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.

What is the purpose of a TRP?

TRPs are listed in section 24 of the Immigration and Refugee Protection Act IRPA and operate to soften the sometimes harsh consequences of the strict application of the IRPA, which surfaces in cases where there may be “compelling reasons” to allow a foreign national to enter or remain in Canada, despite inadmissibility or non-compliance. Basically, TRPs allow officers to respond to exceptional circumstances while meeting Canada’s social, humanitarian, and economic commitments.[1]  The following persons are eligible for a TRP:

Any person who is: 

• Inadmissible and seeking to come into Canada if an officer is of the opinion that it is justified in the circumstances;
• in Canada and is inadmissible, subject to a report or reportable for violation of the Act, or does not otherwise meet the requirements of the Act;
• not eligible for restoration of status.

When are TRPs granted?         

In determining whether a TRP should be granted generally, officers are obligated to weigh the need and risk factors of each case.  The In Land Processing Manual lists specific factors, some obligatory and some discretionary, that are to be considered in performing this assessment:

Officers must consider:

1. the factors that make the person’s presence in Canada necessary (e.g., family ties, job qualifications, economic contribution, temporary attendance at an event);
2. the intention of the legislation (e.g., protecting public health or the health care system).

 The assessment may involve:

1. the essential purpose of the person’s presence in Canada;
2. the type/class of application and pertinent family composition, both in the home country and in Canada;
3. if medical treatment is involved, whether or not the treatment is reasonably available in Canada or elsewhere (comments on the relative costs/accessibility may be helpful), and anticipated effectiveness of treatment;
4. the tangible or intangible benefits which may accrue to the person concerned and to others; and
5. the identity of the sponsor (in a foreign national case) or host or employer (in a temporary resident case).[2]

Where can I apply for a TRP and for how long?

TRPs may be issued at ports of entry and inland offices while permit extensions are only issued inland.  Although certain applicants apply in person, most applicants apply in writing.  An initial permit may be granted for a maximum of three years, and may be extended for another two years.  Depending upon the reason for entry to Canada, the time request could be for as short as one day.

Written submissions on a TRP application should, therefore, provide a ‘‘needs versus risk” assessment emphasizing the pressing need for the person to enter or remain in Canada and demonstrating that the applicant poses a minimal risk to Canadians or no risk at all. It is important to be aware that a TRP is deemed cancelled when the permit holder leaves Canada, unless the document authorizes re-entry.

Is an interview required?

Interviews are usually necessary for serious inadmissibility or flagrant or intentional violations, or to assess credibility, merit, or risk and the degree of contrition. An interview may not be necessary if inadmissibility is on health or technical grounds and when credibility or merit is not an issue or where the inadmissibility involves one or two minor (summary) offences and five years has passed.

For more information on Temporary Migration, please click here. If you require one to enter Canada, please contact us today.

(Sources)

The post Temporary Resident Permits (TRP) –Should I Apply? first appeared on Bellissimo Law Group.

The post This Week’s Success Story: Thorough Submissions Grant Client Temporary Resident Permit first appeared on Bellissimo Law Group.

Whether an ARC is necessary depends on the type of removal order that was issued. Removal orders and the need for an ARC are explained in this post here!

When an Immigration Officer assesses an ARC application, they will consider the applicant’s previous history with Citizenship and Immigration Canada (CIC) as well as their current situation, including the reason why they now wish to enter Canada.

When considering previous history with CIC, some factors that are considered include:

• the reasons for the removal order;
• the applicant’s history of cooperation with CIC such as previous immigration warrants, failure to appear for any hearing or removal, payment of removal costs, etc;
• the possibility that the behaviour that caused the order to be issued will be repeated; and
• the length of time since the order was issued.

In assessing the reasons for the applicant’s request to return to Canada, the Officer will consider whether:

• compelling or exceptional circumstances exist to warrant re-entry (e.g., family ties, job qualifications, economic contribution, or temporary attendance at an event);
• alternative options are available that would not require the applicant to return to Canada;
• there are children directly implicated in the application whose best interests should be considered;
• tangible or intangible benefits may accrue to Canada or the person concerned;
• the applicant can support himself or herself financially;

An ARC can be granted for return to Canada as a permanent resident, for a one-time visit, or for occasional entries for a specified purpose (e.g., medical treatments, work-related activities, or funeral of a family member) over a prescribed period. However, no one factor alone will automatically override concerns related to the safety of Canadians and the security of Canadian society.

Repayment of Removal Costs

Anyone who was removed from Canada at public expense, not just those who were deported, must reimburse the removal expenses before returning to Canada. If a person was removed to the U.S. or St.-Pierre-et-Miquelon, the person must repay costs incurred for removal in the amount of CAN$750. For any other destination, the amount to be repaid is CAN$1,500.

