Immigration law change leaves some newcomers struggling to prove that their marriages are genuine

Some good data on overall numbers as well as the explaining the impact of the change made under the Conservative government requiring both conditions “nongenuine marriage “and” entered into for immigration purposes” to be met to only one condition, changing the “and” to “or:”

Deeparani Harishkumar Dhaliwal says she ends up emotionally and financially drained every time she travels to India to visit her husband and their young son.

Sometimes she stays for two months, other times for as long as six. But she ends up having to find a new job and a new apartment each time she returns alone to Canada.

Due to her frequent trips and moves, Dhaliwal, 37, has very few belongings. The Mississauga woman has been making these journeys for a decade, since she went back to India for an arranged marriage in 2011.

It’s not her preferred lifestyle, she says. But her spousal sponsorship to let her husband join her in Canada has been refused four times on the ground that it’s not a genuine marriage.

Her appeals to a tribunal have been denied, most recently in June, and so have her appeals of those appeal decisions.

“I cannot give up. I need a good future for my child. I need a good future for my family that they can’t have in India,” said Dhaliwal, who took their Canadian-born son Sehajveer to the care of her in-laws and husband in India, due to her lack of child-care options here, when he was two months old. She only recently brought him back to Canada at age eight.

Family reunification has long been considered an important reason to let spouses come to Canada. However, some newcomers such as Dhaliwal face years of bureaucracy, culturally loaded questions about marriage and a subjective evaluation process, with their families’ future at stake.

“Bringing a child into this world is not a small thing. This is not for immigration purposes.”

Between 2016 and 2021, there were 410,546 Canadians who applied to sponsor their foreign spouses for permanent residence, including spouses already in Canada and those still abroad. Over the same period, 368,332 were approved and 27,826 were refused, a refusal rate of seven per cent. (Delays in processing account for the mathematical discrepancy.)

The top grounds for refusals were: the relationship was deemed not genuine; the spouse was inadmissible for different reasons; or the couple failed to meet cohabitation requirements, produce required documents or answer questions truthfully.

As of mid-August, the federal immigration department still has 62,772 pending spousal sponsorship applications in process, including 2,487 cases where applicants have been refused before.

“The Government of Canada recognizes that the majority of relationships are genuine and that most applications are made in good faith,” says immigration department spokesperson Rémi Larivière. “To protect the integrity of our immigration system, officers must do their due diligence to determine whether a marriage is genuine.”

Couples are often interviewed to have their credibility assessed by immigration officials, and failed applicants can appeal to the Immigration and Refugee Board, where an independent adjudicator reviews the decisions. Between 2016 and 2021, the tribunal heard 7,702 spousal sponsorship appeals.

Included in those were Dhaliwal’s efforts to sponsor her husband, Amandeep Singh Dhaliwal, 33, to Canada.

In 2010, Dhaliwal came as a permanent resident with her then-husband but the two separated the following year, she told immigration officials, due to his alleged abusive behaviour. Shortly after the separation (they’re now divorced), she met her current husband and sponsored him in 2012.

The first sponsorship was refused because her divorce in India wasn’t recognized under Canadian law so the new marriage was considered invalid.

“A person must prove that their relationship is genuine and was not entered into primarily for the purpose of acquiring any status or privilege,” said Larivière.

“She reapplied three times after that. Each time, the officer was not satisfied that the marriage was not entered into for the purpose of acquiring any status or privilege under the Immigration and Refugee Protection Act.”

Dhaliwal said she has been financially supporting her husband, who runs a small family farm. To pay for all the legal fees and trips, she said she has sold the gold necklace, bangle and earrings that her late mother bequeathed to her.

With her son by her side now, she is now studying to become a personal support worker while working as a security guard at Toronto’s Pearson airport. She still likes to hope that her husband could join them in Canada soon and they could buy a house and build a home here.

“We are standing by each other for a lifetime no matter what the conditions are, no matter what the (sponsorship) results are,” said Dhaliwal, who had a miscarriage earlier this year that she attributed to the stress from her legal battle.

“We have to stay in Canada because this is the only country where I can support my family and raise my child for a better future.”

The couple said it’s awfully hard to stay apart whenever Dhaliwal had to return to the cruel reality of being alone in Canada whenever she left India, where people make fun of them and taunt them about their marriage.

“Whenever we see relatives, people ask the same question. You guys have a kid together and it’s been so many years, and you still don’t have visa. It’s hard to answer people and explain to them our bond,” Amandeep Singh Dhaliwal, 33, said from India.

“In my life, my wife is God’s blessing. I am very hard working but due to limited opportunity in India, I couldn’t help her financially and most of burden of family is on her.”

While Dhaliwal made the mistake of not getting her divorce in India notarized before her first sponsorship, the second application, filed in 2014, was rejected due to doubts about the genuineness of the marriage.

The appeal tribunal concurred with the concerns raised by immigration officials, citing:

  • The couple’s compatibility in terms of age, education, marital and religious backgrounds (She is Hindu, 37, divorced and university educated; he is Sikh, 34, a high-school dropout, and it’s his first marriage);
  • The difficulty both spouses had in detailing their first conversation and the attraction they shared that led to their quick marriage a month after they met;
  • Inconsistency in their evidence with regards to their wedding, honeymoon and intimacy; and
  • Concerns that Dhaliwal’s first marriage was also a marriage of convenience.

Immigration consultant Sol Gombinsky, who is advising the couple, says spousal applicants are judged through the Canadian lens and that applicants are often stumped by the questions raised by immigration officers at interviews.

