Canada’s controversial ban on adoptions from several Muslim countries sparks court challenge

2024/01/23 Leave a comment

Another case to watch (hard to understand rationale for difference with USA, UK and Australia which allow the practice, when government does not appear to have articulated the reasons):

A major challenge of Canada’s ban on adoptions from several Muslim countries is set to play out in the Federal Court — a move some legal observers say wouldn’t be necessary if the government wasn’t upholding what they call a “discriminatory” policy.

The case, which could be heard as early as April, comes more than five years after the federal government promised to review the ban introduced when the Conservatives last held office. Since then, the Liberal government has refused to say whether that review took place or what it involved, despite repeated inquiries from CBC News.

In 2013, Canada suddenly put a stop to adoptions from Pakistan, arguing Shariah law doesn’t allow for birth ties between a parent and child to be severed and that the Islamic principle of guardianship (kafala) could no longer be recognized as the basis for adoption. The United States, United Kingdom and Australia all continue to allow adoptions from Pakistan, despite Canada’s claim that doing so would violate its commitment to the Hague Convention.

While on paper the ban applied only to Pakistan, an investigation by CBC’s The Fifth Estate found that in practice, immigration officials quietly extended it to other Muslim-majority countries, including Iran, Sudan, Iraq, Qatar, Afghanistan and Algeria.

An access-to-information request on the ban turned up dozens of redacted pages, including a June 25, 2013, memo marked “secret,” titled “Canadian programming to counter the terrorist threat from Pakistan” — raising questions about what national security might have to do with the adoption of children.

One legal observer said that not only is the ban discriminatory, but it unfairly puts the burden on individual families to argue the validity of their religious traditions.

“Frankly, I’m shocked that the government has not revisited this legislatively,” said Faisal Bhabha, an associate professor at York University’s Osgoode Hall Law School in Toronto. “A case like this should really not fall on the shoulders of a family.

“The last thing they need is for their government to be telling them what their religion prescribes or doesn’t prescribe…. I don’t see how this case could not be successful.”

Pakistani court gives permission for adoption

At the centre of the court challenge is a Toronto woman who became the caregiver to her sister’s three children while living in Pakistan after her sister’s death. Since 2012, Jameela Qadeer has cared for her sister’s son and two daughters as if they were her own, with their father unable to do so.

“When their biological mother died, I knew that I would do anything I could to make sure that they never felt motherless,” she told CBC News, recalling how they’d sleep in one bed together so they wouldn’t feel alone.

A major challenge of Canada’s ban on adoptions from many Muslim countries is set to play out at the Federal Court. Jameela Qadeer took in her sister’s three children after her death more than a decade ago. A Pakistan court recognized her as their adoptive mother but after an abrupt 2013 change, Canada says the Islamic legal principle of guardianship Pakistan and other countries use doesn’t meet the bar of a parent-child relationship.

Now separated from the children, she said, “I think about that now and as I’m going to sleep.”

As an Ahmadi Muslim facing persecution in Pakistan, Qadeer moved to Canada more than six years ago with her biological daughter, first with protected status and now as a permanent resident. But she soon learned Canada wouldn’t recognize her sister’s children as her own.

Pakistan has no official adoption law. Instead, like many other Muslim countries, it relies on the principle of guardianship, which preserves lineage to protect inheritance rights, for example.

To facilitate adoptions abroad, Pakistan’s courts routinely grant permission for those with guardianship orders to complete adoptions in other countries. That was the case with Canada until the 2013 ban.

Qadeer, whose husband has been working in South Africa, formalized her guardianship of the children in Pakistan in 2017. In 2019, after Canada’s refusal to recognize the children as her own, she turned to a Pakistani court, which declared her their adoptive mother.

Canada still refused the children’s application to join her, with an immigration officer saying that “the guardianship arrangements confirmed by the courts in Pakistan do not create a legal parent-child relationship.”

When Qadeer first applied in 2017 to bring the children to Canada, all three were minors. Today, they’re 19, 23 and 25 years old. Asked if their ages could hurt the case, their lawyer said what matters is the date the application was filed.

Qadeer said Canada’s refusal to recognize the children as her own means they could be ripped away from a mother for a second time.

“I would feel like I’ve gotten heaven on Earth” if the children were here, she said.

‘I believe the law is discriminatory’: lawyer

Qadeer’s Toronto-based lawyer, Warda Shazadi Meighen, said she believes the constitutional challenge is the first of its kind.

“I believe the law is discriminatory,” she said in an interview.

The crux of the case, Shazadi Meighen said, is that if the children had been adopted through a legal system not based in Islamic law, Canada would recognize their adoptions — meaning their very identities prevent them from being together as a family.

The children “are unable to reunite with their adoptive mother in Canada and unable to access permanent residence, unlike adopted family members of protected persons in Canada who do not follow Islamic law and/or are not of Pakistani origin and based in Pakistan,” Qadeer’s court filing says.

The filing says Canada’s refusal to recognize Qadeer’s relationship with the children violates the Charter of Rights and Freedoms, specifically Section 15 (equality rights), Section 2(a) (freedom of religion) and Section 7 (right to security of the person).

