There are two possible ways to challenge a negative decision made by an Immigration officer. The Immigration and Refugee Protection Act sets out specific appeal rights for sponsors and permanent residents of Canada. These persons have a right of appeal to the Appeal Division of the Immigration and Refugee Board. This is explained in more detail below. For all other types of immigration decisions, including decisions on humanitarian and compassionate applications, Pre-Removal Risk Assessment applications, decisions of the Refugee Protection Division of the Immigration and Refugee Board and skilled worker applications, it is necessary to file an Application for Leave and Judicial Review in the Federal Court. For decisions made on applications within Canada, the deadline for beginning the Federal Court application is within 15 days of having been notified of the decision. For decisions made on applications made outside Canada, such as skilled worker applications, the deadline is 60 days from notification of the decision to refuse.
In some circumstances filing in the Federal Court automatically stops all further steps toward removal from Canada until that application is finally decided. That is the case, for example when challenging a negative refugee decision. However, in some cases it is necessary to file a further motion with the Federal Court to try to stop removal. This is called a Motion for a stay of removal and is discussed in more detail below.
Ronald Poulton has extensive experience in the Federal Court and has a high rate of success in judicial review applications. For a sampling of some of his cases, please click here.
Immigration Appeal Division (IAD)
Decisions on overseas sponsorships and decisions taking away permanent resident status can be appealed to the Immigration Appeal Division of the Immigration and Refugee Board (IAD). Sponsorships refused on grounds of inadmissibility, eligibility or bona fides of a relationship can all be appealed to the IAD. Similarly, permanent residents who are issued removal orders on the grounds of criminality, misrepresentation and failure to meet the residency requirements can also appeal to the IAD. Ronald Poulton regularly appears
Before the IAD. Refugee Protection Division (RPD)
The RPD is the board that hears and decides on refugee protection claims. The RPD applies two sets of criteria in assessing claims. The first is the definition from the UN Convention Relating to the Status of Refugees. Under this set of criteria, a claimant is recognized asa refugee if they can establish persecution in their home country on grounds of race, religion, nationality, membership in a particular social group or political opinion. The second set of criteria applies a definition taken largely from the UN Convention Against Torture (CAT). Under this definition a person is a protected person (a status similar to being recognized as a Convention Refugee), if in being returned to their home country she would face a risk of torture, death or of cruel and unusual treatment or punishment. Ronald Poulton formerly worked with the United Nations High Commissioner for Refugees (UNHCR) in Hong Kong as a refugee appeal officer and has represented many refugee claimants before the RPD in Canada.
Pre-removal Risk Assessment (PRRA)
A Pre-removal risk assessment application is another type of application based on risk on return to country of origin. It is usually commenced by CBSA and only when the person is “removal ready” (that is when there are no legal impediments to removal from Canada). As such it is often considered the last step before removal from Canada. Unlike a refugee hearing, a PRRA is usually determined without an oral hearing or interview but on the basis of written documentation. Under the Immigration and Refugee Protection Act PRRA officers are to assess only “new” evidence since the refugee hearing. PRRA officers had been interpreting this to mean that only evidence of a new political or human rights situation in the country of origin could be considered, that is, evidence establishing a new set of facts than those that were before the RPD. Mr. Poulton successfully challenged this position before the Federal Court of Appeal in Raza v. M.C.I.. In that decision the Court ordered that PRRA officers must expand their understanding of “new” evidence to include evidence that postdates the refugee decision but which ca relate to the same grounds that were unsuccessfully argued before the RPD, particularly in situation where the RPD did not believe the refugee claimant.
A non citizen may be detained for a number of reasons under the Immigration and Refugee Protection Act . These reasons include where an immigration officer has reason to believe that the person is inadmissible to Canada and is a danger to the public in Canada; or where an immigration officer has reason to believe that a person is unlikely to appear for an examination, hearing or removal from Canada. Once detained there are several mechanisms to secure release. A negotiated settlement can be reached with CBSA usually involving the payment of a deposit and/or the posting of a guarantee for compliance with release conditions. If an agreement cannot be reached the detainee will be brought before the Immigration Division of the Immigration and Refugee Board for a detention review hearing. This hearing is to be held within 48 hours of being detained and allows the detainee to contest the detention order and offer conditions of release including the posting of a deposit or guarantee. This cannot be done by the detainee him or herself but only by a bondsperson found suitable by the Immigration Division. In recognition of his expertise in this area of immigration law in Canada, Ronald Poulton was invited by the Danish Refugee Council as a guest speaker to attend its conference on the issue of the detention of asylum seekers. His paper he co-authored with Barbara Jackman on detention in Canada presented at the conference was published by Martinus Nijhoff Publishers. Permanent Residency
There are a number of applications made under the Immigration and Refugee Act which can lead to a grant of permanent residency. Several of these applications will be reviewed below.
i. Family Class Sponsorship
Permanent residents and Canadian citizens can sponsor some of their family members for permanent residency in Canada. If the sponsor is a permanent resident, then he or she must be resident in Canada in order to be an eligible sponsor. However, a Canadian citizen living abroad may sponsor a family member to Canada provided that they intend on returning to Canada to resume residency before or at the time the sponsorship is approved. Sponsorship is limited to the following family members:
•spouses, including married, common law and conjugal partners,
•dependent children, defined as biological children under the age of 22 or, if over 22, in full time attendance in school and financially dependent on the sponsor prior to turning 22 and at present.
