Crisis at the Immigration Appeal Division

Wait times for Family Class appeals in Calgary have been horribly long for many years but a new crisis is affecting the Immigration Appeal Division - there's no one trained to hear the cases! Take a read through what Peter Wong had to say on the issue as he sat down with CBC - click here for full article.

 

Credibility vs. Plausibility in Refugee Claims

I recently appeared before the Federal Court on a judicial review of a negative Refugee Appeal Division (RAD) decision. The claimant was a Cuban national accused of flouting Cuba's currency controls. 

The Applicant was self-represented at his refugee hearing before the Refugee Protection Division (RPD). As such, the corroborative evidence was far from idea. However, the RPD did find him to be detailed and consistent in his evidence. The RPD rejected the claimant's documents alleging they could not be independently verified to be authentic. However, the RPD made no actual efforts to verify the documents. The RPD also made a host of negative plausibility findings, which it said disposed of the claim in light of the lack of verifiable corroborative documents.

The claimant exercised his appeal rights to the RAD, which agreed that the RPD had no basis to find the claimant's documents to be fraudulent. However, the RAD simply dismissed the claimant's corroborative documents as "not helpful", without elaborating on why it was so. The RAD then adopted and affirmed the RPD's negative plausibility findings and rejected the appeal.

We then sought judicial review at the Federal Court. The crux of the argument was the difference between credibility findings and plausibility findings. The Courts have consistently held that plausibility findings must only be made in the clearest of cases. Justice Fothergill allowed the Judicial Review, finding that the RAD's negative plausibility findings were not reasonable, and had no basis in the evidence. 

The important take away from this one is to ask whether negative plausibility findings were reasonably made by a decision-maker. Simply because certain events may seem implausible in the Canadian context (or Western culture), does not render them impossible in countries like Cuba. 

The matter will now be returned to the RAD for a new decision to be made by a different Member. Now comes the task of putting forth any further evidence on the claimant's behalf and addressing the issues raised at first instance by the RPD and RAD.

Fulltext of the decision available here

Change to Age of Dependent Child to "under 22"

The Government just released Regulations amending the age of dependency from "under 19" to "under 22". However, the changes will not come into force until October 24, 2017. As such, any applications made until that date will continue to face the current definition of a child being "under 19". Nevertheless, this opens up opportunities for those who were unable to include children as dependants to sponsor those who might still be under the age of 22 when the Regulations take effect. 

The Full-Text of the Regulations can be found here.

Conditional Permanent Residence (PR) Repealed

Effective April 28, 2017, IRCC has repealed the Conditional Permanent Residence that affected sponsored spouses. This will affect the following individuals:

  • Permanent residents who have been issued a Confirmation of Permanent Residence (COPR) with a condition to cohabit with their sponsor for a period of two years and for whom the two-year period has not expired.
  • Permanent residents who are the subject of a report issued pursuant to subsection 44(1) of the Immigration and Refugee Protection Act (IRPA) for failing to comply with the requirement to cohabit with their sponsor for a period of two years, who have not yet been referred for an Admissibility Hearing at the Immigration Division (ID) of the Immigration and Refugee Board (IRB) pursuant to subsection A44(2) as well as those who have been referred but have not yet been issued a removal order.
  • Permanent residents who have been issued a removal order for failure to comply with the requirement to cohabit with their sponsor for a period of two years and have filed an appeal to the Immigration Appeal Division (IAD) of the IRB and for whom a decision has not been made on the appeal.

Although this provision has been repealed, be aware that IRCC still retains the ability to investigate possible fraudulent marriages under the misrepresentation provision of the Immigration and Refugee Protection Act that have always existed. 

The full text of the Operational Bulletin on Conditional PR can be found here.

Changes to application intake process for 2017 Parent and Grandparent Program

IRCC just released the following announcement on the changes to the Parent and Granparent sponsorship program. It appears that intake levels remain the same (10,000 applications), however the selection of those 10,000 will be by lottery. Starting in January 2017, those interested in sponsoring family must complete an online form indicating their interest. If they are among the 10,000 selected, they will be notified and given 90 days to submit their application.

