Leslie H. Morley, Immigration Lawyer

If You Do the Crime, Be Sure to be on Time

2011-11-08T17:32:00.002-05:00

Oscar Wilde

"Punctuality is the thief of time", said the Irish wag Oscar Wilde. In this, as in perhaps other ways, it would seem Wilde's position differs from that of the Federal Court of Canada.

This was illustrated again in the case of Strungmann v. the Minister of Citizenship and Immigration, decided October 31, 2011. It seems that the applicant, a 24-year old European man who was visiting Canada, was convicted of the criminal offence of mischief for having spray-painted graffiti on a wall in Montreal. As a consequence he was ordered deported from Canada, and removed from this country.

Deportation orders have the effect of barring those against whom they have been enforced from returning to Canada without special permission from the Minister of Citizenship and Immigration, which can be difficult to obtain. Record that deportation orders have been issued is maintained in Canadian government databases, accessible to border officials.

In the two years that followed Mr. Strungmann's removal he obtained counsel to appeal the mischief conviction, was successful in setting it aside, was re-tried, and successfully avoided re-conviction. He then applied to court to set aside the deportation order, an application that he felt sure would be successful, because the order was based on the conviction, and the conviction had now disappeared.

Unfortunately, Mr. Strungmann failed to account for why it had taken so long for him to ask the court to set aside the deportation order. Given that the order was valid when it was issued, and that it had been enforced to remove Mr. Strungmann from Canada, the court held that there was insufficient basis to excuse his tardiness. As a consequence, his application to set aside the deportation order was denied, even though the conviction upon which it was based was overturned!

There is a deportation order against Mr. Strungmann on record with Canadian border officials. As a consequence, he may find that he has problems whenever he attempts to enter Canada. His application failed because he did not apply to the court in time, or at least better explain why he did not do so, and how he was prejudiced by the existence of the order, proving once again that, at least as far as the Federal Court of Canada is concerned, punctuality is the politeness of princes.

For more information, please contact my office at (613) 542-2192, and do not forget to visit me at www.lesmorley.com!

It's a Bird, it's a Plane, it's Super Visa!

2011-11-06T22:29:00.001-05:00

IF YOUR MOTHER lives in Kenya, your father in Argentina, or your grandparents in Tanzania, you could expect to wait over eight years to sponsor them to immigrate to Canada after filing an application to do so. In the meantime, getting them here for visits with their children or grandchildren could be a serious challenge.

Minister of Citizenship and Immigration Jason Kenny

If the situation overseas is unstable, your elderly relatives infirm, or your children in need of the love of a grandparent, processing times like these can seem interminable.

On November 4, 2011 the Government of Canada announced the creation of a new program to address the problem it calls Phase I of the Action Plan for Faster Family Reunification. The new program, which was authorized as a ministerial instruction under subsection 87.3(6) of the Immigration and Refugee Protection Act, facilitates the coming to Canada of parents and grandparents of Canadian citizens and permanent residents.

The problem, according to the Government, is that there are some 165,000 applications for the sponsorship of parents and grandparents waiting in the queue for permanent residence, with another almost 40,000 applications being added to that number every year. Given limited manpower resources to process applications, and the practice of giving priority to the applications of spouses, dependent children and skilled workers, wait times for the processing of the applications of parents and grandparents threatens to become “completely unmanageable”.

The solution implemented by the Government has four parts:

It will increase the number of parents and grandparents admitted to Canada from 15,500 (2010) to 25,000 (2012);

It has introduced a new “Parent and Grandparent Super Visa”;

It has committed to consultations on the design of a sustainable program; and

It has declared an immediate 24-month moratorium on the filing of new sponsorship applications for parents and grandparents.

There is some excitment about the new "Super Visa", which comes into being December 1, 2011. It is in effect a multiple-entry visitor’s visa like those currently in existence, except that instead of allowing a six-month visit, it authorizes the visitor to remain in Canada for up to 24 months at a time during its ten-year term. The Government says such visas will be issued quickly, so that parents and grandparents can join their families here within eight weeks, rather than the eight years it was formerly taking to process visas through some posts. Of course now they will be coming as visitors, whereas before they came as permanent residents.

