Liberals end ‘unfair’ policy that penalized refugees from so-called ‘safe countries’

Not much left of these measures between court decisions and Liberal policy changes, will see what Andrew Scheer says in his forthcoming policy speech on immigration:

The Liberal government has killed a controversial Harper-era initiative that did not afford all refugees the same rights and instead penalized those who came from so-called “safe countries” like the United States.

Starting immediately, Canada will remove the tight timeframe for their claims to be heard and let them appeal possible rejections, as well as grant them the right to work immediately and receive health care — benefits previously bestowed only on asylum seekers fleeing from war-torn countries and corrupt regimes.

“The system is unfair and treats people differently based on nationality,” Immigration Minister Ahmed Hussen told the Star in a phone interview Thursday. “The policy hasn’t worked. It was meant to introduce efficiency, but it has created the opposite effects. It’s time to go.”

The move by Ottawa follows several Federal Court decisions over the years that have chipped away at the core provisions of the so-called “safe country” policy introduced in 2012 by Stephen Harper’s Conservative government to target rising asylum claims from Eastern Europe and Mexico. The government established a list of safe countries and created a faster processing and removal system for claimants from these nations.

The Liberals’ decision to eliminate the safe country list, to be made public Friday, officially strikes down the last remaining planks of their predecessor’s controversial revamp of the refugee asylum system.

The original reforms aimed to deter “bogus claimants” whose lives weren’t in danger, but who came to Canada for economic opportunities. However, the changes failed to stem the flow of migrants and the Conservatives did not invest the necessary resources to manage the new system.

Refugee claims from these countries were not being processed any faster, said Hussen, and added additional burden to the asylum system that was further stretched over the past two years as a result of a surge of claimants crossing into Canada from the U.S.

“We are getting rid of the last piece of the policy that is responsible for creating the legacy backlog,” said Hussen. Under the safe country regimen, refugees from the list were given limited time for claims to be heard, had restricted access to appeals and health coverage, and faced quick deportation — which the court has ruled violated the Charter of Rights and Freedoms.

Critics have long noted that people from so-called safe countries can still face persecution at home due to sexual orientation, ethnicity and religion, and for a variety of reasons their countries can fail to protect them. They also complained the statutory timelines to process safe country claims were unreasonable and created chaos and further backlogs because the previous government did not put in enough resources to let the refugee board do its job.

The safe country list initially included 23 countries and has since been expanded to 42, including the United States, Czech Republic, Hungary and Mexico.

Hussen said improving the efficiency of the asylum system has always been part of his mandate since being appointed immigration minister in 2017. Under his watch, an independent review of the system was completed, an asylum management board was established to oversee the system, the legacy backlog was cleared and additional resources were pumped in to boost the refugee board’s processing capacity.

The removal of the safe country list, however, has no impact on the bilateral Safe Third Country Agreement with the U.S., which bans refugees from third countries coming through the United States and seeking asylum in Canada at the official ports of entry. These so-called irregular migrants can still seek asylum in Canada if they manage to sneak in and meet exemption requirements — and be processed like all refugees.

In 2018, the federal government invested $74 million over two years to hire 64 refugee judges and 185 support staff to handle the ballooning backlog, which reached 74,000 cases as of the end of March. As part of the 2019 federal budget, Ottawa has added more resources to boost the board’s operation to allow it to process up to 50,000 asylum claims and 13,500 appeals a year by 2021.

Immigration officials said only 12 per cent of asylum claims submitted from Jan. 1, 2013 to March 31, 2019 were from citizens of the designated safe countries.

Source: Liberals end ‘unfair’ policy that penalized refugees from so-called ‘safe countries’

Getting refugee decisions appealed in court ‘the luck of the draw,’ study shows

Sean Rehaag continues his important work in revealing inconsistencies in decision-making depending on the federal court judge hearing the application. Virtually all reviews of decision-making processes highlight how perspectives and biases (and Kahneman’s ‘automatic thinking’) can lead to such results:

It is a crapshoot whether refugee claimants can get a second chance from the Federal Court to review and appeal a decision that potentially determines their life and death, according to a new study.

