Mr. Babafunmi was a Nigerian citizen who had studied and worked in the USA for several years prior to being deported to Nigeria for criminality. He later travelled to Canada to make a refugee claim based on fears tied to his time in Nigeria. The claim was refused and so were applications for a Pre-Removal Risk Assessment, sponsorship by his spouse/common-law partner from within Canada and criminal rehabilitation.

Justice E. Susan Elliott began her analysis by rejecting the respondent’s argument that rehabilitation factors fall outside the scope of a judicial review of a H & C application, noting:

I agree that an H&C application is not at all the same as a rehabilitation application. Nonetheless, the Officer did engage in an analysis of the Applicant’s criminality and his rehabilitation determining that they were “significant negative factors” in the Officer’s assessment of the H&C application. It is therefore necessary to determine whether the Decision, including the criminality and rehabilitation findings, is justified, transparent and intelligible and that the outcome falls within the range of possible acceptable outcomes defensible on the facts and law in light of the record before the Officer.[2]

The Court held that when reviewing the H & C application of an individual who has prior criminality and has provided evidence of rehabilitation, the officer must balance both “the positive and negative factors” as well as “consider the likelihood of the Applicant re-offending”.[3] The Court relied on Lau v. Canada[4] as authority for the proposition that the likelihood of re-offending is the most important factor in an application for rehabilitation.[5]

Turning to the BIOC, Mr. Babafunmi submitted that several children would be directly affected by his removal to Nigeria. The officer had adopted the following position on two of these children – the Applicant’s Canadian godchildren:

“their best interests would not be significantly negatively impacted by the Applicant being returned to Nigeria and they could strive to maintain their close relationship by other means.”[6]

The Court found the officer had erred in the BIOC analysis by failing to consider the best interests of the Applicant’s godchildren going forward.[7] The officer, in Justice Elliot’s view had not followed the approach of the Supreme Court of Canada in Kanthasamy[8] and Baker[9].

Those preparing or reviewing an H & C application can draw on the lessons and cases referred to in Babafunmi when preparing or reviewing an H & C application that may raise questions of the Applicant’s likelihood of reoffending or the best interests of a child who may be directly affected by the decision.

For more information please contact us.

(Sources)

The post Lessons from a Recent Federal Court Review of a Humanitarian and Compassionate Application first appeared on Bellissimo Law Group.

The post This Week’s Success Story: Certificate of Rehabilitation Granted Despite Inadmissibility Finding first appeared on Bellissimo Law Group.

The post This Week’s Success Story: Certificate of Rehabilitation Granted – Couple Reunites! first appeared on Bellissimo Law Group.

Article 36 of the Immigration and Refugee Protection Act (the Act) sets out the circumstances in which a foreign national or permanent resident would be considered inadmissible, whether convicted inside or outside of Canada. It also addresses situations of possible consideration to overcome criminal inadmissibility, inclusive of: being deemed rehabilitated, applying for rehabilitation to Citizenship and Immigration Canada, and obtaining a pardon or record suspension.

With respect to convictions that occur inside of Canada (according to the Act), there is no option to be deemed rehabilitated or to apply for rehabilitation. In most cases, the sole recourse is to obtain a record suspension (formerly referred to as a pardon) from the Parole Board of Canada (PBC).

Prior to 2012, getting a record suspension from the PBC was relatively easy and inexpensive. However, in 2012, changes to the Criminal Records Act came into force, making obtaining a record suspension in Canada more difficult. Among the more significant changes were quadrupling application fees (from $150 to $631, even for less serious offences) and a considerable increase in the waiting period before a person would be eligible to apply for a record suspension after completing their sentence.

Unsurprisingly, these changes resulted in a staggering drop in the amount of record suspension applications received by the PBC. Compared to 2011-2012 levels, the amount of applications received last year dropped by over fifty percent.

Many critics have called these changes punitive and disproportionate because the old system was generally considered to be working fine. To wit, the recidivism rate for individuals who obtain record suspensions was last measured to be less than 1 percent.

However, good news may be on the way for those people (including foreign nationals and permanent residents) with Canadian criminal records seeking a second chance through obtaining a record suspension. CBC news spoke recently to Canada’s Public Safety Minister, Ralph Goodale, who vowed that the changes made in 2012 may soon be reversed.

It remains to be seen what changes will be implemented by the new government and when these changes will occur; a reduction in fees and waiting times is expected, along with a return to the term “pardon”. Stay tuned for updates.

For more information on Criminal Inadmissibility, please click here.

(Sources)

The post Record Suspensions for Criminal Convictions in Canada: Changes May be on the Way! first appeared on Bellissimo Law Group.

The post This Week’s Featured Success Story: Successful Rehabilitation Application following Legal Submissions and Interview Preparation! 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.

