Friday, June 25, 2010


This is a rare case on s.133 of IRPA just released. The reason why these cases are uncommon, is that individuals using fake passports to enter Canada are seldom charged with the breach, and given an opportunity to make refugee claims despite their use of a false document. While the decision below is correct in law, from a policy standpoint it is sheer folly: if a person knows with certainty that procuring and using a false passport carries no serious consequence, what would stop him or fer from doing so? Note that in this case, the fake was detected upon entry, so if it would not have been detected, the person would have gained entry to Canad unimpeded. In an era where security is paramount, it seems insane to reward uses of fake documents in this manner. this is like issuing an open invitation to forgers and criminal rings to make and sell false passports, and for individuals to "try their luck " in using them. This policy needs reconsideration on an immediate basis.

R. v. Agbor
Regina, Respondent, and
Manasseh Enow Agbor, Appellant

[2010] B.C.J. No. 1197
2010 BCCA 278Docket: CA036692 British Columbia Court of Appeal
Vancouver, British Columbia
J.E. Hall, P.A. Kirkpatrick and H. Groberman JJ.A.Heard: May 28, 2010.Oral judgment: May 28, 2010.
(11 paras.)
Appeal From:
On appeal from: Provincial Court of British Columbia, September 17, 2008 (R. v. Agbor, Richmond Registry 52372-1) Counsel:

Oral Reasons for Judgment

The judgment of the Court was delivered by

1 H. GROBERMAN J.A. (orally):-- On September 17, 2008, the appellant pleaded guilty to one count of using a false document to enter or remain in Canada, contrary to s. 122(1)(b) of the Immigration and Refugee Protection Act. He now seeks to have the conviction quashed. The Crown agrees that that should occur, and also seeks an order for a judicial stay of proceedings.
2 As a result of confusion over whether the matter proceeded summarily or by indictment in Provincial Court, the accused initially filed his notice of appeal in the Supreme Court. By the time the error was detected, the appeal period had expired. The appellant therefore seeks an extension of time to appeal. The application is unopposed. I would allow the extension to the date of the filing of the notice of appeal, December 19, 2008.
3 The charge on which the conviction was entered related to the appellant's entry into Canada on January 27, 2008 using a fake French passport. The fake passport was detected at the time of attempted entry, and the appellant was found to be inadmissible to Canada. A removal order was issued against him.
4 The appellant subsequently attempted to make a refugee claim, but was ineligible to do so because section 99(3) of the Act does not allow a person who is subject to a removal order to make such a claim. He was allowed, however, under section 112 of the Act to make an application to the Minister for protection, and he did so on September 28, 2008. Section 113 of the Act provides that a successful application for protection confers refugee protection on the applicant.
5 The appellant was ultimately successful in his application for protection. He now has refugee protection in Canada.
6 Section 133 of the Act prevents refugee claimants from being charged with certain immigration offences unless and until their claims have been rejected. The section is as follows:
A person who has claimed refugee protection, and who came to Canada directly or indirectly from the country in respect of which the claim is made, may not be charged with an offence under section 122, paragraph 124(1)(a) or section 127 of this Act or under section 57, paragraph 340(c) or section 354, 366, 368, 374 or 403 of the Criminal Code, in relation to the coming into Canada of the person, pending disposition of their claim for refugee protection or if refugee protection is conferred.
7 In Canada v. Li, 2010 FCA 75, it was held that an application for protection under section 112 constitutes a claim for refugee protection for the purposes of s. 133 of the Act. Accordingly, the accused should not have been charged with the offence under s. 122 pending determination of his claim for protection. As the claim for protection has now succeeded, the appellant cannot be charged with the offence.
8 In the circumstances, I am satisfied that there was no basis for the charge against the appellant. His guilty plea should be struck, his conviction quashed, and a judicial stay of proceedings entered. I would so order.

9 J.E. HALL J.A.:-- I agree.
10 P.A. KIRKPATRICK J.A.:-- I agree.
11 J.E. HALL J.A.:-- The appeal is allowed in the terms indicated by Mr. Justice Groberman in his reasons

Tuesday, June 15, 2010

Montreal immigration consultant faces criminal charges

Montreal immigration consultant faces criminal charges#ixzz0qx3vj1uu


This is a very interesting and unusual case. Under normal circumstances, the issuance of a TRP is highly discretionary, bu tin this case, there are appears to have been some reasonable expectation that it would be issued to the applicants, based on the risk of travel posed by the ill health of one spouse. In addition, the reasons for refusal appear to have been unclear because the applicants obtained a TRP on a prior occasion on the same grounds. The officer erred in not giving sufficient reasons for the refusal, which seems to have been at odds with the recommendation of another officer involved in the case. This case, however, appears to be quite unique in its facts.

Beyer v. Canada (Minister of Citizenship and Immigration)

Martin Gottfrie Beyer and Malle Reintamm Beyer, Applicants,and
The Minister of Citizenship and Immigration, Respondent

[2009] F.C.J. No. 936
[2009] A.C.F. no 936
2009 FC 823Docket IMM-5589-08

Federal CourtQuébec, Quebec
Teitelbaum D.J.
Heard: July 15, 2009.
Judgment: August 12, 2009.
(84 paras.)


