Two definitions are necessary here. First, DCO’s “are countries that respect human rights, offer state protection, and normally do not produced refugees”, are “safe”, and determined to be DCO’s by the Minister of Immigration, Refugees and Citizenship Canada based on qualitative and quantitative measures, according to the Respondent in Feher.[2] Second, a PRRA enables refugee claimants to present new facts or evidence of risk of persecution, torture, cruel and unusual treatment or punishment or risk to life to Canada Border Services Agency (CBSA) prior to removal. A positive PRRA leads to protected person status and allows the person to remain in Canada and apply for permanent residence. A negative PRRA results in removal although judicial review of the PRRA decision is possible.

Feher combined five individual applications from persons who feared removal to Hungary, a DCO, and had made refugee claims based on their Roma ethnicity and in one case also based on gender-based violence. The Canadian Association of Refugee Lawyers was also an applicant. The refugee claims in question had been refused and CBSA had directed the applicants to report for removal. Because the waiting period of 36 months had not elapsed, the applicants were ineligible for a PRRA. They had asked CBSA to defer the removal but were denied, leading them to seek judicial review of the refusals.[3]

The applicants in Feher challenged the constitutionality of paragraph 112(2)(b.1) of the Immigration and Refugee Protection Act, which they claimed were based on stereotypes about DCO claimants.[4] They successfully argued that DCO claimants were treated differently from non-DCO claimants and the differential treatment was based on national origin, discriminatory and violated the equality guarantee found in subsection 15(1) of the Charter.[5] The applicants relied in part on Y.Z.[6] and Canadian Doctors[7].[8]

The Honourable Justice Boswell held in Feher:

“It was not necessary, in my view, for Parliament to differentiate between DCO and non-DCO claimants when imposing a restriction on when a failed refugee claimant could access a PRRA. Timely access to a PRRA is a significant benefit for failed refugee claimants and delaying this access to some claimants based on their country of origin impairs their right to equality.”[9]

The Court also noted that because the majority of failed claimants “are generally removed from Canada” before the 12-month waiting period is up “most failed refugee claimants will never be able to access a PRRA regardless of whether they are or are not a DCO claimant”.[10] However, Feher still represents a victory for Romani refugee claimants and DCO claimants more generally because it enhances the possibility of remaining in Canada due to a positive PRRA.

Despite Feher, there remain significant disadvantages for DCO claimants in comparison to the treatment of non-DCO claimants under the IRPA and its regulations.[11] Furthermore, Justice Boswell certified two questions, which means an appeal of Feher could be initiated in the coming weeks.

Sources

To book your consultation, please click here.

The post Federal Court Reduces Wait Time for Refugee Claimants From “Safe” Countries to Apply for PRRA first appeared on Bellissimo Law Group.

Mr. Osagie, a citizen of Nigeria and a medical doctor, had become a permanent resident of Canada in August 2009, as did his wife and children. Unlike the rest of his family, Mr. Osagie did not become a citizen as he had returned to Nigeria to work as a doctor due to family obligation, specifically.

In May 2015, Mr. Osagie applied to renew Permanent Resident (“PR”) Card from within Canada. In August 2015, he received a letter from Citizenship and Immigration Canada (“CIC”, now called Immigration, Refugees and Citizenship Canada or “IRCC”) stating that, although he did not meet his residency obligation, he had sufficient humanitarian and compassionate (“H&C”) factors to allow him to retain his permanent resident status. However, Mr. Osagie’s previous PR Card had already expired and so, the following day, he called IRCC to make an urgent request to have his renewed PR Card issued to him as he had to travel to Nigeria. His urgent request was refused, but he was advised he could apply for a PR Travel Document while in Nigeria in order to return to Canada. Mr. Osagie travelled as planned and applied for the Travel Document from within Lagos, Nigeria as he was instructed, but his application for a Travel Document was refused as he did not meet his residency obligation.

Mr. Osagie appealed this residency obligation determination to the IAD and two issues were identified for resolution on appeal: first, whether the decision of the Visa Office in Lagos was legally valid; and, second, whether Mr. Osagie qualified for special relief under H&C grounds.