“Outcomes in Federal Court applications for judicial review of refugee determinations depended all too often on the luck of the draw — on which judge decided the case,” said York University law professor Sean Rehaag, author of the report released by the Social Sciences Research Network this month.

“Refugee claimants whose applications for judicial review are denied continue to have good reason to wonder whether this was because of the facts of their case and the law, or whether they simply lost the luck of the draw.”

Both failed refugees and the federal government can appeal a refugee board decision to the court but must first get a nod — or leave — from a judge before the case can proceed to a full hearing. If the first judge denies leave, the appeal will not be heard. Sometimes, the court is the last resort before a failed refugee claimant is deported from Canada to face potential risks back home.

Federal Court Chief Justice Paul Crampton acknowledged Rehaag’s study raises some important questions.

“There is a very real fairness dimension to the wide variation in the rates at which individual judges grant leave,” Crampton told the Star in a statement. “This is so despite the element of subjectivity in making judicial determinations, especially on judicial review, where the standard that the court is called upon to apply in most cases is whether the decision under review was ‘unreasonable.’”

Based on 33,920 Federal Court leave applications involving refugees, the study found only 16.8 per cent of the requests were granted to proceed to an appeal hearing and just 7.8 per cent of them were ultimately successful in getting an asylum decision stayed and having the cases reopened.

The study is the sequel to one conducted by Rehaag in 2012 when he found individual judges varied tremendously in their grant rates for leave and judicial reviews.

Since the release of the first study, Crampton has raised awareness of the issue among judges and even considered amending rules to include a list of factors for judges to weigh in applying the existing leave test, but decided it would be better to include this in legislation.

“Given the important principle that individual judges must decide cases before them on the merits, completely independently of any influence by other persons, the court has continued to wrestle with how to reduce the variation in leave grant rates,” Crampton said.

According to the study, from 2008 to 2011, some judges only allowed 1.5 per cent of the appeal requests they handled to proceed to a full hearing while others approved more than 30 per cent of those requests. One judge, Justice Douglas Campbell, actually granted leave to 95.9 per cent of his cases.

Wide gaps were also identified in the outcomes of the appeals, with some rejecting almost every appeal before them and others reopening 33.8 per cent of the cases and sending them back for a new assessment.

However, despite the court’s effort to address the issue, the gaps among judges’ approval rates persisted after 2012.

From 2013 to 2016, the leave grant rates varied from 5.3 per cent by Justice Judith Snider on the low end to 49.2 per cent by Justice Elizabeth Heneghan on the high end. Appellants, who got leave to proceed to a full hearing, had a 1.8 per cent success rate if they appeared before Justice Richard Boivin but a 22.8 per cent chance to succeed in reopening their cases if they were before Justice Leonard Mandamin.

The report recommends the court allow all appeals a full hearing or at least have two judges to decide on leave to counterbalance any potential bias.

Source: Getting refugee decisions appealed in court ‘the luck of the draw,’ study shows

ICYMI: Federal Court asked to spare former clients of immigration consultant fraudster | Toronto Star

Well, it was misrepresentation, whether committed directly by the person or through an intermediary:

Former clients of an unlicensed consultant convicted in one of Canada’s biggest immigration scams have asked the court to spare them from being removed from Canada for “misrepresentation.”

In a proposed class action application filed with the Federal Court last week, Chao Yuan Lin and Xiang Zhou — two of Xun “Sunny” Wang’s former clients — said evidence at the man’s criminal trial indicated “Wang or his staff committed immigration fraud and not their clients.”

Wang, owner of New Can Consulting in British Columbia, was found guilty of immigration fraud in 2015 for filing fraudulent immigration applications for hundreds of clients, and was sentenced to seven years in prison. Last year, three of his former staff were also convicted of immigration fraud and were sentenced to 18 months in jail.

Wang’s services included helping clients apply for citizenship and renew what’s known as a permanent resident, or PR, card, a document required of non-citizen immigrants to enter Canada by commercial vehicle.

Wang falsified documents to make his clients appear to have met the residency requirement when they were physically out of the country in order to renew their PR card.