The problem with a true lottery system is that an applicant may never be chosen, having applied year after year. This introduces significant uncertainty into this already restricted process. It remains to be seen how this pans out in reality...

Full text of the release here: http://news.gc.ca/web/article-en.do?nid=1168899 

No more 4-year cap for Foreign Workers

Immigration Refugees and Citizenship Canada announced today that, effective immediately, the 4-year cap on work permits for NOC B, C and D occupations no longer applies. The rule was first imposed in 2011 and resulted in an incredible amount of hardship on thousands of foreign workers who were subject to the bar.

Full text here: http://news.gc.ca/web/article-en.do?nid=1168949&tp=1

Humanitarian and Compassionate applications

A plea for humanitarian and compassionate relief can me used in a number of contexts where foreign nationals are otherwise unable to immigrate to Canada. It is often used to overcome otherwise insurmountable issues. These requests are highly technical and detailed.

Take a listen to this podcast that our very own Jean Munn, Q.C. did with fellow Alberta Immigration Lawyer Mark Holthe on this very topic! Jean officers tremendous insight into H&C applications. She and Mark talked about:

  1. Background information on H&C applications.
  2. Who is eligible and who is not eligible to apply – the typical scenario.
  3. What factors are taken into consideration and what factors cannot be considered.
  4. How to apply – including best practices.
  5. How to make the strongest application possible.
  6. Processing procedure.
  7. A ton of other tips and strategies essential for getting an H&C approved.

You can find the podcast here or list to it on  iTunes [Season 1 Episode 37].

If you need help with any admissibility issue, or wish to know if you can benefit from making an H&C application, do not delay in contacting us!

 

IRCC - Spousal Sponsorship Processing Times

News Release from IRCC today about faster processing for spousal sponsorships inside & outside Canada:

December 7, 2016 – Ottawa, ON – The Government of Canada is making it faster and easier for Canadians and permanent residents to reunite with their spouses.

At the direction of the Minister, earlier this year Immigration, Refugees and Citizenship Canada (IRCC) began a concerted effort to reduce processing times. From the start of 2016 to the fall, processing times were reduced by 15 percent for in-Canada applications and just over 10 percent for applications outside Canada.

Starting today, processing times will be reduced even further with most spousal applications now being processed in 12 months. Complex cases may require more time.

Applicants who already filed an application will not have to wait an additional 12 months to have them finalized. IRCC will continue to process applications in the order they have been received. Most families who have been waiting should have a decision on their sponsorship application no later than the end of December 2017.

These new changes are expected to benefit more than 64 000 applicants by the end of 2017, and are the latest measures to bring families together.

Full text here: http://bit.ly/2gUedPa

Expedited Refugee Claims

The Refugee Protection Division (RPD), which adjudicates refugee claims made in Canada, is permitted to designate certain countries for expedited processing. 

On December 1, 2016, the Acting Deputy Chairperson of the RPD designated Eritrea for expedited processing "to enable the RPD to meet its mandate of making refugee status determinations fairly and efficiently by accepting claims without a hearing in appropriate circumstances."

Syria and Iraq were previously designated for expedited processing.

 

Duration of WP to be issued at POE

Many foreign workers apply for work permits based on positive LMIAs (Labour Market Impact Assessment). The LMIA must be 'used' to apply for a work permit abroad before it expires. an LMIA is typically valid for 6 months. 

The LMIA will also provide details on the 'duration of employment'. A Visa Officer is instructed to issue the work permit (if the application is approved) to encompass the full 'duration of employment' contemplated by the LMIA. If an officer approves a work permit application, a "letter of introduction" is provided, which the applicant presents to a POE (port of entry) officer, who in turn issues the actual work permit.

A couple of questions arise from these principles:

  1. if some time elapses (weeks or months) between the LMIA being approved and the work permit being approved, how long will the work permit be issued for?
  2. if further time passes between the visa office approving the work permit, and the foreign national arriving at the POE to be issued that work permit, how long must the POE officer issue the work permit for?