•the sponsor’s mother or father
•the sponsor’s grandparents
•orphaned siblings, nieces, nephews and grandchildren
•children the sponsor has or intends on adopting,
•One relative, regardless of age if the sponsor does not have other family members they can sponsor or who are Canadian citizens or permanent residents.
A sponsor who applies to sponsor a spouse or child, does not have to meet any financial criteria in order to be eligible. However, if the sponsor’s income is low and an immigration officer decides that the person being sponsored may resort to welfare payments once in Canada, the person may be refused on the grounds of inadmissibility. For all other sponsorships, the sponsor must have income which meets the low income cut-off figure, an amount dependent on family size and periodically changed by Canada Immigration. It should be noted that, for those with relatives in Alberta or Saskatchewan, the possibility of such sponsorships does also exist under Provincial Nominee Programs.
ii. Skilled Worker
An application for permanent residence in Canada will be granted under this category provided the applicant meets or exceeds selection criteria requiring an accumulation of 67 points over a number of areas including age, education work experience, language ability and other factors. A successful applicant in this category worker must have, at a minimum, 1 year of work experience in and qualifications for one of only 38 jobs recognized by Canada Immigration. Without this experience, an applicant will not qualify for permanent residency, regardless of points accumulated. In order to benefit from an expanded list of possible jobs recognized by Canada Immigration as qualifying an applicant for permanent residency, an applicant must have a current offer of arranged employment or been living in Canada for at least one year as a temporary foreign worker under a work permit or an international student.
iii. Canadian Experience Class
This category recognizes the value of having already worked in Canada under a valid work permit either in a post graduate job, after having attended school in Canada, or for a period of at least two years as a full time employee. In this category, the jobs recognized by Canada Immigration are from amongst the expanded list of possible qualifying jobs. Once found eligible under this program, an applicant is assessed on only two requirements, work experience and ability in English or French.
iv. Provincial Nominee Program (PNP)
The Provincial Nominee Program allows each Province to nominate a prospective immigrant for permanent residency in Canada. If accepted by a province, a certificate is issued which allows for expedited processing by Canada Immigration. Although programs vary from Province to Province, most share the common feature of employer nominated candidates. A prospective employee nominated by an employer for a job recognized by the province under the PNP program may qualify. Other PNP programs include those requiring significant capital investment or the establishment and management of a business.
v. Business Applicants – Federal
Applicant’s who intend on establishing and managing businesses in Canada or who invest in designated provincial or territorial funds, or who have the ability to be self employed, may qualify for permanent residency in Canada. The Entrepreneur class is designed for those wishing to establish a business. To be eligible, an applicant must have past managerial experience, have a net worth of at least CAD $300,000.00, employ at least one Canadian or permanent resident and actively participate as a manger of the business.
To qualify as an investor, an applicant must invest CAD $400,000.00 in a provincial or territorial fund, have a net worth of at least CAD $800,000.00, past managerial experience and a percentage of equity in a business prior to the application.
A self-employed applicant must have the intention and ability to be self-employed in Canada and to make significant contributions to cultural activities or athletics, or must have the intention to purchase and manage a farm.
vi. Humanitarian and Compassionate grounds
Applicants who may be other wise inadmissible to Canada or who do not qualify under one of the above headings for permanent residency, may be granted landing on the grounds of compelling humanitarian and compassionate factors. In order to succeed, an applicant in this category should demonstrate that if forced to leave Canada or if denied entry into Canada, they or others immediately affected by their status, such a children, would suffer undue hardship. Since the Supreme Court of Canada decision in 1999 called Baker v. MCI, the best interests of any children affected by the decision is of utmost importance.
Emergency Stay of Removal
If an Application for Leave and Judicial Review is commenced, it is possible to ask the Court to stop removal in cases where there is no automatic stay. This is called a motion for a Stay of Removal. The Court applies a three part test to determine if a stay is warranted in the circumstances of that particular case.
First, the judge must be convinced that the case raises a serious or arguable issue. This means that at a preliminary reading of the case, the applicant must establish that a serious argument can be made that legal or factual errors have been made in the decision under review. Second, the applicant must establish irreparable harm if deported. Finally, the balance of convenience must favor the applicant. If all three grounds are accepted by the judge, a stay of removal will be granted. The stay remains in force until the Application for Leave and for Judicial Review is finally determined.
Stay decisions are rarely reported and are therefore not usually available online unless they are considered leading cases or precedent setting cases. Mr. Poulton has been counsel on a number of such cases. For a review of these cases click here.
Individuals may be allowed into Canada on temporary status, for limited periods of time. Visitors, workers and students, are the most common temporary residents. At the completion of their original reason for coming to Canada, whether employment contract, school or holiday, their status expires and they are expected to leave.
Work permits may be issued through several mechanisms, including the issuance of Labour Market Opinions (LMOs) or under NAFTA.
An additional tool for overcoming inadmissibility is an application for a Temporary Resident Permit (TRP). A TRP may be issued for compelling humanitarian grounds or for other reasons such as Canadian economic interests. A TRP allows the recipient admission into Canada and, depending on the reason for the inadmissibility, a grant of permanent residency under the Permit Holders Class after a period of 3 or 5 years.
Generally speaking, permanent residents of Canada qualify for Canadian citizenship if they have resided in Canada in 3 of the 4 years preceding their citizenship application. Residency is defined as either being the actual number of days physically spent in Canada, or the period of time in which an applicant has centralized his or her mode of living. Factors such as location of the principal residence, employment and family may be considered.