TEMPORARY RESIDENT PERMITS (S.24 IRPA)

What is the legal test for Temporary Resident Permits (TRPs)?

 

This question was answered in the recent Federal Court decision of Krasniqi v. MCI, 2018 FC 743.

The Court states:

19. Equally, I am not persuaded by the Respondent's contention that applicants must demonstrate "compelling reasons" to be issued a TRP. While much of the Federal Court jurisprudence appears to have applied such a test, I will adopt the view articulated by Justice Harrington in Palmero v. Canada (Minister of Citizenship and Immigration), 2016 FC 1128 (F.C.) at para. 21:

I am concerned that the Guidelines speak of "compelling reasons", while the Act itself does not. Not only are guidelines not law, but they cannot go beyond the boundaries of the statute itself.

20. Federal Court jurisprudence indicates that there is no legal obligation for a decision-maker to consider and apply the guidelines; it is often repeated that the guidelines are not law, not binding, and do not create any legal entitlement in the context of a TRP application: Vaguedano at para. 35; Shabdeen v. Canada (Minister of Citizenship and Immigration), 2014 FC 303 (F.C.) at para. 16. However, this Court has also recognized that a decision-maker must nevertheless consider the relevant circumstances and the reasons advanced by an applicant when assessing eligibility for a TRP: Zlydnev v. Canada (Minister of Citizenship and Immigration), 2015 FC 604 (F.C.) at para 20; Mousa v. Canada (Minister of Citizenship and Immigration), 2016 FC 1358 (F.C.) at para. 9; Ali v. Canada (Minister of Citizenship & Immigration), 2008 FC 784 (F.C.) at para. 12. In my view, this obligation covers any relevant circumstances or reasons, whether or not they are specified in the guidelines.

[…]

27. Moreover, the decision-maker's analysis of Ms. Hashani's situation was wholly insufficient and demonstrated a complete lack of appreciation for her circumstances. Although framed in the language of "compelling reasons" (which I have already described as problematic above), Justice Shore wrote in the oft cited decision of Farhat v. Canada (Minister of Citizenship & Immigration), 2006 FC 1275 (F.C.) at para. 22, "[b]asically, the TRPs allow officers to respond to exceptional circumstances while meeting Canada's social, humanitarian, and economic commitments [emphasis added]." In my view, the case at bar potentially engages all three of those criteria, and I believe that a fulsome analysis of those interests may have yielded a different result.

According to s.24 of the Immigration and Refugee Protection Act:

Temporary resident permit

• 24 (1) A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.

 

In Krasniqi, the Learned Justice explicitly took issue with the long-standing policy guideline issued by IRCC requiring applicants to demonstrate “compelling reasons” on a Temporary Resident Permit Application whereas the Immigration and Refugee Protection Act (“IRPA”) only refers to a Temporary Resident Permit as being “justified in the circumstances”.  This case is instructive as it requires immigration to conduct a fulsome analysis of all the relevant circumstances and reasons, including social, humanitarian and economic criteria. If you are inadmissible to Canada and applying for a TRP to overcome an inadmissibility, under s.24 of the IRPA, this is a useful case to keep in mind while making your submissions to IRCC.
 

Link to read the full decision in Canlii.org:

https://www.canlii.org/en/ca/fct/doc/2018/2018fc743/2018fc743.html?searchUrlHash=AAAAAQAOYWhtZWQgJiB3ZW5uaWUAAAAAAQ&resultIndex=3

IMMIGRATION DEPORTATION – Deferral of removal pending finalization of spousal sponsorship – Best interests of the child

Huang v. Canada (MPSEP), 2018 FC 446, Country: China, Barnes J. (April 25, 2018)

Our client was scheduled to be deported. His wife was a Canadian permanent resident and together, they were parents of a six year old boy.  We made a request for a deferral of his removal – based primarily on the principle of family unity and the prejudice to his young child arising from a possible lengthy separation. We asked the enforcement officer to allow him to stay until the finalization of his outstanding spousal sponsorship, but our request was denied.

We helped our client to seek the intervention of the Federal Court to stay his deportation.  The court was satisfied we had met the legal test for a stay of removal and the deportation was stopped in the interim while the case proceeded to judicial review. On judicial review, the Honourable Justice Barnes was not satisfied that the officer’s analysis adequately addressed the evidence bearing on the child’s best interests in this case.  It is significant that the court stated that the suggestion in the officer’s decision that the “the best interests of the child threshold could only be met with satisfactory evidence showing ‘irreparable and permanent separation’ vastly overstates the burden” (at para. 8). The relevant paras read:

[7]  I am not satisfied that the above analysis adequately addressed the evidence bearing on the child’s best interests in this case.  The likely lengthy separation of Mr. Huang from his child of tender years cannot be reasonably described on this record as routine or unexceptional.  I accept that a stronger argument could have been made about the financial and care-giving hardships faced by this family in the event of Mr. Huang’s removal.  However, there was evidence that the family was surviving on Ms. Lin’s modest income and repaying a relatively significant mortgage.  Mr. Huang was also looking after the child care responsibilities while Ms. Lin worked.