The answers are provided for by IRCC here: http://www.cic.gc.ca/english/resources/tools/temp/work/opinion/duration.asp

In essence, Visa Officers approve work permits for the full duration approved by the LMIA, starting from the date of approval. 

POE officers are similarly instructed to issue WPs for for full duration authorised by the LMIA, from the date the foreign national arrives at the POE.

The Example provided by IRCC to illustrate this is:

Abroad
The applicant received an LMIA with a Valid to date of December 31, 2015, for a Duration of employment of 24 months. The work permit application must be received on or before December 31, 2015. If the work permit application is received on August 1, 2015, and the visa officer makes the final decision to approve on August 31, 2015, the final duration of the work permit is August 30, 2017 (24 months after the date of approval). Since several months have passed since the approval of the LMIA, the visa officer may enter the remark to issue the work permit for 24 months from the date of entry.
At ports of entry
The applicant arrives at a port of entry on December 30, 2015, and has a passport valid for three years. The border services officer issues the work permit from the date of entry in Canada to December 29, 2017 (the 24 months provided in the Duration field).

IRCC instructions also specify to POE officers that WPs for longer rather than shorter duration should be issued:

Note: Providing the requirements are met, officers should issue work permits for a longer rather than a shorter duration. Where there is no reason to limit duration, officers should issue the work permit for the complete expected duration of the employment. It is in both the Department’s and the applicant’s best interests to minimize the number of extensions to be processed.

New Operational Bulletin for certain students refused their post-grad WPs

On September 27, 2016, Minister John McCallum established a public policy to facilitate the issuance of three-year open work permits, the restoration of Temporary Resident status and waive related fees for a group of former international students who were denied Post-Graduation Work Permits between September 1, 2014 and March 15, 2016 because they completed the majority of their coursework by distance learning in their final program of study.

To be eligible for consideration under the public policy, applications for a fee-exempt three-year open work permit (from inside or outside of Canada) and applications for restoration of status (if applicable) must be made by March 17, 2017.

For full details, OB 631 can be found here: http://www.cic.gc.ca/english/resources/manuals/bulletins/2016/ob631.asp

Temporary Suspension of Removals to Haiti

Message from CBSA

As a result of Hurricane Matthew in Haiti, please be advised that an Administrative Deferral of Removal (ADR) is immediately imposed to that country pursuant to section 230 of the Immigration and Refugee Protection Regulations. All removals to Haiti are temporarily deferred except for the removal of persons who are:

  • inadmissible under subsection 34(1) of the Act on security grounds;
  • inadmissible under subsection 35(1) of the Act on grounds of violating human or international rights;
  • inadmissible under subsection 36(1) of the Act on grounds of serious criminality or under subsection 36(2) of the Act on grounds of criminality;
  • inadmissible under subsection 37(1) of the Act on grounds of organized criminality;
  • referred to in section F of Article 1 of the 1951 United Nations Refugee Convention;
  • consenting to their removal.

Any other exceptional removal cases should be referred to NHQ, Operations Branch, Enforcement and Intelligence Operations Directorate, Removal Operations, for an individual assessment.

Application refused? Can the Federal Court help?

It can be very frustrating, not to mention puzzling, when an immigration application is refused. Whether that application is for a temporary visa (to visit, study or work in Canada), to permanently immigrate, or a hearing gone wrong, the question is what can be done about it. The answer may be a Judicial Review ("JR") application to the Federal Court. 

Rekha McNutt recently "sat down" (ie. Skyped) with a fellow Immigration Lawyer, Mark Holthe, to talk about the JR process and what it all means. 

Take a listen to the Podcast that resulted from Rekha's conversation with Mark. You can also access it on iTunes.

If you have had your application refused, contact us immediately for advice on what to do. 

Orphaned Children Stuck in Immigration Limbo for 2 years

Children becoming suddenly orphaned is an epic tragedy all on its own. But, can you imaging those children having to wait alone in their home country for 2+ years in immigration limbo while IRCC processes their application to Canada? That is the very tragedy faced by two young children from Cameroon who have been adopted by their Canadian aunt, whose sponsorship of them has languished for the last two years at the visa office in Senegal.

