The post This Week’s Success Story: HIV Positive Client Granted Permanent Residence first appeared on Bellissimo Law Group.

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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For Canadian convictions, an expungement is only available for historically unjust acts (laws), i.e.: concerning prior laws criminalizing same sex couples.  The more prevalent option is a Record Suspension (previously a pardon). A Record Suspension can be revoked in Canada. Record Suspensions are governed under the Criminal Records Act (CRA) and the provisions for approval are rigorous.

 Section 36 of the Immigration and Refugee Protection Act (IRPA) governs the criminal inadmissibility provisions.  Inadmissibility captured under subsections (1) and (2) may not be based on a conviction in respect of which a Record Suspension has been ordered and has not been revoked or ceased.

With respect to the operation of paragraphs 36(1) (b) or (c) of the IRPA the Federal Court of Appeal in Saini[1] summarized the law as it relates to the effect given to a foreign discharge or pardon. It is a three-part test:

[24]   To summarize, our jurisprudence requires that three elements must be established before a foreign discharge or pardon may be recognized: (1) the foreign legal system as a whole must be similar to that of Canada; (2) the aim, content and effect of the specific foreign law must be similar to Canadian law; and (3) there must be no valid reason not to recognize the effect of the foreign law.

The Court went on to elaborate on these requirements, and the Canadian law regarding pardons, as follows:

[29] … The systems must be “similar” not “somewhat similar”… It does require, however, that there be a strong resemblance in the structure, history, philosophy and operation of the two systems before its law will be given recognition in this context.

For example, questions to ask as it relates to this branch of the test include, is it a democracy, common law based, are the legal systems similar, corruption levels, etc.?

[32] Second, we must address the content of Canadian laws as compared to the foreign law regarding pardons, which includes the process as well as the factual basis upon which it may be granted…

With respect to this prong, important questions include: does the legislation have the same intent, is the pardon automatic, is there a similar wait time, can it be revoked, is there discretion, etc.?

[35] Third, we must explore the effect of a pardon in Canada as compared to the effect of the foreign pardon…

 [42] Thus, we must assess the third requirement of Burgon, that there was, “no good reason for Canadian immigration law to thwart the goal of [the] British legislation”. This Court expressly stated in that case that we ought to respect the legislation of countries similar to ours, “unless there is some valid basis for deciding otherwise” or there is a “solid rationale” for not doing so. …

 [43] In our view, the seriousness of the offence can be considered under this third requirement. … The gravity of the crime of highjacking is obvious; it is universally condemned and punished severely…

 [44] In our view, the gravity of the offence can and should be considered when deciding whether or not to give effect to a foreign pardon. Even if the Pakistani legal system were similar, and even if the pardon were given under a law similar to Canadian law, the conviction in this case was for an offence so abhorrent to Canadians, and arguably so terrifying to the rest of the civilized world, that our Court is not required to respect a foreign pardon of such an offence.

As such, the third prong of the test in Saini involves an assessment under the rehabilitation provisions.  The recent decision in Havlikova, 2018 FC 691 last month spoke to the depth of the analysis.  In upholding the reasonableness of the decision, the Honourable Mr. Justice Diner wrote at length about the Officer’s analysis:

[32]  The Officer then considered the document of the Bruntal Court dated November 3, 2014, expunging Mr. Istok’s convictions, and noted that the Court considered only (a) the passage of five years, (b) the fact that Mr. Istok was convicted of no further offences during those years, and (c) a police report dated October 13, 2014, indicating that Mr. Istok had no record of criminal activity. The Officer concluded that the Bruntal Court had had no choice but to expunge Mr. Istok’s convictions since the conditions of paragraph 105(1)(c) were met.

 [33]  The Officer contrasted paragraph 105(1)(c) of the Czech Criminal Code to the record suspension provisions under the CRA. The Officer consulted the Decision-Making Policy Manual for members of the Parole Board, noting that members considered multiple factors when considering “good conduct”under paragraph 4.1(1)(a) of the CRA.