One question posed to the couple at their immigration interview was about their first sexual encounter after the marriage.

“It has always bothered me that they ask somebody abroad questions (from) thousands of miles away, with a different culture, different religion, and they ask questions that in many cultures are difficult to answer,” said Gombinsky, who worked 30 years with the immigration department, including a stint as an appeals officer.

“When something starts off bad and you get off on the wrong foot, it’s very difficult to correct it.”

In refusing the first appeal, the appeal tribunal said a variety of factors are taken into account in assessing if a relationship is genuine: the intent of the marriage; length of the relationship; amount of time spent together; conduct at the time of meeting, engagement and wedding; knowledge of each other’s relationship history; level of continuing contact and communication; financial support; sharing of child care responsibility; and knowledge about each other’s extended families and lives.

“The preponderance of the evidence support a finding that the marriage was entered into primarily for the applicant’s immigration to Canada, and is not genuine,” a tribunal concluded in 2016 in this case.

Seasoned immigration lawyer Lorne Waldman says what makes it hard to reverse a refusal in a case such as Dhaliwal’s is an amendment of the law by the former federal Conservative government.

The old regulation let officials refuse a spousal application if it was a nongenuine marriage “and” it was entered into for immigration purposes.

“But now you can refuse a sponsorship because it was entered into for immigration purposes or it’s not genuine,” explained Waldman, who represented Dhaliwal and her husband at their latest appeal this year.

“Since the change … if the case is refused at the beginning, then it’s really difficult to overcome, because that’s a finding that was made based upon what happened at the time they were married. Changes that occur afterwards don’t affect that part of the (initial) decision.”

As a result, many genuine couples have also been trapped if they fail to present their cases properly the first time, Waldman said.

Dhaliwal’s third and fourth sponsorship applications were refused in 2017 and 2021, on the same grounds. In the subsequent appeals, the appeal tribunal ruled that the same issue had been decided previously, and dismissed the requests.

Despite a DNA test result confirming the paternity of Dhaliwal’s child, the second appeal panel noted 22 specific problems with the couple’s evidence at the 2016 hearing and determined that none of the new evidence addressed those findings.

“While the new evidence might be relevant vis-à-vis whether the marriage is now genuine, it was not directly probative of whether the marriage had been entered into primarily for immigration purposes,” cited the latest appeal decision released in June.

In that decision, the tribunal recognized there’s a child of the marriage and the child continues to be jointly raised by the couple, which addressed some of the concerns previously raised.

“However, it is clearly not probative of them all,” said the tribunal.

Citing case law, the Immigration Appeal Division (IAD) tribunal said the existence of a child of the marriage will favour a finding of genuineness, but it is not proof in itself.

“In this appeal, it has already been held that, despite the existence of a child, the Appellant did not establish that this is a genuine marriage or that it was not entered into primarily for immigration purposes,” said the Immigration Appeal Division.

“If it is a fraudulent immigration marriage — and the Appellant has failed to establish otherwise before the IAD and visa officers — I cannot say that the child’s best interests favour holding another IAD hearing on the matter,” wrote adjudicator Benjamin R. Dolin in his June 23, 2022 decision.

While it’s not impossible to have a child in order to facilitate immigration through a spousal sponsorship, Waldman said he has never come across such a case in his more than four decades of legal practice.

“I’ve seen quite a few other cases like this. It’s really a tragic situation because families are being separated unnecessarily. Children are growing up with only one parent and people are not able to be with their spouses,” he said.

“For a lot of people, it’s not going to be possible to go back to their country. It’s not an option for a lot of people either because the financial situation in the country is extremely difficult.”

Source: Immigration law change leaves some newcomers struggling to prove that their marriages are genuine

Canada urged to create dedicated asylum pathway for Hong Kongers fleeing political persecution

Expect pressure to grow. As Waldman notes, better to do so discretely:

Canada must create a dedicated asylum pathway for Hong Kongers fleeing Beijing’s clampdown on political opposition in the former British territory, Canadian MPs were told Monday.

“This is not a conventional humanitarian crisis, so conventional solutions are not effective for those who need our help,” Cherie Wong, executive director of Alliance Canada Hong Kong, an umbrella group that supported the Asian city’s pro-democracy movement, told the House of Commons immigration committee.

She told MPs that an immigration program unveiled last November to bring young Hong Kongers to Canada is only useful for upper-middle-class graduates and “fails to consider the realities of everyday people of Hong Kong.”

Reverend Brian Wong, a Canadian from Hong Kong with the Mustard Seeds Hong Kong Concern Group, concurred in his comments to MPs, saying dissidents come from many backgrounds. “Canada needs to come up with a inclusive policy to accommodate the needs of a broad spectrum of Hong Kong people at the risk of political persecution.”

Alliance Canada Hong Kong’s Ms. Wong described life for many of the Hong Kongers who marched in protests for a year before the national security law was enacted, noting they were targeted by “systematic surveillance operations, including having plainclothes officers stationed at the airports, loitering inside international terminals” and boarding areas.

“We have friends whose travel documents are confiscated, teammates monitored and followed who are scared for their lives, and fellow activists who are arrested while looking for options to leave. The Hong Kong government is even looking at legislation to impose exit bans and further suppress freedom of movement,” she said.

The Chinese government imposed a sweeping national security law on Hong Kong last June, ostensibly to target secession, subversion and terrorism, but with vaguely defined offences that critics say effectively criminalize dissent and opposition to the Chinese Communist Party’s rule.

