Retroactive closure of skilled worker applications filed before February 2008. It may not be the end!!

Section 87.4 of IRPA purports to retoractively close outstanding skilled worker applications filed before 2008 and not considered on their merits before March 2012. However, there may be two exceptions, one in the Act and one not. The first is for cases which have been sent back by judicial order. Section 87.4(2) says: Subsection (1) does not apply to an application in respect of which a superior court has made a final determination unless the determination is made on or after March 29, 2012.

Although suprior court is not defined, and does not usually include the Federal Court, the only court with jurisdiction to render final determinations on such applications is the Federal Court. As such, cases sent back by Federal Court order before March 2012, will be exempt from the application of s. 87.4. In other words, they will remain open and must be processed.

The other exception may be cases in which an exemption under s. 25 for humanitarian reasons was requested with the skilled worker application. Technically, s. 25 applications are not caught by s. 87.4 and should not be closed. I have clients in this situation. This issue may have to be resolved through judicial review.

Supreme Court decision in Agraira v. MPSEP

Released today, June 20, 2013, the Supreme Court of Canada decision on the Minister's powers under s. 34(2) of IRPA, upholds a broad Ministerial discretion. Section 34(2) allows the Minister to decide that a person otherwise inadmissible to Canada on security grounds is admissible if their presence in Canada would not be detrimental to national security. Guidelines had been published by Canada Immigration  listing a number of factors to consider in assessing an application for s. 34(2) relief. In Agraira, the Minister had not referred to many of the factors listed in the guidelines, and also failed to define the term national interest. The Minister based his decision solely on issues of public safety and national interest. The Federal Court of Appeal upheld this approach, noting that the guidelines, including references to humanitarian factors, could be ignored.

The SCC has now held that although a s. 34(2) determination is not concerned only with public safety and national interest, and that factors such as the objectives of IRPA, the Charter, democratic values and the guideline factors listing personal circumstances of the appellant are also important, it may be assumed that the Minister considered these factors. Applying a principle called "implied interpretation" the Court assumed  that the Minister had considered all of the appropriate factors and had applied the correct definition to national interest, even though no where in his reasons did he articulate many of  the applicable principles listed as relevant by the Court.

Refugee Sur Place

The Refugee Board and Federal Court are deeply divided on the issue of whether those aboard the Ocean Lady and Sun Sea are refugees or not. The issue is this: because of allegations made by the Canadian government and publicized in local news outlets that passengers of these ships had links to the Tamil Tigers, are all of the passengers at risk of detention, questioning and possibly torture upon return to Sri Lanka. In other words, are they refugees sur place. In a recent decision by Justice Harrington in MCI v. A011, he overturned a decision of the refugee board  on the technical ground that these passengers, whether at risk or not,  were not part of a particular social group - as that term is defined in section 96 of IRPA. The issue is important because if section 96 applies, the standard to be applied in serious reasons. If not, and s. 97 applies, it is balance of probabilities - a much higher legal burden for an applicant. A particular social group is a group with immutable characteristics which are fundamental to human dignity. In the case of the passengers of the Ocean Lady and Sun Sea, the Court held that their common desire to come to Canada had little to do with fundamental human dignity. They were therefore not part of a particular social group and so the decision was overturned.

The issue is one of imputed political opinion, in my view, not social group. Section 96 should certainly apply.

Lie detector tests are admissible in immigration board proceedings in Canada.

The Supreme Court of Canada has decided, in the criminal law context, that these test findings usurp the role of the trier of fact where judges preside and so are not admissible in courts. However, they have not been found to be unreliable. Given that the rules of evidence applicable to courts do not apply to immigration boards, a report of a lie detector test can be admitted into evidence before a board. The weight to be apportioned this evidence is up to the board member. I recently used the results of such a test to assist in exonerating my client who was accused of misrepresenting the bona fides of his marriage. The client faced the possibility of having his permanent residency revoked and being deported from Canada. However, the Immigration Division decided that the Minister had not met its burden of demonstrating the misrepresentation. The use of the lie detector test report was invaluable in helping us win.

Learn more about new immigration rules

Immigration information forum to be held at 30 Thorncliffe Park Drive (at Overlea Blvd.) with Ronald Poulton and Craig Scott,  MPP for Toronto - Danforthhttp://craigscott.ndp.ca/node/569004.

Immigration Regulations to be amended to require fee for LMOs and onus on employer to demonstrate plan to transition to Canadian workers. Amendments are unnecessary overkill. At present, LMOs are only granted if no qualified persons in Canada can perform the work. Work permits are temporary and limited to 4 years. Requiring employer to transition to Canadian workers means creating training programs that employers may not be able to afford and may undermine the Canada Experience Class program.

The Immigration Appeal Division has the powers of a superior court of justice. These powers include reopening appeals where a breach of natural justice has occurred. In Davis v. MCI, the Board re-opened an appeal for an appellant who had failed to appear for his hearing. The appellant was a mentally challenged young adult who did not understand the nature of the proceedings. Although he had been through a number of criminal and immigration proceedings, the courts had never been alerted to his handicap. Once discovered, a psychological report confirmed Mr. Davis's inability to comprehend the process and the IAD agreed to reopen. They based the re-opening on the principle of breach of natural justice not on the face of the record. This was a first for the board.