To listen to the full interview, please click below:

The post Mario D. Bellissimo Discusses The Case of Two Canadian Kids Whose Citizenship Is In Limbo first appeared on Bellissimo Law Group.

In Clarke v. Canada (Citizenship and Immigration), 2018 FC 267, the applicant sought judicial review of a decision by the Immigration Appeal Division refusing to allow her residency obligation appeal on humanitarian and compassionate (H&C) grounds. The Applicant is a 34-year-old who is literate and whose first language is English.

The Court acknowledged that, at the outset of the hearing, the IAD member had asked the Applicant if she was prepared to proceed without legal representation, to which she responded in the positive. The IAD member also explained to the applicant how the hearing would proceed and the basic legal framework and analysis when considering H&C factors in a residency obligation appeal.

However, the Court found that, once it became apparent to the IAD member, as a result of certain comments made by the applicant throughout the hearing, that the applicant did not fully appreciate or understand the nature of the legal proceedings, the IAD member’s failure to provide the applicant with another opportunity to retain legal counsel, to advise her of the availability of legal aid, or to advise her that she could still submit additional material once the hearing had ended amounted to a breach of procedural fairness.

While the content of the duty to ensure a fair hearing remains context-dependant and to be determined on a case-by-case basis, this decision signals that there remains an ongoing procedural fairness obligation on the part of decision-makers, throughout a legal proceeding and regardless of whether or not a self-represented litigant declines legal representation at the outset,  to be mindful of whether the applicant is truly understanding or appreciating the legal proceedings at hand and to provide them with the opportunity to present their views and evidence fully.

The post Self-represented litigants owed the opportunity to fully present their views and evidence before the Immigration Appeal Division first appeared on Bellissimo Law Group.

Citizenship Act Requirements for Physical Presence

First, let’s look at the law in the Citizenship Act. Section 5 of the Act requires that a permanent resident who applies for citizenship must have been physically present in Canada for at least: i) 1,460 days during the six years immediately before the date of his or her application; and ii) 183 days during each of four calendar years that are fully or partially within the six years immediately before the date of his or her application. (There are other requirements that do not involve permanent residence. The full text of the section can be found here.)

If you became a permanent resident within the past 6 years, you begin counting from the day you became a permanent resident, even if you spent time in Canada before receiving that status.

For most permanent residents, the counting is simple as they spend the vast majority of their time in Canada and generally only need to remember when they left Canada for vacations, for example.

As well, the physical residence counting rules for citizenship purposes do not apply to those employed outside of Canada by the armed forces, a provincial public service, or those accompanying these individuals, such as spouses, common-law partners, and children.

But what about those whose work takes them outside of Canada’s borders frequently, like airline crew, truck drivers, and those who commute for business to financial centres like New York?

How to Calculate Physical Presence for Those Who Cross the Borders Frequently

According to IRCC, any part of a day spent in Canada is considered a full day of physical presence in Canada and therefore cannot be considered an absence. Consider the following: Maria leaves Canada on Monday afternoon, stays overnight in Philadelphia, and returns to Canada 24 hours later on Tuesday afternoon.

In terms of hours, Maria might think that she was absent from Canada for one day. However, since she was physically present in Canada for parts of both Monday and Tuesday, she actually accrued zero absences from Canada.

If on the other hand, Maria still left on Monday but spent all of Tuesday in Philadelphia and returned to Canada on Wednesday, she would be required to declare one day of absence as she spent no part of Wednesday in Canada.

What this policy means is that even if a permanent resident spends much of their time outside of Canada—this is often the case with regards to pilots and flight attendants—as long as they return to Canada for some part of every day, it is as if they never left!

Online Physical Presence Calculator Canada

It is very important to declare all trips outside of Canada, even if they result in zero absences. Applicants should always use IRCC’s citizenship physical presence calculator and should seek legal assistance if they are unsure whether they have counted correctly.

If you are having trouble with calculating your physical presence for citizenship purposes or you need legal advice, Bellissimo Law Group is here to assist you. With over 40 years of experience, we have helped thousands of people with matters regarding citizenship. Give us a call today!

The post Permanent Residents Who Work Frequently Outside of Canada: Physical Presence Calculator For Citizenship Purposes first appeared on Bellissimo Law Group.