To obtain a Super Visa a parent or grandparent must apply from outside the country at a Visa office. He or she must meet the usual visitor requirements, which includes demonstrating a willingness and capacity to return to their country of origin when the visit is over. Now, however, they must also:

undergo a medical examination, unless they come from an exempt country;

demonstrate that they have purchased private Canadian medical insurance; and

provide a written commitment of financial support from a child or grandchild in Canada who meets a minimum income threshold.

Presumably applicants will also have to pay the processing fee for a multiple-entry visitor visa, which is currently $150.00.

Those applications for the landing of parents and grandparents which are outstanding will continue to be processed, as long as they are complete and were received by November 4, 2011. Those received after November 4 will be returned to the applicant. Outstanding applications can be withdrawn, although only a partial refund of fees paid will be made if processing of the application has begun. It is no longer possible to ask for humanitarian and compassionate consideration for the processing of overseas sponsorship applications for parents and grandparents.

We have not seen the fine print for the Super Visa, and so it is not possible to assess its merits authoritatively. At first blush, however, there appear to be many positives.

Previously many parents and grandparents were denied visitor visas. Presumably now the Super Visa, created especially for them, will be more liberally granted.

Formerly those visiting Canada could stay for only six months at a time. Longer stays required applications for extension of the term of the visit, which required the filing of an application and the paying of a fee. Now obtaining a visa will be an issue requiring attention only once a decade, and there will not be so much travel back and forth to Canada.

The Super Visa will allow parents and grandparents to spend extended time with their Canadian family, but not at the expense of the Canadian taxpayer.

There are some issues, however. A medical exam must be completed, and the implications for failing the exam may be severe if it means parents and grandparents cannot come to Canada.

Health insurance may not be available to all parents and grandparents. Those who can get it may be able to come to Canada and those who cannot may not be able to do so. Those who come as permanent residents will have access to government health insurance, while those who are visitors will have to pay for their own.

Of course, some citizens or permanent residents may not financially qualify to support their parents or grandparents. If they cannot do so, will members of their family be able to come as regular visitors? If not, will a two-tiered system develop, in which some in Canada can bring their parents here, and some cannot? From the point of view of the children and grandchildren, it will be difficult to justify such a disparity.

Parents and grandparents who come to Canada on a Super Visa for 24 months, particularly if they come back for a second or third such lengthy visit, will presumably lose their connection with their country of origin if they are here for such an extended period. If their property back home is sold, what will this mean for future visits to Canada? Typically, the fewer ties one has with one's home country, the more suspicious border authorities are about admitting visitors to Canada. Will this be a problem in subsequent entries, or in obtaining a second Super Visa?

Also, will extended visits to Canada have tax implications for Super Visa holders?

Implementation of the Action Plan will cause more parents and grandparents to be admitted to Canada, but only from the backlog inventory of current applications. It is important to note that, according to the Government's projections, this increase comes at the expense of business class immigration, which will be reduced by about 3,500; live-in caregivers, the numbers of whom will fall by 3,600; and spouses, 4,000 fewer of whom are expected to be admitted to Canada.

Elder parents and grandparents can provide Canadian and permanent resident children with a rich cultural education, with childcare and with an nurturing extended family environment. They can assist the parents of these children to realize their employment ambitions or assist them in their family business. They bring with them to Canada their financial resources, but more importantly, they bring their culture, their affection and their wisdom. They can make an important contribution to the country. If Super Visas facilitate this, they will be a welcome initiative indeed.

If you need assistance in obtaining a Super Visa, please let me know. Please note that there may be other ways for parents or grandparents to come to Canada, if a Super Visa is not available.

For more information, please contact my office at (613) 542-2192, and do not forget to visit me at www.lesmorley.com!

Foreign Workers and Kingston: The Numbers

2011-10-08T16:59:00.001-04:00

AN URBAN ECONOMY must be dynamic to attract and secure foreign workers, particularly in difficult economic times, when the barriers to their admittance to Canada is understandably higher. It would be difficult to argue that attracting foreign workers is a requirement for economic development, but it does seem that those communities that are experiencing the greatest economic growth will attract and secure a larger than average share of foreign workers.