“Despite the mountain of evidence of Mr. Wang’s fraudulent activities committed against his clients and Canada Immigration, the respondent (public safety) minister decided to treat the clients of Mr. Wang as no less culpable and has been seeking to remove them from Canada by alleging that they committed misrepresentation,” said the court application represented by the lead claimants, Lin and Zhou.

The Immigration Department declined to comment on the class action application or reveal the number of Wang’s former clients whose immigration status is under review, as the matter is before the court.

In the court application, Lin claimed he was not aware of any suspicious or fraudulent activities of Wang, nor was he informed of any by the Canada Border Services Agency when he retained Wang to renew his PR card in 2013, a year after officials executed a warrant to search Wang’s office in Richmond, B.C.

 

According to the court submission, Lin was refused a travel document to return to Canada by Canadian officials in Beijing in 2014. He filed a successful appeal and obtained a new PR card in June 2016. Last month, however, the border agency told him he was inadmissible to Canada because he misrepresented himself on his PR card renewal, and he was referred to an admissibility hearing.

According to the submission, Zhou successfully renewed his PR card in 2010 through Wang’s company but was intercepted by border agents at the Vancouver International Airport a year later because he had failed to meet the minimum two-year residency requirement within a five-year period.

Zhou was issued a removal order but successfully appealed the decision, got his PR card renewed and sponsored his wife and child into Canada in 2013. Then last month, he too was informed by the border agency that he’s inadmissible to Canada for misrepresentation.

The court application asks that the permanent residents not have to go through the admissibility hearings for misrepresentation.

Both Lin and Zhou declined to comment.

Their lawyer, Lawrence Wong, said border officials identified about 2,000 of Wang’s clients during his criminal trial and hundreds of them had hired the unlicensed consultant for PR card renewal.

The court submission argues that misrepresentation in the PR card renewal does not imply his clients acquired their permanent resident status improperly and has nothing to do with the retention of the permanent status.

A PR card serves as proof of permanent resident status, but the status may remain without a valid card, the court application says.

“If the applicants made misrepresentation to renew their PR cards, then they should have their cards revoked or renewal applications denied. They should not lose their legally obtained PR status and be given a five-year ban from entering Canada,” the application says.

Another complaint the applicants have against the government, according to the application, was that their PR cards were successfully renewed by the Immigration Department but the public safety minister, who oversees the border enforcement agency, delayed “in shutting down the unlicensed and illegal activities of Mr. Wang” and “took it upon themselves to revisit the applicants’ cases.”

via Federal Court asked to spare former clients of immigration consultant fraudster | Toronto Star

Son of Russian spies can travel home to Canada, judge rules

I agree with the government on this one. And the brothers have lived abroad most of their lives with the main connection to Canada being their passport:

A judge has ordered the Trudeau government to issue citizenship documents—and a passport—to the Toronto-born son of elite Russian spies, ruling that the 23-year-old should be allowed to return to Canada even though the Supreme Court is still pondering whether to hear one last appeal in his controversial case.

Alexander Vavilov was stripped of his Canadian citizenship “through no fault of his own,” the judge ruled, and after winning it back last summer at the Federal Court of Appeal, he should not be forced to wait in limbo while Ottawa tries to convince the country’s top court to overturn that decision. Instead, the Liberals should reinstate Vavilov’s revoked citizenship—and allow him to come home—pending any potential ruling from the Supreme Court.

“It is difficult to accept that issuing these documents to this one person will cause significant and irreparable harm to the public interest,” wrote Justice Wyman Webb of the Federal Court of Appeal, in his Jan. 19 decision. “There is no allegation that Mr. Vavilov did anything wrong.”

Ottawa has fought for years to keep Vavilov from re-entering his country of birth, and despite this latest ruling the government is still doing all it can to keep him out. Instead of conceding defeat, Justice Department lawyers filed yet another motion last week, asking the Federal Court of Appeal to reconsider. The feds remain adamant that nothing should happen on the contentious file until the Supreme Court decides, once and for all, whether Vavilov is indeed a Canadian.