1 TEITELBAUM D.J.:-- This is a judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of the decision of Citizenship and Immigration Canada officer Huguette Samson (also referred to as "the Minister's delegate") dated November 26, 2008, refusing to extend a temporary resident permit (TRP) on the basis of insufficient grounds.
2 The applicants are of Swedish origin and are both 79 years old.
3 The applicant Malle Reintamm Beyer (Ms. Beyer) arrived in Canada in April 2001, and the applicant Martin Gottfrie Beyer (Mr. Beyer) arrived in May 2001.
4 Ms. Beyer is morbidly obese and is bedridden all day. According to her physician, her movements remain very limited and even walking poses a major risk of falling. She does not leave her home. Her other medical conditions have been stable since the last medical report submitted to the respondent. In addition, Ms. Beyer requires constant assistance from her husband, Mr. Beyer.
5 Ms. Beyer has a medical condition that makes any travel or transportation hazardous. She weighs 130-140 kilograms, has been bedridden for roughly six years, and her physician, Dr. Poupart, makes house calls to treat her. Mr. Beyer feeds her, washes her and attends to her needs, all while she remains in bed.
6 The applicants have health insurance, which covers the medical costs.
7 The applicants are completely independent financially and more than able to meet their needs. They bought their residence in 1993. The residence, a vacation home, is located in St-Urbain. The applicants emphasize that they did not buy the residence with the aim of settling permanently in Canada.
8 On February 27, 2006, the applicants submitted a request to the respondent for permanent resident status based on humanitarian and compassionate considerations under subsection 25(1) of the IRPA, in light of Ms. Beyer's health. The request was denied. Instead of granting the applicants permanent resident status, the respondent issued a TRP valid from March 21, 2006, to March 21, 2008.
9 It appears that Ms. Samson, the officer, issued a two-year TRP in March 2006 to enable the applicants to prepare to leave the country. However, the applicants vigorously deny this and add that they were never notified of this condition, which does not appear in any of the official documents adduced in evidence.
10 When their TRPs expired, the applicants filed a new request, dated April 9, 2008, on the same grounds as the previous request, since there had been no significant change other than a deterioration of Ms. Beyer's mobility.
11 The applicants argue that, in theory, such travel would be very difficult and expensive, would require very complex organization for a roughly 15-hour trip from the Charlevoix region to Sweden, and would cost approximately $60,000, all because of Ms. Beyer's serious physical condition. Only one air ambulance company offers this service in Canada. It has not been verified recently whether Ms. Beyer's medical condition could even allow her to make such a long trip. Her condition has deteriorated. Moreover, Dr. Poupart's medical opinion dated July 15, 2004, stated that air travel would be very difficult for her.
12 The impugned decision is contained in a three-paragraph letter that the applicants received and which reads as follows:
This is further to your request dated April 9, 2008, for an extension of your temporary resident permit status.
Your case has been considered in order to determine the possibility of extending your temporary resident permit. After careful and empathetic consideration, it has been determined that there are insufficient grounds to extend the permit in your case.
Our records indicate that your authorization to remain in Canada is valid until March 21, 2008. If you leave Canada voluntarily, please contact the officer responsible for your file at the Canada Border Services Agency in order to notify him or her of the arrangements that you will be making for your departure.
13 After filing this application for judicial review, the applicants also obtained certified copies of the record prepared in accordance with section 17 of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22. The record is essentially a summary of the facts or a history of the applicants' matter.
14 The provisions relevant to this case are as follows:
Application for Judicial Review
(1) Judicial review by the Federal Court with respect to any matter -- a decision, determination or order made, a measure taken or a question raised -- under this Act is commenced by making an application for leave to the Court.
The following provisions govern an application under subsection (1):
the application may not be made until any right of appeal that may be provided by this Act is exhausted;
subject to paragraph 169(f), notice of the application shall be served on the other party and the application shall be filed in the Registry of the Federal Court ("the Court") within 15 days, in the case of a matter arising in Canada, or within 60 days, in the case of a matter arising outside Canada, after the day on which the applicant is notified of or otherwise becomes aware of the matter;
a judge of the Court may, for special reasons, allow an extended time for filing and serving the application or notice;
a judge of the Court shall dispose of the application without delay and in a summary way and, unless a judge of the Court directs otherwise, without personal appearance; and
no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment.
2001, c. 27, s. 72; 2002, c. 8, s. 194
Temporary Resident Permit
(1) A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.
A foreign national referred to in subsection (1) to whom an officer issues a temporary resident permit outside Canada does not become a temporary resident until they have been examined upon arrival in Canada.
Instructions of Minister
In applying subsection (1), the officer shall act in accordance with any instructions that the Minister may make.
* * *
Demande d'autorisation
(1) Le contrôle judiciaire par la Cour fédérale de toute mesure -- décision, ordonnance, question ou affaire -- prise dans le cadre de la présente loi est subordonné au dépôt d'une demande d'autorisation.
Les dispositions suivantes s'appliquent à la demande d'autorisation :
elle ne peut être présentée tant que les voies d'appel ne sont pas épuisées;
elle doit être signifiée à l'autre partie puis déposée au greffe de la Cour fédérale -- la Cour -- dans les quinze ou soixante jours, selon que la mesure attaquée a été rendue au Canada ou non, suivant, sous réserve de l'alinéa 169f), la date où le demandeur en est avisé ou en a eu connaissance;
le délai peut toutefois être prorogé, pour motifs valables, par un juge de la Cour;
il est statué sur la demande à bref délai et selon la procédure sommaire et, sauf autorisation d'un juge de la Cour, sans comparution en personne;
le jugement sur la demande et toute décision interlocutoire ne sont pas susceptibles d'appel.
2001, ch. 27, art. 72; 2002, ch. 8, art. 194.
Permis de séjour temporaire
(1) Devient résident temporaire l'étranger, dont l'agent estime qu'il est interdit de territoire ou ne se conforme pas à la présente loi, à qui il délivre, s'il estime que les circonstances le justifient, un permis de séjour temporaire -- titre révocable en tout temps.
Cas particulier
L'étranger visé au paragraphe (1) à qui l'agent délivre hors du Canada un permis de séjour temporaire ne devient résident temporaire qu'après s'être soumis au contrôle à son arrivée au Canada.
L'agent est tenu de se conformer aux instructions que le ministre peut donner pour l'application du paragraphe (1).
15 The applicants submit that the standard of review that applies to this case is patent unreasonableness, as held in Ramzi Kamel Farhat v. Minister of Citizenship and Immigration, 2006 FC 1275.
16 The applicants submit that the decision of officer Huguette Samson, dated November 26, 2008, is patently unreasonable on its face and arbitrary because Ms. Beyer's state of health has either remained the same or deteriorated. The applicants submit that Ms. Samson, who was in charge of examining the TRP request, clearly erred in failing to take into account the facts and documents attached to the letters submitted with the request.
17 The applicants allege that on November 10, 2008, Éric Lacombe, an employee of Citizenship and Immigration Canada, after examining the file, recommended that a TRP be issued to the applicant Mr. Beyer. Mr. Lacombe cited Ms. Beyer's state of health and her lack of mobility for travel. He claimed that the risks would be reduced if the Canada Border Services Agency (CBSA) did not carry out the removal. Mr. Lacombe noted that the applicants have medical insurance from the United Nations, which covers all medical expenses, including medication and hospital costs. According to Mr. Lacombe, the insurance proves that the applicants do not depend directly on the Canadian government to cover their medical expenses. Mr. Lacombe submitted that the applicants pose no risk to Canadian society and have no criminal record. Moreover, the applicants are not eligible for a restoration of their status. Mr. Lacombe pointed out that the applicants have owned a house in the La Malbaie area since 1993 and contribute to their area's economy. The applicants have no financial debts to Canada and are fully able to meet their own needs. Mr. Lacombe submitted that the applicants' situation has remained unchanged since the issuance of the TRP on May 21, 2006.
18 The applicants submit that the Minister's delegate's decision is also patently unreasonable and arbitrary because it provides no specific reason or ground for refusing to renew the TRP. The applicants submit that they were entitled to know the specific grounds that could have warranted the negative decision concerning them.
19 The applicants submit that Ms. Samson, who had personally issued the TRPs in March 2006, was acting inconsistently when she rendered the decision of November 26, 2008, in which she refused to extend the TRPs but gave no express reasons.
20 The applicants argue that they are entitled to know the specific reasons for the decision, especially since Éric Lacombe also recommended that the applicants be issued TRPs.
21 The applicants note that the duty to provide reasons for a decision has been held to exist even where the legislation does not provide for it, as stated by the author Sara Blake in Administrative Law in Canada, where the reasons for this requirement are explained.
22 In this case, the applicants submit that the reason given by the immigration officer, namely that [TRANSLATION] "there are insufficient grounds to extend the permit in your case" cannot possibly be justified because the applicants' situation has not changed in any way since the issuance of the first permit, other than a deterioration of Ms. Beyer's mobility.
23 The applicants argue that the onus on the government must be higher where a permit has already been issued and the matter merely involves a renewal and where the additional supporting documents required by the government have been provided.