The IAD determined that Mr. Osagie failed on both grounds and dismissed the Appeal. In assessing the reasons for departure, among other findings, the IAD determined he could have secured a job in Canada but chose not to and that other members of Mr. Osagie’s family could have provided care to his aging parents in his place. The IAD also determined that it was likely Mr. Osagie would continue to work in Nigeria as a medical doctor even if the appeal was granted.

In a strongly worded decision, Justice Ahmed found the IAD’s H&C analysis to be unreasonably based on irrelevant factors, notably finding that the IAD is tasked with reviewing H&C factors and not with the likelihood of an appellant’s future compliance with the residency obligation. Considering the cultural realities of Mr. Osagie’s role as the eldest son and his occupation as a doctor, Justice Ahmed stated that the IAD “has no business” determining that Mr. Osagie had many siblings who could have provided care to his aging parents in his place. Justice Ahmed took issue with the IAD’s comment that “[i]mmigrating to a new country includes making difficult choices”, highlighting that:

” Immigration does involve difficult choices. This is why Parliament provided flexibility and relief from what would otherwise result in harsh consequences under a rigid application of the residency requirement. The decision-maker is owed deference in weighing the relevant factors. But the IAD’s casual statement that immigration entails difficult choices, along with the bald assertion of a plausible alternative course of action, is insufficient. ”

The decision was returned to the IAD for re-determination, indicating that the Court may not be willing to accept reliance upon the inherent “difficult choices” involved in immigrating to Canada, or the likelihood of future compliance in residency appeals, as a basis upon which to avoid affording an appellant the relief allowed under the IRPA.

The post Judicial Review of a Residency Obligation Appeal Before the Immigration Appeal Division Returned for Re-determination first appeared on Bellissimo Law Group.

Although impaired driving is a hybrid offence, for the purposes of criminal inadmissibility, it is considered to be an indictable offence (i.e. more serious) regardless of the manner the Crown elects to prosecute the matter. Subsection 36(3)(a) of the Immigration and Refugee Protection Act (IRPA) reads:

36(3)(a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily.

Upon conviction, in addition to the criminal penalties, a non-citizen could possibly face the loss of his or her permanent resident status, and, consequently removal from Canada on the basis of serious criminality as set out in subsection 36(1) of the IRPA, which reads as follows:

36(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for:

• (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed.

Moreover, because of the new changes, there is no deemed rehabilitation option available as it only applies to offences with a maximum sentence of less than ten years. Rehabilitation means that the individual no longer associates with a criminal lifestyle and does not remain at risk for recidivism (risk of reoffending). Now, offenders with impaired driving convictions will have to apply for criminal rehabilitation five years after the completion of the criminal sentence, thus making overcoming criminal inadmissibility all the more complicated.

The post Impaired Driving Convictions and Criminal Inadmissibility first appeared on Bellissimo Law Group.

Specifically in that section, the first question refers only to Canada.  The second question refers to Canada and then mentions “or any other country”. The third question goes back to inquiring about Canada only.  The way the questions are arranged and phrased, applicants mistakenly believe that the whole section is only about Canada.  This is unfortunately leading to five year bans pursuant to section 40(2) of the Immigration and Refugee Protection Act (IRPA).

So what to do?

First, read the questions carefully and do not underestimate the significance of an incorrect answer in filling out immigration applications.  Further still, filling out immigration forms must be undertaken with access to historical information that may be relevant to the questions being asked.  Do not guess about the reasons and timing of previous refusals, removal orders, arrests, charges, and convictions to list but a few, when filing out your forms.  Confirm dates and reasons for important immigration related events in your life.

Second, if an allegation of misrepresentation has already been raised by Immigration, Refugees and Citizenship Canada, your case should be assessed by an immigration lawyer to see if an innocent error exception, or materiality can be raised amongst other possible considerations, in defence.  This argument does not suggest that applicants need not be accurate in filling out applications.  Rather, an individualized assessment should be undertaken as to the inadvertence of errors made and any explanations provided.

Third, if you are already facing a refusal depending upon your immigration status and the stage of your case the matter may be examined at the Immigration Division, Refugee Protection Division, Refugee Appeal Division, Immigration Appeal Division and/or the Federal Court.  For visitor visa refusals based upon misrepresentation an applicant may seek to challenge the decision to the Federal Court of Canada.

