Selection is based on a rigorous peer-review, through evaluations by top lawyers. We are delighted that Mario D. Bellissimo has been included, and it is an honour to be part of the list.

To view the listing, please click here.

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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.

At the personal level, the Immigration Division (ID) will continue to be at the front line in deciding detention review cases at first instance. The cases from both the Federal Courts and superior courts have reiterated the responsibility of applying the Charter in immigration detention cases falls squarely on the shoulders of ID members. A number of critical questions arise given these developments.  In my view, a couple rise to the forefront.  Specifically, how have the recent habeas corpus decisions and the Brown v. Canada decision at the Federal Court, in particular, impacted the conduct of detention review proceedings?  What factors, if any, do members at the ID have to consider beyond the legislative and regulatory detention review regime in the Immigration and Refugee Protection Act (IRPA)[3] and the Immigration and Refugee Protection Regulations (IRPR)[4] to remain Charter compliant?

A bright light has been shone on the substantive and procedural rights at play beyond those which are enumerated in the legislative context. While the IRPA and the IRPR enumerate non-exhaustive lists of relevant considerations in determining a detainee’s substantive constitutional rights, ID members must also look to the procedural rights guaranteed by the Charter that have been interpreted and applied in recent jurisprudence to ensure the principles of fundamental justice are observed.   In all, recent jurisprudential developments have added depth, colour, and practical application to the conduct of detention review proceedings.

The cases on the ID’s jurisdiction are clear: apply the Charter. Members should look to case law, particularly the recent habeas corpus decisions of the superior courts to help them determine thorny issues like whether a detainee’s detention has been too lengthy or is not justified.  The analysis of a given detention begins with a determination if it is justified, which should be rooted in the section 9 protection against arbitrary detention. Members must also be cognizant that section 7 guarantees procedural protections. These procedural protections are no less significant than the substantive rights that govern detention reviews generally. These include a number of factors highlighted above.  Violations of even one of the procedural guarantees should lead to release of a detainee even when the Minister has satisfied the enumerated factors in section 248 of the IRPR.   Members should look to case law – not limited to the immigration sphere – to add depth, colour, and practical application to the substantive as well as the procedural guarantees in sections 7, 9, and 12 of the Charter.  These complex legal issues will continue to unfold as the jurisprudential and likely the legislative evolution of the IRPA unfolds.  The resulting changes are likely to alter the manner in which detention reviews are conducted and will impact the courtrooms, hearing rooms, holding facilities, ports of entry and everywhere in between.

For more information on Detention Reviews please click here.

(Sources)

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A:  To answer your question I will have to make at least three assumptions – one, that you are a Canadian citizen, two, that you and your boyfriend lived together for at least one year in the United States and three, he does not have a criminal record or other potential grounds of inadmissibility including for example, security, human or international rights violations, and or organized criminality.  If any of these assumptions are incorrect it will affect your application as follows:

One, if you are not a Canadian citizen you cannot sponsor your partner while living abroad.  You must resettle in Canada and ensure you remain a permanent resident, meaning meeting the residency requirements for one, before any sponsorship is filed.  Although meeting residency requirements in the United States and Canada may be possible it is not easy and ultimately you will have to remain in Canada for the processing of your sponsorship and permanent resident application.  If you are a Canadian citizen you will still have to demonstrate you intend to resettle in Canada by the time your partner/husband lands in Canada.

Two, if you did not live together for at least one year or do not get married before filing you would only be left with the option of a conjugal partner sponsorship which can be difficult to prove and in my opinion an application of last resort.  In part under conjugal partner sponsorships you must establish you have a view to marriage and you have been unable to live together which based upon you both living in the United States for over 12 months may be difficult to argue. It is important to highlight the intention to marry and not being able to live together is a position taken by visa offices as opposed to a requirement in the regulations.   You indicate though you intend to marry so this would eliminate the need to establish a minimum length of cohabitation and the need to resort to a conjugal partner application.

Three, if your boyfriend’s deportation from the U.S. was for criminality he would be inadmissible to Canada and depending upon when he completed his sentence he may need to apply for a certificate of rehabilitation and if not eligible for rehabilitation would have to seek special permission to enter Canada (which can be difficult to obtain).  If he was inadmissible for security, human or international rights violations, and or organized criminality other potential remedies would have to be explored but can be very difficult to overcome.  Assuming though my assumptions are correct you are a Canadian citizen, you will be married or common law partners and your future husband is not inadmissible to Canada, you will be able to sponsor him as a member of the family class.  Good luck!

