Division 16 of Bill C-97 introduced many important amendments to the Immigration and Refugee Protection Act (IRPA). This post will highlight some of those IRPA amendments.

Note that this post is not intended to be a complete account of the IRPA amendments – and certainly not a replacement for personalized legal advice. You should speak with an immigration lawyer before making any decision about your immigration or refugee matters. Further, how the amendments will be implemented remains to be seen, and the amendments may be implemented in ways that are not obvious from the text of Bill C-97 alone.

People seeking immigration advice should also read up on how Bill C-97 changes the regulation of immigration consultants, which is not covered here.

1. New Ground of Ineligibility for Inland Refugee Claims

People seeking refugee protection after coming to Canada will no longer be able to make a refugee claim to the Immigration Refugee Board (IRB) if they previously requested refugee protection from certain foreign countries.

Before C-97, asylum-seekers were already ineligible if they made a previous refugee claim inside Canada, or if they had successfully received protection abroad (among other grounds). Now, ineligibility has been extended to people who tried to claim abroad but never succeeded in those claims.

The rule only applies to foreign countries that have an information-sharing agreement/arrangement with Canada “to assist in the administration and enforcement of their immigration and citizenship laws”. Exactly what this means and which countries this covers remains to be tested. However, it certainly includes the USA, the UK, Australia, and New Zealand.

The rule is also limited to claims made after C-97 was introduced on 19 March 2019.

People found IRB-ineligible under this new rule will only be able to submit applications for a Pre-Removal Risk Assessment (PRRA). Unlike IRB proceedings, PRRA applications allow much less time to collect evidence, and had much lower rates of success. However, unlike most PRRA applications, a PRRA application by someone found IRB-ineligible under the new rule will be entitled to a hearing.

People affected by the rule are also barred from applying for a Temporary Resident Permit (not to be confused with a Visitor, Study, or Work visa/permit) during the processing of any PRRA application.

This expanded ineligibility rule is troubling. There are several situations why someone who genuinely needs protection might have claimed elsewhere but not succeeded in getting or maintaining protection:  

• Some countries will accept refugee claims, but delay processing of those claims indefinitely.
• Some countries do not recognize the same grounds for protection as Canada (ex. the USA does not protect survivors of state-endorsed domestic violence, whereas Canada does)
• A refugee may flee their country to seek protection, only to find their persecutors followed them to a second country.
• A refugee may flee their home country to make a claim, but return after it seems persecution has ended – only to realize there is still persecution and flee again (ex. where a promising new government eventually turns out just as bad as the oppressive one they replaced)

2. Federal Court proceedings will extend the time refused asylum-seekers are barred from making H&C, TRP, and PRRA applications

If a refused refugee claimant asks the Federal Court the review an IRB refusal, and the Federal Court does not rule in their favour, it will extend the time they are barred from making certain applications.

If someone makes a refugee claim to the IRB, and that claim is refused by a division of the IRB, they cannot make certain immigration applications until one year has passed from the last refusal. Previously, a refused refugee claimant could ask the Federal Court to review the IRB’s refusal without extending that one-year bar – even if the Court’s decided against the claimant. This has now changed. If the Federal Court rules against the claimant, or if the claimant withdraws/abandons their Federal Court proceedings, the bar will be renewed for one year from that moment.

Applications that fall under the one-year bar are as follows:

• An application for Permanent Residence on humanitarian and compassionate grounds
• An application for a Temporary Resident Permit
• An application for a Pre-Removal Risk Assessment

Fortunately, the exceptions to the one-year bar have not changed. It will not apply to people who would be denied life-sustaining medical care if removed, or people whose removal would hurt a child’s best interests.

3. To pressure foreign governments into cooperating with removals from Canada, Temporary Residents can be targeted

If the Canadian government believes that the government of a foreign country is unreasonably refusing/delaying the issuance of travel documents to their citizens who are in Canada, the government now has an explicit power to stop accepting applications for Worker, Student, or Visitor status from citizens of that country in retaliation – and even suspend or terminate in-process applications.

This move appears designed to pressure foreign governments into providing the travel documents necessary to remove their citizens from Canada.

4. New listed immigration objective

IPRA now lists an additional 12^th objective for Canada’s immigration system: “to maintain, through the establishment of fair and efficient procedures, the integrity of the Canadian immigration system”. Interestingly, this has been a stated goal of Canada’s refugee protection system since 2003 in slightly different terms, but not a stated goal for immigration generally.

