PART III: STATUS AND TEMPORARY RESIDENTS

Kinds of Status: Canadian Citizen, PR, temporary resident, foreign national, protected status

I: Citizenship

Prior to 1946, everyone was a British subject and there was no Act
Citizens have the unqualified right to enter and remain in Canada (based on IRPA and the Charter)
FC has stated that as a general rule, the technical requirements of the CI Act should be interpreted liberally

Citizenship Act, 1947	Relevance
s. 3 (WAYS TO BECOME CIT)	1) birth in Canada (not a diplomat’s child – Lee v Canada 2008 FCJ; does not violate s. 15) 2) birth to Canadians outside of Canada (doesn’t apply if great grand parents were CDN – only goes 1 generation (S. 3(3)(a)) 3) naturalization
s. 4(1)	Those born on Canadian ships, aircrafts, or who were deserted are considered CDN
s. 5.1(1) (ADOPTION)	Must have occurred after Jan 1 1947, must be genuine relationship, must be in best interests of the child (same applies to QC)
s. 5 (ACQUISITION THROUGH NATURALIZATION)	Minister SHALL grant citizenship to any one who is: 1) 18 yrs +, 2) makes app to be considered by judge 3) is a PR with 3 years minimum residence in Canada (Excluding prison or probation/parole) 4) has adequate knowledge of one official language 5) adequate knowledge of Canada and privileges of citizenship (Test exempt for those over age of 55 and under 18; over 55 can take it but if failed, knowledge requirement waived – Liu v Canada 2008 FC), 6) must not be under removal order or declaration that you’re a threat to security or danger
ss 5(3) and 5(4) (WAIVER OF REQUIREMENTS)	Waiver of normal requirements for citizenship if on H&C grounds or in cases of special and unusual hardship or to reward services of exceptional value to CDA.
s. 9 (RENUNCIATION)	Can renounce citizenship by application if you’re a citizen of another country, not a minor, not prevented from understanding significance of decision by reason of mental disability, does not reside in CDA (require application and approval by Minister who issues certificate of renunciation as per s. 9(3))
s. 10 (REVOCATION BY FRAUD)	Revocation of citizenship Delay in revocation could breach fundamental justice and violation of Charter (Canada v Sadiq 1990 FCJ) Minister must give individual 30 days notice for person to bring to FC (no appeal after)
s. 14 (APPLICATION PROCESS)	PROCESS: send in app to registrar, registrar makes preliminary determination. If test passed, judge has 60 days to make decision upon receipt of file (onus on applicant throughout entire process – Raslan v Canada 2010 FCJ). Failed test on first or second try may result in oral interview with judge. Time starts from date application approved or date notice mailed or given re: disposition
s. 14(6) (APPPEALS)	An appeal on citizenship application goes from the judge to the FC trial division, after which there is no appeal (FC holds exclusive jurisdiction). Either party can appeal. Judge can only review whether citizenship judge applied test CORRECTLY.
s. 20(3) (DENIAL)	Declaration of refusal on grounds of national security (2 year effect). Minster makes report to review committee and report considered by Governor in Council.
s. 22(1) (OATH PRECLUSION)	Not permitted to take an oath if on probation, parole, custody or charged with or on trial in Canada for an indictable offence or is under investigation under Crimes Against Humanity Act (if crown proceeding summarily, or on hybrid offence, can take oath)
s. 22(2) (INELIGIBILITY)	If within 3 years of application for citizenship, charged with indictable offence, ineligible. Conditional discharge not conviction.
s. 29 (CATCH ALL)	Contravening provisions of citizenship app = summary offence. Indictable if forged application and summary if impersonating.
s. 46(2) (REVERTING TO PR)	Losing citizenship means reverting back to PR unless application was filed based on misrepresentation

JUDICIAL TEST: Residency Requirement

ALL THREE TESTS CAN BE APPLIED, but not in a blended fashion (Lam v Canada gives judges the discretion to choose a test for residency requirement)
There are 2 1/2 tests:
- Re Papadogiogakis 1978 2 FC 208: person within established home of his own in which he lives does not cease to be a resident there when he leaves it for a temporary purpose or whether on business or vacation or even to pursue a course of study
- Koo Test 1992 FCJ No 1107: permits finding of residency where individual regularly or customarily lives or has centralized mode of existence. Looks to factors like:
  - Location of applicant’s family
  - Whether there is a pattern of returning home
  - How short one is of the 1095 requirement
  - Absence caused by temporary leave (ex. study)
  - What the link is to Canada – is it more than any other country?
- Pourghashemi Re 1993 FCJ No 232: have to be physically present in Canada for 1095 days
NOTE: bank accounts, ownership of home, health cards are passive indicia insufficient to demonstrate connection that will establish applicant has centralized mode of life in CDA.

