Recently, the Federal Court of Canada in Jeleca [Jelaca v. Canada (M.C.I), 2018 FC 887] upheld the negative decision of an Immigration Officer after determining there were reasonable grounds to believe that the Applicant was inadmissible under paragraph 35(1)(a) of the Immigration and Refugee Protection Act (IRPA) because of his role as a member of the Bosnian Serb Army also known as the Vojska Republike Srpske (VRS) that led the siege of Sarajevo during the Bosnian War. Paragraph 35(1)(a) of IRPA provides that a person can be inadmissible to Canada for violating human or international rights if he or she has committed an act outside Canada that constitutes an offence under sections 4 to 7 of the Crimes Against Humanity and War Crimes Act.

The Applicant in Jeleca was deployed as a guard in Sarajevo during the siege from August 1993 to January 1994. The siege itself lasted for nearly four years and during that time many moral lines were crossed, including the killing, raping, wounding and looting of civilian population at a shocking scale. Open source documentation indicated that members of the VRS in the location where the Applicant served prevented humanitarian assistance from reaching the besieged civilian population. Although there was no direct evidence linking the Applicant to the crimes committed, the Court in Jelaca noted that, based on the Supreme Court of Canada’s decision in Ezokola, a determination of inadmissibility “on grounds of violating human or international rights” under paragraph 35(1)(a) of IRPA, does not require personal commission of the crime to establish complicity.

In Ezokola, the Supreme Court of Canada determined that as long as there is evidence showing that the person made “voluntary, knowing and significant contribution” to the crime or criminal purpose, the person is inadmissible to Canada even if they were not directly involved in crimes against humanity. [Ezokola v. Canada (M.C.I.), 2013 SCC 40]. This is because, as noted in Ezokola, the standard of proof required for exclusion or inadmissibility determinations under paragraph 35(1)(a) is “reasonable grounds to believe,” which is different from the standard of proof for determinations of guilt that is “beyond a reasonable doubt.” Since Ezokola Canadian jurisprudence has continued to find that the applicability of paragraph 35(1)(a) does not depend on non-involvement. Complicity is made out if there is cogent evidence of “voluntary, knowing and significant contribution” in the commission of crimes against humanity. The Federal Court in Jeleca decided that the officer’s decision was justifiable in law and fact as there were reasonable grounds to believe that the Applicant as a member of the VRS had made a “voluntary, significant and knowing contribution” to the siege of Sarajevo and as a result was inadmissible.

Think you may be criminally inadmissible to Canada? Click here to learn more.

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The NEXUS program is a voluntary program which allows pre-screened low risk travellers who are deemed admissible to enter both Canada and the United Sates expedited processing when entering these countries.[1] Program members use designate processing lanes without having to go through the usual customs process. It is jointly run by the Canada Border Services Agency (CBSA) and US Customs and Border Protection.

2. What is the eligibility process?

A Canadian applicant must be a citizen or permanent resident of Canada. Permanent residents of Canada must have lived as legal residents for a minimum of three years before the date of application with few exceptions related to serving in the armed forces.[2]

Once the application has received conditional approval, an interview will be scheduled where a CBSA officer or US Customs Boarder Protection Officer will conduct verification processes and an eligibility review. The membership will then be finalized by the NEXUS Enrolment Centre. The members are given a card identified as the NEXUS membership card. If a new card is issued, all previous cards must be destroyed.[3]

3. Do I have to comply with all the rules and regulations?

As a NEXUS member, the rules are applied very strictly. It includes complying with all customs and immigration laws and regulations, and any other laws or regulations that are enforced by the CBSA and United States Customs and Border Protection. A member is required to have the NEXUS card in their possession when using the services, report all goods being imported, and understand that the membership card is valid for his or her use only.[4]

4. Are you able to cancel your membership?

There is no leniency for carelessness or lack of knowledge.[5] A reason for the cancellation of the NEXUS Membership could be that the individual has been deemed by the United States or Canada to not be of “good character.”[6] The CBSA’s assessment of good character includes a review of the person’s border compliance history, criminal history, immigration violations and intelligence information. CBSA enforcement actions can include (but are not limited to) seizing goods or issuing a penalty or fine.

5. What steps should I take if my card has been cancelled, revoked or seized?

A request for review must be submitted to the CBSA’s Recourse Directorate within 90 days from the date the rejection or cancellation of the membership became effective. It becomes effective either immediately when notified in person or 15 days after the notice is mailed.

If the CBSA Recourse Directorate decides that the enforcement action is warranted, one will have to file two legal proceedings with the Federal Court: (1) a notice of application for judicial review of the NEXUS Membership Cancellation within 30 days of the CBSA Recourse Directorate letter; and (2) a notice of action challenging the enforcement action.