The high court has yet to announce whether it will weigh in on the matter, and is under no deadline to do so.

Vavilov was born in Toronto in 1994 as Alexander Philip Anthony Foley, the second son of a husband-and-wife team of deep-cover KGB agents who slipped into Canada during the Cold War and stole the identities of two dead babies from Montreal: Donald Howard Heathfield and Tracey Lee Ann Foley. Alex and his older brother, Timothy, spent their childhood oblivious to the fact that their parents’ real names were Andrey Bezrukov and Elena Vavilova, or that their mom and dad were prized assets of Russia’s foreign intelligence service. The boys were still young when the family moved to France, then Massachusetts—where, in 2010, the couple was arrested in a high-profile FBI raid that later inspired the hit TV series The Americans. Tim was 20 when his parents were exposed; Alex was 16.

After the bust made headlines around the world, immigration officials in Ottawa concluded that both brothers were never Canadian to begin with, despite being born here, because their parents were “employees in Canada of a foreign government,” a rare exception to the birthright rule under the Citizenship Act. Now Russian citizens who changed their last name to Vavilov, Alex and Tim have been battling in court to regain their Canadian status, arguing, among many other things, that they should not be punished for their parents’ espionage.

Though they lived abroad most of their lives, the brothers always travelled with Canadian passports and identified themselves as Canadians. “It is an integral part of my identity, the way others recognize me and is a recognition of certain values,” Alex told Maclean’slast year. “It is unacceptable that that the government may strip me of my rights just because it wants to.”

The feds appear especially eager to keep Tim, the eldest brother, from coming back. According to a report prepared by a senior immigration official, the Canadian Security Intelligence Service (CSIS) has told the government that Tim not only knew the truth about his parents’ double lives, but had pledged to join them—having been “sworn in” by the SVR, the KGB’s post-Soviet successor, before his mother and father were arrested.

Specific evidence to support that claim has never been revealed, and Tim, now 27, denies the accusation. “I am aware that there have been some media reports that my parents were ‘grooming’ me for espionage,” he wrote in one sworn affidavit. “These allegations are not true. It has been stated by the FBI that for over 10 years my home was bugged, however no evidence of my involvement has ever been presented.”…

via Son of Russian spies can travel home to Canada, judge rules – Macleans.ca

Decision-maker slammed as ‘moral police’ for refusing immigration to HIV-positive man | Toronto Star

Understandable Federal Court decision given the comments by the decision-maker on the “morality” rather than possible medical burden:

The Federal Court has slammed an immigration tribunal adjudicator for acting as “moral police” in denying an HIV-positive man permission to reunite with his daughters in Canada, blaming him for contracting the virus from an affair.

In chastising Michael Sterlin, the decision-maker at the immigration appeal division (IAD) tribunal, the court said that how the 62-year-old immigration applicant got HIV had nothing to do with the sponsorship case. To protect the man’s privacy, he was only randomly identified by court as A.B.

“The circumstances under which Mr. A.B. contracted HIV are wholly irrelevant to the issue before the IAD, as are any issues related to the applicant’s father’s moral character,” said Justice Shirzad Ahmed in a recent decision to send the case back to the tribunal for a new assessment.

“The IAD appears to make judgments against Mr. A.B.’s moral character, and in doing so, the IAD acts as moral police.”

In 2009, one of A.B.’s two daughters — who are both Canadian citizens living in Ottawa — applied to sponsor him and his wife to come to Canada under family reunification.

During the course of A.B.’s medical exam, a routine requirement in the immigration process, it was discovered that he is HIV-positive. In 2013, immigration officials informed the family that his health condition would cause “excessive demand” on Canadian health services and his sponsorship application would probably be denied.

Although the family was willing and able to cover the cost of A.B.’s anti-retroviral medications and requested humanitarian and compassionate relief, Immigration Canada refused the application in 2014. The family subsequently appealed to the tribunal.

Last year, the tribunal upheld the immigration decision, concluding that there were “insufficient humanitarian and compassionate considerations to grant special relief.”