“The bottom line is there is no other parent for these children,” Shazadi Meighen said.

In 2018, Pakistan’s High Commission in Ottawa said the claim that Pakistan’s legal system did not allow for adoptions was false. “We believe that the ban from the Canadian government is unjustified,” spokesperson Nadeem Kiani said then.

At the time, then-immigration minister Ahmed Hussen’s press secretary told The Fifth Estate: “We have asked the department to initiate a review of this policy and begin consultations with Pakistan as well as provincial and territorial governments to determine a path forward to regularize adoptions from Pakistan.”

Government not commenting on case

Asked by CBC News if that review ever happened, Immigration, Refugees and Citizenship Canada would not say. The department also said it could not comment on active litigation cases.

“We understand and sympathize with prospective parents who have experienced hardships while trying to bring children under guardianship placement from Pakistan to Canada,” spokesperson Mary Rose Sabater said in an emailed statement.

Source: Canada’s controversial ban on adoptions from several Muslim countries sparks court challenge

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Feds won’t appeal landmark #citizenship ruling for ‘Lost Canadians’

2024/01/23 Leave a comment

sigh….

Will see how the government intends to meet the required change, whether through the short-cut of S-245 or a separate bill that would follow established parliamentary committee hearings:

The federal government will not appeal a court ruling that found part of Canada’s Citizenship Act to be unconstitutional.

Last month, an Ontario Superior Court justice found the federal government violated Charter rights with its “second-generation cut-off” rule, which denies automatic citizenship to children born abroad if their Canadian parents were also born abroad.

In an interview with CBC News Sunday, lawyer Sujit Choudhry confirmed federal government representatives informed him last week that there would be no appeal.

Ottawa had 30 days to appeal the ruling — a deadline that passed on Thursday.

“My clients are relieved. It’s been a long, hard fight,” said Choudhry, who is representing families affected by the law.

Choudhry filed a constitutional challenge in December 2021, suing the federal government for denying his clients the right to transmit their citizenship to their foreign-born offspring.

Critics have long said the law creates two tiers of citizenship, creating different rules for Canadians depending on whether they were born abroad.

In her December ruling, Ontario Superior Court Justice Jasmine Akbarali agreed, writing that foreign-born Canadians born abroad hold “a lesser class of citizenship because, unlike Canadian-born citizens, they are unable to pass on Canadian citizenship by descent to their children born abroad.”

The case is lauded as a win for up to 200,000 “Lost Canadians” — groups of people not considered citizens because of gaps or contested interpretations of citizenship law.

The second-generation cut-off was created in 2009 as part of a crackdown by Prime Minister Stephen Harper’s government on Canadian citizens who lived permanently outside of the country. The move came in response to an $85-million evacuation of 15,000 Lebanese Canadians stranded in Beirut during the 2006 conflict between Israel and Hezbollah.

In her ruling, Akbarali noted public anxiety over the Beirut evacuation, but wrote “the highest the evidence goes is to show that some people were concerned about it… there is no evidence to demonstrate that there are citizens without a connection to Canada, nor that if any such citizens exist, that their existence or citizenship creates any kind of problem.”

Federal government must act

The federal government has six months to repeal the second-generation cutoff in the law — a move that will require either fresh legislation, or potentially the passage of a bill already being debated.

Senate Bill S-245 was amended in committee to remove the second-generation cut-off rule and replace it with a “substantial connections test” to pass on citizenship to the children of foreign-born Canadians who were born abroad.

In her ruling, Akbarali described S-245 as a “head start” for Parliamentarians to amend the Citizenship Act law to make it fully constitutional within six months.

How the federal government will respond is unclear. The office of Immigration, Refugees and Citizenship Canada Minister Marc Miller declined to comment.

The court also ordered the federal government to grant citizenship to the four foreign-born children of three Canadian families involved in the case. Choudhry says they received certifications of their citizenship last week.

“They’re beyond elated,” he said.

Source: Feds won’t appeal landmark citizenship ruling for ‘Lost Canadians’

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What a recent court ruling on Canada’s Citizenship Act means for ‘lost Canadians’

2024/01/11 Leave a comment

Useful and reasonable analysis and we will see if the government chooses to appeal or not on the basis of the reasoning used:

In December 2023, Ontario’s Superior Court determined that what’s known as the “second-generation cut-off rule” in the federal Citizenship Act violates the Canadian Charter of Rights and Freedoms by discriminating on the basis of national origin and sex. 

The second-generation rule was adopted in 2009 under Stephen Harper’s Conservative government. 

It limited Canadian citizenship to the first generation born abroad in an effort to create a clear and simple rule, and, according to Diane Finley, the minister of citizenship and immigration at the time, to “protect the value of Canadian citizenship by ensuring that our citizens have a real connection to this country.”

The concern with connection makes sense. Members of a political community — citizens — should have a relationship to that community. But what does connection mean, and how do we know when it exists? 

Secure claim to citizenship?

Canada, like many other countries in the world, uses birth as a proxy for connection. If you’re born in Canada or you’re born abroad to a parent who’s a Canadian citizen, you too are a citizen. 