There is good reason to assume this. As Human Resources and Skills Development Canada indicates on its website, foreign workers cannot be admitted to Canada unless there is a favourable assessment of "the impact the foreign worker would have on Canada’s labour market or, in other words, how the offer of employment would likely affect Canadian jobs". In broad strokes, to hire a foreign worker, it must be shown that there is a job for the worker to do that no Canadian is willing, locally available or able to do. Often this means the employer is doing something new or special. It is these types of employers that create a vibrant urban community.

According to recently released government figures, in 2010 a total of 157 foreign workers entered Canada to settle in Kingston, Ontario. What does this figure reveal about how the Kingston economy is faring relative to other places in Canada?

First, it should be noted that Kingston's 157 new foreign workers are a tiny share of the 66,287 who settled in Ontario in 2010, nearly half of whom found work in Toronto. Naturally bigger cities attract more foreign workers than smaller ones, as there are more employers and more employment opportunities there. Of particular interest, then, is how Kingston's figures compare to those of other Ontario cities of relatively similar size. In this regard it should be noted that, while the somewhat smaller centres of Guelph (380 new foreign workers) and Sarnia (339) posted substantially higher numbers than Kingston, the bigger cities of Greater Sudbury (130) and Barrie (137) did not fare as well.

Overall, the figures reveal proportionately more opportunities for foreign workers in major urban areas, with more than half of the total for Canada settling just in the five metropolitan areas of Toronto (30,425), Vancouver (25,532), Montreal (21,704), Calgary (8,196) and Edmonton (5,356). As a major urban centre, Ottawa-Gatineau (3,203 in Ontario and Quebec) is lagging behind substantially, relative to its population. Growth-oriented centres like Kitchener (859), Saskatoon (893) and Moncton (319) are punching beyond their weight class but, on the other hand, when it comes to attracting foreign workers, Thunder Bay (154) and Trois-Rivières (155) have some work to do.

In Kingston another 81 foreign workers arrived in the first half of 2011, about ten per cent less than during the corresponding period in 2010. During these same six months the number of new foreign workers settling in each of Ontario as a whole and Canada as a whole have substantially increased year over year. Relatively speaking, then, foreign workers are finding fewer opportunities in Kingston than they did last year, although they are finding more opportunites than before in Ontario and in Canada.

If there is truth to the notion that the settlement of new foreign workers in a city is a reflection of a dynamic urban economy, then Kingston's economy falls somewhere in the lower part of the middle of Canada's metropolitan areas of comparable size. While that may not be a reason for self-immolation, it is certainly no reason for congratulations either, particularly based on the trend revealed by the statistics cited for the first half of 2011.

Given the development of the Canadian Experience Class and the Post-Graduation Work Permit programs, it is clear that the direction of Canadian immigration policy is to draw a larger and larger share of our immigrants from the pool of those temporary residents first admitted to Canada as students and workers. Therefore, it is reasonable to conclude that the more foreign workers that settle in a community, the more permanent residents will be there eventually. Keeping an eye on the number of foreign workers coming to town would seem to be prudent in growth-oriented communities.

The figures cited above come from Statistics Canada, the keeper of Canadian government statistics. Citizenship and Immigration Canada has recently released datasets respecting immigration trends that have been collected by Statistics Canada. The release comes about as part of the Government of Canada's Open Data Pilot, a project by which it seeks to improve the ability of the public to find, download and use government data.

For more information, please contact my office at (613) 542-2192, and do not forget to visit me at www.lesmorley.com.

Irwin Cotler on Refugee Reforms

2010-12-01T15:12:00.006-05:00

IRWIN COTLER is the Liberal Member of Parliament for the Quebec riding of Mount Royal, and a former federal Justice Minister and Attorney General. An expert on international and human rights law, Cotler was counsel to former prisoners of conscience Nelson Mandela, Jacobo Timmerman, and Natan Sharansky. Also, it was Cotler who introduced Bill C-554, known as "An Act to Protect Canadian Citizens Abroad".