Background

Brown became a permanent resident of Canada in June 1984. Between 1990 and 2010, he was convicted for 17 offences, including drug trafficking, robbery, uttering threats, and assault with a weapon. He subsequently failed to comply with court orders and his release conditions. As a result, he was found to be criminally inadmissible and his permanent residency was revoked. In September 2011, the CBSA detained him to commence removal proceedings. Brown was detained for 5 years and the ID allowed his continued detention as it found that Brown was a danger to the public and was unlikely to appear for his removal to Jamaica. The ID determined that his continued detention did not violate the Canadian Charter of Rights and Freedoms (Charter).[1]

The CBSA requested that the Jamaican consulate issue a travel document for Brown in February 2012 but it was not issued until September 2016, following which Brown was removed from Canada. Brown was deported the same day that his application for habeas corpus was heard by Justice Alfred O’Marra of the Ontario Superior Court of Justice. Justice O’Marra decided that Brown’s continued detention did not violate his rights under the Charter.[2]

Brown v Canada (Citizenship and Immigration), 2017 FC 710

In the present case, Brown brought a constitutional challenge to the immigration detention system, asserting that sections 57 and 58 of the Immigration and Refugee Protection Act (IRPA) and sections 244 to 248 of the Immigration and Refugee Protection Regulations (Regulations) violate sections 7 and 9 of the Charter. Furthermore, he argued that indefinite detention and the conditions of imprisonment violate section 12 of the Charter. Ultimately, Justice Simon Fothergill of the Federal Court dismissed the judicial review.

The End Immigration Detention Network (EIDN) was granted third-party public interest standing in this case. Brown and the EIDN argued that immigration detention fails to comply with the constitutional criteria provided by the Supreme Court of Canada in Charkaoui in the following four aspects:

(a) it imposes a “reverse onus” on a detainee to justify release, rather than placing the onus on the Minister to justify continued detention;

(b) the detainee is not given a reasonable opportunity to know the case to be met or to respond to that case;

(c) the ID has no power to control conditions of detention; and

(d) the ID has no obligation to fashion alternatives to detention.[3]

Fothergill J. held that the legislative scheme for detention does not violate the right to life, liberty, and security under section 7 and the right not to be arbitrarily detained or imprisoned under section 9 of the Charter, addressing each issue raised by Brown and the EIDN.[4]

First, Fothergill J. affirmed that the onus is on the Minister of PSEP to demonstrate that detention or continued detention are justified and stated, “If the ID does not respect these standards in practice, this is a problem of maladministration, not an indication that the statutory scheme is itself unconstitutional.”[5] Second, Fothergill J. found that the statutory scheme is constitutional despite the shortcomings of the detention review processes. He again stated that issues with the timeliness and quality of pre-hearing disclosures were due to maladministration, as opposed to statutory unconstitutionality.

Third, Fothergill J. determined that the ID’s lack of jurisdiction over the conditions and location of detention does not violate the Charter. An ID member is mandated to examine alternatives to, and less constraining forms of, detention before determining whether an individual should be released. He further stated that processes are available to allow detainees to challenge the conditions and location of their detention. Fourth, Fothergill J. found that the lack of a maximum time limit for detention does not violate sections 7 and 9 of the Charter, as the existing detention review mechanisms are adequate. The ID has a positive obligation to assess alternatives to detention, which is engaged once the Minister of PSEP has established a prima facie case for continued detention.

Finally, Fothergill J. held that the statutory scheme for immigration detention does not constitute cruel and unusual treatment or punishment under section 12 of the Charter. Fothergill J. found that the current scheme provides an adequate mechanism to review detention, secure release, and modify any release conditions. Furthermore, Fothergill J. stated that there was insufficient evidence to find that immigration detention constitutes cruel and unusual treatment or punishment despite the numerous studies and witnesses provided by Brown and his counsel demonstrating the detrimental psychological effects of indefinite detention on detainees.