 

A.B.’s two daughters had argued that they were the only children and had the responsibility to care for their parents, who would be ostracized in their native China and suffer discrimination and prejudice because of his HIV status.

“The reason why it is claimed the family will shun (the couple) is a perception that such patients have loose morals, in that a key way the virus is transmitted is by having sex,” Sterlin, the tribunal adjudicator, wrote in dismissing the family’s appeal.

“In fact, it turns out that the father did get the virus from having an affair. It is noteworthy, perhaps, that this did not come out until the panel directly asked the appellant why her father had the virus.

“If there is any antipathy, the panel finds, then it would most likely be against the father for risking a long-standing marriage by having an affair in his middle age or later,” continued Sterlin, who left the tribunal last June shortly after he rendered his decision on A.B.’s case.

“It is unfortunate that the father had an affair which led him to become HIV positive. However this was, again, a risk he took, which was unlikely but reasonably foreseeable, and it has unfortunately presented him with very significant problems.”

Wennie Lee, the family’s lawyer, said her clients were pleased that the court quashed the tribunal decision and ordered a new hearing into the request for humanitarian and compassionate relief.

“It is a significant court decision as it provides clear direction to the tribunal to truly apply compassion in deciding whether to exercise (the humanitarian and compassionate) relief,” she said.

“For my clients, in the Chinese culture, where personal and community connections are of paramount importance, social exclusion because of HIV status takes on added significance and importance.”

Lawyer Meagan Johnston for the HIV & AIDS Legal Clinic Ontario, one of two intervening parties in the court case, said people with the virus are a dominant group negatively affected by immigration’s “medical inadmissibility” policy that prevents them from immigrating.

In fact, immigration data shows 74 per cent of economic-class immigration applicants with HIV were found to be inadmissible to Canada in 2014 alone, she said, while 61 per cent of those with the virus were denied a work permit or study visa.

“It is repugnant that they are not given a fair chance and their HIV status and morality is used against them in their applications,” Johnston said. “That kind of attitudes against people with HIV is more common than what Canadians would like to admit.”

The immigration appeal tribunal declined to comment on the decision. Sterlin could not be reached for comment.

A spokesperson for the tribunal, which is part of the Immigration and Refugee Board, said the board does not have guidelines addressing cases involving person with HIV and AIDS specifically, but its procedures with respect to “vulnerable persons” speaks to the need to treat vulnerable individuals with “sensitivity and respect.”

via Decision-maker slammed as ‘moral police’ for refusing immigration to HIV-positive man | Toronto Star

Federal Court voids Canadian citizenship revocation for 312 people

A second decision that reflects poorly on the Conservative government’s C-24 expedited revocation provisions (and that implements the earlier Federal Court decision – Canada can’t strip your citizenship without a trial, court rules – VICE News). It is, of course, part of a pattern where their policies and legislation were routinely ruled against by the courts.

One would hope that the policy and legal advice given to the government at the time highlighted the likely risk of adverse rulings.

Given the Conservative track record, their assertions regarding contesting the Khadr lawsuit should be taken with a grain of salt:

The Federal Court has nullified government attempts to strip Canadian citizenship from more than 300 people after an earlier judgment struck down key provisions of the Citizenship Act introduced by the former Conservative government under Stephen Harper.

The earlier ruling, in May, declared those provisions inoperative because they were an expedited process that deprived individuals of the right to an oral hearing and did not take into account humanitarian and compassionate considerations.

As a result, in a decision on Monday, Justice Russel Zinn voided the citizenship revocation of 312 individuals who had turned to the court after they were targeted in a sweep against people who had obtained their Canadian nationality through fraud.

Another 14 similar court requests, which had not been filed in a timely manner, can apply for a deadline extension, Justice Zinn ruled.

“It’s another judicial loss for the policies of the previous government,” Montreal lawyer Vincent Valaï, who represented some of the people in the case, said in an interview.

He noted that the Conservative government liked to say that obtaining Canadian citizenship is a privilege, not a right. However, the ruling in May said that once acquired, citizenship is a right.