 [34]  Further, the Officer observed that a Parole Board member’s analysis under the CRA is not limited to assessing “good conduct”, but also the “measurable benefit” of a record suspension, the applicant’s rehabilitation, and whether the granting of a record suspension would bring the administration of justice into disrepute. Significantly, the Officer concluded that the Parole Board may refuse to grant a record suspension even if the prescribed period has elapsed and the applicant has not been convicted of any further offences, and that a record suspension may be revoked. In the Officer’s view, these all constituted significant distinctions from the Bruntal Court’s expungement considerations in Mr. Istok’s case.

 [35]  Consequently, the Officer found that there were reasonable grounds not to recognize the Czech expungement of Mr. Istok’s offences under Canadian law. However, the Officer, as a matter of further fairness, decided to solicit submissions from Mr. Istok. After reviewing Mr. Istok’s further submissions and materials, the Officer resumed the analysis of Mr. Istok’s application, undertaking a further lengthy analysis of Mr. Istok’s convictions in the Czech Republic, which I need not summarize here as they are not disputed. Suffice it to say that, according to the GCMS notes, Mr. Istok was convicted of at least eight criminal offences in the Czech Republic, five of which were equivalent offences for the purposes of IRPA’s “serious criminality” provisions, and that his prison sentences were, in total, approximately five years in length.

 [36]  In considering whether Mr. Istok’s Czech expungement should be recognized in Canada, the Officer dealt first with the specific evidence tendered by Mr. Istok, and found that his materials had not addressed the concerns previously raised. The Officer confirmed the earlier conclusion that a Czech court must expunge a criminal conviction if the conditions of paragraph 105(1)(c) of the Czech Criminal Code are met, which is a very different process than the highly discretionary one undertaken by the Parole Board under the CRA in deciding whether to grant a record suspension. The Officer further observed that the provisions of the CRA are more severe than those in the Czech Criminal Code, since the CRA provided for only two time categories — five or ten years — with the fact of indictment resulting in a waiting period of ten years. Further, the Officer noted that certain offences in Canada’s regime are ineligible for a record suspension altogether.

 [37]  To underline this distinction, the Officer pointed to the CRA’s Decision-Making Policy Manual, which directs the Parole Board to consider numerous factors when deciding whether or not to grant a record suspension. By contrast, the Bruntal Court document, being short in length with a single page of analysis, did not demonstrate the same “rigour” that one would expect from the Parole Board. Thus, the Officer concluded that the second Saini factor had not been satisfied on the facts of Mr. Istok’s application.

 [38]  With respect to the last Saini factor — namely, whether any valid reason exists not to recognize a foreign pardon — the Officer observed that the severity of Mr. Istok’s criminal history constituted a valid reason not to recognize his expungement. The Officer noted that some of the judgments in respect of his convictions pointed to Mr. Istok’s lack of repentance, and that his lengthy prison stays did not seem to have reduced his risk of re-offending. The Officer further noted that, on the facts of his case, Mr. Istok would not be able to satisfy the Minister of his rehabilitation under  under paragraph 36(3)(c) of IRPA, and that there was reason to doubt that he would have received a record suspension in Canada.

 Therefore, representatives and applicants alike have many factors to consider and cannot assume a foreign pardon means to no criminal inadmissibility.

[1] Canada (M.C.I.) v. Saini [2002] 1 FCR 200.

The post I am not Inadmissible I have a Foreign Pardon! Not quite . . . first appeared on Bellissimo Law Group.

The Immigration and Refugee Protection Act (IRPA) distinguishes between permanent and temporary residents when it comes to inadmissibility by virtue of having an inadmissible family member. One inadmissible member can make an entire family inadmissible. For permanent residents, the scope of inadmissibilities for accompanying family members is broader than for temporary residents. The policy behind this is understandable: permanent residents intend to remain in Canada forever and have the opportunity to sponsor family members, some of whom benefit from exemptions from certain grounds of inadmissibility in certain situations. Temporary residents are expected to leave at the end of their stay and cannot sponsor family members while their status is temporary. There is therefore a lesser risk of an inadmissible family member coming to Canada in the first place and then staying.

The distinction between temporary and permanent residents is set out in section 42 of the Act:

42(1) A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if

(a) Their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible; or

(b) They are an accompanying family member of an inadmissible person.