Read their full story and hear from our own Peter Wong on the reasons why such delays happen - http://www.cbc.ca/news/canada/calgary/orphaned-african-children-caroline-ijang-cameroon-1.3597689

Humanitarian and Compassionate (H&C) Applications

by Rekha McNutt

A Humanitarian and Compassionate application is often the only option someone has of remaining in Canada. In recent years, IRCC (Immigration, Refugees and Citizenship Canada) has severely restricted the scope of what can be considered in such applications. The threshold of proof had risen dramatically and was virtually impossible to meet. Officers were applying the hardship test ("unusual and undeserved, or disproportionate hardship") as a means to find ways to deny applications. 

In December 2015, the Supreme Court of Canada released a very important decision called Kanthasamy. The Judgement very strongly condemned the use of the hardship test as a means of assessing hardship, and instructed officers to look at all the evidence before them with a humanitarian and compassionate mind. 

Happily, IRCC has updated their Program Delivery Instructions (PDIs) to reflect the jurisprudence from Kanthasamy, and eliminated the hardship test altogether:

Update to guidance on humanitarian and compassionate consideration
Summary
The December 2015 decision of the Supreme Court of Canada (SCC) in Kanthasamy v. Canada (Citizenship and Immigration) affects how humanitarian and compassionate (H&C) requests under subsection 25(1) of the Immigration and Refugee Protection Act are assessed. The SCC found, in particular, that the unusual and undeserved or disproportionate hardship test improperly restricts the discretion of decision makers. As a result of the SCC decision,the hardship test is no longer to be used. The instructions regarding H&C assessments have been updated to reflect the Kanthasamy decision.
Updated instructions

It remains to be seen how Officers will now interpret this decision and these new PDIs in assessing H&C applications. Here's to hoping that compassion returns to H&Cs once again!

Bill C-24 on Citizenship

By Rekha McNutt

Immigration Minister John McCallum announced yesterday that portions of Bill C-24 would be repealed in the coming days. One of the most controversial provision in this Bill was the revocation of citizenship for dual citizens convicted of certain very serious criminal offences (eg. Terrorism). It created two classes of Canadian citizens. Other big changes made under Billl C-24 included expanding the ages of applicants who had to take the language and knowledge test, and increasing the number of years required to qualify for Citizenship.

Details of exactly what provisions are being appealed will become clear in the following few days.

Click HERE for CIC's news release.

 

Pre-Removal Risk Assessments (PRRA)

By Rekha McNutt

As the new year begins, the Canada Border Services Agency (CBSA) in Calgary (and we hear elsewhere) has been very busy in issuing PRRA notices. This is a crucial step in the removals process and it is therefore very important to understand your rights and responsibilities in this regard.

A PRRA is the final risk assessment given to an individual before they are deported back to their country. Not everyone is eligible for a PRRA, but if you are, pay close attention to the deadlines provided. If you are eligible for a PRRA, your removal from Canada is "Stayed" (ie. paused) until such time as a negative decision is made on your PRRA.

We are told that approximately 500 PRRA call-in notices have been issued in Calgary alone! A call-in notice simply requires you to attend at a CBSA office to be given a piece of paper which allows you to file your PRRA application. The process is straightforward. Thereafter, you have 15 days to file your PRRA forms.  If you fail to file your forms in time, you no longer benefit from a Stay of your deportation, and can be removed at any time. 

Once forms are sent in, you will have another 15 days to send any submissions on the risks you face in your country. Those submissions can be updated during the PRRA process. 

Ultimately, to succeed on a PRRA, you must demonstrate you face refugee-like risk. As such, general adverse country conditions will not be enough. However, even if you do not believe you will succeed on the PRRA, filing it may still be important, especially if you happen to have other applications (such as a humanitarian and compassionate application) currently in queue for processing. 

So, if you have been served with PRRA, or have an appointment coming up, don't panic! But do get good legal advice on your rights and responsibilities in Canada.