On November 29, 2010 Cotler addressed the House of Commons upon the deficiencies of the government's proposed refugee reforms. His statements, which follow, highlight the problems with the proposals:

Mr. Speaker, I rise to speak in the matter of Bill C-49, whose formal title is “An act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act and the Marine Transportation Security Act”. Indeed the stated intent of the legislation can perhaps best be found in the short title of the act, “Preventing Human Smugglers from Abusing Canada's Immigration System Act”.

In particular, the bill reflects the government's response to two ships full of Tamil migrants who landed on Canada's shores in the past year. It reflects also the larger public concern over illegal immigration and false refugee claims and indeed the need, as the government and our colleagues on the opposite side have put it, to maintain public faith in the immigration and refugee system.

Accordingly, the bill includes harsh penalties for smugglers, which have garnered a good deal of media attention, and not surprisingly, because who can object to legislation that purports to get tough with human smuggling and to deal with such smuggling in the manner required for that purpose? However what is being ignored here is that the government, with co-operative consultation with and indeed the support of the opposition, just five months ago enacted a comprehensive reform of our immigration and refugee law precisely for the purposes of, among other things, combating illegal immigration, false refugee claims and declining, as it put it even then, public faith in the immigration and refugee law system.

This bill, however, while purporting to be the same in its purpose and effect, ends up undermining the very integrity and effectiveness of the legislation that the government itself enacted some five months ago, while inviting, on closer appreciation of the legislation, the very loss of credibility and public faith in our system that Bill C-49 purports to decry, but which Bill C-49 will in fact invite.

Indeed an appreciation of the pith and substance of this legislation, its essential character and effect, invites the characterization of the bill, as a group of refugee scholars has put it, as “the punishing refugees and evading our constitutional and international obligations act”. In a word, the bill does not so much punish smugglers as indeed it punishes asylum claimers.

What follows is a summary of concerns respecting this bill, concerns that, for example, are reflected in the commentaries of experts in refugee law, such as Peter Showler, a former chair of the Immigration and Refugee Board, who last week characterized the bill as “littered with charter violations”. Immigration and refugee law and human rights experts have decried the lack of balance between the sanctions against the smugglers and, in particular, the manner in which the asylum-seekers end up being targeted. The critique of a group of law professors from different law schools across this country characterized it as not only being in breach of our charter rights but also in breach of our standing obligations under international law, such as under the international refugee convention.

In effect, this bill amounts to gratuitous punishment of those seeking our protection, in effect a double victimization of those who have been initially victimized by smugglers exploiting them and then end up being victimized when they seek protection on our shores.

As well, the legislation reflects a lack of understanding of what it means to be a refugee escaping civil strife. The legislation says detention is necessary until the identity of the refugee can be confirmed, but for people who understand what it means to be refugees fleeing civil strife, with all that attends it, it ends up being a legislation that punishes people who are illegal arrivals. As one editorial put it, Albert Einstein would have been punished under this legislation.

This brings me now to a summary of the specific concerns and I will do so in an abbreviated fashion for reasons of time.

First, the bill would authorize detention with no independent review for a minimum of 12 months, in clear breach of both charter rights and related Supreme Court jurisprudence that such detention without review is patently illegal. Moreover, the government has the power to detain persons until their identity is established, as I mentioned, or, irrespective of time, under present legislation, be it legislation with respect to the protection of public security or legislation with respect to enforcement of our anti-terrorist laws and, as such, this particular and prospectively illegal provision is as well a gratuitous and unnecessary given our present laws.

Second, those who are granted refugee status are nonetheless denied the right to bring their family members to Canada for a period of five years. Again, arguably that is in breach of our international human rights and humanitarian obligations under the Convention on the Rights of the Child or international provisions respecting family unification.

Third, there is no right of appeal from the initial rejecting refugee decision, which would not only immunize error in our refugee system, but prejudice the rights of prospective asylum seekers.

Fourth, it would reduce medical benefits. Refugee claims already receive only the most basic of medical coverage, but this type of legislation would reduce that even further in respect of matters pertaining to the use of wheelchairs, canes, walkers and the like.

Fifth, the bill mandates that those coming to Canada as part of a smuggling event, as it is called, will not be permitted to apply for permanent residence for five years. This provides for different rules and standards for migrants smuggled on a ship compared to those who arrive illegally with forged documents by way of an airplane.