More than 100 prominent Hong Kong political figures have already been arrested under this law, which carries penalties up to life imprisonment. Western countries, including Canada, have decried this crackdown as a violation of Beijing’s treaty pledge to maintain civil rights and the rule of law in the former British colony for 50 years after the 1997 handover.

The British government has offered a path to citizenship for many Hong Kongers, but this still leaves many stranded as authorities in Hong Kong arrest journalists, ban access to websites, seize cell phones and computers and fire teachers and union activists.

So far, Canada has accepted at least 15 asylum claimants as political refugees, according to Jane Lee of the New Hong Kong Cultural Club, a group of Canadian supporters of democracy in Hong Kong with branches in Toronto, Calgary and Vancouver that has helped 30 people from the former British colony to seek safe haven in Canada.

All these claimants, however, arrived before COVID-19 travel restrictions. The big problem facing persecuted Hong Kongers today is they cannot board a plane to reach countries such as Canada to claim asylum.

Toronto immigration lawyer Lorne Waldman said he’s been approached by Hong Kongers who want to leave but cannot because of flight restrictions. ”There definitely are people who need to get out and are at serious risk,” he said.

Advocates urged Canada to help funnel travel documents via non-governmental organizations to persecuted Hong Kongers in the Asian city, much like Ottawa once helped persecuted gay Iranians and Chechens reach Canada.

If Canada plans such action, Ottawa “shouldn’t and won’t make a big fanfare about this,” Mr. Waldman said.

NDP immigration critic Jenny Kwan suggested the federal Department of Immigration issue “minister’s permits” that would allow Hong Kongers to leave for Canada while applications are being processed.

Canada-Hong Kong ties run deep. There are several hundred thousand Canadians of Hong Kong origin living in Canada and 300,000 Canadian citizens living in Hong Kong now. More than 1,970 Canadians were deployed to defend Hong Kong from the Japanese in the Second World War and 554 lost their lives as a result.

Rev. Dominic Tse, senior pastor at North York Christian Community Church, told MPs that many Hong Kongers he knows would rather migrate to Canada than to Britain, based on existing ties and Canada’s reputation. He urged Canada to liberally grant work permits to Hong Kongers, giving them a chance to establish residency here. “Many Hong Kong people have either relatives or friends or classmates in Canada, and if they have a choice they actually would rather go to Canada than the U.K.”

Last November, Immigration Minister Marco Mendicino announced a three-year open work permit for recent Hong Kong graduates or those with a history of work experience in areas Canada might value, as well as a new pathway to permanent-resident status for Hong Kongers who end up coming here.

Source: Canada urged to create dedicated asylum pathway for Hong Kongers fleeing political persecution

Tougher impaired driving penalty ‘a double whammy’ for immigrants

The complexity of balancing a legitimate policy objective and one of the possibly unforeseen impact on Permanent Residents:

A proposed law to raise the maximum penalty for impaired driving offences in Canada could have a “disproportionate” impact on first-time immigrant offenders who would see their permanent residence status revoked and be deported, critics say.

But advocating equal rights for impaired drivers is a delicate issue, one that some senators and immigrant lawyers are trying to tackle as the Red Chamber sits this week to seek amendments to Bill C-46, the Impaired Driving Act, before sending it back to the House of Commons for a vote.

Currently, someone convicted of impaired driving could receive a maximum penalty of not more than five years in jail, but the offence would still be considered “ordinary criminality” under immigration law. An immigrant’s permanent residence status is not affected unless a sentence of six months or more is imposed.

However, under the proposed legislation, the increased maximum penalty to 10 years would automatically classify impaired driving as “serious criminality.” As a result, even if a first offender, who is not a Canadian citizen, is convicted and is only ordered to pay a fine, they would still lose their immigration status and be banned from Canada. This would affect foreign students, workers, visitors and permanent residents.

“We take impaired driving very seriously and we don’t want impaired drivers behind the wheel,” said Senator Ratna Omidvar in an interview. She noted that if a Canadian citizen is convicted of impaired driving for the first time, they could be sentenced to as little as a fine and walk free afterwards.

“A permanent resident in the same situation would pay the fine and face deportation,” Omidvar added. “It is a double whammy not on all people but just on a class of people. That’s an unintended consequence. The impact on permanent residents would be huge and disproportionate to what a Canadian would get.

In its submission to the Senate, the Canadian Bar Association also urged “careful consideration” of the bill, warning that the changes could put “a significant strain” on the immigration system and border officials in handling increases in inadmissibility and deportations.

The bar association wants the Senate to make the maximum jail penalty for impaired driving offences “10 years less a day” so they would still be classified as “ordinary criminality” and not trigger the automatic loss of a person’s permanent residency. At the very least, it says, there should be an exception to the 10-year penalty threshold for such offences that do not involve serious bodily injury or death.

“We remain concerned that Bill C-46 will introduce uncertainty into the law and result in significantly increased litigation and delays,” said bar association. “Our recommendations are intended to continue to protect Canadians from impaired driving, without triggering the serious criminality consequences.”

It’s not known how many immigrants would be affected by the proposed legislation, but immigration lawyer Robin Seligman said impaired driving is among the most common criminal offences and immigrants are not any more or less likely to commit the crime.

Statistics Canada said police reported a total of 72,039 impaired driving incidents in 2015 and given almost 300,000 newcomers and hundreds of thousands of visitors are coming to the country every year, the impact of the increased maximum penalty could be huge, said Seligman.