H&C Applications and the SCC in Kanthasamy

By Rekha McNutt

In December 2015, the Supreme Court of Canada ("SCC") released a very important decision on how Immigration Officers are supposed to evaluate cases in humanitarian and compassionate (H&C) applications. H&C applications are usually filed by individuals in Canada who do not have any other way of immigrating or remaining in Canada, and often face tremendous hardships of having to return to their home country. An H&C application is the last hope for many individuals and families. 

In recent years, Officers have been routinely refusing applications when applicants face hardships in their country that is universally felt by everyone living in that country. As a result, even if the conditions in a particular country are deplorable, the applicants were being refused because the hardship felt too broadly by others living there.

Officers also limited their analysis to hardship that met the threshold of "unusual and undeserved" or "disproportionate". These terms are not found anywhere in the Immigration and Refugee Protection Act ("IRPA") or Regulations.  

This is why the SCC's decision in Kanthasamy is so important. Canada's highest court has provided very clear jurisprudence on how Immigration Officers are to evaluate H&C applications. Here are some excerpts from the decision that are particularly helpful.

The Court held that it was inappropriate to rely on the words “unusual and undeserved or disproportionate” as creating distinct thresholds for relief:

[33]      The words “unusual and undeserved or disproportionate hardship” should therefore be treated as descriptive, not as creating three new thresholds for relief separate and apart from the humanitarian purpose of s. 25(1).  As a result, what officers should not do, is look at s. 25(1) through the lens of the three adjectives as discrete and high thresholds, and use the language of “unusual and undeserved or disproportionate hardship” in a way that limits their ability to consider and give weight to all relevant humanitarian and compassionate considerations in a particular case. The three adjectives should be seen as instructive but not determinative, allowing s. 25(1) to respond more flexibly to the equitable goals of the provision.

The SCC held that a segmented approach to assessing humanitarian applications was inappropriate. The Court also held that the terms “unusual and undeserved or disproportionate” appeared nowhere in the legislation, and that it was inappropriate to strictly rely on those terms to discount the overall hardship to an applicant:

[45]      Applying that standard, in my respectful view, the Officer failed to consider Jeyakannan Kanthasamy’s circumstances as a whole, and took an unduly narrow approach to the assessment of the circumstances raised in the application. She failed to give sufficiently serious consideration to his youth, his mental health and the evidence that he would suffer discrimination if he were returned to Sri Lanka. Instead, she took a segmented approach, assessed each factor to see whether it represented hardship that was “unusual and undeserved or disproportionate”, then appeared to discount each from her final conclusion because it failed to satisfy that threshold.  Her literal obedience to those adjectives, which do not appear anywhere in s. 25(1), rather than looking at his circumstances as a whole, led her to see each of them as a distinct legal test, rather than as words designed to help reify the equitable purpose of the provision. This had the effect of improperly restricting her discretion and rendering her decision unreasonable.

The SCC held that it was an error to dismiss evidence of hardship simply because there is no evidence that an applicant is being personally targeted:

[53]      This effectively resulted in the Officer concluding that, in the absence of evidence that Jeyakannan Kanthasamy would be personally targeted by discriminatory action, there was no evidence of discrimination. With respect, the Officer’s approach failed to account for the fact that discrimination can be inferred where an applicant shows that he or she is a member of a group that is discriminated against. Discrimination for the purpose of humanitarian and compassionate applications “could manifest in isolated incidents or permeate systemically”, and even “[a] series of discriminatory events that do not give rise to persecution must be considered cumulatively”: Jamie Chai Yun Liew and Donald Galloway, Immigration Law (2nd ed. 2015), at p. 413, citing Divakaran v. Canada (Minister of Citizenship and Immigration), 2011 FC 633 (CanLII).
[54]      Here, however, the Officer required Jeyakannan Kanthasamy to present direct evidence that he would face such a risk of discrimination if deported. This not only undermines the humanitarian purpose of s. 25(1), it reflects an anemic view of discrimination that this Court largely eschewed decades ago: Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, at pp. 173-74; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3; Quebec (Attorney General) v. A, 2013 SCC 5 (CanLII), [2013] 1 S.C.R. 61, at paras. 318-19 and 321-38. [emphasis added]