(sources)

The post Travel Often? Here are 5 Frequently Asked Questions Regarding Nexus Passes for Canadians first appeared on Bellissimo Law Group.

In order to stop the immediate removal of the family from Canada, our office brought an urgent stay of removal motion to the Federal Court. During the hearing, the Federal Court judge accepted our arguments that the deferral officer mischaracterized the evidence and arguments in the deferral request and failed to consider the short-term interests of the children, even though was required to do so. Consequently, the judge granted the stay of removal order for the whole family, noting that such stay would be in the best interests of children, two of whom left their country of nationality at a very young age, and the third is a citizen of Canada.

The post This Week’s Success Story: Stay of Removal Order Granted to Family of Five first appeared on Bellissimo Law Group.

PRRA is essentially a two-step risk assessment process in which the applicant has 15 days to file the PRRA forms and an additional 15 days to make written submissions and adduce evidence about the risks to which the applicant would be exposed to if returned to their country of nationality or habitual residence. The onus is on the applicant to specify the nature of the risks they would face if forcefully removed and that there is a lack of state protection for people specifically in their circumstances who face a risk of persecution.

In the case of a failed refugee claimant, PRRA officers are required to evaluate any new, relevant and material evidence not previously assessed and which would have changed the outcome of the refugee claim had the evidence been put forward at the time. If successful on a PRRA, the applicant is granted the status of a protected person, which would allow them to apply for permanent residence in Canada. The conferring of refugee protection, however, may not be applicable to individuals found to be inadmissible on the grounds of serious criminality, security, violating human or international rights or organized criminality.

Applying for a pre-removal risk assessment? Contact us today!

The post What You Need To Know About Pre-Removal Risk Assessments (PRRAs) first appeared on Bellissimo Law Group.

On July 25, the Honourable Mr. Justice Fothergill of the Federal Court released his decision in Brown v Canada (Citizenship and Immigration), 2017 FC 710, the first ever Charter challenge of the immigration detention system.

Fothergill J. found that despite possible flaws in its administration, the immigration detention system is constitutional. He took the opportunity to set out the minimum requirements of lawful detention for immigration purposes under the IRPA and the IRPR, which can be found at paragraph 159 of the decision. (Aussi disponible en français)

While Fothergill J. found that the system complied with the Charter, Ontario Superior Court Justice Edward Morgan compared one immigration detainee’s experience in Canada’s immigration detention system to that of the protagonist of Franz Kafka’s The Trial.

The Ontario case, Scotland v. Canada (Attorney General), 2017 ONSC 4850, concerned a habeas corpus application by Ricardo Scotland, a refugee claimant who spent a total of 17 months in a maximum security detention facility. He had been held in custody without release since October 2016.

Scotland was initially detained after being charged with possession of a firearm, narcotics, and stolen property. The charges were dropped and he was released but on four separate occasions was found by the ID to have breached his release conditions.

In Morgan J.’s view, Scotland never actually breached his conditions and was the victim of numerous errors by CBSA and the ID. For example, an ID Member found that Scotland breached his release conditions by failing to alert CBSA of a “change of address” when he was put in pre-trial custody. Morgan J. rhetorically asked whether any rational person would consider this a “change of address”.

The “cumulative effect” of Scotland’s “faux breaches” led ID Members to consider him a flight risk. Morgan J. described this situation as a Catch-22, where the more mistakes CBSA officers and ID decision-makers made, the harder it was for Mr. Scotland to challenge them.

Justice Morgan gave a stark rebuke to members of the ID. He found that ID adjudicators had improperly relied on CBSA’s assertions that Mr. Scotland had breached his release conditions rather than determining the issue for themselves. This violated a principle of fundamental justice “that the statutorily designated decision-maker must actually make the decision in issue”. (Par. 61) The ID must decide whether conditions have been breached, not CBSA.

Morgan J. ordered Scotland’s release because “[a]s with Kafka’s Joseph K., no one knows why he was detained.” Even when the Attorney General conceded that there was no reason for Scotland’s continued detention, an ID member refused to release him.  “The CBSA and ID have engaged in a form of arbitrary decision making which effectively combines the right under section 9 of the Charter not to be arbitrarily detained with the right under section 7 not to be detained absent moral culpability. The arbitrariness inherent in Mr. Scotland’s detention is patent to all who take an objective view”. (Par. 67)

On August 17, the IRB announced that it will carry out an audit of long-term detention reviews. In its statement, the IRB referenced the Scotland decision, stating that it “provides further impetus” for the audit. The audit will be completed in the Fall.

The post Summer of Scrutiny for Canada’s Immigration Detention System first appeared on Bellissimo Law Group.

