Mactavish. Interestingly, rather than taken action and write a section 44 report (which would have taken less effort) the government chose to contest the judicial review application.
The plot appeared to thicken after leave was granted. A further affidavit was filed by the Department of Justice, as well as the Certified Tribunal Record, indicating that the investigation was closed merely days after leave was granted. I decided to examine the responsible officer and filed a further memorandum of argument alleging bad faith (not a step to be taken lightly, since we are required to have a working relationship with this particular officer, and his colleagues at the CBSA and CIC).
The mandamus was heard last week; Justice Manson dismissed the application but certified a question. In his decision, Justice Manson dismissed my request for an alternate remedy (paragraph 19), found that it was "regrettable the Applicant appears to have fallen victim to a fraudulent marriage scheme" but found that this was not a "justiciable matter", as the question of "whether and how to investigate the complaint is not a decision, determination, order, measure or question arising from the IRPA..." He also disagreed with the allegations of bad faith, but did not elaborate. Justice Manson (justifiably) finds that "[P]rioritization of files is a necessary strategy employed by the CBSA to help manage the consistently significant workload of its officers".
The fact that Jason Kenney trumpeted his government's s0-called crackdown of marriage fraud also didn't persuade the Court that relief was warranted. In the Court's view "Given the above mentioned policy considerations and resource constraints, no matter what the government has stated about the seriousness of marriage fraud in public appearances, there is no a duty [sic] for the CBSA to act in any particular files involving it."
So there it is. The political and electioneering aspect of the Minister's statements were exactly that - giving rise to no greater responsibility by his officers to act on his puffery.