“Under the immigration law, serious criminality refers to terrorism, (threats to) national security and membership to organized crime. Lumping first-time impaired driving offenders with them is disproportionate and unfair. It’s an overkill and oversight,” Seligman said.

While repeat offenders of impaired driving deserve to be deported, immigration lawyer Lorne Waldman said first-timers should be allowed an opportunity for rehabilitation, especially where there’s no one hurt in the incident.

“There are definitely a lot of concerns over this bill, but it is always difficult for MPs to advocate for those convicted of any criminal offence,” said Waldman, who fears Ottawa would rush to pass the bill without amendments to fulfil its promise to legalize marijuana this summer.

Sadrehashemi/Waldman: Four myths about Canada’s border crossings

While their arguments have a sound basis, I find them somewhat disingenuous.

One could, for example, designate Roxham Road as a port of entry, given that 91 percent come through there. Some would, or course, try other places to enter, and we may get into a game of “whack a mole”, but no need to patrol the entire border as in many places, geography still makes it harder.

And one could, as Howard Anglin has suggested earlier (How Canada can restore order to its immigration system –, have any increase in asylum seekers count against the total number of refugees rather than merely be additive.

Whatever the option proposed, or options being considered by the government, there are no easy solutions. But however and ultimately, as Andrew Coyne has argued, viability depends on cooperation with the US (Andrew Coyne: Asylum problem will only be fixed … – The Victoria Star).

While I agree that some of the rhetoric regarding the influx if overblown, similarly downplaying the risks to public confidence in immigration is equally unhelpful:

Michelle Rempel, Conservative immigration critic, tweeted recently that the media was finally writing about “illegal border crossings” after she had been raising it for a year. The problem is that several recurring myths are shaping much of the coverage. Here are four of them:

The first myth is that Canada could designate the entire border as a port of entry. This is not a viable option. The public safety minister cannot legally designate the entire border as a “port of entry.” Under our law, a “port of entry” is a place designated open by the minister based on a number of factors, including the anticipated frequency of persons arriving at a particular location. Border officials must examine and process people seeking to enter Canada at ports of entry.

Imagine that all 8,891 kilometres of our border with the United States were a port of entry. Even if we only had one officer every 100 meters, we would still need more than 270,000 new officers to cover the border 24/7. This is not a serious policy proposal and should not be treated as one.

The second myth is that refugee claimants who are crossing into Canada at non-official border crossings are entering illegally. Canada is a signatory to the UN Convention on Refugees. Under international law, a refugee claimant cannot be punished for the way they enter into a country to seek asylum. Our immigration law does not make it illegal to enter Canada using informal border crossings, as long as a person reports to border services without delay. There is no legal basis to insist, as some have, that those who cross at non-official border points should be summarily deported, or that their refugee claims should be expedited since they will be refused. Underlying these suggestions is the assumption that people who are entering are not “real refugees.” The problem is that you cannot tell whether someone is a “real refugee” simply by the way they enter your country. In fact, in 2017, 53 per cent of those who crossed irregularly from the United States were found to be refugees.

The third myth is that people who are crossing from the United States are taking the spots reserved for refugees Canada would bring from overseas, somehow displacing them from a “queue.” This is comparing apples and oranges. Canada has a quota for the number of refugees it brings from overseas, either through the private sponsorship program or the government assisted refugee program. The quota is not determined by the number of refugee claims that are made in Canada. A rise in the number of refugee claimants arriving at Canada’s border does not push out refugees that Canada would accept from overseas camps.

Fourth, the rush to extreme, unviable policy solutions is predicated on the most egregious myth: the federal government has lost control of the border. This is far from true. The vast majority of those crossing the border, 91 per cent, are coming through one place, Roxham Road in Quebec, and immediately declaring themselves to Canadian authorities. There is no pressure to go “under-ground”; instead, there is a fair process to ensure proper adjudication of refugee claims. Security checks are expedited for these claimants, ensuring those who enter in this fashion do not pose a security threat. The government has also increased the capacity of border officials and refugee adjudicators.

While some try to raise alarm about a “crisis” at the border, the number of refugee claimants in Canada has to be put into a broader perspective. It is true that the number of refugee claimants has risen over the last year, but we also saw similar numbers in 2001. And globally, the same number of refugee claimants who came to Canada over all of last year entered Bangladesh in a single day. This is not the time to ignore our global duties and hastily throw up new barriers. Rather, by treating those who have crossed from the United States fairly and with compassion, according to law, Canada will merely be complying with its obligations as a party to the UN Refugee Convention.

via Sadrehashemi: Four myths about Canada’s border crossings | Ottawa Citizen

Immigration Department makes major headway on spousal sponsorship backlog | Toronto Star

Cute timing but the reduction in backlogs welcome:

Immigration Canada has worked hard to play Cupid in the past year by reuniting Canadians with their significant others abroad.

To celebrate Valentine’s Day, Immigration Minister Ahmed Hussen hosted a news conference at a Mississauga dessert shop to update his department’s dramatic reduction of the spousal sponsorship backlog.

According to Hussen, the number of spousal immigration applications in the queue has dropped to 15,000 from 74,900 a year ago, and the average processing time has also been sharply reduced to 12 months from 26 months.

“The Government of Canada is committed to family reunification. We understand how important it is to reunite couples. It also makes for a stronger Canada,” said Hussen.

“Canadians who marry someone from abroad shouldn’t have to wait for years to have them immigrate or be left with uncertainty in terms of their ability to stay.”