24 The applicants submit that, given the significant amount of documentation they provided, if additional evidence was required or questions needed to be answered, the Minister's delegate should have notified them or their lawyer that there were insufficient grounds to extend the permit.
25 The applicants claim that the principle of deference in judicial review does not prevent this honourable Court from condemning the respondent's conduct toward the applicants.
26 Thus, the applicants ask that the decision of Citizenship and Immigration Canada officer Huguette Samson, dated November 26, 2008, be set aside, and that the respondent be ordered either to issue each applicant a TRP valid for two years commencing on the date of the decision, or, in the alternative, to refer the request back for reconsideration by a different Minister's delegate so that the applicants' request can be processed in accordance with the law, with costs.
27 The respondent submits that the applicants are attempting to obtain equitable relief from this honourable Court. However, he submits that there are significant gaps in the file they submitted with respect to their initial entry to Canada, several past or present irregularities in their immigration file since their arrival, and finally Ms. Beyer's health problems.
28 The respondent submits that despite the expiry of their temporary resident status under their first permit, the applicants remained in Canada beyond the authorized period. They did not notify the Canadian authorities of this irregularity, even though they knew that they were in Canada without status. Thus, the respondent submits that the applicants did not renew their temporary status within the appropriate time.
29 The respondent submits that the applicants attracted the immigration authorities' attention in 2003 when they tried to clear personal property through customs. At that time, Mr. Beyer's status had expired six months earlier, and Ms. Beyer's status had expired 24 months earlier.
30 The respondent submits that the nature of the goods that the applicants tried to clear through customs confirms that they intended to settle permanently in Canada from the moment of their arrival, even though they had no status in Canada.
31 The respondent submits that an exclusion order was made against the applicants but was never enforced because the enforcement officer deferred the removal to enable the applicants to exhaust their remedies.
32 The respondent submits that in 2006 the applicants filed a request to renew the TRP, and that the request was granted for a two-year period.
33 The respondent submits that in 2008 the applicants filed a request to renew the TRP. The request was refused and this refusal is the subject of this application for judicial review.
34 The respondent submits that in Dunsmuir the Supreme Court abolished the "patently unreasonable" standard of review. Since that decision, the appropriate standard of review for decisions to refuse the issuance of a TRP under subsection 24(1) of the IRPA is reasonableness. However, this Court understands that it must show a great deal of judicial deference when examining such a decision. The respondent cites Farhat, above, which the applicants cited earlier.
35 The respondent submits that in Farhat, this Court stated, at paragraph 15 of its decision, that the issuance of a TRP is a highly discretionary decision. In the past, the standard of review for decisions regarding TRPs was "patent unreasonableness". The applicants admit this principle.
36 The respondent submits that TRPs are issued under section 24 of the Act.
37 The respondent submits that, in Farhat, this honourable Court confirmed the exceptional nature of a TRP:
Temporary resident permits (TRP) formerly known as Minister's permits under former subsections 19(3) and 37 of the Immigration Act (Repealed), R.S.C. 1985, c. I-2, constitute an exceptional regime. They allow a foreign national who is inadmissible to Canada or does not meet the requirements of IRPA or Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations) to become a temporary resident "if an officer is of the opinion that it is justified in the circumstances." (Subsection 24(1) of IRPA.)
38 The holder of a TRP is entitled to obtain permanent residence status after three years (or in some cases five years) of residency in Canada under the permit.
39 The respondent submits that sections 64 and 65 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR) specify that TRP holders may become permanent residents if they have continuously resided in Canada for a period of three years under the permit even if they are foreign nationals who are inadmissible on health grounds.
40 The respondent submits that, under sections 22 and 20(1)(b) of IRPA, persons seeking to obtain a TRP must show that they intend to leave Canada at the end of the period authorized for their stay.
41 The respondent submits that the applicants do not intend to leave Canada and that they are seeking to obtain a status that will enable them to remain in Canada permanently.
42 The applicants raise several arguments in support of their challenge.
43 First, the respondent notes that the applicants state in their memorandum that in 2006, [TRANSLATION] "it was established to the Canadian immigration authorities' satisfaction that the applicant Ms. Beyer had a medical condition that made travel and transportation hazardous". The respondent argues that this allegation is erroneous. He submits that the first TRP could have been issued for several reasons, none of which necessarily had anything to do with Ms. Beyer's health. In 2006, the immigration authorities chose to regularize the applicants' status temporarily. The respondent submits that one cannot infer from this that the Minister was satisfied that removal could not take place.
44 The respondent submits that there is evidence contradicting the applicants' allegation, namely an opinion given by one of the respondent's physicians, who never saw Ms. Beyer, and who concluded that she was able to travel. This opinion was given in 2003. The respondent submits that, as a result, it must be presumed that the Canadian authorities knew full well from 2003 onward that it would not imperil Ms. Beyer's life and health to remove her. The respondent submits that, under administrative law, the granting of a request is never a guarantee that it will be renewed.
45 The respondent submits that the applicants allege that they have health insurance and therefore do not place excessive demands on society.
46 The respondent submits that this allegation is unfounded. He submits that the Federal Court of Appeal has already confirmed that the expression "excessive demands" includes both the cost and the availability of health services. The ability and willingness to pay for medical services are immaterial if the care required by Ms. Beyer constitutes excessive demands on society: Deol v. MCI, 2002 FCA 271, at paragraphs 23, 24, and 45.
47 In addition, the respondent submits that the renewal of the TRP may give the applicants the right to obtain permanent resident status, which would automatically make them "insured persons" within the meaning of Quebec's Health Insurance Act, R.S.Q., c. A-29, and qualify them for unrestricted coverage under the province's public health plan. This would render the existence of medical insurance irrelevant.
48 In the respondent's submission, the applicants are asserting that the respondent issued a TRP instead of granting them permanent resident status. The respondent submits that the applicants filed a request for permanent residence with an exemption on humanitarian and compassionate considerations under section 25 of the IRPA on February 27, 2006.
49 The respondent submits that the applicants appear to believe that an officer can grant permanent resident status based on a mere letter. The respondent submits that an application for permanent residence based on humanitarian and compassionate considerations must be filed in proper form, which means that the form and the evidence required for this type of application must be submitted. Indeed, section 10 of the IRPR leaves no doubt on this point: a foreign national who makes such an application must submit the appropriate form and pay the applicable fees.
50 Consequently, the applicants could not expect an immigration officer to examine their permanent residence request on his or her own initiative.
51 The respondent submits that the applicants are alleging that Ms. Beyer is unable to leave Canada because of her health.
52 In the respondent's submission, it is premature to raise issues concerning removal because the applicants are not challenging the decision of a law enforcement officer, but, rather, the decision of a Minister's delegate. The applicants are not yet at the removal stage.
53 Travel-related difficulties are a factor that the law enforcement officer, Éric Lacombe, not the Minister's delegate, Huguette Samson, must take into account.
54 Mr. Lacombe is the law enforcement officer, and he works for the CBSA, which is under the authority of the Department of Public Safety. In his affidavit dated June 10, 2009, he asserts that, before removing the applicants, he will obtain a medical opinion from a Government of Canada physician so that the removal is carried out in accordance with the arrangements recommended by the physician.
55 The removal officer can ensure that a physician or nurse accompanies the applicants throughout their trip.
56 In the respondent's submission, the applicants will have the opportunity to challenge the removal arrangements if they feel that officer Lacombe does not intend to carry out the removal in accordance with acceptable standards.
57 Thus, the respondent submits that the arguments related to removal are not relevant at this stage of the process.
58 Contrary to the applicants' allegations, Mr. Lacombe does not work for the Minister of Citizenship and Immigration. The Minister's delegate, Huguette Samson, was the decision-maker who dealt with the renewal request and the decision was hers alone. In the respondent's submission, Ms. Samson was free to reject Mr. Lacombe's recommendation. The respondent submits that there is no administrative law principle that would require a decision-maker to follow a third party's recommendation.
59 The respondent submits that the decision-maker called upon the medical expertise of his physicians, who, unlike Ms. Beyer's own physician, concluded that Ms. Beyer was able to travel. The organization tasked with the removal will obtain a more recent medical opinion.
60 The applicants argue that the decision-maker's reasons are insufficient. The respondent submits that, upon reading Ms. Samson's reasons, the Court will agree that they are sufficiently detailed for a reader to understand the grounds of the decision and to follow the decision-maker's reasoning.
61 For example, in Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.), the Federal Court of Appeal had to answer the following question:
Does the failure to provide reasons for a determination under subsection 70(5) that a person constitutes a danger to the public in Canada, in the context of the procedure being used, breach the requirements of natural justice or procedural fairness?