For more information on Family-Class Sponsorship, please click here.

The post I Live in the United States, Can I Still Sponsor My Future Husband? first appeared on Bellissimo Law Group.

So we are extremely proud to see Mr. Bellissimo receive the top honor as Best Lawyers’ 2018 Toronto Immigration Law “Lawyer of the Year”.

On behalf of our team we would like to send our heartiest congratulations for this remarkable achievement!

For more information please refer to Bestlawyers.com and check out Mr. Bellissimo’s profile.

The post Mario D. Bellissimo named Immigration “Lawyer of the Year” by The Best Lawyers in Canada! first appeared on Bellissimo Law Group.

A. Very complicated question. There is more to this question than meets the eye and more information is required because the timing of these events and the types and lengths of these respective relationships are not clear and could be very important – beyond the issue of his ability to sponsor his girlfriend.  So, a number of questions would be asked by immigration counsel providing guidance on this matter.

First, was his wife in a relationship with another man in Canada while she sponsored him and at the time he landed in Canada?

Second, was he in a relationship perhaps even a common-law relationship (cohabitated together for more than one year for immigration purposes) with his current girlfriend in the Philippines before and/or during the sponsorship process as well as at the time of landing?

If they both were engaging in relationships, perhaps even living in common-law relationships, with other people at the time of sponsorship/landing, she in Canada and he in the Philippines, this could raise potential problems as to the genuineness of their relationship, ability to sponsor, and your friend qualifying as a spouse which includes the existence of a committed and exclusive spousal relationship by both individuals throughout the time of sponsorship and landing at a minimum.  This would lead to other questions.

Was the marriage only for immigration purposes? Had their marital relationship failed before or during the sponsorship process?  A finding in this regard could translate into deportation proceedings for your friend and the sponsorship of his current girlfriend would not be the primary concern.

On the other hand, if they both engaged in brief affairs this may not necessarily be definitive unless the timing and length were critical to the sponsorship and landing.  Any affair during the course of a spousal relationship would be relevant to assessing the genuineness of that relationship.

As it relates to your friend’s current circumstances assuming his sponsorship and landing from a few years ago do not raise issues and he has cohabitated with his current girlfriend for more than one year amongst other eligibility factors, generally a person who is separated from a spouse and living or has lived with somebody else in a common-law relationship may still sponsor the person as his common-law partner even if not divorced.  However, if your friend lived with her before becoming a permanent resident of Canada for over a year and did not declare her on his permanent residency application as a past common law partner before landing – this too could raise legal challenges as to potential misrepresentation and sponsorship issues.    In short, eligibility, timing and length of his relationship amongst other factors will be critical determining factors in a very complex factual and legal assessment.  He should seek out legal counsel immediately. Good luck!

For more information on Spousal Sponsorship, please click here.

To book a consultation to discuss your immigration matter, contact us today.

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When refugee claimants initiate a claim for protection they are issued a Departure Order and pursuant to section 49(2)(d) of the Immigration and Refugee Protection Act, (IRPA) this order will automatically become a deportation order 15 days after a claim is withdrawn if the claimant has not left the country.  This occurs without any further notice to claimants by what is referred to as “by operation of law”. Unfortunately, many individuals find themselves in this position as they do not realize the clock is ticking. In fact, many claimants in my experience believe they are abiding by all requirements including those that are diligently complying with their conditions to report to the Canada Border Services Agency (CBSA).

To this extent and in fairness to claimants, the “Departure Order” issued does not explicitly set out the requirement to leave Canada within 15 days of withdrawal of a refugee claim. Rather, the Order reads:

This order will be deemed to be a deportation order where no certificate of departure is issued within the applicable time period specified in the immigration regulations.

Documentation issued as part of the withdrawal similarly does not note the requirement to depart within 15 days. Most claimants do not benefit from the assistance of counsel at the time of withdrawal. So, the timelines in the Regulations are not reasonably known to an unrepresented refugee claimant and some would argue properly communicated.

So, despite a claimant leaving soon after withdrawing, but not within 15 days, a deportation order is made and the claimant is inadmissible to Canada.  These individuals will require an Authority to Return to Canada (ARC) in order to re-enter Canada, as per section 52(1) of the IRPA and section 226 of the Immigration and Refugee Protection Regulations (IRPR).