Conclusion

Fothergill J. stated, “Properly interpreted and applied, these provisions of the IRPA and the Regulations comply with the Charter.”[6] Although the statutory scheme for immigration detention was held to be constitutional, the Brown decision is disappointing for many advocates of immigration detention reform as the fact that the law can be misapplied to detainees is concerning. Detainees continue to be held in provincial correctional facilities where they are subjected to poor living conditions, lockdowns, solitary confinement, and maximum-security constraints, like Brown was before being deported. To protect detainees in vulnerable positions, measures must be undertaken to ensure that the statutory scheme for immigration detention is either properly implemented or amended to compensate for their poor administration.

Interestingly, Fothergill J. certified a question for appeal asking whether the Charter requires a maximum amount of time that an individual can be detained for immigration purposes.[7] Advocates are hopeful that the higher court will impose a reasonable limit on the time period that an individual can be detained for immigration purposes, following which he or she must be released.

For more information on Federal Court Applications and Appeals, please click here.

(Sources)

The post Indefinite Detention of Immigration Detainees: Brown v. Canada (Citizenship and Immigration), 2017 FC 710 first appeared on Bellissimo Law Group.

Mr. Saddique, an immigrant doctor doing medical training in the United States, applied to become a Canadian citizen; declaring having only 177 days of the 1095 days of residence in Canada required to gain citizenship. After interviewing with a citizenship judge, Mr. Saddique’s application was approved, however the decision was subsequently appealed by the Minister of Citizenship and Immigration to Federal Court, who argued that the evidence he provided about his ties to Canada was inadequate.

Thanks to the expertise and months of tireless effort of Mr. Collette and the Bellissimo Law Group team, Madam Justice Elliott confirmed that the citizenship judge’s decision was legally correct and that the conclusion that Mr. Saddique had centralized his mode of living in Canada was reasonable. Several factors were considered, including that he had tried extensively for a medical position in Canada, maintained strong family ties in this country, and returned to be with his family whenever he could. Madam Justice Susan Elliot found no reason to disturb the earlier decision to allow Mr. Saddique to become a Canadian!

To read the full article click here.

The post The Case of a Medical Doctor’s Canadian Citizenship Successfully Defended Making Headlines. National Post and Global! first appeared on Bellissimo Law Group.

The post This Week’s Featured Success Story: Positive Decision – Criminal Rehabilitation Application first appeared on Bellissimo Law Group.

Over 3 Years – if your application has been in process for over 3 years, it may be promising to make an application to the Federal Court for “mandamus” (an Order demanding CIC to process the application, as it has taken longer than the process requires). These are particularly effective when CIC has not provided any reason or explanation for the delay.

Non-Routine – CIC clarifies that a non-routine application includes one where the individual is “asked to provide a residence questionnaire, documents proving residence in Canada, fingerprints, or any other additional documents” or “it is unclear whether [the individual] meet[s] the residence requirements” or when “it is unclear whether [the individual is] subject to any immigration, security or criminal prohibitions”.  These features identify a significant number of applicants waiting on processing.

These are some of the reasons that are posted, which explain why there are delays. What the website does not identify is that there are lesser-known and publicised reasons why citizenship applications are delayed. For example, individuals who obtained permanent residence as a result of a positive refugee claim, who later apply for a new passport from their home country or return to that country to visit family, can be subject to delays.

Refugees & Reavailment – a Convention refugee or person who has protected person status is expected not to return to the country from which s/he fled. Even obtaining a new passport from one’s home country can be perceived as accepting the protection of one’s home country, and problematic under Canadian immigration law. The rationale is that – if a refugee can return home or accept the protection of his/her home country (i.e., “reavailed”), then the individual no longer needs Canada’s protection. In the last couple of years there has been a marked increase in applications being made by the Minister to “cease” refugees’ status for having returned home.

It has been discovered that CIC was placing citizenship applications on hold pending investigations into reavailment and cessation proceedings. Essentially, a person would apply for citizenship, be forthcoming in declaring that s/he had returned to his/her home country, and this could trigger an investigation. In some cases, the citizenship application was put on hold, and this was considered an appropriate reason for a processing delay. Very recently, the Federal Court in Godinez Ovalle (2015 FC 935) ruled that delays caused by investigations into reavailment and cessation proceedings were unlawful. CIC has now clearly been instructed to process these applications.

For more information on Canadian Citizenship, please click here.

For more information on Federal Court Mandamus, please click here.