[8]  The suggestion in the Officer’s decision that the best interests of the child threshold could only be met with satisfactory evidence showing “irreparable and permanent separation” vastly overstates the burden.  There is no doubt that this separation would be prolonged and, therefore, hurtful to the child’s formative needs.  The lengthy separation of a parent from a child of tender years requires a far more nuanced assessment than this one. 

The Federal Court also noted that it is one thing for a deferral officer to limit the scope of a best interests analysis where the child’s interests have already been fully considered in an earlier review and in situations where this has not occurred.  Paragraph 9 reads:

[9]  It is one thing for a deferral officer to limit the scope of a best interests analysis in circumstances where the child’s interests have already been fully considered in an earlier review. It is quite another to conduct such a review where those interests have never been addressed before the proposed removal of a parent.  In this latter situation, the review must be reasonably robust.  Central to the exercise of that discretion must be a careful assessment of the length of the likely separation and the financial and emotional hardships that are expected to prevail over time.  In my view, the analysis done here was perfunctory and inadequate and, therefore, unreasonable.

The officer’s decision under review was set aside and sent back for re-determination.

To read the full case: https://www.canlii.org/en/ca/fct/doc/2018/2018fc446/2018fc446.html

MISREPRESENTATION- – Altered passport stamp-- Citizenship Act, s.22(1)(e.1)

Hoseinian v. Canada (MCI), 2018 FC 514, Grammond J.

Our client applied for Canadian citizenship. During the processing of her application, a document analyst discovered that an Iranian entry stamp on her passport had been altered. This raised doubts as to the duration of the applicant’s residence in Canada in the four years preceding her application. Our client provided additional evidence to show that she had, in fact, travelled from Canada to Iran on the date purportedly shown on the disputed Iranian entry stamp. But Citizenship and Immigration Canada refused her application for citizenship, alleging that she had made a material misrepresentation. She retained our firm to seek a judicial review.

The Citizenship Act does not define the concept of misrepresentation.  According to the Federal Court -  “[I]n the private law context, the tort of negligent misrepresentation is made out where, among other conditions, a statement is ‘untrue, inaccurate or misleading’…. This minimal requirement also applies in the immigration context” (at para. 9). See, for example, Wang, 2006 FCA 345. In the present case, the Federal Court considered the wording of s.22(1)(e.1) of the Citizenship Act. To constitute a misrepresentation, a statement must relate to “material circumstances,” and it must have the potential to “induce an error in the administration of this Act.” “Presenting a document that has been altered does not automatically create such a potential error” (at para. 10). The court stated (at para. 12):

 [12]  Thus, when immigration or citizenship officials find that a document was altered, they cannot conclude, on that basis only, that there was a misrepresentation. They must ask themselves whether the alteration conveyed false information that related to a circumstance that is material to the application before them (Koo v Canada (Citizenship and Immigration), 2008 FC 931 (CanLII), [2009] 3 FCR 446). In that inquiry, evidence showing that the information is true would be highly relevant.

In this case, the officer omitted to do this, but treated the altered Iranian entry stamp as conclusive and did not consider the additional evidence tendered. The officer’s decision was found to be unreasonable. “Most importantly, nothing in the record shows that the officer reached any conclusion as to the truthfulness of the information conveyed by the disputed entry stamp” (at para. 15). The application for judicial review was allowed, and the matter was sent back for redetermination by a different officer.

To read the full case: https://www.canlii.org/en/ca/fct/doc/2018/2018fc514/2018fc514.html?searchUrlHash=AAAAAQARd2VubmllICYgZ3JhbW1vbmQAAAAAAQ&resultIndex=1

CITIZENSHIP APPLICATIONS AND MISREPRESENTATIONS

Nowadays, many people know that “permanent residents or foreign nationals” can be found inadmissible on the grounds of misrepresentation “for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the Act [ Immigration and Refugee Protection Act].

However, most people are surprised to learn how widely the definition of misrepresentation is being interpreted by immigration authorities, that it can even capture honest mistakes and oversights, and how aggressively Canadian immigration authorities are trying to catch persons for “misrepresentation”. Also, few people seem to understand that misrepresentations can come and haunt them for years after they become permanent residents – especially when they apply for citizenship.