Many individuals who find themselves in this position only have one or two convictions, and oftentimes from years ago. It is easy for many to think that the conviction(s) was not serious – perhaps it was only an incident of shoplifting when he or she was 18 years old. In the United States, for example, such an offence would be a misdemeanour offence (not a felony). Yet it is important to keep in mind that – for the purpose of the Immigration and Refugee Protection Act – it does not matter how the foreign jurisdiction treated the offence or even the sentence received. For the purpose of evaluating admissibility and equivalency, Canadian visa officers look to see how the offence could be treated in Canada. If it could be prosecuted by indictment – even if it would have been prosecuted summarily in Canada, had the offence occurred in Canada – then it is equated to the indictable offence in Canada and the maximum sentence that Canada could impose for such an offence.

So, for a shoplifting conviction, this would be equivalent to “theft under $5,000” in Canada. Under section 334 of the Criminal Code of Canada, this offence could be prosecuted by indictment or summarily. For Canadian visa officers, they would look at the punishment for indictment, which is a term of imprisonment not exceeding two years. So, even if a fine was the only punishment in the United States, it is equated to a conviction for which a term of imprisonment could be imposed for Canadian purposes.

This person is inadmissible to Canada for “criminality” under subsection 36(2)(b) of the Immigration and Refugee Protection Act. If this person was seeking entrance for a short period of time, then a Temporary Resident Permit could overcome this admissibility for that temporary period. If the person was seeking to immigrate, an application for rehabilitation could be made to permanently overcome the inadmissibility. If this was the individual’s only conviction – one indictable offence – then ten years after the completion of the foreign sentence (in this example, the payment of the fine), an application could be made for “deemed” rehabilitation, which implies that rehabilitation has occurred as the individual has not committed another offence in ten years; this would also permanently overcome the inadmissibility.

There are broader consequences still – using this same example, what if the individual with the conviction from shoplifting was the spouse of the principal applicant? For the purpose of a temporary visit to Canada, the principal applicant could be approved but the spouse remains inadmissible and would need the Temporary Resident Permit. If the couple was seeking to immigrate to Canada, the spouse’s criminal record would make the entire family (spouse and any dependent children) inadmissible to Canada. It is not possible to state that only the principal applicant spouse would immigrate to Canada and the spouse with the criminal record would not; the principal applicant is inadmissible because he or she has an inadmissible family member. The only way to overcome this would be for the spouse to be approved for rehabilitation (or for the couple to legally divorce).

Criminal convictions, even those that are years old, can have a significant impact on an individual’s ability to enter Canada. The shorter the period of time since the last conviction, the more convictions a person has, and the more serious in nature the convictions are, the more challenging this form of inadmissibility is to overcome. If you or a family member has a criminal record, it is important to consider this admissibility concern before applying for entrance to Canada.

For more information on criminal inadmissibility, please click here.

The post Criminal Inadmissibility & Equivalency – It’s Worse Than You Think! first appeared on Bellissimo Law Group.

In deciding whether a TRP is warranted, the Officer will balance all of the facts in order to determine whether temporary entrance into Canada is justified in the particular circumstances of the case.  An Officer’s decision to refuse a TRP is highly discretionary and will be accorded deference by the court. To avoid the risk of refusal, a TRP application must effectively demonstrate that the compelling need to visit Canada outweighs any potential risk associated with the criminal inadmissibility.

In order to make a TRP application compelling, applicants should adduce all relevant evidence in support of their application. In the case of criminal inadmissibility, it is essential to convince the Officer that the applicant poses no danger to the Canadian Public. The evidence should demonstrate:

• A lack of recent criminal activity;
• Chance of successful settlement without reoffending;
• Evidence that criminal activity was an isolated incident;
• Proof that the offence did not involve drugs, alcohol or violence;
• Proof of punishment and completion of sentence;
• Evidence that the person has been reformed or rehabilitated; and
• Compelling reasons for the need to enter or remain in Canada

Supporting documentation related to the charges and convictions, criminal record checks, identity documents, reference letters and a personal letter should also be put forward.

Individuals who require entry into Canada  and are eligible for Criminal Rehabilitation, should apply for rehabilitation, in addition to the TRP. As noted above, Criminal Rehabilitation is a permanent solution to criminal inadmissibility, while a TRP is a temporary bridge for inadmissibility.

Applicants can apply for a TRP at a Canadian port of entry or a visa office. A TRP may be issued for a period, not exceeding three years, and may be extended from inside Canada. The permit is no longer valid if the holder exits Canada, unless re-entry has been authorized.

For more information on Criminal Inadmissibility, please click here.

(Sources)

The post Overcoming Criminal Inadmissibility: The ABCs of TRPs first appeared on Bellissimo Law Group.