As one example, the innocent error exception has been applied as a defence where an applicant failed to include information, there are also procedural fairness defences and intent can indeed be a relevant factor in considering whether a finding of misrepresentation is warranted. See for example Lamsen v. Canada (M.C.I.), 2016 FC 815, par. 24, Punia v. Canada (M.C.I.), 2017 FC 184, par. 67, Berlin v. Canada (M.C.I.), 2011 FC 1117, pars. 19-22 and Osisanwo v. Canada (M.C.I.), 2011 FC 1126, pars. 9-15

Fourth, make sure to find out if your application has been refused for misrepresentation is the bar for two years or five years.   Applicants face a significantly more severe consequence as a result of the Faster Removal of Foreign Criminals Act (Act).  Section 16 of the Act increased the period of inadmissibility resulting from a finding of misrepresentation from two to five years. On 20 November 2014, section 16 of the Act came into force.

So there are many factors to consider when facing a misrepresentation allegation or finding.  One thing is certain, we are finding because of the increase to the inadmissibility bar under IRPA subsection 40(2) more applicants are challenging these findings.

For more information on misrepresentation cases please click here.

The post Common Misrepresentation When Filing Temporary Resident Applications first appeared on Bellissimo Law Group.

The post This Week’s Success Story: Criminal Inadmissibility Overturned – Temporary Resident Permit Issued After 6 Years first appeared on Bellissimo Law Group.

The post This Week’s Success Story: Express Entry Canadian Experience Class Application Approved Despite Medical Inadmissibility Finding first appeared on Bellissimo Law Group.

In certain cases, the RPD may decide to allow a claim without a hearing pursuant to section 170 of the Immigration and Refugee Protection Act (IRPA) that sets out:

170. The Refugee Protection Division, in any proceeding before it,
…
(b) must hold a hearing;
…
(f) may, despite paragraph (b), allow a claim for refugee protection without a hearing, if the Minister has not notified the Division, within the period set out in the rules of the Board, of the Minister’s intention to intervene;
…
Allowing claims without a hearing is a selective process called “expedited processing” that is used in exceptional circumstances where the Minister of Immigration, Refugees and Citizenship has not filed a notice of intervention, there are no credibility and identity concerns, and the information provided by the claimant is consistent with the situation in the country of their nationality that would merit the granting of refugee protection.

In addition, for a claim to qualify for expedited processing, it must be from a country that is designated by the RPD while the claim is in the queue waiting to be processed. The factors for determining country eligibility include the volume of cases the RPD decides from the country, the rate of acceptance for claims from the country, and the fact that the issues relating to the country of origin are not complex. Starting January 1, 2018, the countries that have been placed on the list of expedited processing are:

• Afghanistan
• Burundi
• Egypt
• Eritrea
• Iraq
• Syria
• Turkey
• Yemen

The post Expedited Processing of Refugee Claims by the Refugee Protection Division of the Immigration and Refugee Board of Canada first appeared on Bellissimo Law Group.

The United Nations convention and 1967 Protocol relating to the status of refugees describes a refugee as:

–       a person who has a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group,

–       is out of their country of nationality and due to fear is unable or unwilling to return.

In Canada, this definition is incorporated in sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA) and does not encompass refugees or migrants who are forced to leave their homelands because of environmental disruptions that jeopardize their very existence. According to Cornell researchers, by 2060 approximately 1.4 billion people could become climate change refugees, and that number is expected to rise.

So far, there are no legal precedents from any common-law jurisdiction recognizing refugee claims on the grounds of climate change. In 2015, for example, the Supreme Court of New Zealand refused to grant leave for an appeal where the applicant’s claim was on the basis of severe environmental conditions in his home country [AF (Kiribati) [2015] NZSC 107]. In this case, the Immigration and Refugee Tribunal of New Zealand upheld the Refugee Protection Officer’s decision stating that while situations of natural disaster and environmental risks entail significant human rights concerns, the claimant must establish that they meet the legal requirements contained in the Refugee Convention.

Now, the question is what happens if the claimant’s country of origin is failing or unable to protect its citizens from dire effects of climate change due to rising sea levels that wipe out entire villages and communities. In the future, there will be significant numbers of refugees fleeing their home countries because of climate change. The issue of whether refugee accepting-countries should recognize and protect environmental refugees under international humanitarian law remains to be addressed.