 I have reviewed cases after the fact where a claimant has taken no additional steps to extend a stay in Canada or use additional Canadian administrative and/or judicial resources, attend removal interviews, have their passport returned to them by the CBSA, purchase their own ticket to return and fully cooperate with the CBSA, and yet this all has no bearing on the departure order becoming a deportation order.  It is simply a function of time and CBSA officers have no discretion.   These factors do however weigh heavily in claimants favour in seeking an ARC.

Therefore, the timing of withdrawing a refugee claim is critical and advance planning is required to attempt to avoid a deportation order. In fact, efforts to comply with authorities, including purchasing an airline ticket in advance of removal meetings is often advisable if timing is very tight. Naiveté regarding the requirements of the IRPA; and a lack of understanding of the requirements of a departure order converting to a deportation order is far too common.  It would be very helpful if both Immigration, Refugees, & Citizenship Canada (IRCC) and CBSA would provide clearer messaging to claimants at the time of a refugee claim and at the time of removal to avoid this far too common but serious consequence.

For more information on Removal Orders, please click here.

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To read the full article, please click here.

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Mr. Bellissimo has dedicated his career helping clients face the harsh reality of medical inadmissibility. He understands that coming to Canada is so much more than Immigration, it’s about wellness and seeking opportunities for health.

Below are his Top 5 Considerations when responding to a Fairness Letter:

1.Does The Applicant Know The Case To Be Met?

Understand the impacting factors of your case. Ex. What are the essential vs. non essential services of your condition? Is the medical officer qualified to render that opinion?

2. Applying The Right Test:

What is reasonably going to occur within the next 5 years. What is probable and not what is possible.

3. Understand The Delivery Of Health And Social Services:

Create a mitigation plan. What services or treatments will be conducted privately? What will require Public funding?

4. Understand The Legal Timeline:

How is your condition going to play out over the next five to ten years?

5. Request For An Extension.

Don’t rush, if you ask for it later, it may not be granted.

To hear the full Podcast, please click here.

For more information on Medical Inadmissibility here.

The post Medical Inadmissibility – Top 5 Considerations When Responding To A Fairness Letter first appeared on Bellissimo Law Group.

Obligation upon Entry

Subsections 16(1) and (2) of the Act holds a person must answer truthfully and provide relevant evidence such as a visa that the officer reasonably requests, including, in the case of foreign nationals, proof of photographic and fingerprints and a medical examination.  Subsection 16(3) pertains to evidence such as photographic or fingerprints or other materials that may be used to establish the identity of a permanent resident or a foreign national who is arrested, detained or subject to a removal order. It is important to note that section 23 of the IRPA allows an officer to authorize a person to enter Canada for the purpose of further examination or an admissibility hearing. In such a case the person remains under examination until a decision has been made.  But if an Officer does not ask, is the person seeking entry in the clear?

Primary Examinations

Primary examination questions are designed to obtain essential information, such as citizenship, residency, intention, employment, length of stay and identity as quickly as possible. Typically, the CBSA officer conducting the examination at the Primary Inspection Line (PIL) does not ask a person about criminality. Officers are trained to direct person’s with criminality issues to the Immigration Secondary Examination as this allows for more time to conduct an in-depth examination. So should a CBSA officer at any time suspect through questioning, behaviour or other indicators that a foreign national may have a criminal record, that person should be referred to the secondary examination. The privacy of the individual is protected under the Act. Therefore, officers should not ask any questions regarding criminality in the presence of accompanying family members or other travelers.

So this sounds as if the person is not asked or suspected of having a criminal record there is no obligation on the person entering the country.  Not quite.  All persons seeking to enter Canada must appear for an examination to determine whether they have the right to enter Canada or may become authorized to enter and remain in Canada. If a foreign national or permanent resident has a criminal record that renders the person inadmissible to Canada and has not received a record suspension, been deemed rehabilitated or received a certificate of rehabilitation that person cannot enter Canada without a temporary resident permit.  So there exists a positive obligation to declare the criminality even if not asked or previously entered Canada without any issue.

Once declared, expect a referral to secondary.  It is always best to consult with a Canadian immigration lawyer if you have any concerns about your status and potential admissibility.  In Part Two, I will discuss what happens at the Secondary Examination.

For more information on Criminality and TRPs, please click here and here.

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