II: Permanent Residence

Three classes: family, economic and refugee (2 stages of approval, first is whether you meet class, and second is admissibility)

Permits you to work and move across Canada subject to provincial rules if you have a PR visa (Charter, s 6(2))
No absolute right to enter/remain in CDA - must demonstrate that you satisfy residency requirement and are not inadmissible
Could bring a request for mandamus if processing delay is too long
Status only acquired after examination by immigration officer at POE in which officer determines
- 1) whether there’s a visa
- 2) whether there’s an issue of inadmissibility
- 3) hold any required documents
- 4) whether individual has come to establish PR
ACQUIRING PR: Mostly applied for outside of Canada, but can apply inside of Canada (Require medical and background security/police check)
Can be removed if non-compliant; appeal on H&C grounds possible to IAD
Immigration officers are under duty to act fairly and provide reasons for decision (Avila v Canada 2009 FC)

IRPA Provisions	Relevance
s. 21 (DEFINITION)	A PR is someone who has acquired status and has not lost it pursuant to s. 46 of IRPA
ss. 19(2) and 27	Right to come in and to remain in Canada (can work without a work permit)
s. 28 (RESIDENCY OBLIGATION)	Residency obligation. Require 730 days (2 years) minimum in 5-year period (s. 28(2)). Right of re-entry thwarted if immigration officer finds grounds for inadmissibility based on residency requirement. Could be subject to removal. Must be: Physically present in CDA OR outside accompanying CDN spouse or common law partner or in case of child, a parent OR Outside CDA but be employed on full time basis by CDN business or public service Person referred to in regs which provide other means of compliance
s. 25 (H&C PROCESS) IP 5 guidelines (Brar v Canada 2011 FC): history of stable employment, pattern of sound financial management, integration in community, good civil record, professional or linguistic studies, movement of applicant outside community.	Key factors: establishment, best interests of the child, hardship of removal (cannot consider risks). IP 5 Guidelines are used by decision maker. Does not result in stay of removal (could ask for one, but it’s difficult to obtain). Long processing times. Wait time 3-4 yrs. Power delegated to immigration officials (s. 25(1)). Can grant PR to someone who is inadmissible or does not meet requirement on public policy grounds (s. 25(2)). Officer has residual discretion to look at all circumstances when considering application (Baker v Canada 1999 SCC).
s. 44 (MISREP)	Removal order can be implemented if misrepresentation discovered post H&C
s. 46(1) (LOSS OF PR)	Person loses PR status when they 1) become a CDN citizen 2) they have failed to comply with residency obligation under s. 28 3) when there is a removal order against them 4) found inadmissible 5) vacated refugee status (PR stripped)
Reg 207 (PR APP INSIDE CANADA)	Live in caregiver who has met residency obligations Spouse or common law partner in CDA class (s. 124) Protected person (s. 95(2)) H&C exemption Family member of any of the above Already hold a study or work permit or are TR (Reg 215)

UPON LOSS OF PR

If found inadmissible, can appeal to IAD unless excluded on security grounds, serious or organized crime, misrepresentation of violating international rights
Removal order stayed until appeal board or FC disposes of matter
Where an individual has misrepresented on a material fact, and PR revoked, status does not revert, whereas if misrepresentation conceals material circumstances, one can resume his or her status as a PR

PROTECTED PERSONS APPLYING FOR PR

Someone who has been found a convention refugee or someone in need of protection by RPD or Minister. Convention means someone who has a well-founded fear of persecution in his or her country of nationality due to race, religion, nationality, membership or political opinion.

Can generally apply in CDA
Have the right to get a work or study permit and a right not to be deported (although status can be reviewed); can result in limbo

HOW TO MAKE H&C APP:

Separate application (Ex. can be used to try and overcome inadmissibility for spousal app)
IAD appeal. Can make this appeal if inside or outside Canada. Can argue in deciding residency argument or breach of principles of natural justice. Questions to be asked by IAD include
1. Is the decision valid in law?
2. Are...

#9064 - Status And Temporary Residents - Immigration and Refugee Law

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