What is the difference between Authorization to Return to Canada and a Temporary Resident Permit?

An ARC is issued to overcome a removal order. However, if someone is found to be inadmissible to Canada on grounds other than those cited in the removal order (i.e., medical, criminality, security), they must apply for and obtain a temporary resident permit (TRP). In cases of criminal inadmissibility, a rehabilitation decision (where the applicant is deemed to have been rehabilitated) or a pardon (a foreign pardon or one issued by the National Parole Board) will also be necessary. A TRP does not overcome the need for an ARC.

For more information on removal orders, please click here.

(Sources)

The post Can I Return to Canada if Previously Removed? 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.

Canadian Citizenship Granted on Humanitarian and Compassionate Grounds

A Canadian citizen entered Canada with his newborn, who was born in the USA via human reproduction technology. The parent had the birth certificate which indicated that he and his spouse, both Canadian citizens, were the legal parents of the baby. The newborn was allowed to enter without being given any status. Once in Canada, the parents applied for a citizenship certificate for the baby as they believed she was entitled to it given their status as Canadian citizens. About one year later, they were advised that their application was put on hold until the “new policy has been developed”.

In the circumstances, with the help of our office, a Temporary Resident Permit was requested and granted. An application was then filed for permanent residence on Humanitarian and Compassionate Grounds. This was also approved and she became a permanent resident of Canada. Subsequently, our office requested that the child be granted Canadian citizenship under subsection 5(4) of the Citizenship Act – based on humanitarian and compassionate grounds. Over 5 years after she arrived in Canada, a decision on the initial application for the Citizenship Certificate as a child of Canadian citizens was made: it was refused. Our office made another application for citizenship, as a child of a Canadian parent (section 5(2) of the Citizenship Act). After many complications, the application was approved and the girl, now 6 years old, was just recently granted Canadian citizenship. Finally!

The post This Week’s Featured Success Story! 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.

Our case of the month is another successful Judicial Review pursuant to section 72(1) of IRPA. of a decision made by a Visa Officer refusing the applicants’ application for Temporary Resident Permit (TRP) pursuant to section 24 of the Act.

The applicants are married Sri Lankan citizens who entered Canada in 1992 and made asylum claims which were rejected. They were ordered to leave Canada by February 1, 1998, which they did.

The applicants’ daughter was born on January 22, 1996 while her parents were residing in Canada, thefore she holds Canadian citizenship.

The applicant’s migrated to the United States in 1998 where they also filed an asylum claim which was also denied. A removal order was issued for March 24, 2004; however, this was postponed since they did not posses Sri Lankan passports.

The applicants’ daughter suffers from autistic disorder and moderate mental retardation. They claimed that the quality of care and support that their daughter requires will not be available to her in Sri Lanka therefore decided to return to Canada.

The Officer rejected the applicants’ TRP applications stating that he did not find there to be sufficient evidence of the applicant’s need to enter Canada is compelling enough to issue a TRP.

The reasons were as follows:

1. The officer was not satisfied that there was sufficient evidence that the risk of allowing the applicants to enter Canada was minimal. Considering the applicants’ attempt to remain either in Canada or the United States and the length of time they have been away from Sri Lanka, the Officer found that there was considerable risk that they will remain in Canada permanently.
2. In assessing the need the factor of the TRP analysis, the Officer found that while the applicant’s then 16 year- old daughter requires the support of her parents, her need to additional services such as those that might be available in Canada was not established by the evidence submitted. The Officer noted that while the letters submitted refer to assessments, they do not refer to any established requirements for treatment or other services. The Officer also found that there was a lack of information about the projected needs of the applicants’ daughter. He concluded that in the absence of an indication of what treatment is necessary, as well as the availability and cost of the treatment, it is difficult to establish exactly what the degree of need is in this case.
3. The Officer was also not satisfied that there was sufficient evidence the applicants would be able to support themselves and that of their daughter.
4. The officer also dismissed the applicants’ representatives’ request for a consideration of Humanitarian and Compassion grounds taking into account the best interest of the child directly given that this was not an application pursuant to section 25(1) of the Act.

The issues of the case were as follows:

1. Was the Officer’s analysis of the applicants’ need to enter Canada reasonable?
2. Was the Officer’s analysis of the applicants’ risk to Canadian society reasonable?

Given the errors of the Officer’s analysis t, Justice Tremblay-Lamer found that the decision was unreasonable, and judicial review was granted in both applications.

The post Important Decision for Temporary Resident Permit Cases first appeared on Bellissimo Law Group.