I believe it is fair to assume that the requirements of "natural justice" are subsumed under the general category of "fairness", particularly in respect of an administrative decision such as this. It is beyond debate that the requirements of fairness depend on the seriousness of the decision being taken. In my view, as expressed above, the consequence of this decision is not an order of deportation but rather the withdrawal of a discretionary power to exempt Williams from lawful deportation, such discretion instead being limited thereafter to exercise by the Minister. It also substitutes the possibility of a discretionary stay for an automatic statutory stay. The decision making authorized by subsection 70(5) is not judicial or quasi-judicial in nature involving the application of pre-existing legal principles to specific factual determinations, but rather the formation of an opinion in good faith drawn from the probabilities as perceived by the Minister from an examination of relevant material and an assessment as to the acceptability of the probable risk. In such circumstances the requirements of fairness are minimal and have surely been met for the same reasons as I have concluded that requirements of fundamental justice, if applicable, have been met.
62 According to the respondent, the Federal Court of Appeal held that no reasons need be given for an agent's decision that a person constitutes a danger to Canada. A fortiori, the reasons for a refusal to renew a TRP (a decision whose consequences are less serious) need not be given either.
63 The respondent submits that the applicants are complaining that the officer did not disclose her notes and reasons prior to the application for leave and judicial review. However, after being notified of the negative decision, the applicants did not ask for the reasons supporting it.
64 According to the respondent, the applicants did receive the reasons and had the opportunity to make all the arguments in their further memorandum. He submits that the alleged failure has not caused any prejudice: Iamkhong v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 1349, at paragraphs 25 and 26; and Abdeli v. Canada (Minister of Public Safety and Emergency Preparedness), [2006] F.C.J. No. 1322 (QL).
65 The applicants seek costs. The respondent submits that section 22 of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22, specifies that no costs shall be awarded to or payable by any party in respect of an application for judicial review in an immigration matter unless the Court, for special reasons, so orders. The applicants have not shown that there are special reasons that would justify awarding costs.
66 In conclusion, the applicants demand that the immigration authorities exercise a highly discretionary power in their favour and grant them exceptional status. However, the respondent submits that the applicants breached their duty of good faith from the outset by remaining in Canada without status and by trying to settle in Canada permanently despite the refusal of the Canadian Consulate in Buffalo.
67 In light of the preceding arguments, the respondent respectfully asks that this Court dismiss this application for judicial review.
68 The issue is whether the Minister's delegate erred in refusing to renew the applicants' TRP.
69 The applicable standard of review is reasonableness, as described by the respondent, and not patent unreasonableness, as submitted by the applicants. However, as stated at paragraphs 7 and 8 of Justice Snider's decision in Voluntad v. Canada (Citizenship and Immigration), 2008 FC 1361, this Court is not required to show deference to officer Samson's decision if she breached procedural fairness:
[7] Both parties agree that the decision of the Officer is reviewable on a standard of reasonableness, meaning that the task of the Court is to determine "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47). It is also important to note that, on this standard of review, the Court ought not to substitute its discretion for that of the Officer, even if the Court might have drawn different inferences or reached a different conclusion.
[8] This standard does not apply to the alleged insufficiency of the reasons for the TRP decision; no deference is owed for a breach of procedural fairness.
70 I am of the opinion that the application for judicial review must be allowed for the following reasons.
71 First and by way of clarification, the applicants will not necessarily obtain permanent residence solely as a result of the passage of time after three or five years of continuous residence. Section 65.1 of the IRPR states that, in order to obtain permanent residence, a foreign national must hold a medical certificate indicating that their health condition is not reasonably expected to cause excessive demand. Thus, the applicants will probably not be granted permanent residence. Section 65.1 of the IRPR provides:
65.1 (1) A foreign national in Canada who is a permit holder and a member of the permit holder class becomes a permanent resident if, following an examination, it is established that
(a) they have applied to remain in Canada as a permanent resident as a member of that class;
(b) they are in Canada to establish permanent residence;
(c) they meet the selection criteria and other requirements applicable to that class;
(d) they hold
subject to subsection (4), a document described in any of paragraphs 50(1)(a) to (h), and
a medical certificate, based on the most recent medical examination to which they were required to submit under these Regulations within the previous 12 months, that indicates that their health condition is not likely to be a danger to public health or public safety and is not reasonably expected to cause excessive demand; and
(e) they and their family members, whether accompanying or not, are not inadmissible on any ground other than the grounds on which an officer, at the time the permit was issued, formed the opinion that the foreign national was inadmissible.
* * *
65.1 (1) L'étranger au Canada qui est un titulaire de permis et qui fait partie de la catégorie des titulaires de permis devient résident permanent si, à l'issue d'un contrôle, les éléments suivants sont établis :
il en a fait la demande au titre de cette catégorie;
il est au Canada pour s'y établir en permanence;
il satisfait aux critères de sélection et autres exigences applicables à cette catégorie;
il est titulaire, à la fois :
sous réserve du paragraphe (4), de l'un des documents visés aux alinéas 50(1)a) à h),
d'un certificat médical attestant, sur le fondement de la plus récente visite médicale à laquelle il a été requis de se soumettre aux termes du présent règlement dans les douze mois qui précèdent, que son état de santé ne constitue vraisemblablement pas un danger pour la santé ou la sécurité publiques et ne risque pas d'entraîner un fardeau excessif;
ni lui ni les membres de sa famille -- qu'ils l'accompagnent ou non -- ne sont interdits de territoire pour tout motif autre que celui pour lequel l'agent a, au moment de la délivrance du permis, estimé qu'il était interdit de territoire.
72 As for the decision itself, the reasons are not sufficiently detailed.
73 The letter setting out the decision does not sufficiently state the reasons for the decision. The notes taken for the purpose of making the decision were disclosed only after the application for leave and judicial review was filed. The notes do not specifically mention on what ground the decision was made to refuse the TRP. The notes are in fact a history of the applicants' situation. It is clear from the decision and the notes that they contain no written reasons.
74 As stated in Figueroa v. Canada (Minister of Citizenship and Immigration), 2003 FC 1339, at paragraph 15, one must refer to Baker v. Canada, [1999] 2 S.C.R. 817, to determine the content of procedural fairness owed in a given context. The Court must take into account the nature of the decision and the process followed in making it (the closer it is to a judicial process, the higher the content of fairness owed), the nature of the statutory scheme (for example, greater procedural protections are required when there is no provision for appeal procedures in the statute), the importance of the decision for the individuals affected (a significant factor), the legitimate expectations of the person challenging the decision, and the choice of procedure made by the agency itself.
75 In my opinion, the factor that most concerns the applicants is the importance of the decision for the individuals affected -- in this instance, the applicants.
76 The respondent's decision to issue a TRP is highly discretionary, but the exercise of that discretion is governed by guidelines which are available online and which even specify that the officer must explain why he or she is not granting the TRP:
If the officer considered recommending or issuing a permit to overcome the inadmissibility, they must also explain why a permit is not being issued. Officers must be especially careful to respect procedural fairness (see OP 1) in drafting this part of the letter.
77 Moreover, there is evidence that the applicants legitimately expected a positive decision in view of several factors:
Ms. Beyer's health has not changed, and it is even the opinion of the applicants' physician that the situation has worsened.
The hazards and costs of the trip.
Mr. Lacombe's recommendation that the permit be extended.
78 As for the choice of procedure made by the agency, this factor was not raised.
79 The negative decision will have grave consequences for the applicants because they will have to leave the country if they do not have a TRP. The trip from Canada to Sweden could result in serious complications and pose risks for the health of Ms. Beyer, who suffers from morbid obesity, is bedridden all day and does not leave home.
80 According to the respondent, the Minister's delegate, Huguette Samson, made a reasonable decision. The respondent submits that the applicants do not intend to leave Canada and that this justifies, among other things, the refusal to extend the temporary permit.
81 However, in light of the circumstances and the facts of this case, the absence of written reasons in the Minister's delegate's decision to refuse to extend the TRPs gives the appearance of an arbitrary decision.
82 The facts brought to light in this case raise a doubt as to whether the applicants were treated fairly. They must be given the benefit of this doubt. The application for judicial review is allowed and the matter is referred back to the respondent or his authorized representative, as the case may be, for a reconsideration of the applicants' request.
83 At the end of the hearing, the applicants submitted the following question for certification:
"What is the extent of a Minister's delegate's duty to provide reasons for a decision concerning a temporary residence permit and its renewal?"
84 Since I have allowed the application for judicial review, there is no need to certify the question.