The Act sets out that foreign nationals can be inadmissible because their family members are inadmissible or because they are accompanying an inadmissible person. For this blog we will only deal with accompanying family members rather than non-accompanying family members, for whom different rules can apply.

Subsection 42(2), however, makes an exception exception:

 (2) In the case of a foreign national referred to in subsection (1) who is a temporary resident or who has made an application for temporary resident status or an application to remain in Canada as a temporary resident,

(a) the matters referred to in paragraph (1)(a) constitute inadmissibility only if the family member is inadmissible under section 34, 35 o5 37; and

(b) the matters referred to in paragraph (1)(b) constitute inadmissibility only if the foreign national is an accompanying family member of a person who is inadmissible under section 34, 35 or 37.

Section 42(2) only applies to temporary residents. This includes those who have visitor visas, study permits, or work permits, and those applying for one of these statuses for the first time or to extend it. Applicants for permanent residents are left out of the exception.

The exception in subsection (2) is actually two exceptions. The first applies to those people who are otherwise inadmissible but would not be inadmissible if they applied alone. The second applies to the inadmissible individuals themselves who will be accompanying the otherwise admissible family members.

Those who benefit from the exception can still be inadmissible because of their family members or render their family members inadmissible, but only if they are inadmissible under one of three sections of the Act: 34 – security, 35 – human or international rights violations, and 37 – organized criminality. These are some of the most serious grounds of inadmissibility and it appears that Parliament believes it is important that individuals meeting the criteria of these three sections be barred from Canada even if their intention is only to come on a temporary basis.

What this means, however, is that the other grounds of inadmissibility do not apply to family members of temporary residents. Permanent residents and permanent residence applicants can be inadmissible because of their family members’ serious criminality (36(1)), criminality (36(2)), health grounds (38), financial reasons (39), misrepresentation (40), and non-compliance with the Act (41), in addition to the grounds already mentioned. Temporary residents can only be inadmissible because of their family members if their family members are inadmissible for reasons of security, international or human rights violations, or organized criminality.

It is important to recognize that the inadmissible family member remains inadmissible. The distinction for temporary residence means that in practice, the still-admissible family member can go ahead with their application and leave their inadmissible family member behind.

While your family members may be inadmissible, it is crucial that they be disclosed on all applications that ask about them. Failure to disclose family members constitutes misrepresentation, as the disclosure allows immigration officers to determine whether you might be inadmissible because of your family members’ inadmissibility.

The post Family Matters: Inadmissible Family Members and Temporary Residence Applications first appeared on Bellissimo Law Group.

Successful PR After Medical Inadmissibility Finding

We were recently successful in assisting our client’s family in receiving permanent residence, following an initial medical inadmissibility finding for a medical condition of Cerebral Palsy for a dependent. Had the dependent been found to be medically inadmissible the entire family would be inadmissible.

The dependent was initially determined to require social services that were expected to result in an excessive demand and they were refused. We challenged the refusal to the Federal Court of Canada and negotiated a settlement to have the refusal set aside and the matter sent back for reconsideration. We then assisted in advocating for the family on the appropriate medical classification of the condition and provided accurate prognostic findings. In doing so we were able to accurately advance what medical and social services would be required in the intended province in Canada, which was under the threshold. Following extensive research and a comprehensive mitigation Plan, presented together with specialized legal submissions, the medical admissibility finding was overturned without having to resort to further litigation, and the family recently arrived in Canada.

The post This Week’s Featured Success Story! first appeared on Bellissimo Law Group.

Lord Black was sentenced last June to 42 months in prison on fraud and obstruction of justice charges related to his work at Hollinger. He would normally be inadmissible to Canada because he isn’t a Canadian citizen and has a criminal record.

Minister Jason Kenney said he couldn’t comment on specific cases, but said officials can approve temporary resident permits if they believe the applicant is at low risk to reoffend and if the offence wasn’t violent.

Watch my CBC interview regarding Conrad Black here.

The post Conrad Black Returning to Canada on Temporary Permit first appeared on Bellissimo Law Group.