The minister attributed the success to a focused working group, dubbed the “Family Class Tiger Team,” that was created in spring 2016 to develop innovative mechanisms and redesign application kits and workflow to reduce processing times.

The special team reviewed spouse and partner related forms, guides, websites, tools and processes in order to improve the client experience and achieve faster processing times for most applicants. The team wrapped up in December 2016.

Since then, the Immigration Department’s spousal application package has been revised. At the time Hussen’s predecessor, John McCallum, announced the government intended to reduce the backlog of spousal sponsorship cases by 80 per cent and shorten processing times to 12 months.

Changes to the application kit were made following the announcement, condensing the previous 14 checklists down to four new ones.

On Wednesday, the department said the process will be streamlined further next month.

Starting on March 15, officials said spousal applicants will be asked to submit their background form and police certificates as part of their initial paper application package, instead of later in the application process to help move the process “quickly and efficiently and avoid unnecessary delays.”

The government’s spousal backlog reduction has surprised many, including veteran immigration lawyer Lorne Waldman.

“In my experience, there has been some reduction but it has not been as noticeable as the numbers suggest,” he told the Star. “I do not doubt the numbers but simply note that there are still cases that are taking a long time and it depends a lot on the offices.”

Spousal applications from countries such as Haiti, Mexico, Pakistan, Qatar and Sri Lanka still face wait times ranging from 14 to 19 months, above the 12-month global average, according to the Immigration Department website.

Vancouver immigration lawyer Steven Meurrens said one important reason the backlog was reduced was the increased annual quota for sponsored spouses and children coming into the country, allowing more applications to be processed.

Ottawa increased its annual target for spousal reunification by one-third to 64,000 last year from 48,000 in 2014. The quota is even higher for this year and through 2020, at 70,000 a year.

“The Liberals increased targets, which would increase the number of applications that they process in a year, meaning faster processing,” Meurrens noted.

Waldman pointed out that the government’s time frames for processing do not take into account the delays associated with applications that are returned because they are deemed incomplete.

“If my clients sends in a sponsorship and some officer wrongly decides it is incomplete and sends it back, this adds three or more months to the processing but is not included (in the backlog),” he said. “We have had lots of files wrongfully returned and this has caused a lot of hardship to our clients.”

via Immigration Department makes major headway on spousal sponsorship backlog | Toronto Star

El Salvador woman at the heart of legal challenge to Safe Third Country Agreement

Interesting case to watch given that it centres around a person rather than the previous more general one:

When an El Salvador woman and her two children arrived from a Buffalo, N.Y., shelter to the Fort Erie border crossing Wednesday, seeking to make a refugee claim in Canada, a team of lawyers from Toronto’s Downtown Legal Services was on high alert. They had U of T law students waiting and watching to report back from the border.

As soon as the woman — identified only as “ABC” in court documents — was denied entry under the Safe Third Country Agreement, the legal team filed a Federal Court challenge to the agreement, which they had been working on for months.

The agreement requires refugees to request protection in the first safe country they arrive in. Refugees crossing from the U.S. at official border crossings are usually denied entry into Canada. That’s part of the reason why so many risk sometimes dangerous illegal border crossings to make a refugee claim once already in the country — a legal loophole that’s permitted.

This is the second legal challenge to the agreement but the first with a person at its core.

“I feel happy and nervous and I am very thankful the lawyers are helping,” said ABC through a translator, when CBC News met her in a Toronto home on Thursday. “Canada is more humane than the U.S. In the U.S. it’s not safe, and I was worried about being sent back to El Salvador.”

Fear of gangs in El Salvador

Justice Ann Marie McDonald granted the woman a stay to live in Canada while her case is being considered. McDonald said there was clear and non-speculative evidence that she would suffer irreparable harm if she were to return to the U.S. and could even be sent back to El Salvador.

ABC’s lawyer, Prasanna Balasundaram, said that some of the strongest legal arguments in this case are based on charter rights. She is facing removal procedures in the U.S., and gender-based asylum claims in the U.S. have inconsistent results. He said that ABC has lasting psychological effects from persecution in El Salvador.

“Her family is the subject of gang violence in El Salvador,” said Balasundaram.

“I dream that all my family is together after all these years and that we don’t have to go home because of the gangs,” said ABC.

….Ottawa says U.S. safe for refugees

A spokesperson for Immigration, Refugees and Citizenship Canada said in an email to CBC News this week that “Canada has carefully analyzed recent developments in the United States, including the executive orders related to immigration and refugee matters, and determined that the U.S. remains a safe country for asylum claimants to seek protection there.”

Immigration Minister Ahmed Hussen has said there is no need to “tinker with” the Safe Third Country Agreement. This pending Federal Court challenge was brought to his attention before ABC even attempted to cross the border.

There may not be political will to challenge the U.S. over this right now, but the courts will have a say.

“I believe now it will be determined on a legal basis and not on the political climate,” said Balasundaram, who calls this a crucial first step — and only a first step — in what could take many months to a year to see through.

Toronto immigration lawyer Lorne Waldman represented Amnesty International in a 2005 court challenge to the Safe Third Country Agreement, which won in Federal Court but lost on appeal.

“It is not going to be easy to challenge,” said Waldman. “I would bet the government would not want this case to go ahead.”

In the previous case the court did not consider it a charter challenge, and there was not an individual such as ABC with a strong argument to make.

“I think the case will be heard,” said Waldman. “Its likelihood of success will depend on the evidence.”

