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Law Notes Immigration and Refugee Law Notes

Status And Temporary Residents Notes

Updated Status And Temporary Residents Notes

Immigration and Refugee Law Notes

Immigration and Refugee Law

Approximately 76 pages

This course was taken with Professors Lorne Waldman and Jacqueline Swaisland. Both practice exclusively in the area of immigration and refugee law and are known for high-level litigation at the Supreme Court of Canada. Given extensive changes in the Immigration and Refugee Protection Act in Canada, please note that some legislative provisions and regulations may have changed. It is advised that you cross-reference provision and regulation numbers for accuracy....

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The following is a more accessible plain text extract of the PDF sample above, taken from our Immigration and Refugee Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

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...

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