For more information on cessation of refugee status, please click here.

The post Citizenship Applications – Delays & Processing Times first appeared on Bellissimo Law Group.

1. Is the disjunctive element of subsection 4(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (as amended SOR/2010-208) ultra vires the enabling statute (the Immigration and Refugee Protection Act, SC 2001, c 27) because subsection 4(1) would prohibit the sponsorship of a spouse when the marriage was found to be entered into primarily for the purpose of gaining status, notwithstanding a finding that the marriage always was or subsequently became genuine, and would therefore frustrate the aims and objectives of the Act, in particular section 3(1)(d), “to see that families are reunited in Canada”? IMM-5204-13, Brown J. November 13, 2014, 2014 FC 1077

2. Can a writ of mandamus be issued to compel the Minister of Public Safety and Emergency Preparedness or the Canada Border Services Agency to investigate a complaint of marriage fraud made by a private citizen? IMM-7972-13, Manson J. January 16, 2015, 2015 FC 97

3. Are individuals who will be subject to a lengthy waiting period, prior to the assessment of their immigration applications under the Investor class, due to the effect of annual targets and Ministerial Instructions made under s. 87.3 of the IRPA, entitled to an order of mandamus to compel immediate processing? He v. Canada (Citizenship and Immigration) 2014 FC 92, Zhang v. Canada (Citizenship and Immigration) 2014 FC 93, Fang v. Canada (Citizenship and Immigration) 2014 FC 94, Jiang v. Canada (Citizenship and Immigration) 2014 FC 95, Kearney v. Canada (Citizenship and Immigration) 2014 FC 96, Wurm v. Canada (Citizenship and Immigration) 2014 FC 97 and Jia v. Canada (Citizenship and Immigration) 2014 FC 596

4. Does such a delay violate the applicants’ rights under either sections 7 or 15 of the Charter or the rule of law? (Jia v. Canada (Citizenship and Immigration) 2014 FC 596)

5. Is paragraph 58(1)(c) of the Immigration and Refugee Protection Act only available as a ground for continued detention where it follows a detention under subsection 55(3) of the IRPA? IMM-1934-14Mactavish J. 2014 FC 390, April 25, 2014

Hope these all proceed to hearing as the results will make for interesting reading and potentially, changes to the law!

The post 5 Serious Legal Questions Being Decided by the Federal Court of Appeal first appeared on Bellissimo Law Group.

This entry will explore two of the federal government’s rationales for the reforms, which focus on the need to (1)  limit “health tourism” and (2) limit costs.

Limiting “Health Tourism”

There is only limited evidence on the connection between the provision of healthcare for asylum seekers and their decision to migrate to a certain country. However, in the UK, evidence demonstrates that the availability of treatment for HIV does not significantly influence an asylum seeker’s decision to migrate to the UK. Further, even if a few individuals migrate with the intent of taking advantage of the healthcare system, it might be unreasonable to deny many other vulnerable individuals health care on this basis.

Reduction of Costs

A second government rationale for the reforms is that they are intended to save costs for the Canadian government. Before the 2012 reforms, there was indeed a rise in the number of people who were eligible for healthcare. For instance,  23 thousand more were eligible for IFHP coverage in 2009 than in 2002. However, we have more than 35 million Canadians in Canada – and the number of potential beneficiaries should be considered within this context. Additionally, we have a nearly balanced budget of $27.2 billion dollars and natural resources only imagined by other countries.

Furthermore, federal cost savings would be downloaded onto the provinces, especially as many have already signaled that they would provide healthcare in the absence of federal coverage. Finally, the reforms continue to provide emergency care for many, creating the possibility that individuals will wait until their conditions reach a critical stage to seek medical attention – this has negative implications for both the suffering of refugee claimants, as well as higher costs for treating more complicated cases.

As we watch closely how the Federal Court of Appeal decision unfolds, it is important to also critically engage with the policy rationales underlying the reforms.

If you have any Canadian immigration and refugee related questions, contact us for a consultation.

The post Interim Federal Health Care Reforms (2012): A Consideration of Some Policy Rationales first appeared on Bellissimo Law Group.

For more information on the Toronto 2015 Pan and Parapan American Games, please click here.

(Sources)

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