Finally, with respect to the overall purpose and effect of the bill, it might in this regard create two classes of refugees based on the means of arrival in Canada. The distinction and its drastic consequences offend foundational principles of international law, the Canadian Charter of Rights and Freedoms, as well as common sense and decency.

The majority of refugees and those involved in refugee law know only too well. As Peter Showler himself wrote just a short time ago:

The majority of refugees must resort to smuggling networks to escape the country of persecution and cross borders. Canadian and international laws have recognized this necessity and prohibit the prosecution of refugees for the violation of immigration regulations. Boat arrival, as opposed to individual arrival by land or air, does not mean that the refugee claims are more or less valid or that the passengers are a greater security threat: If anything, it is the opposite, since arrival by boat entails far closer scrutiny by the authorities. Boat arrival simply means that it was the only practical avenue of escape for refugees with no good options.

In summary, he says:

Government ministers have justified the punitive aspects of the bill by accusing boat refugees of “jumping the refugee queue” as opposed to “law abiding refugees” who wait their turn for resettlement. There is no refugee queue. There are approximately 13 million refugees scattered throughout the world, over half of them in godforsaken camps with few resources and less hope. Their average time of camp residence is 17 years;...

We should not be enacting legislation that ends up punishing the asylum seekers while not effectively sanctioning the smugglers themselves who exploit them.

Well said, Mr. Cotler!

Please visit me at http://www.lesmorley.com/.

Would I Li to you?

2010-06-22T10:56:00.008-04:00

Perhaps in your case you would be glad if I did Li to you. The Federal Court case of Li v. Canada (Citizenship and Immigration) 2009 FC 992 reminds us that it is an error for the decision-maker in a deportation proceeding to consider the principle of general deterrence. In other words, when the immigration authorities are determining whether or not their discretion should be exercised to allow you to remain in Canada, they should not be trying to make an example of you to send a message to the community, or trying to compensate for what is perceived to be an inadequate criminal penalty.

The Court in Li cited the decision of the the Immigration Appeal Division of the Immigration and Refugee Board in Khosa v. Canada (Citizenship and Immigration) [2004] I.A.D.D. No. 1268 (QL) as follows:

Counsel for the appellant made lengthy submissions contending that it is not the function of the Division to mete out further punishment to this appellant for his offence. Counsel is entirely correct that it would be inappropriate for the panel to take that role upon itself. The criminal justice system has spoken with respect to the appellant's guilt and handed down a sentence consistent with principles of sentencing in Canada. The role of the Division is distinct and separate from the criminal courts.

Nonetheless, the panel dismissed the appeal. The case worked its way up to the Supreme Court of Canada, and was decided on March 6, 2009 as Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. Although the refusal of the Board to allow Mr. Khosa to remain in Canada was upheld by the Supreme Court, an important and helpful principle was confirmed. Justice Binnie, writing for the majority, stated:

The IAD has a mandate different from that of the criminal courts. Khosa did not testify at his criminal trial, but he did before the IAD. The issue before the IAD was not the potential for rehabilitation for purposes of sentencing, but rather whether the prospects for rehabilitation were such that, alone or in combination with other factors, they warranted special relief from a valid removal order. [emphasis added]

Therefore the starting point for prevailing in the face of deportation proceedings continues to be the Ribic factors, so called because they were first enunciated in the case of Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL). I will be addressing these factors in more detail in future posts.

Please visit me at http://www.lesmorley.com/.

Opportunities for Masters Degree Students

2010-06-22T10:43:00.004-04:00

Are you a foreign student in a Masters degree program in Ontario? If so there is a new program that may assist you to become a permanent resident of Canada. If you apply for landing in this category, which is known as the Pilot International Masters Graduate Stream of the Ontario Provincial Nominee Program, you can become a permanent resident without a job offer and without the need to meet Canada Immigration's selection requirements and, to top it off, your application will receive priority processing!

To be eligible for this program, you must currently have legal status in Canada, reside in Ontario and intend to continue to do so, have completed an eligible Masters degree program of at least one-year's duratoin on a full-time basis within the previous two years, speak English or French fluently, and demonstrate a minimum level of savings/income.

For more information, please contact my office at (613) 542-2192, and do not forget to visit me at www.lesmorley.com.