THE COURT ORDERS AND ADJUDGES that the application for judicial review be allowed and the matter referred back to the respondent or his authorized representative, as the case may be, for a reconsideration of the applicants' request.

Saturday, June 12, 2010


Two very tragic and horrifying cases reported today. they should make Canadians think long and hard about our crumbling immigration and refugee system and how people are screened for potential criminality. We have a duty to protect those who come to Canada to work, contribute and support their families, and to provide a safe environment for them. In all cases, the victims were also immigrants. Very sad.

Kembo gets life for killing family, friend

Canwest News Service · Saturday, Jun. 12, 2010

A B.C. Supreme Court jury last night found Charles Kembo guilty of four counts of first-degree murder in the deaths of his stepdaughter, wife, mistress and friend.
"You are a serial killer," B.C. Supreme Court Justice Sunni Stromberg-Stein said in sentencing Kembo to a mandatory life sentence without parole eligibility for 25 years.
She said she would have made his four life sentences consecutive if she could have: "You should never walk the streets again."
Kembo, a 41-year-old former refugee from Malawi, killed his business associate Arden Samuel, his stepdaughter Rita Yeung, his girlfriend Sui Yin Ma and his wife, Margaret Kembo, whose body has never been found. The slayings occurred between 2002 and 2005.
Crown lawyers argued Kembo killed the four to assume their identities for financial gain. Defence lawyer Don Morrison has told the court that his client is "a fraudster, but he's not a murderer."
The trial also heard salacious details of his sexual relationship with stepdaughter Ms. Yeung, whose body was found in the Fraser River in July 2005.
The pair had sex in a Holiday Inn washroom the day of her death, he told the court in April, saying the incestuous relationship "was fun."
Mr. Samuel was found strangled with his penis cut off and stuffed down his pants in November 2003, while his mistress, Ms. Ma, was found in a hockey bag in November 2004.Read more:

Two men convicted in murder of maid

National Post News Services · Saturday, Jun. 12, 2010

A Brampton jury yesterday found two tradesmen guilty of first-degree murder in the death of a Filipino maid in a Mississauga mansion.
Cristian Figueroa, 37, and Fabian Loayza-Penaloza, 40, were silent and betrayed no emotion as the jury delivered the verdict after six hours of deliberation. They will serve the mandatory sentence of life in prison with no chance at parole until 25 years.
The accused, both immigrants from Ecuador, admitted they planned to rob the 30,000-square-foot mansion on Oct. 1, 2007.
However, each blamed the other for the death of 27-year-old Jocelyn Dulnuan.
Her body was found strangled with a copper wire wrapped twice around her neck and knotted at her throat.
Jurors were not required to decide who strangled Ms. Dulnuan in order to find one or both men guilty of first-degree murder. The Crown alleged the tradesmen worked as a team -- "one to hold, one to find the wire" for strangling her. She was attacked in a basement kitchen near her bedroom.
"[Ms. Dulnuan] turned out to be the only protection for the house.... Controlling and silencing her became a two-man job," Crown attorney Steve Sherriff told jurors when the trial opened in May.
Loayza-Penaloza had been employed as a painter in the home. He admitted to bringing Figueroa there to check it out for a future robbery, but said his partner worked alone when he removed a small safe and attacked the maid. He maintained that he didn't know Ms. Dulnuan was dead until Figueroa confessed to him 10 days later.Read more:


This is a strange decision by the IAD. If its reasoning would be correct, then it would mean that EVERY appeal should be successful, no matter how serious the crimes, how many, or how blatant, and there would be no incentive for a convicted person to make a genuine effort to show progress and reform. This is contrary to the spirit of the legislation: the purpose of consideration by the IAD on humanitarian and compassionate grounds is to reward positive conduct by an individual who has made an error, usually a small one, and to grant mercy on a conditional basis to that person, it is not to allow serial criminals to remain in Canada just because they were granted refugee status, or they are busy defying court orders, or the like. Although consideration of the "best interests of the child" is required by law, it does not automatically result in a positive decision. In this case, it appears that the person concerned showed a pattern of conduct inconsistent with the protection of the public goals stated by the IRPA. Being granted refugee status should not be construed as a free pass to commit crimes in the country which has granted refuge. That seems offensive to the common person.

Hurtado Ortiz v. Canada (Minister of Public Safety andEmergency Preparedness)

Josue Arnulfo Hurtado Ortiz, appellant, and
Minister of Public Safety and Emergency Preparedness,respondent

[2009] I.A.D.D. No. 1714
[2009] D.S.A.I. no 1714
No. MA8-15314 Immigration and Refugee Board of Canada
Immigration Appeal Division
Montreal, QuebecPanel: Mariam S. PalHeard: July 21, 2009.Decision: August 14, 2009.
(13 paras.)

Removal Order Appeal

Reasons for Decision

1 These are the reasons for the decision in the appeal of Josue Arnulfo HURTADO ORTIZ (the Appellant) who was ordered deported on October 23, 2008 on the grounds that the Appellant had been convicted of an offence for which a term of imprisonment of more than six months was imposed or ten years or more may have been imposed. Consequently he was determined to be a person described in section 36(1)(a) of the Immigration and Refugee Protection Act (IRPA)1.


2 There was no challenge to the legal validity of the Appellant's deportation order and, based on the evidence before it, the Panel is satisfied that the deportation order is valid in law. The issue before the Panel is whether there are sufficient humanitarian and compassionate factors, in all the circumstances of the case, taking into consideration the best interests of any children directly affected by the decision, to either allow the Appellant's appeal outright, dismiss the appeal, or to stay the deportation order.


3 The Panel heard oral testimony from the Appellant. The Panel's decision is to stay the deportation order for two (2) years for the following reasons.


4 The Appellant is a 51-year-old protected person residing in Canada and is a citizen of Mexico. He arrived in Canada on September 18, 2003 and claimed refugee status. He was granted refugee status on March 17, 2004. The Appellant is married and has four children. His family is in Canada. The Appellant's children are aged 16, 14, 6 and 3. The two older children were born in Mexico and the two younger children were born in Canada. Since his arrival in Canada, the Appellant has been employed at a series of short-term jobs. He has a law degree from Mexico.