“And because it is a right, you have to respect procedure fairness before revoking citizenship. That means the right to a hearing before an impartial judge,” Mr. Valaï said.

Another lawyer involved in the case, Matthew Jeffery, called the provisions in the law a “deeply flawed process.”

The government could start the revocation process against those people all over again but it would first have to rewrite the law to conform with the court rulings, Mr. Jeffery said.

The number of revocation cases began ballooning when Jason Kenney, who was immigration and citizenship minister in the Harper government, announced in 2012 that his department would cancel the citizenship of more than 3,000 people, in a crackdown against those who had faked the amount of time they have spent in Canada.

In February, 2014, the Harper government amended the Citizenship Act to fast-track the revocation process in what it called “non-complex” cases. It meant eliminating the right to a hearing for individuals when their citizenship had been obtained by fraud.

Several of the cases involved clients of Nizar Zakka, a Montreal immigration consultant who created a system to hide the fact that the clients were not residing in Canada for the required two-year minimum within a five-year span.

Faced with hundreds of applicants challenging their citizenship revocation, the Federal Court started with a review of eight lead cases while the other cases were held in suspension.

Last May, Justice Jocelyne Gagné ruled on the eight lead cases, striking down the new provisions for an expedited revocation process.

“They deprive the applicants of the right to a fair hearing in accordance with the principles of fundamental justice,” Justice Gagné wrote.

In one case that she highlighted, the government tried to revoke the citizenship of Fiji-born Thomas Gucake, who had come to Canada as a child and later served three tours in Afghanistan with the Princess Patricia’s Canadian Light Infantry regiment.

In 2015, Mr. Gucake received a notice of citizenship revocation because his father had failed to disclose a minor criminal conviction in Australia.

The current government has since amended the Act so that, by next year, the Federal Court would be the decision-maker in citizenship revocation cases.

Source: Federal Court voids Canadian citizenship revocation for 312 people – The Globe and Mail

Canada can’t strip your citizenship without a trial, court rules – VICE News

Good ruling. Senate review of C-6 included restoration of procedural protections in case of revocation for fraud or misrepresentation (along with two other amendments) and still no sign from the government whether they intend to accept the one or more of the amendments:

A landmark ruling from the Federal Court means that Ottawa will no longer be able to strip Canadians of their

A landmark ruling from the Federal Court means that Ottawa will no longer be able to strip Canadians of their citizenship without a hearing.

In ruling on the case of a group of dual citizens who had their citizenship nullified because the Canadian government believed they obtained it through fraudulent means, the court found the government’s revocation powers unconstitutional.

Under the Citizenship Act, thanks to changes brought in by the previous government, the minister of immigration could revoke the Canadian citizenship of any dual resident who, they believe, obtained it through fraud or misrepresentation, or who has been convicted of a terrorist offence.

It was at the government’s discretion whether or not there would be a trial on the matter. Thanks to those streamlined rules, revocation could take place after merely sending a letter to the person affected.

Today, the court ruled that such a process ran afoul of the Bill of Rights, a rarely-used piece of the constitution and a precursor to the more widely-known Charter of Rights and Freedoms.

Those facing citizenship revocation “should be afforded an oral hearing before a court,” Justice Jocelyne Gagné wrote, adding that they deserve to be afforded “an opportunity to have their special circumstances considered when such circumstances exist.”

Today’s ruling means that all current citizenship revocation cases will be put on hold.

In some ways, these changes were inevitable.

Justin Trudeau’s Liberal government pushed forward legislation in early 2016 to make similar changes to the Citizenship Act, removing the government’s ability to strip the citizenship of terrorists, and to afford the right to a trial to all those facing revocation. That legislation has been making its way through Parliament for more than a year, and was most recently amended by the Senate earlier this month — meaning it now heads back to the House of Commons for another vote.

Despite that, the Canadian government has nevertheless pushed forward to strip the citizenship of an array of people across the country. The current Liberal government, who campaigned on repealing Harper’s changes, has revoked more citizenships in a year than the previous government did in seven years.

Previously, under both the Trudeau and Harper governments, the government has moved to take away citizenship from Canadians who obtained their citizenship as children.