The post Should environmental refugees be accorded refugee status? first appeared on Bellissimo Law Group.

 Retroactive: A law is retroactive when it undoes or changes decisions already made. True retroactive laws are rare. With environmental assessments, there are occasions where the assessment leads to project approval by the Government. Development may begin, but thereafter changes to environmental standards may lead to re-assessment and project termination. In essence, a decision was made and acted upon by a project developer, but due to a change in law that decision was revoked; what was previously a permissible project became impermissible.

Retrospective: A law is retrospective when it changes expectations for processes/applications underway. Retrospective law occurs frequently under the IRPA and the Immigration and Refugee Protection Regulations (Regulations).

Aside from the criminal law exception, there are no specific barriers preventing the enacting of legislation which has a retroactive or retrospective effect. Law is assumed to be prospective only if there is no language which suggests a contrary intention.  The foundational principle is that, unless the Government clearly indicates otherwise, individuals ought to be able to know the law and order their affairs in accordance with the law. We have seen retrospective and retroactive laws with respect to sponsorship and permanent residency appeal rights at the Immigration Appeal Division for married couples and permanent residents with criminality. The enactment of retroactive/retrospective laws impacts predictability and clarity in the operation of the immigration system and this can lead to unintended consequences.  Refused Canadian immigration visa, deportation cases and family class sponsorship appeals dealing with retroactive and retrospective laws can be challenging and require special consideration for immigration lawyers in representing clients.

For more information on the Immigration Appeal Division, click here.

The post What are Retroactive and Retrospective Laws in Immigration Appeals? first appeared on Bellissimo Law Group.

Permanent Resident Card

In order to maintain your permanent residence status, you must live in Canada for at least two years in a five-year period. When you become a permanent resident, you will receive a permanent resident card (PR card) which is issued for a period of five years. If your PR card expires, it does not mean that you have lost your permanent residence status, it means you have to submit an application to renew your PR card and demonstrate how you have met a minimum of 730 days in Canada. In some circumstances, you may count days spent outside of Canada as days for which you satisfy the residency obligation. This includes time spent:

• outside Canada accompanying a Canadian citizen who is your spouse or common-law partner or, in the case of a child, their parent;
• outside Canada employed on a full-time basis by a Canadian business or in the public service of Canada or of a province;
• outside Canada accompanying a permanent resident who is your spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the public service of Canada or of a province.

Losing Your Permanent Residence Status

Losing your permanent resident status does not occur automatically. Unless you have gone through an official process where a determination has been made, you have not lost or given up your status. Even if you are living outside of Canada and have not met the 730 day residency requirement, you still have permanent residence status.

You may lose your permanent resident status if:

• a decision maker determines that you are no longer a permanent resident following an inquiry; or
• a visa officer determines you do not meet the residency requirements when you apply for a permanent resident travel document or temporary resident travel document.

You may lose your status if you do not live in Canada for two out of five years, are convicted of a serious crime or you become a Canadian citizen. It is important to note that you do not lose your permanent resident status if your PR card expires.

Voluntary Renunciation of PR Status

There are some situations when people may want to voluntarily give up their permanent residence status. For example, if you have been living outside of Canada for a long time and know you have not met your residency obligation and now wish to come to Canada as a visitor, you may want to submit an application to renounce your status instead of having a visa officer do a formal assessment of your status or avoid processing delays upon entry.

The Immigration and Refugee Protection Act (“IRPA”) was amended on 21 November 2014 to introduce a formal renunciation mechanism so that those who clearly have no intention to remain permanent residents of Canada, no longer need to submit to the residency determination under the IRPA. The Immigration and Refugee Protection Regulations (IRPR) provides legislative framework for people to voluntarily give up their permanent residence status by submitting an application to do so.  As per section 72.6 of IRPR, an officer may approve of a person’s application to renounce their permanent resident status if they have provided evidence of their citizenship, nationality or permanent legal resident status in another country and in the case of a minor, the application is signed by every person who has custody and is empowered to act on their behalf. Once you lose your permanent resident status and will then be treated as a foreign national.

For more information on Permanent Residency, please click here.

(Sources)

The post How Permanent Is Permanent Residence Status? first appeared on Bellissimo Law Group.