In many cases, birth appears to offer a secure claim to citizenship since the facts of someone’s birth are generally unassailable. But as the second-generation cut-off rule demonstrates, governments can shift the legal meaning of those circumstances with significant repercussions.

The Bjorkquist et al. v. Attorney General of Canada case heard in Ontario in December involves seven families. Their children were born abroad and denied Canadian citizenship because their Canadian parent or parents were also born abroad. 

In each family, the parent has lived in Canada for many years, views Canada as their home and/or intends to return to Canada if they aren’t currently living here. The parents, all Canadian citizens, argued their inability to pass on their citizenship to their children, despite their connection to Canada, imposed second-class citizenship status upon them. The court agreed. 

Back when the law was changed, the House of Commons Committee on Citizenship and Immigration unanimously endorsed the second-generation cut-off. Effectively, the clause was the cost for passing a larger package of reforms to the Citizenship Act.

For several years, people known as the “lost Canadians” — those who have fallen through the cracks of complex citizenship law — had been advocating for changes that would address discriminatory provisions in the act. 

These people considered themselves Canadians, but had been denied citizenship because of their age, and/or the sex and marital status of their Canadian parent at the time of their birth. 

For example, prior to 2009, a child born abroad before Feb. 15, 1977, to a Canadian woman married to a non-Canadian would not be entitled to Canadian citizenship. The reform package removed the sex and wedlock status of the Canadian parent as conditions for citizenship for children born abroad after Jan. 1, 1947, when Canada’s first Citizenship Act came into force. 

Inconsistently enforced

Another challenge leading to those reforms was a requirement that second-generation children born abroad affirm their citizenship by the age of 28. They also had to demonstrate one year of residency in Canada immediately prior to applying or some other substantial connection to the country.

In practice, though, many Canadians born abroad were unaware of this provision, and it was inconsistently enforced.

Limiting citizenship to the first generation born abroad offered a simple, if blunt, solution to this problem. Parliamentarians were also assured that an expedited immigration sponsorship processwould address situations like those faced by the Bjorkquist et al.families. 

Unfortunately, that process has proven unreliable — so much so, in fact, that the judge in the Bjorkquist case described it as “error-riddled, highly discretionary, and inequitable in …application, and as such … unsatisfactory.”

It’s clear that the second-generation cut-off rule excludes children whose parents have a demonstrable connection to Canada, and who have a high likelihood of being connected to Canada as well. So how might that connection be established? 

Parliament is currently considering Bill S-245, that would amend the Citizenship Act. Its original draft proposed reinstating the second-generation affirmation and one-year residency requirement. 

It now includes an amendment requiring a more rigorous connection test, drawing from Canada’s requirements for permanent residency. The Canadian parent of a child born abroad would need to have lived in Canada for 1,095 days (three years) in total prior to the birth of their child. 

Relying on proxies

In this way, the Citizenship Act could address concerns about what Finley referred to as “endless generations living abroad”that spurred the creation of the second-generation cut-off rule in the first place. As well, Canadians would be able to pursue opportunities around the world while maintaining their connection to Canada.

Ultimately, what’s at issue is what’s considered the threshold for citizenship. Canada doesn’t require citizens or those claiming citizenship to pass civics tests or commit to substantive engagement in governing. Instead, it relies on proxies like birth, residency and time since they appear less vulnerable to political manipulation.

These proxies may be imperfect. Yet the Bjorkquist case suggests that when thoughtfully constructed, they can ensure Canadian citizenship is bestowed upon those whose attachment and contributions to Canada are real.

Source: What a recent court ruling on Canada’s Citizenship Act means for ‘lost Canadians’

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Federal court rules Canadian study permit refusal based on prior poor academic performance is unreasonable

2023/10/24 Leave a comment

Correct in terms of the academic assessment more the role of the education institution than immigration officers. Blind of course to the reality that many institutions like Niagara grant acceptance more on the basis of financial interests than academic performance. More “visa mills” than anything else:

The Federal Court of Canada has found that an applicant’s study permitrefusal based on past poor academic performance and “inconsistent” academic goals was unjustified, and therefore the application was entitled to judicial review.

In 2021, the applicant, a citizen of India, received a letter of acceptance to enter a full-time graduate program studying International Business Management at Niagara College in Toronto. With his letter of acceptance, the applicant submitted a study permit and temporary residence permit application to Immigration, Refugees and Citizenship Canada (IRCC).

A few months later, the applicant received a letter notifying him that his study permit was refused. The officer stated that the two grounds for refusal were low previous academic performance and inconsistent educational goals.

In particular, the officer found that the applicant had low average grades in his core subjects of 40% to 59% from his transcripts from the University of Mumbai. Based on this information, the officer was not satisfied that the applicant had demonstrated the academic proficiency required to successfully complete the study program in Canada.

With respect to the “inconsistency” of the applicants’ educational goals, the officer noted that the applicant initially applied to Data Analytics for Business and was refused, and now applied to an International Business Management. The officer claimed that these educational goals in Canada were not consistent from one application to another and the applicant provided no explanation for this inconsistency.

The court held that the officer’s findings with respect to his previous academic performance lacked justification and transparency. In particular, the officer failed to connect the dots between the applicant’s previous academic history and the likelihood of success in his intended program of study. The court is not in the position to assume that low grades in one area of study means that the applicant cannot excel in or complete a program in another area of study.