Paint It Black

2010-06-13T13:49:00.007-04:00

A recent article by Conrad Black is good reading, but have a dictionary within reach: Lord Black likes you to remind you he knows fancy words!

The article, "Canada's inhumane prison plan", may be found in the May 29, 2010 National Post. It contains unexpected support for those of us who oppose the Conservative government’s justice agenda; unexpected as it is written by someone who would appear to be a pillar of the Conservative establishment, writing in a conservative publication. Perhaps even more unexpected is Black’s citation with approval of Michael Jackson and Graham Stewart’s “Fear-Driven Policy", an essay appearing in the Literary Review of Canada. Both Jackson and Stewart are well-known Canadian prison reformers.

To get a flavour of Black's piece, take note of what he says about Prime Minister Harper’s correctional policy document, which is called A Roadmap to Strengthening Public Safety:

The Roadmap is the self-serving work of reactionary, authoritarian palookas, what we might have expected 40 years ago from a committee of southern U.S. police chiefs. It is counter-intuitive and contra-historical: The crime rate has been declining for years, and there is no evidence cited to support any of the repression that is requested. It appears to defy a number of Supreme Court decisions, and is an affront, at least to the spirit of the Charter of Rights.

Don’t hold back Conrad!

Perhaps most interesting of all, from my perspective, is the number of supportive comments – critical of the government’s plans – from readers. You can find them at the end of the article.

Please visit me at http://www.lesmorley.com/.

2010-03-15T11:55:00.004-04:00

Getting tough with crime seems to be an important part of the current federal government's agenda. Recent government initiatives include, amongst others, increasing the number of offences with minimum punishments. Is this get-tough approach really helpful in reducing crime?

According to the authors of Criminological Highlights, a publication of the University of Toronto's Centre of Criminology, the evidence gleaned from studies of the application of minimum penalties over the last 40 years is clear: mandatory minimum penalties "do not affect crime rates", and actually "interfere with accountability and the efficient operation of the criminal justice system".

Developments in the law of deportation since the early 1990s reveal a similar movement away from the exercise of discretion by independent decision-makers and towards a quicker but much more harsh one-size-fits all approach. As a consequence, people who have grown up in Canada and who, in some cases, may have lived here for many decades, are being deported from Canada without a hearing, splitting up families and returning the deportees to countries with which they no longer have any connection, and which can ill afford to receive them.

While it is true that some immigrants to Canada have committed crimes , the evidence, according to Criminological Highlights, is that "violent crime rates decrease when immigrants move into a city", at least "in part because immigrants are more likely to bolster intact (two-parent) family structures".

Given that mandatory minimum penalties do not reduce crime, and that immigration results in reduced crime rates, is the current government's policy respecting crime in Canada a responsible one?

These and other astounding insights are available for review in the most recent issue of Criminological Highlights, and are well worth a read.

Please visit me at www.lesmorley.com.

Are Canadians still a welcoming people?

2010-03-08T10:55:00.007-05:00

According to a poll conducted by TransAtlantic Trends, the answer is "yes".

Of the Canadians polled, only 25% felt that immigration was more of a problem than an opportunity, a lower percentage than for all other countries. Also, Canadians more than those of the other countries polled want immigrants to have the same political participatory rights as native-born citizens, and three-quarters of the Canadians polled support giving immigrants the same social benefits as native-born citizens.

Perhaps most surprising in these recessionary times, when there is a trend to nativism in most developed countries, two-thirds of Canadians disagreed that immigrants take away jobs from native-born workers, and almost two-thirds disagreed that immigrants bring down wages.

The results of the polling suggest that Canada is still a welcoming nation. To the immigrants and prospective immigrants out there, welcome to Canada!

Visit me at www.lesmorley.com.

Be Careful What You File

2010-03-05T01:05:00.001-05:00

Being consistent with Canada Immigration is very important. Conflicts between applications you wish to file and those filed in the past can not only lead to the refusal of the current application, but to an investigation resulting in questions about immigration status already granted. Some seem to believe that applications are like footprints on the beach that are washed away by the tide. In fact, they are more like footprints in concrete, visible for years to come. Be careful what you file!