5 The Panel's analysis is guided by the factors first outlined in the Ribic2 case and endorsed in the Supreme Court of Canada decisions in Chieu3 and Al Sagban4. The Panel is of the opinion that these factors, while not exhaustive, are helpful in considering whether to exercise its authority to grant special relief under sections 67 or 68 of IRPA. These factors are:
- The seriousness of the offence or offences leading to the deportation
- The possibility of rehabilitation
- The length of time the Appellant has been in Canada and the degree to which the appellant is established
- The impact the Appellant's removal from Canada would have on members of the Appellant's family
- Family in Canada and the dislocation to that family that deportation of the appellant would cause
- The support available for the appellant not only within the family but also within the community and the degree of hardship that would be caused to the appellant by his return.
6 These factors are not exhaustive and the weight to be given to each of them may vary depending on the circumstances of the case.
Seriousness of the Offences
7 The Appellant's crimes are serious. The Panel notes that the Appellant became involved in criminal activities shortly after his arrival in Canada. Given that the Appellant studied law in his native country, he should have been aware of the potential consequences of his actions. However, the Appellant's involvement in the conspiracy was considered by the judge somewhat less serious, as reflected in the fact that he received a one year sentence while his co-accused received a three-year sentence.
8 On February 25, 2008, the Appellant was found guilty of one count of conspiracy and sentenced to 12 months in prison. This conviction resulted in a deportation order on October 28, 2008. The Appellant testified that he had met some men through his church, who were involved in a scheme to bring Peruvian immigrants into Canada illegally. He pled not guilty. The Appellant's sentence was reduced to eight months; he eventually served four months and then spent time in a transition house.
9 The Appellant has two other convictions. On January 19, 2007, he was found guilty of "failure to comply with a condition of undertaking or recognizance". The Appellant testified that he had violated a condition imposed by a judge, that he not have a cellular telephone. On April 17, 2008, the Appellant plead guilty to operating a motor vehicle while impaired. A fine of $600 was imposed which he is paying in monthly instalments of $40.00.
Possibility of Rehabilitation and Community Support
10 The Appellant participated in various activities while staying at a transition house upon his release from prison, including career workshops and voluntary work at a restaurant, serving meals to low income people. His re-entry into the workforce has been sporadic because he does not have a work permit. He applied for permanent residency on September 24, 20045 but his request was denied due to his criminal record. He has been issued a series of two-month work permits. Similarly, his wife, who has completed vocational training, cannot seek employment because she also lacks a work permit. Currently the family lives on welfare and relies on their local church for food. The Appellant testified that he has acquired a working knowledge of French and English since moving to Canada. The Appellant showed remorse in his testimony at the hearing and admitted the pain he had caused his family.
Establishment in Canada and Impact of Removal on Family in Canada
11 The Appellant has been in Canada for six years. The Appellant has four children. The two younger children, aged three and six, were born in Canada while the two older children, aged 14 and 16, were born in Mexico. The children are attending school in Canada and have learned French. If the Appellant were removed from Canada, the two youngest children, as Canadian citizens, would have the right to stay or to return as adults. The Panel notes that the Appellant testified that he has a large extended family in Mexico. The Appellant testified that his family had left Mexico in 2003 due to threats of violence made against them. One of his daughters was the object of a kidnapping threat. The Appellant's removal from Canada would separate the family and deprive the children from a regular contact with their father. They would suffer financial consequences.
12 The oral evidence was given under oath and the Appellant presented as a credible witness who answered questions, on balance, in a direct and straightforward manner. There were no material inconsistencies in his testimony and the other evidence before the Panel which have not been satisfactorily explained. The Panel is of the view that the Appellant has recognized that he made a serious mistake and that he should be given the chance to rehabilitate himself. The Appellant has a supportive family and receives assistance from his community church. The Panel hopes that the granting of a stay will allow the Appellant to be issued a work permit so that he can support his family and contribute to the Canadian community.


13 In conclusion, there are sufficient humanitarian and compassionate factors, in all the circumstances of the case, taking into consideration the best interests of the children directly affected by the decision, to grant a stay for two years with conditions. The full conditions of the Appellant's stay are as follows:


The removal order in this appeal is stayed. This stay is made on the following conditions - the Appellant must:
Inform the Canada Border Services Agency (the "Agency") and the Immigration Appeal Division (IAD) in writing in advance of any change in your address.
The address of the Agency is:
Canada Border Services AgencyHearings and Detention1010 Saint-Antoine Street West, First FloorC.P. 11760, Downtown Branch OfficeMontréal, QuébecH3C 6V8
The address of the IAD is:Immigration and Refugee BoardImmigration Appeal DivisionGuy-Favreau Complex200 René-Lévesque Boulevard WestEast Tower, Suite 102Montréal, QuébecH2Z 1X4
Provide a copy of your passport or travel document to the Agency or, if you do not have a passport or travel document, complete an application for a passport or a travel document and to provide the application to the Agency.
Apply for an extension of the validity period of any passport or travel document before it expires, and provide a copy of the extended passport or document to the Agency.
Not commit any criminal offences.
If charged with a criminal offence, immediately report that fact in writing to the Agency.
If convicted of a criminal offence, immediately report that fact in writing to the Agency and the Immigration Appeal Division (IAD).
Provide all information, notices and documents (the "documents") required by the conditions of the stay by regular or registered mail to the Immigration Appeal Division at the address: Guy-Favreau Complex, 200 René-Lévesque boulevard West, East Tower, Suite 102, Montreal (Qc) H2Z 1X4. Include your IAD file number. It is the responsibility of the appellant that the documents are received by the IAD within any time period required by a condition of the stay.
Report to the Agency on September 1st, 2009 and on or about every first day the month after that date.
The Appellant shall report in person with a written report. The report is to contain details of the Appellant's:
- employment or efforts to obtain employment if unemployed;
- current living arrangements;
- marital status including common-law relationships;
- attendance at any educational institution and any change in that attendance;
- attendance at meetings of Alcoholics Anonymous;
- other relevant changes of personal circumstances.
Make reasonable efforts to seek and maintain full-time employment and immediately report any change in employment to the Agency.
Attend an alcohol rehabilitation program at Alcoholics Anonymous.
Not knowingly associate with individuals who have a criminal record or who are engaged in criminal activity, except contact that might result while attending meetings of Alcoholics Anonymous, or any other drug or alcohol rehabilitation program.
Not own or possess offensive weapons or imitations of offensive weapons.
Respect all parole conditions and any court orders.
Refrain from the illegal use or sale of drugs.
Keep the peace and be of good behaviour.


An interim reconsideration of the case by the IAD will take place on or about the 21st day of July, 2010, at which time it may change or cancel any non-prescribed conditions imposed, or it may cancel the stay and then allow or dismiss the appeal. You will receive a notice to appear prior to the hearing date, if the IAD orders an oral interim reconsideration.


Take notice that the IAD will reconsider the case on or about the 21st day of July, 2011, or at such other date as it determines, at which time it may change or cancel any non-prescribed conditions imposed, or it may cancel the stay and then allow or dismiss the appeal. Until your final reconsideration is decided (or your stay is otherwise ended), your stay remains in effect and you must comply with the conditions of your stay, including advising the Agency and the IAD in writing before any change in your address.

The IAD may contact you by letter in advance of final reconsideration to ask you to provide written confirmation that you have complied with the conditions of stay.

This stay of removal is cancelled and your appeal is terminated by operation of law and you may be removed from Canada if you are convicted of another offence referred to in subsection 36(1) of the Immigration and Refugee Protection Act (sentence of more than six months imposed or punishable by term of imprisonment of at least ten years) before your case has been finally reconsidered.
"Mariam S. Pal"

Friday, June 11, 2010

Tories' deal on refugee reform turns out to be good politics

Tories' deal on refugee reform turns out to be good politics - The Globe and Mail


The most significant change in the rules is simply that PHYSICAL presence will be required, and applicants will no longer rely on the factors set out in the Koo decision that allowed many people to obtain citizenship without having completed 1095 days or residency in Canada. Fraud in thsi area has been rampant.