Source: El Salvador woman at the heart of legal challenge to Safe Third Country Agreement – Canada – CBC News

Senate Hearings on C-6: Minister Hussen and Witnesses March 1

Summary: Senate committee hearings on Bill C-6 finished March 1 with the last set of witnesses, including Minister Hussen and officials, with the clause-by-clause review taking place this morning. The Minister was challenged particularly on the lack of procedural protections in the cases of revocation for fraud or misrepresentation. While he stated his general willingness to consider improvements, the overall tenor of his responses and those of his officials was to defend the current process. Conservative senators questioned the rational for the elimination of knowledge and language assessment for 55-64 year olds, probed the protections of the current revocation process for misrepresentation and expressed their disagreement with the repeal of revocation in cases of treason or terror. Senator Eggleton, just as he had during C-24, expressed his concern over the impact of the increase in citizenship fees, with the Minister and officials defending the increase and arguing it did not cause the decline.

The clause-by-clause review this morning may see a number of observations (greater flexibility for those applicants who have difficulty in knowledge or language assessment, the impact of citizenship fees). An amendment to improve procedural protections is expected to be introduced at third reading.

External witnesses

Robert Watt, a former Vancouver-based citizenship judge 2009-15 focussed his remarks on his experience in reviewing thousands of applications. While the majority clearly demonstrated the desire to stay and contribute, a basic competence in language and understanding of Canada, a small number had a more instrumental interest in having a Canadian passport and the benefits of medicare and tax credits, or being “citizens of convenience. He believed strongly that the intent to reside should remain given the clear signal it sends that a new citizen should centre her of his life in Canada; that the current residency requirements of four to six years should not be reduced and the need for the department to have “robust audit procedures” to check the validity of third-party language assessment.

Lorne Waldman of CARL, and Josh Patterson of BCCLA spoke on to restore procedural protections for revocation in cases of fraud and misrepresentation, either reverting to the previous access to the Federal Court or some other procedure that involved the right to a hearing, the right to disclosure, an independent decision-maker and reversion to permanent residence status rather than foreign national.moan independent

Main questions

Revocation for fraud or misrepresentation and procedural protections: Most of the time was taken up by this issue, with questions and witnesses noting the contrast between the solid procedural protections for permanent residency misrepresentation and refugee determination and the limited protections for citizenship misrepresentation. Patterson and Waldman repeatedly noted the dubious constitutionality of the provision. In terms of which option was preferred, they noted their preference for an expansion of the IRB to handle such cases, given their experience and expertise. However, as there was no reference to a possible IRB role, that was beyond the scope of what could be considered and thus some variant of a process providing an oral hearing before the Federal Court was provided. There was relatively low risk of cases being appealed beyond the Federal Court level. A number of examples were cited highlighting the limitations of the C-24 approach.

Smart Permanent Resident Cards to track entry and exit (raised by Julie Taub in last set of hearings): Watt noted that pending technological developments, applicants should present their travel documents to CBSA (but was unclear how that would work). Waldman noted that unlike the EU, Canada does not control on leaving the country. This would be a significant change and would be expensive to implement. While it would work for airports, it would not be practical for land crossings given the resulting delays.

Fees: Senator Eggleton continued to press on fees, noting the dramatic increase in fees and that applications had taken a “real nose dive,” noting the points made in my brief ( He noted that the press on full cost recovery did not take into account that those applying for citizenship were taxpayers too, and they would be contributing for many years. Waldman confirmed the impact on immigrants, that the costs to families, including external language assessment, was in the $1,000s and that the government had to look at costs as a barrier if Canada wants to encourage people to become part of the fabric of society. Watt noted the fee increases came near the end of his term but he had seen instances of individuals and families struggling even with the previous fees, and a “good case” can be made to balance accessibility and cost recovery.

Language proficiency and age requirement: Watt was probed further on what he meant by the need for a robust audit on whether or not language requirements were met. He responded by noting the wide range of organizations offering assessment services and that random audits were needed to ensure that the level had been attained. He noted that some applicants may lose proficiency in the period between getting assessed and becoming citizens (but also noted that the reverse could occur). Patterson noted there was no issue with respect to 14-17 year olds as they would learn in schools or the workforce. For 55-64 year olds, economic class immigrants already would have met language requirements, and the issue was with respect to family class, particularly parents and grandparents. He referred to Avvy Go’s earlier testimony regarding the barriers faced by low-income immigrants and refugees and believe a better approach was increased resources for language training.

Residency requirements: Watt was challenged whether one more year or less made a difference in terms of integration. He responded by noted the importance that the clarity that residency meant physical presence provided given previous Federal Court jurisprudence. He never saw any evidence from IRCC that an additional year would be burdensome and did not believe it was. Waldman confirmed the helpfulness of the physical residency definition but noted that the change to three out of five years was particularly helpful to refugees as they had no other citizenship. The restoring of part-time credit for time spent in Canada prior to becoming a Permanent Resident was also a welcome improvement.

Minister Hussen and officials

Minister Hussen opened by noting that the previous government’s changes had created barriers to citizenship. C-6 would repeal some of the changes and facilitate citizenship, and send a clear signal of Canadian inclusivity, fairness and diversity (“diversity is our strength”). C-6 was part of implementing the Speech from the Throne commitment to make it easier for immigrants to participate.

Repeal of the national interest revocation provision (terror treason) was to ensure that Canadians, whether single, dual or multiple nationality were treated equally and the government did not support treating people differently, noting the positions of organizations such as the CBA and CCR along with focus groups “much troubled” by this distinction. Those convicted of terrorism or treason will face the Canadian justice system and will “go to jail for a long time.” Revocation for fraud or misrepresentation was different.