The Act is clear “permanent residents” can be guilty of misrepresentation. Therefore, if  permanent residents are applying for the extension of their Permanent Resident Cards, or sponsoring their spouse, or even were questioned upon re-entry to Canada, a permanent resident can be found to have misrepresented if immigration authorities believe that the person directly or indirectly misrepresented or withheld material facts relating to a relevant matter that induced or could induce an error in the administration of the Act.

One of the most common instances that people are caught for misrepresentation is when applying for citizenship. Often times people are caught for misrepresentation when they apply for citizenship after having come to Canada by virtue of being sponsored by a spouse who they then left “soon after” having been landed. Of course, the definition of “soon after” is also being broadly interpreted. We have defended clients who were caught when applying for citizenship (or sponsoring a new spouse) because they had left their spouse only a few months after landing whereas some did so over a year after landing but were still alleged to have misrepresented.

This problem can be compounded if a lawyer/paralegal, when putting together the un-contested divorce, backdates the date of separation, to get a quicker divorce. On paper, this reduces the actual period that the couple was, in fact, living together.  We have even seen cases where the separation was back-dated to a time prior to the applicant even coming to Canada. While there are solutions to these challenges, the old adage: “An ounce of prevention is worth a pound of cure” holds true.

Is my Child born through Surrogacy Arrangements eligible for Canadian Citizenship by descent ?

The answer, it depends.

 If the child is born outside Canada and they have a genetic link with a parent who is a Canadian citizen, the child is a Canadian citizen by descent.  However, if the child is born through surrogacy arrangements but there is no genetic link, then the child may not be eligible for citizenship by descent. This has been confirmed by the Federal Court of Appeal in Canada (Citizenship and Immigration) v. Kandola, 2014 FCA 85 (CanLII), where the Court noted that a “genetic contribution, however made, is the only way in which a child” – can get Canadian citizenship by descent.

With the advent of AHR (Assisted Human Reproduction), the citizenship laws are creating aggravation for new parents who want to bring their child back to Canada as Canadian citizens.  The citizenship laws need to change, and the Federal Court of Appeal said as much:

[75]  The more pressing policy issue which arises from the analysis is that Operation Bulletin 381, inasmuch as it provides for different and more demanding conditions for the grant of derivative citizenship to children born through AHR, has no legal foundation. While no Charter issue had been raised before this Court, I note that this interpretation would create an unequal treatment between children of Canadian citizens depending on the manner in which they are conceived.

 [76] Several important policy issues also arise because of the novelty which this case presents. For instance, because a genetic link is the only connection required in order to convey derivative citizenship under the Act, a Canadian donor conveys that right like any other Canadian procreator. Also, by reason of the new reality created by AHR technology, it cannot be excluded that a child is “né […] d’une mère” when borne by a gestational mother, in which case the gestational link would also be capable of conveying derivative citizenship. These questions are worthy of further consideration and risk being answered by the Courts unless Parliament exercises its prerogative to deal with them by way of legislation.

However, until now, no changes have been made to the citizenship laws on this front.   The other immigration options that can be pursued to bring the child to Canada, if there is no genetic link, is by adoption; or to apply for a grant of citizenship under subsection 5(4) of the Citizenship Act as a Special Case;  or through an application under s.25 for humanitarian and compassionate consideration for permanent residency, and once the child becomes a permanent resident to apply for citizenship under subsection 5(2) of the Citizenship Act.

It is important for you to understand these immigration consequences before you decide with international surrogacy, as clearly, it will impact the citizenship of the child, the time it will take to bring the child back to Canada, and many other issues related to the child’s status in Canada.

EXPRESS ENTRY- CEC APPLICATIONS AND EMPLOYMENT LETTERS

A recent decision of the Federal Court may be of interest to those who may be able to apply for Canadian immigration under the current Express Entry regime, in the Canadian Experience Class, or need letters to support their work experience. 

For an officer to assess whether one is eligible to apply for permanent residence as a member of the CEC Class, the officer must evaluate whether the applicant meets the criteria of subsection 87.1(2) of the Immigration Regulations.  One of the requirements is that you must have – at least one year of full-time experience in one of the appropriate NOC (National Occupational Classification) code within Skill Type O (Managerial Jobs), or Level A (Professional jobs), or Level B (Technical jobs and skilled trades jobs)  of the NOC.  Most applicants submit employment letters or letters of reference to prove they have performed the duties described in the NOC.  Similar examination has to be conducted in the Federal Skilled Worker and the Federal Skilled Trade class. We often see that the reviewing officers may find the content of these letters do not satisfy them, that the applicant has the requisite employment experience and they refuse the application. Why does this happen?