The court cited a similar case, Patel v Canada (Citizenship and Immigration), in which the judge remarked: “one can complete a program successfully without necessarily excelling in it. And many of the factors that can determine academic success are dynamic, not static”.

Further, Niagara College was clearly satisfied that the applicant had the necessary qualification to complete the program and to make “an important contribution” to the college.

Regarding the consistency of the applicant’s educational goals, the immigration officer failed to provide sufficient details concerning how a previous application to study Data Analytics for Business, meant that the Applicant’s educational goals were “inconsistent”. The applicant provided a letter explaining his rationale for choosing the International Business program. In this context, especially without further justification from the officer, it is unclear how the officer decided that the two applications demonstrated “inconsistent” educational goals.

The implication of this case is that poor academic performance in a prior academic program does not dictate an applicant’s ability to successfully complete another program, nor should it preclude an applicant from obtaining a study permit. In addition, an applicant may seek to pursue different study programs in Canada, as long as they provide rationale or an explanation for their choice.

Source: Federal court rules Canadian study permit refusal based on prior poor academic performance is unreasonable

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Did discrimination keep this couple out of Canada? A Canadian court delivers a ‘bittersweet’ ruling

2023/08/28 Leave a comment

Of note, ongoing challenge of indicators used to indicate likely refugee claims and overstays:

The Canadian government has been ordered to reinstate a travel document for a Roma couple who were kept from making a trip to this country at least partly because their hosts were former refugees.

The Federal Court ruled this week on a case that put a spotlight on the Canada Border Services Agency’s use of “association with refugees” as an “indicator” to vet travellers.

And although the couple will now get their travel document, Justice Simon Fothergill ruled that the CBSA’s use of indicators did not amount to a discriminatory practice.

The couple said they were disappointed at Fothergill’s decision.

“We have been unable to visit our family in Canada for more than four years now,” said Andrea Kiss, who had set out on the 2019 trip to see her sister, who was about to have an abdominal surgery.

“I am disappointed the court did not recognize the harm and humiliation that CBSA’s discrimination against Roma people is causing.”

Kiss and her husband were set to fly from the Budapest airport in 2019 to visit Andrea’s sister in Toronto, who, along with her family, has refugee status in Canada.

Although the couple had been issued an electronic travel authorization (eTA) — a travel document required for those flying into Canada from visa-exempt country such as Hungary, they were stopped and referred for further screening.

Canadian border officials made a “no-board” recommendation and cancelled the couple’s travel authorization. The case note, among other concerns, cited their hosts as “convention refugees who arrived in Canada via irregular means in 2015 and 2016 respectively.”

The notes suggested the couple had weak ties to Hungary, where they did not own property or a long-term rental lease and were unable to explain what they would do over their three-month stay in Canada, how the husband managed to take such a long vacation from work or why they were carrying $2,000 in cash.

In fact, according to the couple’s claim, not only did they own property in Hungary, the husband had worked for the same employer for 26 years and had received approval for a six-month leave for the trip.

The Kisses challenged the decision in court with a non-Roma Hungarian family that faced a similar experience, claiming CBSA officials did not have the authority to conduct overseas examination and cancel the travel documents, and that the use of “association with refugees” as an indicator was discriminatory.

The government had agreed that their eTAs should be granted, but the complainants insisted on seeking a formal declaration from court to that effect.

“The Court has found that the Officer had statutory authority to cancel the Applicants’ eTAs, although the criteria for exercising that authority were not satisfied in either of these cases. This is conceded by the (Immigration) Minister,” Fothergill wrote in the decision.

However, there’s no evidence established, the judge found, of “the existence of a co-ordinated program by the CBSA to interdict travellers abroad solely on the ground that they are of Roma ethnicity or associated with Roma refugee claimants in Canada.”

The court said the border officials’ decisions were based on information provided by a private security agent employed by Air Canada, combined with other information contained in immigration records.

It pointed out that the decision-making officer was located in Vienna, Austria, and had no direct interaction with the travellers and did not “exercise any coercive powers,” hence the complainants’ “unauthorized overseas examination” accusation against the border officials was unsupported.

“This did not constitute the examination of foreign nationals, but rather the provision of assistance to an air carrier in meeting its obligation to ensure travellers are eligible to enter Canada,” wrote Fothergill.

During the court proceedings, the complainants submitted evidence that showed CBSA overseas liaison officers made no-board recommendations against 1,252 Hungarian nationals between 2012 and 2018.

An affidavit from a York University law professor said the recognition rate of refugee claims from Hungary, majority of them by Roma minorities, was almost 69.7 per cent, a rate above the refugee board’s overall protection grant rate.

The complainants argued that the border officials’ cancellations of the travel authorization was part of Canada’s broader interdiction policy that seeks to enforce its border and immigration laws extraterritorially by pushing the border out against undesirable visitors such as potential refugees, even before they depart from their country of origin.

Air travel advocate Gabor Lukács, who assisted the families in court, said that while he was happy the complainants were vindicated and will have their travel authorization restored, the ruling was bittersweet.