Other measures in C-6 removed barriers. Repeal of the intent to reside provision would reassure citizens that they were not at risk of losing citizenship. Physical presence was maintained but citizenship could be attained one year earlier. Providing part-time credit for pre-permanent residency time provided greater flexibility for those such as international students who had “started building connections.” The return to the previous 18-54 age requirements for testing recognized that 14-17 year olds would meet these through the school system while easing the burden for55-64 year olds.

He also reiterated the government’s commitment to program integrity, noting the provision that would allow the government to seize fraudulent documents.

Main questions

Revocation for fraud or misrepresentation and procedural protections: As in the previous session, the absence of procedural protections was the main focus. Minister was repeatedly challenged along the earlier testimony by legal experts, and was reminded that his predecessor had indicated he would welcome an amendment in this regard. The Minister repeatedly stated that he believed that the present process has safeguards and is sound, but he was open to proposals that would improve protections.

A number of questions served to clarify the steps in the process and the criteria used by officials to assess whether revocation was warranted. Factors included: age of applicant, extent of ties to Canada, whether they were primarily living in Canada or not, and the health of an individual. The process was completely delegated to officials.

Some questions concerned the assertions of CARL/BCCLA:

  • no right to disclosure: unanswered by Minister unless I missed it
  • no H&C consideration: Minister replied party can provide under personal considerations
  • no right to counsel: Minister replied absolute right to counsel (in preparation of documents)
  • no right to appeal: Minister said not correct (seek leave which is not the same thing)

Minister resorted at one point by noting that C-6 only dealt with some issues – dual national revocation and removing barriers – and that the appeal mechanism was “not central” to C-6. He was, however, “committed” to procedural fairness.

Officials confirmed that the majority of cases pertained to residency, with other cases related to identity or not disclosing criminality.

Revocation (terror or treason): Conservative senators challenged Minister on the rational to repeal the revocation provisions of C-24 and he reiterated the equal treatment arguments. He confirmed that the one person whose citizenship which had been revoked under the C-24 provision would have his citizenship reinstated.

Fees: Senator Eggleton raised the same questions as before. Minister replied that the drop was more attributable to the barriers contained within C-24, primarily the longer residency requirements. Fees were much lower than many countries, citing the USA and UK (comment: correct, but not mentioning Australia and NZ which are lower). Officials reiterated the direct correlation between the extended residency requirement, noting the sharp drop after June 2015 when the four-year minimum came into effect.

Comment: The one-year transition effect ended in June 2016. The final 2016 numbers, due out any day now, will confirm a sharp decline. The July-September numbers – the first quarter after this transition period – do show an increase (from 11,970 to 20,329) but one far short of the historical number of applications (about 200,000 per year or 50,000 per quarter). Hence fees matter!

Language proficiency and age requirement: In response to questions regarding the number of applicants 55-64, officials provided some useful data. 7.7 percent of all applicants were in this age category (not clear which year – I have a pending request for this data). Officials noted that the numbers of this age group had dropped from 15,243 last year to 2,317  (believe it referred to mid-year comparisons 2016 to 2015), with total applications of 67,000 (not clear which period she was referring to). Minister indicated his confidence in language assessment process.

Officials noted that applications were not accepted if the applicant had little or no language. Settlement programs provided language training and applications would be accepted following successful completion. Officials also noted the various steps to ensure the integrity of the citizenship test. On the citizenship study guide, officials confirmed that the current guide was written higher than CLB-4 (the formal requirement) and that it would be re-written to be more aligned to the requirement: not to “simplify but in clearer language.”  Officials were also looking at including more language on Indigenous peoples, given TRC recommendation number 93.

Minister reiterated that it was important for 55-64 year olds to obtain citizenship, that it contributed further to their integration and they contributed to Canadian society (e.g., providing child care) and this restored what “has worked in Canada for more than 40 years.”

Integrity: In addition to points in opening remarks, Minister noted that the department had agreed with all recommendations in the OAG audit of the citizenship program, with all either acted or being acted upon.

Only media coverage I have seen is in the National Post (Immigration minister defends legislation that prevents convicted dual nationals from losing citizenship), largely unbalanced as it focuses mainly on the testimony of one witness, Julie Taub, and her critique of C-6)


M-103: Canadian Muslims need this showing of solidarity: Meighen and Waldman

Good commentary by Warda Shazadi Meighen and Lorne Waldman.

The definition issue is a red herring; should the Canadian Heritage committee study Islamophobia/anti-Muslim hate along with “all forms of systemic racism and religious discrimination,” it will have to, as part of its work, adopt a working definition, where both Minister Joly and MP Khaled have been reasonably clear that its focus is on the practical impacts of discrimination, not free speech.

The critics need to read and understand the text of the motion:

The sentiments of Muslims have become perpetual casualties of wedge politics.

The continual debasing of Muslims, culminating in the recent attack in Quebec City, is precisely why it is important for Muslims to see their leaders express solidarity with them.

M-103 does precisely this in the form of a non-binding motion that condemns Islamophobia. If the motion passes, its symbolism will do much to alleviate the deep suffering of many Muslims. On a practical level, it would result in the House of Commons’s heritage committee taking tangible steps to study the issue, and perhaps make recommendations to address it.