News Release – New rules aim to strengthen the value of Canadian Citizenship

New rules aim to strengthen the value of Canadian Citizenship

Minister Kenney announces the Strengthening the Value of Canadian Citizenship Act

Ottawa, June 10, 2010 — Today, Citizenship, Immigration and Multiculturalism Minister Jason Kenney introduced legislation that would streamline the citizenship revocation process, crack down on crooked citizenship consultants and better protect the value of Canadian citizenship.
“Canadian citizenship is highly valued around the world and today we are taking steps to ensure it stays that way,” said Minister Kenney. “These changes will help prevent citizenship fraud. As promised in the Speech from the Throne, these amendments will streamline the process to take citizenship away from those who have acquired it by fraud, including by concealment of their war crimes. And it would take decision-making away from politicians and give it to the courts.”
The full package of amendments would strengthen the process of applying for citizenship and crack down on citizenship fraud. Bill C-37: Strengthening the Value of Canadian Citizenship Act proposes to:
Add legal authority to regulate citizenship consultants and to crack down where they help people gain citizenship fraudulently, in line with the recently proposed amendments to the Immigration and Refugee Protection Act – The Cracking Down on Crooked Consultants Act – aimed at immigration consultants.
Increase the penalties for citizenship fraud to a maximum of $100,000 or up to five years in prison or both.
Strengthen citizenship residence requirements to specify in the law that people applying for citizenship would have to be physically present in Canada for three of the previous four years.
Improve the government’s ability to bar criminals, including violent foreign criminals, from becoming Canadian citizens.
Streamline the revocation and removal process and make revocation more transparent by shifting the decision making on revocations from the Governor in Council to the Federal Court.
Ensure that the law supports the implementation of the first generation limit to passing on citizenship, ensure that the law does not unintentionally bar applicants who are eligible for citizenship, and ensure that the children of people serving Canada aboard – children of Crown servants – are not disadvantaged by their parent’s service to Canada and are able to pass on citizenship to their children.
“Canadian citizenship is more than a legal status, more than a passport,” said Minister Kenney. “We expect citizens to have an ongoing commitment, connection and loyalty to Canada.”

Wednesday, June 9, 2010


Canada targets immigration scams -

Canada targets immigration scams

Published: June 8, 2010 at 8:26 PM
OTTAWA, June 8 (UPI) -- Canada is considering laws to crack down on crooked "immigration consultants" who defraud unsuspecting immigrants of thousands of dollars, officials say.Under a bill introduced by Immigration Minister Jason Kenney, only authorized consultants, lawyers and notaries could charge fees, Canwest News Service reported Tuesday.The government wants crimes of so-called "ghost" consultants punishable by up to two years in jail and/or a fine of $50,000, Canwest said.Such consultants operate in Canada and abroad, and often charge prospective immigrants thousands of dollars to fill out applications that are never submitted, the government says. "The unfortunate reality is that many consultants are working dishonestly or even illegally," Kenney said, "to profit from people's dream of coming here."The government says it also wants to establish a governing body to regulate immigration consultants and improve government oversight, Canwest reported.

Monday, June 7, 2010

Ottawa set to criminalize bogus immigration consultants -

Ottawa set to criminalize bogus immigration consultants -


This is an interesting but hardly unusual situation described by the Toronto Star article below: a local employer hires a foreign worker, supports his application, then there is some sort of fallen out and things go sour, with both parties blaming each other. What is not explained by the article, however, is that many foreign workers and the employers who hire them do not fully understand their rights and obligations under the Temporary Foreign Worker Program because many employers do not seek counsel from experience lawyers prior to starting the hiring process, and employees simply treat the program as a migration facilitation avenue. Many small businesses are ill prepared to handle foreign workers, and others simply seek to hire friends and relatives to help them migrate. This is contrary to the intent of the program to supply necessary labour to areas experiencing shortages. Large employers, who are more sophisticated, usually seek good legal counsel and make it clear to employees that their assignments are only temporary, or spell the terms of engagement in a contract.. Some changes are necessary to this process in an urgent manner, as large and small employers can not be treated in the same way.

Immigrant dreams clash in an Etobicoke restaurant -

Immigrant dreams clash in an Etobicoke restaurant

June 06, 2010
Sandro Contenta

Jagmohan Singh Rawat came to Toronto to chase the immigrant dream — work hard, get permanent residency and bring his wife and daughter from India.
“The future is here,” says Rawat, a 38-year-old chef.
Starting him out on that dream was a man who achieved it.
Pyare Lal Gour arrived in 1997. The first two restaurants he opened failed. He made a go of it with his third in Etobicoke’s Kingsway neighbourhood. In April 2007, he needed a chef and hired Rawat through a federal program that lets employers bring foreign workers here on a temporary basis.
“I treated him like a son,” Gour says.
Last week, Rawat threw his apron on the restaurant floor and quit in disgust. He accused Gour of using the controversial migrant worker program to sabotage his bid for permanent residency. His future in Canada is now uncertain.
Gour denies the charge. But he notes in frustration that when his chefs get approval to stay in Canada, it is usually to his detriment.
“If they become permanent residents, then they don’t want to work (for me). They want to open their own business,” says Gour, adding that Rawat is the third chef on a temporary work permit to walk out on him in six years.
The dispute highlights a rule in the federal program that prevents “guest workers” from toiling for anyone other than the employers who get government permission to recruit and hire them. (In 2009, 178,640 people entered Canada on temporary work permits — from labourers making beds in hotels or gutting pigs in meat plants to accountants and engineers.)
Critics say the regulation turns would-be immigrants into indentured servants.
A Star series last fall found migrants paying thousands of dollars in recruitment fees for jobs that didn’t exist when they arrived. Others suffered poor working conditions in silence — including less pay and more hours than promised — fearful of losing jobs and temporary legal status in Canada.
A scathing report by Auditor General Sheila Fraser last November blamed poor government monitoring for widespread employer abuse.
Lower-skilled migrants are largely barred from becoming permanent residents, except in Manitoba. But skilled workers like Rawat can. If successful, they are then free to work for anyone they like.
Rawat is the sole breadwinner for his family in New Delhi — his mother, his wife and their 3-year-old daughter. There, he was making $672 a year cooking in a “fancy” restaurant. When a co-worker, Gour’s nephew, mentioned his uncle in Canada was looking for a chef, Rawat jumped at the opportunity.
He arrived at Chutneys Fine Indian Cuisine on Bloor Street West, which Gour has been running since 2004. It has four employees, 15 tables and the online reviews are mostly good.
“People do not realize how much of a struggle it is for a small businessman,” says Gour, 54, an Indian who came to Canada as a landed immigrant, after years in Dubai, with his wife and two sons. “I work 24 hours in the restaurant — me, my son, my wife — just to establish this place.”
Gour, who is now a Canadian citizen, paid Rawat $37,295 last year to work six long days a week.
Last June, Gour supported Rawat’s application for permanent residency in a letter to Citizenship and Immigration Canada.
“Mr. Rawat’s skills and experience are difficult to find in Canada and his services are essential to the operation of our business,” Gour wrote.
In September, Gour changed his mind in a second letter to immigration officials.
“I would like to inform you that Mr. Jagmohan Singh Rawat is not working with us any more and I am canceling the letter which (was) given to support his immigration. As per his status in Canada he is suppose (sic) to work with Chutneys Fine Indian Cuisine only and is not allowed to work any where else,” he wrote.
Without a job, Rawat’s chances of permanent residency under the federal Skilled Worker Class program are significantly reduced. But Rawat insists he never stopped working for Gour, and the salary deposits in his bank account — seen by the Star — show no interruption and no docks in pay.
Rawat adds he had no idea Gour sent the September letter. Gour insists he knew. Both say immigration officials never called them about it.
Gour says he sent the letter, written by his lawyer, in a fit of anger when Rawat went AWOL for two days. Rawat insists he never left. In any event, in Gour’s version of the story, he concedes he never notified immigration that Rawat returned.
By then, the relationship had deteriorated. Gour claims Rawat became a difficult employee after the June letter and plotted to open his own restaurant with a former employee; Rawat accuses Gour of being a tyrant. Each denies the other’s allegations.
“I warned him so many times, I will cancel the (June) letter — three times I warned him,” Gour says.
“I work very hard for him,” Rawat insists in halting English. “All the time he shout (at me) . . . He telling me, ‘If you say something I go to immigration and send you back.’”
What’s clear is that after the September letter, Gour renewed the government permit — known as a Labour Market Opinion (LMO) — to keep Rawat as a temporary foreign worker. And in February, Gour backed Rawat’s application for an extension of his temporary work permit, due to expire in April.
In March, the Toronto lawyer helping Rawat with his residency application, Elizabeth Long, received a package of material from immigration officials that included the September letter. She says she and Rawat became aware of it for the first time.
She accuses Gour of wanting to “screw up my client’s permanent resident application because he was afraid my client would stop working for him.” Renewing his LMO and temporary work permit would ensure Rawat remained solely tied to Gour.
Gour insists that wasn’t his plan.
“If I was thinking like that, why would I give him the (June) letter in the first place?” he says.
Last week, Rawat got a call from officials considering his work permit extension. He was given until Monday to hand in a letter of employment. Rawat demanded one from Gour. It turned into a standoff: Rawat says he no longer trusted Gour and demanded a letter immediately; Gour says he wanted to speak with immigration officials and then have his lawyer write one. Rawat quit in a fury.
Rawat’s future in Canada now depends on navigating a labyrinth of regulations and options. If his work permit is denied, Long will file a request to reconsider his status, which gives him a 90-day reprieve before having to leave the country. By then, Rawat hopes an employer poised to open an Indian restaurant in Brampton will get government permission to hire him on a new work permit.
In the meantime, he still has a shot at becoming a permanent resident. To do so, he needs to score at least 67 points under the federal program for skilled workers. Not having a job means he loses out on 10 points. Long says he’ll still pass if he scores at least 10 points on his language test. He’s waiting for the results.
Prior to Rawat leaving, Gour hired another cook from India on a temporary work permit to ease the workload in the kitchen. The new hire has replaced Rawat as head chef.
Gour has applied to hire another chef on a temporary permit, and is bracing for the costs and bureaucratic hurdles of the process.
“We have to change the system,” he says.
Immigration point system for skilled workers
Education: up to 25 points
Ability in English and or French: 24 points
Experience: 21 points
Age: Maximum 10 points
Arranged employment in Canada: 10 points
Adaptability: 10 points
Total maximum: 100 points
Pass mark: 67 points
Source: Immigration Canada