Joel Sandaluk, a Toronto immigration lawyer, represents a client who got notice that Ottawa was moving to take away his citizenship as recently as last month.

“It’s always been kind of a mystery as to why the government was still pursuing revocation,” Sandaluk says, noting that the government was pursuing legislation to make that very change, and it knew that this case was to be decided imminently.

“It’s either very canny politics or it just kind of feels a little bit manipulative,” he says.

It’s quite possible that the Liberals will need to go back to their own legislation, which is currently making its way through the Senate, to make sure it complies with today’s ruling, Sandaluk says. That means Ottawa likely won’t bother appealing the decision.

Source: Canada can’t strip your citizenship without a trial, court rules – VICE News

Asylum seekers fleeing U.S. may find cold comfort in Canada’s courts

Useful article on how the system works:

Migrants who applied for asylum in the United States but then fled north, fearing they would be swept up in President Donald Trump’s immigration crackdown, may have miscalculated in viewing Canada as a safe haven.

That is because their time in the United States could count against them when they apply for asylum in Canada, according to a Reuters review of Canadian federal court rulings on asylum seekers and interviews with refugee lawyers.

In 2016, 160 asylum cases came to the federal courts after being rejected by refugee tribunals. Of those, 33 had been rejected in part because the applicants had spent time in the United States, the Reuters review found.

Lawyers said there could be many more such cases among the thousands of applicants who were rejected by the tribunals in the same period but did not appeal to the federal courts.

The 2016 court rulings underscore the potentially precarious legal situation now facing many of the nearly 2,000 people who have crossed illegally into Canada since January.

Most of those border crossers had been living legally in the United States, including people awaiting the outcome of U.S. asylum applications, according to Canadian and U.S. government officials and Reuters interviews with dozens of migrants.

Trump’s tough talk on illegal immigration, however, spurred them northward to Canada, whose government they viewed as more welcoming to migrants. There, they have begun applying for asylum, citing continued fears of persecution or violence in their homelands, including Somalia and Eritrea.

But Canadian refugee tribunals are wary of “asylum-shopping” and look askance at people coming from one of the world’s richest countries to file claims, the refugee lawyers said.

“Abandoning a claim in the United States or coming to Canada after a negative decision in the United States, or failing to claim and remaining in the States for a long period of time — those are all big negatives. Big, big negatives,” said Toronto-based legal aid lawyer Anthony Navaneelan, who is representing applicants who came to Canada from the United States in recent months.

The Canadian government has not given a precise figure on how many of the border crossers were asylum seekers in the United States.

But it appears their fears may have been misplaced. Trump’s attorney general, Jeff Sessions, has said that anyone in the United States illegally is subject to deportation, but there is no evidence that asylum seekers with pending cases are considered illegal under the new administration.

‘Lack of seriousness’

The asylum seekers will make their cases before Canada’s refugee tribunals, which rejected 5,000 cases last year.

The tribunals’ decisions are not made public, so the reasons are not known. An Immigration and Refugee Board spokeswoman confirmed, however, that an applicant’s time in the United States can be a factor in a tribunal’s decision.

Rejected applicants can appeal to Canada’s federal courts, whose rulings are published. The federal courts upheld 19 of the 33 tribunal rejections they heard last year and recommended fresh tribunal hearings for the other 14 cases.

The judges believed those claimants had a good explanation for having been in the United States first. The outcomes of the new tribunal hearings are not known.

The federal court handles only a small portion of all applications rejected by the refugee tribunals. But overall, applicants who have spent time in the United States have a higher chance of being rejected, said multiple immigration lawyers, including two former refugee tribunal counsel, interviewed by Reuters.

Source: Asylum seekers fleeing U.S. may find cold comfort in Canada’s courts – Manitoba – CBC News

Immigration program for parents ‘discriminatory,’ Federal Court of Appeal rules

42 days vs 37 months:

In 2010, Attaran complained to the Canadian Human Rights Commission, claiming that the program discriminated against parents and grandparents by delaying the processing of their applications.