What M-103 will not do is curb freedom of speech. M-103 is not a law. If the concern with M-103 is the limitation of free speech, the non-binding nature of the motion should assuage that anxiety. Only hate laws, which have existed in the Canadian Criminal Code for decades, can actually punish individuals for promulgating certain types of hate. Rest assured that the marketplace of ideas will continue to exist – the threshold under the law for hate speech is quite high and justifiably so. M-103 is no more than a tip of the hat in solidarity.

If the true concern with M-103 is that the term “Islamophobia” lacks clarity, the correct response is to call for a definition of that term. Here is one: the irrational fear of Muslims.

If the opposition to this motion is nothing more than a continuation of wedge politics, we ought to reflect on what type of society we are creating. To alienate Muslims who are eager to contribute to our society is unwise. Camaraderie with any minority group that is being singled out is crucial – it embodies the promise of Canada and what Canada is lauded for globally.

The Conservative Party’s effort to pass a new motion cleansed of the word “Islamophobia” and replaced with condemnation of “all forms of systemic racism, religious intolerance and discrimination of Muslims, Jews, Christians, Sikhs, Hindus and other religious communities” is obstructive and, frankly, misses the mark. It does not help to alleviate the incredibly hurt sentiments of many Muslims. It is also redundant, as the Supreme Court, in the 1990 case of Canada v. Taylor, has already banned any expression that is “intended or likely to circulate extreme feelings of opprobrium and enmity against a racial or religious group.”

Muslims are being targeted now not only in Canada but across Western liberal democracies. To oppose a motion made in solidarity with Muslim Canadians, many of whom have been weighed down by the effects of Islamophobia for too long, is tragic.

Source: M-103: Canadian Muslims need this showing of solidarity – The Globe and Mail

Refugee claims at Canada-U.S. border have doubled over past 2 years

Will likely be an ongoing challenge under the Trump administration:

The number of refugee claims made at the border has more than doubled over the past two years, surging to 7,023 in 2016, according to the Canada Border Services Agency.

By comparison, 4,316 people sought refugee status in Canada at land border crossings in 2015 and another 3,747 did in 2014.

But the spike isn’t unusual and represents a return to the volume of refugees Canada has previously received, said Janet Dench, executive director of the Canadian Council of Refugees.

land border refugee claims

“The numbers may look high, but that is because the range you are looking at is one where Canada has been receiving unusually low numbers of claimants,” Dench said in an email interview, noting that there were more than 8,000 land border claims made annually from 1999 to 2004.

“So in the longer perspective, 7,000 is not a very large number,” Dench explained.

Canada changed the way it receives refugees in 2004 with the introduction of the Safe Third Country Agreement with the United States. The agreement says that people seeking protection must make their claim in the first country they arrive in. Canada must accordingly send asylum seekers trying to cross at the border back to the U.S.

21.3 million refugees around the world

In 2016, the largest group of people making refugee claims at border crossings in Canada came from Colombia, followed by Syria, Eritrea, Iraq and Burundi. There were 21.3 million refugees around the globe in 2015, according to the United Nations.

Lorne Waldman, a Toronto-based lawyer who specializes in immigration and refugee law, attributes the recent rise to geopolitical instability. For example, there was a dramatic rise in Turkish refugee claims in Canada following the coup in Turkey.

“The numbers tell stories and the stories are really related to what’s happening politically,” he said, noting that Canada observed a rise in Pakistani refugee seekers that arrived via the U.S. following the Sept. 11 attacks.

land border claims

Waldman said the election of U.S. President Donald Trump, who campaigned on a promise to crack down on immigration and recently tried to enact a controversial travel ban restricting travel from seven Muslim majority countries, likely contributed to the bump.

“As the situation deteriorates in the U.S., the likelihood that we’re going to see more people crossing is very high,” he said.

But, Waldman noted that there has long been a perception among asylum seekers — even before Trump took office — that the U.S. is not sympathetic to refugee claims.

Source: Refugee claims at Canada-U.S. border have doubled over past 2 years – Canada – CBC News

Canadian officials preparing for potential flood of Mexican migrants after Trump wins presidency – Politics – CBC News

Appropriate analysis and preparations, along with the note by Lorne Waldman of the need to see exactly what policies a Trump administration enacts (assume this kind of policy work is a focus across government these days):

The federal government is preparing for a potential surge in Mexican migrants coming to Canada after Donald Trump’s election victory, CBC News has learned.

Sources confirm high level meetings took place this week with officials at Immigration, Refugees and Citizenship Canada and in other departments.

The news comes as Canada prepares to loosen rules for Mexicans to enter the country by lifting a visa requirement on Dec. 1. That restriction has been in place since 2009.

Talks on a plan to cope with a possible spike in asylum-seekers have been ongoing for some time, but were accelerated this week after Trump’s surprise win.

Trump campaigned on promises to build a wall along the U.S.-Mexico border and to swiftly deport undocumented workers and illegal residents.

Lawyer predicts ‘significant impact’

Toronto-based immigration lawyer Lorne Waldman expects an increase in refugee claims from Mexicans once the visa requirement is lifted. He also predicts a “significant impact” from Trump’s election.

“The government was very concerned about the potential for a large number of new claims coming from Mexico, and that’s why they hesitated for so long before announcing that they were going to remove the visa,” he said.

“And that announcement was made before anyone knew that Donald Trump, with his very different immigration policies from those of the current administration, won the election.”

But Waldman cautioned it’s too early to tell exactly how the situation may unfold, saying it will depend on whether Trump follows through on his campaign pledges.

Source: Canadian officials preparing for potential flood of Mexican migrants after Trump wins presidency – Politics – CBC News