“If you target people from Hungary who have a refugee history, it is tantamount to targeting the Roma people. The evidence on that point was clear and uncontradicted,” said Lukács, founder of the Halifax-based Air Passenger Rights.

“The court is basically saying that by preventing people to board a flight because they are too brown, because they have the wrong ethnicity, the CBSA is just helping the airlines to meet their own legal obligations. It is a whitewashing of what is quite clearly a systemic discrimination.”

Source: Did discrimination keep this couple out of Canada? A Canadian court delivers a ‘bittersweet’ ruling

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CRTC erred in its decision on Radio-Canada N-word broadcast, court finds

2023/06/12 Leave a comment

Of note. Needed sending back of original decision:

A federal court has ruled that the Canadian Radio-television and Telecommunications Commission (CRTC) erred in its decision penalizing Société Radio-Canada (SRC) for broadcasting the N-word.

In a unanimous decision released Thursday, the Federal Court of Appeal said that the broadcast regulator made several mistakes when it ruled against SRC in response to a complaint.

In particular, the court ruled, the CRTC cited sections of the Broadcasting Act which do not give it the authority to regulate speech on the airwaves. The court sent the decision back to the CRTC for reconsideration.

Source: CRTC erred in its decision on Radio-Canada N-word broadcast, court finds

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Only path to citizenship for ‘lost’ Canadians can take years and may involve mistakes, court hears

2023/04/22 1 Comment

Useful account of the court proceedings and Justice Akbarali comments and questions. The definition of “lost Canadians” keeps on getting stretched. Agree, of course, on the need for better data, not just relying on personal stories and individual cases:

Government lawyers were challenged in court to justify the options for “lost Canadians” to be granted citizenship and the undue hardship endured by families affected by a rule that limits the passage of citizenship rights by descent for those born abroad.

At a hearing in Toronto on Thursday, federal government counsel argued there’s no charter right to citizenship and alternative pathways are available for children born overseas to foreign-born Canadians who can’t inherit citizenship under the second-generation cut-off rule.

“There’s simply one rule for passing on citizenship for the first generation born abroad, and that’s having a child born in Canada to continue the connection to Canada,” Hillary Adams, one of three lawyers for the government, told the Ontario Superior Court of Justice.

“Or they can have their children born outside of Canada and confirm the connection to Canada by establishing permanent residence here and apply for citizenship, like most immigrants to Canada … The end result is the same. Your child gets Canadian citizenship.”

The lawsuit was brought by 23 individuals from seven families that have been negatively affected by the cut-off rule, arguing the law discriminates against them based on their place of birth, violates their mobility and liberty rights, and disproportionately puts women at a disadvantage when they have to give birth outside of Canada due to circumstances beyond their control.

Government co-counsel David Tyndale said people make personal choices as to where to look for jobs, where to start a family or whether to pursue a career abroad, and the choices have “intersecting effects” on one another.

“They may be difficult. They may involve serious consequences in some area or others of the person’s life. But the fact that life imposes choices on people as to where they live and where they have children isn’t necessarily a breach of the charter,” Tyndale argued.

The government contended that there’s no “blanket prohibition” for the second-generation born abroad to restore their Canadian citizenship through a discretionary grant by the immigration minister or indirectly first as a permanent resident through a family sponsorship before they turn 22 years old. Refused applicants can appeal to the Federal Court.

Noting that these processes could take months if not years, Justice Jasmine Akbarali raised concerns over mix-ups and mistakes in some of those decisions.

“They have to first become permanent residents and we know that hasn’t always been easy to obtain,” Akbarali said. “There’s children who applied for and did not get PR status. There’s no evidence to tell me how often that happens, that children of Canadian citizens obtain PR status on application or not.”

Government counsel Kevin Spykerman responded that there’s no evidence in the submissions but referred to some of the litigants who were granted citizenship by the immigration minister or successfully obtained permanent residence.

“In many of these applications, we see a much shorter processing time. And of course the 27 month processing time is not always 27 months,” said Spykerman. “We see success through this provision.”

But at what cost, the judge wondered.

“The courts are full of self-represented people who can’t afford lawyers. If you need a representative to find someone who knows somebody inside (immigration) to assist you in getting this exceptional grant to citizenship … then what about people who can’t afford it?” asked Justice Akbarali.

“Is it enough that they’re viable if they are incredibly difficult? If they cause hardship?”

Adams said the Federal Court is a better place to hear immigration and citizenship cases because of its expertise and experience in dealing with the relevant law and provincial courts generally defer jurisdiction to the higher court.

“Am I being asked to assume jurisdiction over immigration matters or am I being asked to apply the charter to federal law,” the judge interjected.

“You are being asked to apply the charter to federal law, which, again, you have jurisdiction to do. We’re not debating that,” Adams replied.

The government argued that none of the litigants’ mobility and liberty rights were infringed because at no point were the first-generation Canadians born abroad refused entry or exit from Canada. In addition, their foreign-born children were issued visitor visas to come to Canada.

“The applicants have been able to make fundamental personal choices free from state interference by moving overseas and having children overseas and by returning to Canada,” noted Adams, adding that the law is meant to ensure citizenship by descent is not passed from generation to generation to people without a connection to Canada.