It happens because in some cases, the employment letters have simply copied verbatim what is described in the NOC for their occupation onto their employment letters, and in other cases, the employment letters do not describe the duties sufficiently in detail to show the applicants meet the description in the NOC.

Keep in mind, to qualify, applicants must meet all the duties described in the lead statement of the NOC, including all the essential duties and most of the main duties listed. If the applicants are unable to show that their experience meets the description in the NOC, they run the risk of their application being refused.

The Federal Court in a recent decision where our firm represented the applicant, discusses how officers must assess the applicant’s claim that he belongs to the NOC:

 [14] In Qin v. Canada (Minister of Citizenship and Immigration), 2013 FC 147 at para 30, Justice Gleason set out the process by which an officer must assess an applicant’s claim to belong to a NOC:

In evaluating whether or not an applicant’s experience falls within a permissible NOC Code, an officer is required to understand the nature of the work performed and the degree of complexity of the tasks undertaken, to determine whether or not they fall within the duties listed in the relevant NOC Code descriptors.  The requisite analysis necessitates much more than a rote comparison of the duties listed in the NOC Code with those described in a letter of reference or job description. Rather, what is required is a qualitative assessment of the nature of the work done and comparison of it with the NOC Code descriptor… Thus, it is beyond debate that the officer must undertake a substantive analysis of the work actually done by an applicant.

(Emphasis added)

[15] In other words, an officer must look to the substance of the work done and avoid a superficial analysis of the language used in the job description.  In this case, however, the Officer, in stating that there was “no mention in the letter that you are assigning and reviewing the work of clerks under your charge, as outlined in the lead statement” (AR at 8), ignores the substance of the letter in favour of the specific words used.  As the Applicant correctly notes, being “in charge of” something and “supervising” it are equivalent; this is particularly so when one considers the other duties outlined in the letter of reference, such as “training reservation operators and agents”.

[16] Requiring the Applicant and/or East Link to have said more amounts to a requirement to repeat the language of the NOC’s lead statement verbatim.  Justice Russell, faced with a similar dispute in Song, had the following to say:

[29] It is clear  that the duties listed in the employer’s letter do not use the same words that appear in NOC 0621. But this will inevitably be the case because applications have been refused when an employer simply reiterates the wording of a NOC.  So employers are obliged to describe in their own words exactly what applicants do.  This requires officers to examine applications carefully and not to reject them because the same words are not used.

 Chen v. MCI, 2016 FC 611, Diner, J.

This guidance from the Federal Court is certainly instructive as it helps inform potential applicants what they must provide to meet their burden of proving they have the requisite experience to qualify under the CEC class.

Misrepresentation Leading to 5 Year Ban

MINOR OVERSIGHTS CAN LEAD TO FINDINGS OF MISREPRESENTATION WHICH CAN LEAD TO A FIVE (5) YEAR BAN

Immigration authorities has become increasingly aggressive, to the point that they try to make a minor oversight, a reason to find applicants inadmissible for 5 years.  Our office is seeing this happen more often to persons seeking entry into Canada.  

The scenario which commonly leads to this finding, occurs when these applicants have previously applied to go to a Western Country (usually the United States) for a temporary purpose (visit, study, work), but their application was rejected.  Sometime later they apply for a visa to Canada.   However, the officer advises that not only is he looking to reject their visa application, but he also states that he has found the applicants to have engaged in misrepresentation in their application for Temporary Resident Visa and believes that they may be inadmissible to come to Canada. 

The letter further explains that the misrepresentation finding renders the applicants inadmissible for a period of five (5) years. Meaning these applicants are banned for 5 years from entering Canada.

In many cases, this is the result of a simple oversight or misunderstanding.  In most cases, for example, for a visitor application, Form IMM 5257, has a question in the Background:

Section, 2(b) – Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country.

Many clients misread this question.  Let’s be clear, if you have a previous refusal to the U.S., Australia, U.K. or “any other country,” you must answer YES.  Not doing so, or checking the wrong box, can lead to a finding of misrepresentation and a ban of 5 years.

The law is set out in subsection 40 (1) (a) of the Immigration and Refugee Protection Act, which reads;

Misrepresentation

       40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation

(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

       Application

(2) The following provisions govern subsection (1):

(a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced;

So what can you do if you have received such a ban?  Obviously, it is better that you seek legal help when you receive a letter from the visa post asking you to explain why you have not disclosed the previous refusal to prevent the officer finding you inadmissible, especially if you mistakenly checked off the wrong box.  But what if it’s too late and a finding of inadmissibility is already made, and the ban is imposed on you.  You have the right to seek a judicial review of the officer’s finding in Federal Court.