Finally, the SCC held that applicants need only show that they would likely be affected by adverse country conditions:

[56]      As these passages suggest, applicants need only show that they would likely be affected by adverse conditions such as discrimination. Evidence of discrimination experienced by others who share the applicant’s identity is therefore clearly relevant under s. 25(1), whether or not the applicant has evidence of being personally targeted, and reasonable inferences can be drawn from those experiences.  Rennie J. persuasively explained the reasons for permitting reasonable inferences in such circumstances in Aboubacar v. Canada (Minister of Citizenship and Immigration), 2014 FC 714 (CanLII):
While claims for humanitarian and compassionate relief under section 25 must be supported by evidence, there are circumstances where the conditions in the country of origin are such that they support a reasoned inference as to the challenges a particular applicant would face on return . . . . This is not speculation, rather it is a reasoned inference, of a non-speculative nature, as to the hardship an individual would face, and thus provides an evidentiary foundation for a meaningful, individualized analysis . . . . [para. 12 (CanLII)]

The Court also provided guidance on how the best interests of children (an important factor to be given significant weight in an H&C application) is to be treated:

[35]      The “best interests” principle is “highly contextual” because of the “multitude of factors that may impinge on the child’s best interest”: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 (CanLII), [2004] 1 S.C.R. 76, at para. 11; Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 20.  It must therefore be applied in a manner responsive to each child’s particular age, capacity, needs and maturity: see A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 (CanLII), [2009] 2 S.C.R. 181, at para. 89. The child’s level of development will guide its precise application in the context of a particular case.
[36]      Protecting children through the “best interests of the child” principle is widely understood and accepted in Canada’s legal system: A.B. v. Bragg Communications Inc., 2012 SCC 46 (CanLII), [2012] 2 S.C.R. 567, at para. 17.  It means “[d]eciding what . . .  appears most likely in the circumstances to be conducive to the kind of environment in which a particular child has the best opportunity for receiving the needed care and attention”: MacGyver v. Richards (1995), 1995 CanLII 8886 (ON CA), 22 O.R. (3d) 481 (C.A.), at p. 489.
[37]      International human rights instruments to which Canada is a signatory, including the Convention on the Rights of the Child, also stress the centrality of the best interests of a child: Can. T.S. 1992 No. 3; Baker, at para. 71.  Article 3(1) of the Convention in particular confirms the primacy of the best interests principle:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
[38]      Even before it was expressly included in s. 25(1), this Court in Baker identified the “best interests” principle as an “important” part of the evaluation of humanitarian and compassionate grounds.  As this Court said in Baker:
. . . attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them by a negative decision is essential for [a humanitarian and compassionate] decision to be made in a reasonable manner. . . .
. . . for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them.  That is not to say that children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying [a humanitarian and compassionate] claim even when children’s interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decision will be unreasonable. [paras. 74-75]
[41]      It is difficult to see how a child can be more “directly affected” than where he or she is the applicant.  In my view, the status of the applicant as a child triggers not only the requirement that the “best interests” be treated as a significant factor in the analysis, it should also influence the manner in which the child’s other circumstances are evaluated. And since “[c]hildren will rarely, if ever, be deserving of any hardship”, the concept of “unusual or undeserved hardship” is presumptively inapplicable to the assessment of the hardship invoked by a child to support his or her application for humanitarian and compassionate relief: Hawthorne, at para. 9. Because children may experience greater hardship than adults faced with a comparable situation, circumstances which may not warrant humanitarian and compassionate relief when applied to an adult, may nonetheless entitle a child to relief: see Kim v. Canada (Citizenship and Immigration), 2010 FC 149 (CanLII), [2011] 2 F.C.R. 448 (F.C.), at para. 58; UNHCR, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, HCR/GIP/09/08, December 22, 2009.

It remains to be seen how CIC (or now IRCC) will interpret this jurisprudence in assessing H&C applications. I suspect refusals will continue and that we will see further guidance from the Federal Court on judicial review.