Obligation upon Entry

Subsections 16(1) and (2) of the Act holds a person must answer truthfully and provide relevant evidence such as a visa that the officer reasonably requests, including, in the case of foreign nationals, proof of photographic and fingerprints and a medical examination.  Subsection 16(3) pertains to evidence such as photographic or fingerprints or other materials that may be used to establish the identity of a permanent resident or a foreign national who is arrested, detained or subject to a removal order. It is important to note that section 23 of the IRPA allows an officer to authorize a person to enter Canada for the purpose of further examination or an admissibility hearing. In such a case the person remains under examination until a decision has been made.  But if an Officer does not ask, is the person seeking entry in the clear?

Primary Examinations

Primary examination questions are designed to obtain essential information, such as citizenship, residency, intention, employment, length of stay and identity as quickly as possible. Typically, the CBSA officer conducting the examination at the Primary Inspection Line (PIL) does not ask a person about criminality. Officers are trained to direct person’s with criminality issues to the Immigration Secondary Examination as this allows for more time to conduct an in-depth examination. So should a CBSA officer at any time suspect through questioning, behaviour or other indicators that a foreign national may have a criminal record, that person should be referred to the secondary examination. The privacy of the individual is protected under the Act. Therefore, officers should not ask any questions regarding criminality in the presence of accompanying family members or other travelers.

So this sounds as if the person is not asked or suspected of having a criminal record there is no obligation on the person entering the country.  Not quite.  All persons seeking to enter Canada must appear for an examination to determine whether they have the right to enter Canada or may become authorized to enter and remain in Canada. If a foreign national or permanent resident has a criminal record that renders the person inadmissible to Canada and has not received a record suspension, been deemed rehabilitated or received a certificate of rehabilitation that person cannot enter Canada without a temporary resident permit.  So there exists a positive obligation to declare the criminality even if not asked or previously entered Canada without any issue.

Once declared, expect a referral to secondary.  It is always best to consult with a Canadian immigration lawyer if you have any concerns about your status and potential admissibility.  In Part Two, I will discuss what happens at the Secondary Examination.

For more information on Criminality and TRPs, please click here and here.

The post Do I have to Declare My Criminal Record When I Enter Canada Even if I am Not Asked? first appeared on Bellissimo Law Group.

These reports are usually used in order to prove time spent in the country by those renewing permanent residence and applying for citizenship. Mr. Bellissimo was quoted as saying that before an application is submitted, “you want to do your due diligence” in order to make sure everything is correct.

To read the article, please click here.

The post Why Are So Many People Asking the CBSA for their Travel Records? first appeared on Bellissimo Law Group.

In 2009 we were retained to assist a young man with his refugee claim. He was in an interfaith marriage, and feared that he would be returned to his home country. The Canada Border Services Agency (CBSA) was involved in the refugee hearing, as there were also security concerns. In 2011, following interviews with the CBSA and the Canadian Security Intelligence Service, he was granted status as a Convention Refugee. Now safe from being returned to his country, the assessment of permanent residence began.

While on a road trip with friends in Canada, this refugee was arrested for theft together with his friends in 2012. While waiting in the car, a friend stole some items from a store in another province. We updated Citizenship and Immigration Canada (CIC), and advised that these charges would delay his permanent residence. A criminal lawyer was required, and in 2013 the criminal charges were withdrawn. We again updated CIC and waited for his application to be processed. By the end of 2014, there was no progress. We commenced an application for mandamus – demanding that CIC process his application for permanent residence – with the Federal Court of Canada in 2015. We filed arguments demonstrating that, even with the delay in processing caused by the criminal charges, CIC was taking too long. Before the Court proceedings were concluded, our client was invited to become a permanent resident of Canada.

The post This Week’s Featured Success Story: A Long Path to Permanent Residence first appeared on Bellissimo Law Group.

The State party should refrain from detaining irregular migrants for an indefinite period of time and should ensure that detention is used as a measure of last resort, that a reasonable time limit for detention is set.

This strong statement is not surprising, given that immigration detention in Canada has no prescribed limit, unlike other Western countries which have established a presumption against detention in excess of 90 days (and judicial oversight should longer periods of detention be ordered).

In sharp contrast, recent research has highlighted cases of immigration detainees in Canada being held for seven or eight years, unable to be removed to their countries of origin often because their identities cannot be positively confirmed. While most detainees are legally entitled have their continued detention reviewed every 30 days, in reality, release rates are at only 15 per cent nationally, and 9 per cent in Ontario. This does not even address the cases of Designated Foreign Nationals (deemed as “irregular arrivals” under subsection 20.1 of the Immigration and Refugee Protection Act), who face mandatory detention and the review of their continued detention only every 6 months.