Wednesday, June 2, 2010


The following has been published by CIC today:

Operational Bulletin Operational Bulletin 194 – June 1, 2010

Clarification on the eligibility of combined programs for the Post‑Graduation Work Permit Program and the last semester of study


Clarification on the eligibility of combined programs for the Post‑Graduation Work Permit Program (PGWPP) and on full‑time versus part‑time in the last semester of study.


The PGWPP allows students who have graduated from a participating Canadian post‑secondary institution to gain valuable Canadian work experience. Post‑graduation work permits are open work permits, meaning that there are no restrictions on the type of employment performed and no requirement for a job offer prior to applying for a work permit. A work permit (C43 exemption) issued under this program cannot be valid for a period longer than the length of the student’s studies up to a maximum of three years.
Current policy
In order to qualify for this program:
students must have studied full‑time at a Canadian university, community college, CEGEP, publicly funded trade/technical school, or at a private institution authorized by provincial/territorial statute to confer degrees;
studies must have taken place at a Canadian institution in Canada. Distance learning from outside or inside Canada does not qualify a student for this program. However, the occasional distance course within a non‑distance program is allowable;
the student must have completed and passed a full‑time course of study or program lasting at least eight months. Whether they received a “certificate”, “diploma” or “degree” is not an issue;
any application for this program must be submitted within 90 days of formal written notification by the institution that they have met the requirements of the course of study or program; and
the student must still be in possession of a valid study permit at the time of application.
Specific eligibility criteria:
if the program of study is two years or more, the student may be eligible for a three‑year work permit;
if the program of study is less than two years but at least eight months, the student may be eligible for a work permit lasting for a period equal to the duration of their studies. The validity period of the work permit must not be longer than this period. For example, if the student graduated from an eight‑month certificate program, they may only eligible for a work permit of eight months duration.

Revised program criteria

Students holding a one‑year graduate degree or diploma from a provincially or territorially accredited post‑secondary educational/training institution in Canada after having obtained, within the prior two years, a diploma or degree from an accredited post‑secondary educational/training institution in Canada may qualify for a three‑year work permit. This exception also applies to students who have left Canada temporarily between programs of study.

Example 1: A student who obtained a one‑year MBA from a provincially or territorially accredited post‑secondary institution in Canada after having obtained a one‑year diploma, no more than two years before obtaining the MBA, would be allowed to cumulate both degrees and therefore would be eligible for a three‑year post‑graduation work permit.

Example 2: A student who obtained a one‑year diploma or certificate from either a provincially or territorially accredited post‑secondary institution in Canada after having obtained a degree in Canada at the same or in a different provincially or territorially accredited post‑secondary institution within the previous two years would be allowed to cumulate both educational credentials and therefore would be eligible for a three‑year post‑graduation work permit.

Example 3: A student attends a foreign post‑secondary institution and transfers to an accredited provincial or territorial post‑secondary institution in Canada in order to complete their studies. Under this scenario, if the qualifying educational credential is issued at an instituion outside of Canada, they would not qualify for a Post‑Graduation Work Permit. However, if they did receive their educational credential from a recognized Canadian educational institution/training institution, they may be eligible for a Post‑Graduation Work Permit only for the length of time they studied in Canada.

Example 4: A student attends their first year at a private post‑secondary educational institution in Canada not recognized under this program but then transfers to a recognized post‑secondary institution. Under this scenario they may be eligble for a post‑graduation work permit program but only for the length of time they studied at the recognized post‑secondary institution.

Full‑time versus part‑time studies in the last session of study

If a student meets all the eligiblity requirements, with the exception of full‑time status, but is in their last session, they will still be considered to be eligible for this program. For example, at an institution, a student may be required to be enrolled in at least four classes to be considered to have full‑time status. However, a student in the last session of a program of study needs to take only two additional classes in order to receive a Canadian educational credential from that institution. That student will still be eligible to apply for a work permit under this program.
Application for a temporary resident visa (TRV) from holders of post‑graduation work permits
It is common for students, who have completed their studies and are holders of post‑graduation work permits, to wish to return to their home countries for a visit prior to seeking or starting employment in Canada. These students may need to apply for a TRV to enable a return to Canada. Consideration should be given to issuance of a long‑term, multiple‑entry TRV that would cover the validity period of the post‑graduation work permit plus a 90‑day bridging period. The student has already demonstrated bona fides, through successful studies in Canada and receipt of the post‑graduation work permit. Whether the student has obtained a job offer or started a job search for the post‑graduation work period should not be a sole determining factor for issuance of the TRV.