The 23 litigants from multi-generational families, including grandparents and parents, have established ties to Canada before moving abroad and having children overseas.

The court questioned if those ties matter when the pejoratively known “birth tourists” with no connection to this country are able to obtain citizenship for their children by travelling to Canada and giving birth here.

“They have the choice as a birth tourist does to have child in Canada and reap the benefits of citizenship,” Adams answered. “There’s a choice where to have your children.

The litigants are seeking an order to declare the second-generation citizenship cut-off unconstitutional and grant citizenship to the four children in the lawsuit whose citizenship is still pending.

Source: Only path to citizenship for ‘lost’ Canadians can take years and may involve mistakes, court hears

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Federal Court judge slams Canadian immigration’s demand to see …

2023/01/16 Leave a comment

Of note:

A Federal Court judge has described as “unintelligible” a Canadian visa officer’s rejection of a B.C. study permit for an Iranian master’s student because she failed to produce her grades.

Saba Ahadi applied for a study permit in January 2022 after being accepted to the master of business administration program at the University of Canada West (UCW) in Vancouver, B.C.

Ahadi also applied for a temporary resident visa for her five-year-old daughter, whom she intended to bring with her while her husband remained in Iran.

Source: Federal Court judge slams Canadian immigration’s demand to see …

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Will a former refugee’s trip to see his dying father cost him his status in Canada?

2022/10/26 Leave a comment

Understand the personal pain but it does undermine his claim to refugee status as it does with others who return to the country they fled. Hard to have it both ways:

When Medhi Ghamoshi Ramandi was finally granted asylum in Canada in 2019, one of the first things he did was leave the country.

The Iranian man wanted to see his wife and two children, whom he had not seen for six years since his escape from that country’s regime.

Aware of the safety risks of returning to his homeland, he got a refugee travel document from Canada and flew his family to Armenia, where he rented a place for three months so they could try to make up for some of their time lost.

“We had not seen each other for six years and we reunited in Armenia,” recalls Ramandi. “We did a lot of sightseeing there. We had very good memories of the first weeks there. I felt alive again.”

But then came the news of his father being diagnosed with an acute form of colon cancer.

“We didn’t think my father would last six months. There were photos of him with his stomach torn open and stuff like that,” says Ramandi. “My father was pleading, ‘Please come back so I can see you one last time.’ That’s what made me decide to go back.”

Unable to travel to his homeland with his refugee travel document, Ramandi took a chance to apply for an Iranian passport in Armenia and crossed a land border into Iran, at 2 a.m., hoping he wouldn’t be flagged.

Once inside the country, he says, he holed up in his parents’ house before sneaking into the hospital late at night and staying at his father’s bedside till the morning for fear of being spotted and reported to the Islamic Revolutionary Guards.

After 12 days in Iran with his dying father, the 50-year-old returned to Toronto on Sept. 23, 2019, via Armenia. 

He was immediately stopped and held for an investigation by the Canada Border Services Agency.

His offence was possessing a passport from the same regime that he had run away from and “reavailing” himself to Iran. 

To the Canadian authorities, that suggested he no longer required Canada’s protection and that he could be stripped of his refugee status.

“I had to go and see my father. He was dying,” said a sobbing Ramandi, whose application for permanent residence has been suspended since 2019 while officials are investigating whether to refer him to the refugee board and have his protected status ended.

It is a process known as cessation. The number of new cessation applications against individuals who have been granted asylum in Canada — many of them already permanent residents, sometimes for years — rose to 399 in 2021 from just 137 in 2013. The then-Conservative government, looking to crack down on bogus refugees, changed the law to not only go after former refugees’ protected status but also their permanent residence.

Those who return to their country of origin or simply apply for or renew their old passports, even just to visit a third country, can be pursued by Canadian border officials and lose both their refugee status and permanent residence, and ultimately face deportation.

“Technology is improving, so people’s movements are easier to track,” says immigration lawyer Mario Bellissimo. “There is a backlog that has now slowly moved through the system and there are investigations going on. 

“We’re seeing now an apex of cases.”

As of the end of June, there were 572 cessation applications before the Immigration and Refugee Board, down from a backlog of 781 cases in 2020.

Under the immigration law, Canada can take away someone’s protected status if they have:

  • “Voluntarily reavailed” themselves of the protection of their country of nationality;
  • Reacquired their nationality, as in obtaining or renewing a passport from the country of persecution;
  • “Re-established” in that country; or
  • When the reasons for which the person sought refugee protection no longer exist.

Lawyer Justin Jian-Yi Toh said investigations in cessation proceedings are often triggered when individuals are flagged by border agents upon returning from their country of origin or when they are found to have travelled back from a third country with a passport issued from the state they fled. 

Many are also caught when they are asked to provide detailed travel records to fulfil the physical residence requirement for the renewal of their residence cards or citizenship applications.

“Of course, for the average person, they don’t think about all that stuff when they get a passport,” said Toh. “They think, ‘I need a passport to travel. A passport is a travelling licence.’ That’s it.”

In the eyes of Canadian officials, when that happens, it means the refugee traveller has restored relations with their country of origin and no longer needs Canada’s protection.