The UN Human Rights Committee’s report was released following extensive research conducted in the Canadian context. A study released by the University of Toronto law school’s International Human Rights Program (IHRP) found that Canada breaches international human rights obligations on a routine basis by detaining non-Citizens with mental health conditions in maximum-security prisons for extensive periods of time. The IHPR’s study, entitled, “‘We Have No Rights’: Arbitrary imprisonment and cruel treatment of migrants with mental health issues in Canada,” was presented to the UN in July.

IHPR executive director, Renu Mandhane, said that their research revealed “shocking gaps in the rule of law,” especially given that there are no legal criteria governing how or when a detainee is to be transferred from an immigration holding centre to a provincial jail. One third of immigration detainees in Ontario were found to be held in provincial prisons intended for criminal populations. The IHRP study found:

Once a detainee finds him or herself in provincial jail, they fall into a legal black hole where neither CBSA nor the provincial jail has clear authority over their conditions of confinement. This is especially problematic since in Ontario at least, there is no regular, independent monitoring of provincial jails.

The IHRP study also includes an interview with Reg Williams, the director of Canadian Border Services Agency’s (CBSA) immigration enforcement in Toronto from 2004 to 2012. Mr. Williams explained a concerning trend, stating that “the culture [of the CBSA] is heading in one direction only—towards a more para-militaristic organization where the emphasis is on power and force, and less on interaction, cooperation and engagement.”

This intense focus on immigration detention follows the June 11^th death of Abdurahman Ibrahim Hassan, a Somali foreign national who suffered from mental illness. Mr. Hassan died in a Peterborough hospital after three years in immigration detention. As recently as last week, protesters were demanding an inquest into the circumstances surrounding Mr. Hassan’s death.

There is no doubt that the immigration detention regime in Canada demands increased scrutiny and review, not only due to alarming human rights implications, but also considering the ever-expanding costs associated with increased detention. On the whole, the UN’s recommendations are a stark reminder of the work that needs to be done if Canada is to reassert itself as a world leader in the promotion and protection of human rights.

(Sources)

The post Criticism Continues for Canada’s Immigration Detention System first appeared on Bellissimo Law Group.

The early resolution process at the Immigration Appeal Division (“IAD”) aims to streamline appeal processing by identifying certain cases which have the potential to be resolved without the need for a full IAD hearing. At times, an appellant will be asked to provide written submissions in support of the appeal (called a “paper hearing process”). The Hearings Officer representing the Canadian Border Services Agency (“CBSA”) will be given the opportunity to respond and ultimately render an opinion on whether early resolution is appropriate. However, it can be very frustrating when the Hearings Officer’s response to a comprehensive package of legal submissions and evidence is a one-line statement that the case is “not suitable” for early resolution and that a full hearing is required. That said, if the Hearings Officer does consent to allowing the appeal through early resolution, then this is an efficient and effective way to resolve the matter, which certainly benefits all parties.

Appellants can also be streamed to attend an Alternative Dispute Resolution (“ADR”) conference, which is an informal hearing involving the appellant and his/her counsel, a Hearings Officer (again, representing the CBSA), and an Early Resolution Officer. In this process, the appellant will submit a package of evidence and submissions before the ADR conference, and the Hearings Officer will question the appellant at the conference to see if the issues can be resolved without a full hearing. This process is less formal than an IAD hearing, as there is no Member present to render a decision (rather, it is the parties who are attempting to resolve the matter with the help of the Early Resolution Officer), and the hearing is not recorded.

Again, while an ADR conference can be a valuable tool, it is very important to consider the likely outcome. For example, in a spousal sponsorship refusal, the concerns may stem from the intentions of the applicant spouse overseas who is being sponsored. In these types of cases, regardless of how well prepared the sponsoring appellant is, or how strong the evidence and submissions are, the Hearings Officer may still decide that they simply need to hear from the applicant spouse to overcome the credibility concerns – meaning that a full IAD hearing will be required. This can be very disappointing for an appellant who has done everything possible to try to make the ADR process work. Also, if ADR is not successful and a full IAD hearing is required, then this can cause longer delays, as the appellant will be put at the back of the queue for regular IAD scheduling.

While it is certainly not the usual course of action to recommend that an appellant opt out of any process which could resolve their appeal, in certain clear cases it may be advisable to wait for a full IAD hearing. On the other hand, for other appellants it may be beneficial to proactively apply for early resolution, depending on the full circumstances of the case and the nature of the refusal.

Overall, early resolution can simplify matters tremendously, and the Immigration and Refugee Board is continuing to improve the process. However, it is important that appellants are fully informed about how all of these processes work and interrelate when deciding how best to proceed with their particular case.

For more information on Immigration Appeals, please click here.

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