At the time of his complaint, it took immigration 42 days to screen the sponsors of spouses and children but the same screening took 37 months for those who wanted to bring their parents and grandparents to Canada.

The commission, however, dismissed his complaint, a decision later upheld by a federal judge.

In a ruling released Wednesday, the Federal Court of Appeal said the decision by the human rights commission to dismiss the complaint was unreasonable.

It overturned the lower court decision that there was a “bona fide” justification for the differential treatment. The court referred Attaran’s case back to human rights commission for reconsideration.

“The explanations provided by CIC (Citizenship and Immigration Canada) confirm that it was differentiating adversely based on family status by treating sponsorship applications for parents more slowly than sponsorship applications for spouses and children,” wrote Justice Wyman W. Webb on behalf of the three-member panel. “As a result, CIC was carrying on a discriminatory practice.”

In dismissing Attaran’s complaint, the human rights watchdog had said it did not appear immigration officials treated the complainant in an “adverse differential manner based on age.” It also concluded that the delays do not deprive parents and grandparents the access to permanent residency.

“There is no reference to undue hardship . . . in the decision of the (human rights commission). There is a reference, though, to the justification being ministerial discretion and a general reference to challenges being imposed on ‘the resource allocation for’ CIC,” said the appeal court decision.

Immigration program for parents ‘discriminatory,’ Federal Court of Appeal rules | Toronto Star.

Citizenship judge has jurisdiction to retest applicant – Lexology

For those interested, a recent judgement upholding the right of a citizenship judge to require an oral retest of the knowledge requirements. Got it right:

20     In my view, the Citizenship Judge had the jurisdiction to test the applicant’s knowledge of Canada at the oral hearing. The requirements set out in subsection 5(1) of the Citizenship Actare conjunctive: they must all be satisfied in order for the Citizenship Judge to recommend a grant of citizenship to the Minister: Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 719. Further, the statutory requirements are contemporaneous. The statute does not provide that it is sufficient that at one point in time the applicant had an adequate knowledge of Canada; rather, the statute requires that the applicant has an adequate knowledge of Canada:Huang v Canada (Minister of Citizenship and Immigration), 2013 FC 576 and Santos v Canada (Minister of Citizenship and Immigration), 2008 FC 205. Thus, citizenship judges enjoy “a wide measure of discretion” to determine, pursuant to section 14(1) of the Citizenship Act, “whether or not the person who made the application meets the requirements of this Act”, Santos at para 23.

21     This conclusion is also consistent with established jurisprudence. Chief Justice Paul S. Crampton in Huang held that a Citizenship Judge may test an applicant’s knowledge of Canada notwithstanding that the applicant previously passed a written test: Huang at para 35. Although the Citizenship Judge may re-test an applicant, fairness requires that, “at a minimum, applicants be re-tested where there is a valid reason to do so”: Santos at para 26. In this case, the Citizenship Judge had a valid reason to re-test.

22     In this case, the Citizenship Judge had more than ample reason to administer a retest. The answers to the questionnaire provided more than sufficient basis for the decision to retest. The applicant had been absent from Canada for 134 days during the relevant period, and met the residency requirement by a mere 9 days. Her husband had never lived in Canada and lost his permanent residency status in 2012. Curiously, although the citizenship test was conducted on September 22, 2011, the residency questionnaire completed by the applicant, and declared to be true, indicated that on September 17, 2011, the applicant was in Shanghai. Further, in part 11 of the questionnaire eliciting absences from Canada the reason “vacation of 321 days” was noted. This alone was sufficient to trigger a re-examination. An absence from Canada for nearly a full year is not a vacation. The Citizenship Judge concluded:

“You have not lived in Canada since the day of your application for citizenship on July 5, 2010, more than 31/ 2 years ago, and since then you have only visited Canada for less than six weeks in total. Accordingly, a genuine concern arises that you have lost touch with Canada, its institutions, its people, its values and traditions. In order to find that you have met the knowledge requirement of the Act, I must be satisfied that you have preserved this basic understanding of Canada.”

Citizenship judge has jurisdiction to retest applicant – Lexology.