“Then you see a situation where, for example, people get refugee status in Canada,” said Toh, “but then their parents get very sick and they say to themselves, ‘I’m in danger in this country, but this is my mom, and this is my dad. Maybe I can pop in and see them one last time without people noticing. I’m there and then get out quickly.”

How a court ruling could change things

The refugee board has allowed the majority of the cessation requests referred to it by the border agency, with an acceptance rate above 80 per cent. In 2020, it reached an all-time high, at 95 per cent.

But both Bellissimo and Toh hope that the rising trend will be blunted by a Federal Court of Appeal decision earlier this year that found each cessation proceeding should be “fact-dependent” and should not be applied in “a mechanistic or rote manner.”

The case, represented by the two lawyers, involved Maria Camila Galindo Camayo, who came to Canada for asylum with her mother and brothers from Colombia when she was 12 and who was granted protection in Canada in 2010 as a minor dependent.

After she became a permanent resident in 2012, she was found to have obtained and renewed her Colombian passport, and visited her homeland five times as a teen and adult to visit and care for her father, who suffers from mental illness and recurrent cancer, and to attend a humanitarian mission to aid children in poverty. She also used the passport to travel to Cuba, the United States and Mexico.

When in Colombia, concerned for her own safety, she hired professional armed guards, travelled in multiple cars, taking different routes, and remained inside family members’ homes as much as possible, she told the refugee board.

In 2017, border agents referred Camayo to the refugee board, which took away her protected status and permanent residence in 2019, despite her arguments that she was unaware of the cessation laws and their consequences.

Although on paper Camayo met the three key elements in assessing someone’s return to a country of persecution — voluntary, intentional and actual physical visit — the Federal Court overruled the refugee board decision, saying that the conclusion was unreasonable.

In dismissing the government’s appeal, the Federal Court of Appeal said the test for cessation should not be applied in “a mechanistic or rote manner” and it provided detailed guidance to assist the refugee board in assessing individual nuances leading to someone reavailing themselves to the country that they once feared.

“The focus throughout the analysis should be on whether the refugee’s conduct — and the inferences that can be drawn from it — can reliably indicate that the refugee intended to waive the protection of the country of asylum,” the appeal court said in sending the case back to the refugee board for redetermination.

‘My father was dying of cancer’

Ramandi said no one ever advised him not to use an Iranian passport or about the potential consequences. He said he tried to keep a low profile when sneaking back into Iran because he worried about his safety. The visit to Tehran wasn’t even part of his plan as he only learned about his father’s hospitalization toward the end of his three-month trip in Armenia.

“My father was dying of cancer. … The immigration issue didn’t even cross my mind,” said Ramandi, a Protestant Christian, who fled religious persecution in Iran and arrived in Canada in 2013 with the help of smugglers.

Still distraught from leaving his father and family behind, he said he was terrified when he was stopped by the border agents at Toronto’s Pearson airport.

“I told them about seeing my family in Armenia and about my father in Iran. I told them everything about the trip,” Ramandi, a baker, said through an interpreter. “I had no idea about the immigration implications.”

His father died a few months after his visit and Ramandi has not travelled or seen his wife, son, 18, and daughter, 14, while his permanent residence application is on hold.

“I came here when I was 41 and I’m now 50. It’s been almost 10 years and I’ve only been able to spend three months with my family in Armenia,” said Ramandi. “It’s so hard. I don’t have any direction for my life anymore.”

Immigration lawyer Richard Wazana said those with “ceased” status are also barred from appeals and risk assessments before removals for a year and are only eligible for humanitarian considerations if there are children involved and their interests are affected, or if there’s a serious mental or medical health issue.

The law, he said, has caused a lot of misery for these former refugees, few understanding that their protected status can be taken away even after they become permanent residents.

“Many people don’t apply for citizenship because they’re under the mistaken impression that permanent residency is, as it sounds, permanent. Unfortunately, it’s far from it,” he said. “Really, no one is safe until they obtain citizenship.”

Wazana has a client who fled political persecution in Libya and returned to see family only after the authoritarian regime of Moammar Gadhafi fell and it was safe for him to visit. Even though Canada has deferred all removals to Libya due to the volatile political situation there, the border agency pursued cessation of the man’s permanent resident status.

“Even using that passport from your home country to travel to a third country could potentially lead to a cessation application,” said Wazana. “My advice is just to forget about that passport, put it away and never use it again.”

Source: Will a former refugee’s trip to see his dying father cost him his status in Canada?

Filed under Immigration, Refugees Tagged with ,

Did Canada use facial-recognition software to strip two refugees of their status? A court wants better answers

2022/09/21 Leave a comment

Judge Go’s activist background likely influenced this decision questioning the lack of due process and transparency over decision-making:

Canadian authorities can’t just brush off allegations that they are using facial-recognition software to discredit asylum-seekers, a court has ruled.

The decision by the Federal Court comes in a case that has cast a spotlight on the possible use of the technology by the Canada Border Services Agency — a practice the agency denies.

At the centre of the case are Asha Ali Barre and Alia Musa Hosh.