For more information on Refugee Claims, please click here.

The post Bill C-97, Division 16: Tightened Restrictions on Inland Refugee Claims first appeared on Bellissimo Law Group.

The post This Week’s Success Story: Residency Obligation Appeal first appeared on Bellissimo Law Group.

 In A.B. v. Canada (Citizenship and Immigration), 2017 FC 1170, the Federal Court reaffirmed the importance of applying a compassionate approach in assessing humanitarian and compassionate (H&C) relief. This case involved a 45-year-old Canadian citizen who applied to sponsor her parents as members of the family class in September 2009. The family learned that the Applicant’s father was HIV positive during the medical examination process. In the procedural fairness letter they received, the immigration officer advised that his health condition might cause an excessive demand on health services. Despite providing substantial evidence to show the family was able to cover the cost of the Applicant’s father’s anti-retroviral medication and requesting H&C relief, her father was found inadmissible and the sponsorship application was refused. The Immigration Appeal Division (IAD) upheld the immigration officer`s decision, concluding that there were insufficient H&C factors to grant relief.

The Federal Court found that the IAD overwhelmingly failed to apply an empathetic approach to this case, and went so far as to ask the Respondent to “identify any part of the Decision where the IAD applied compassion.“[3] The Federal Court found that the IAD’s decision was unreasonable, setting it aside and referring the matter for redetermination. To fulfill their intended purpose, H&C grounds must be applied compassionately.

(Sources)

The post Lack of compassion makes IAD decision unreasonable first appeared on Bellissimo Law Group.

The post Client Secures Permanent Residence Status Based on H&C Grounds first appeared on Bellissimo Law Group.

The post This Week’s Success Story: Extensive Submissions Grant Child Status in Canada Under H&C Grounds first appeared on Bellissimo Law Group.

The post This Week’s Success Story: Strong Submissions Grant PR Status Under H&C Grounds first appeared on Bellissimo Law Group.

The post Status in Canada Granted on Humanitarian and Compassionate Grounds first appeared on Bellissimo Law Group.

The post This Week’s Success Story: Extensive Submissions Grant Family Permanent Residence in Canada first appeared on Bellissimo Law Group.

In Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, the Supreme Court clarified how officers are to use the Ministerial Guidelines in determining whether to approve H&C applications and how the “best interests of a child” are to be determined.

The Court held that the Ministerial Guidelines are not legally binding and are not intended to be either exhaustive or restrictive. Justice Abella, writing for the majority, clarifies that the words “unusual and undeserved or disproportionate hardship” which are found in the Guidelines do not create three new thresholds to be assessed by the officer. Rather, officers must assess all relevant humanitarian and compassionate considerations in a case, and must use these words as instructive, but not determinative, to ensure a flexible approach to H&C applications.

Justice Abella went on to discuss the importance of officers taking into account the “best interests of a child” affected when considering H&C applications. The “best interests of a child” is a very important legal principle in Canada, and Canada is a signatory to several international human rights instruments, including the Convention on the Right of the Child, which confirms the importance of this legal principle.

The Court noted that particularly where the applicant himself/herself is a child, the “best interests of the child” is an extremely important consideration that will influence the officer’s entire analysis of the application:

[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.

The Supreme Court’s decision reiterates and strengthens the importance of the “best interests of the child” assessment in the context of H&C applications. As this decision is recent, the effects of this decision are yet unknown. However, due to Supreme Court’s emphasis on flexibility in H&C applications and renewed pressure on officers to conduct a thorough “best interests of the child” assessment in such applications, it may lead to an increase in H&C applications, an increase in challenges to refused applications, and higher success rates in litigation at the Federal Court.

(Source)

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A couple, both out of status for several years in Canada, approached us for assistance with their options for permanent residence.  Our office assisted the couple to submit applications under the Humanitarian and Compassionate Grounds (H&C) category.  We prepared strong submissions highlighting the disproportionate hardship the couple would face if they returned to their respective birth countries.  Additionally, that it was in the best interest of their Canadian born children for the couple to remain in Canada.

Just over three months after submission, we received first stage approval on the couple’s H&C application.  Our clients have since completed their medical and criminal checks and have now received their permanent residence confirmation dates.

The post This Week’s Featured Success Story: H&C Approval Ends Hardship For Couple first appeared on Bellissimo Law Group.