The pair claimed to be Sunni Sufi Muslims, who fled sectarian and gender-based violence from Al-Shabaab and other militant Islamist groups in Somalia.

They were accepted by Canada as refugees in May 2017 and July 2018, respectively.

In 2020, border officials moved to strip their refugee status before the Refugee Protection Division tribunal, alleging in part through photo comparisons that they were in fact Kenyans, a claim the women denied. Barre and Hosh lost their refugee status, and have appealed in court.

At issue was the alleged use of facial recognition technology, but also the privilege that authorities enjoy in withholding the source of their photo comparisons — and their investigative methods — under the Privacy Act.

“The RPD gave a cursory nod to the Respondent’s Privacy Act argument and failed to engage in the necessary consideration of balancing the alleged protection of privacy rights with the Applicant’s procedural fairness right to disclosure,” Judge Avvy Go wrote in a recent ruling in favour of the women’s joint appeal.

“The RPD’s swift acceptance of the Minister’s exemption request, in the absence of a cogent explanation for why the information is protected from disclosure, appears to be a departure from its general practice.”

Last year, Canadian Privacy Commissioner Daniel Therrien found that the RCMP committed a “serious violation” of Canadians’ privacy by conducting searches of Clearview AI’s facial recognition database, which contains billions of photos of people scraped from the internet, including from social media sites.

Facial recognition technology has been used in Canadian immigration settings to verify the identities of incoming travellers through automated kiosks at airports, but border officials have maintained they don’t use it in immigration enforcement.

Lawyer Quinn Campbell Keenan, who represented Barre and Hosh, was pleased with Go’s decision.

“It sent a clear message to the minister and the Canada Border Services Agency against the use of photo comparison or matching software to single out individuals for possible deportation on the basis of this very dubious photo matching technology,” she told the Star.

Other lawyers also hailed the decision after seeing a surge of former and current Somali refugees having their identities challenged by the border agency through photo matching with Kenyan travellers who had previously entered Canada legally. Many of those cases are now being contested in court.

“There has to be a balanced approach where, at the minimum, the RDP should at least review the possible disclosure that the border agency has,” said lawyer Tina Hlimi, who has seen more than a dozen cases in her practice since 2019 where Somali clients’ identities were challenged based on this investigative method.

“It’s refreshing to see a different perspective when we have been arguing in vain that border agents are perhaps using facial recognition technology.”

According to the court, in support of her asylum claim, Barre had “an identity witness,” a Canadian citizen from Somalia she had met in Somalia, and a letter from the Somali Multi Service Centre, which had conducted a verification assessment of her knowledge of and connection to Somalia.

Hosh’s refugee acceptance was based on a survey by the Loin Foundation that verified her identity, as well as her ability to speak about the Tunni clan and converse with the interpreter fluently in Somali, the court said.

In their attempts to revoke the women’s refugee status, Canadian officials submitted evidence based on photo comparisons between the women and two Kenyan citizens who arrived in Manitoba as international students, just before Barre’s and Hosh’s refugee claims were made.

Despite the refugees’ objection to the photo comparison and allegation about Clearview AI database being used in their cases, the refugee tribunal agreed with the government that the firm ceased providing services in Canada on July 6, 2020, and an “App that is banned to operate in Canada would certainly not be used by a law enforcement agency such as the CBSA.”

It also found “great similarities” between the photos in either case, even though lawyers for the women had argued that facial recognition software is unreliable and particularly flawed in identifying darker-skinned females in research studies.

The court was critical of the tribunal’s conclusion that Clearview AI was not involved when no inquiry was made as to when the photo comparisons were created in the two cases.

“While the RPD relied upon the fact that the RCMP was the last remaining customer of Clearview AI and stopped using it in 2020, this does not necessarily mean (Canada Border Services Agency) was not using the software when the photographs were collected in 2016 and 2017,” said Go.

“The RPD’s finding that the Minister did not use Clearview AI was not supported by evidence, and it failed to consider the Applicant’s submissions highlighting the danger of relying on facial recognition software.”

Government lawyers argued in court that Barre and Hosh were provided with the photos of the Kenyan women, were aware of the case they had to meet and had the opportunity to respond. The obtaining of the photographs and comparison, they said, was a matter of an investigation done by border officials, and thus subject to non-disclosure privilege.

“The RPD reached a conclusion about the reliability of the photo comparisons based on the Minister’s say-so with no further details about the ‘how.’ It then took the Minister’s word that they must protect the details of their investigation under the Privacy Act without having to demonstrate whether the requirements for non-disclosure, as set out in the Act, were met,” Go said.

“The RPD’s conclusion, which was void of transparency, intelligibility, and justification, must be set aside.”

Lawyer Paul Dineen, who represented Barre and Hosh before the RPD, said the women are not out of the woods as they wait for a new tribunal hearing to decide if they can keep their refugee status.

However, depending on where further arguments go, he said officials are left with two choices.

“They either have to reveal the methods of the investigation or they have to withdraw the photos,” said Dineen.

Both Barre and Hosh declined the Star’s interview requests.

Source: Did Canada use facial-recognition software to strip two refugees of their status? A court wants better answers

Filed under Refugees Tagged with , ,

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