IRPA Data - part 8 Request ID IRPA00000001607 Item ENF 05- 8.7 Reports on persons claiming refugee protection Category ENFORCEMENT: Inadmissibilities, Bonds, Removal Orders, Hearings Question Why use misrepresentation when you can use A104(1)(a) or (b) to directly deal with the area of ineligibility. Solution Details IRPA allows redetermination of eligibility for exactly the same reasons as the original determination. There is therefore little reason to use the section on misrepresentation (104)(1)(c). For more information please refer to ticket #1292 October 15, 2004 Page 701 of 779
QuestionWhy use misrepresentation when you can use A104(1)(a) or (b) to directly deal with the area of ineligibility.Solution DetailsIRPA allows redetermination of eligibility for exactly the same reasons as the original determination. There is therefore little reason to use the section on misrepresentation (104)(1)(c). For more information please refer to ticket #1292
October 15, 2004 Page 701 of 779
Request IDIRPA00000001609ItemPP 01-13.40 If claim is ineligible for referral to RPDCategoryREFUGEE: Asylum: Making a Claim
QuestionI have a Refugee claimant who has one conviction which equates to being a serious offence under A36(1) (b) . The officer has not requested a danger opinion for the purpose of A101(1)(f). What is the procedure? Do we suspend eligibility and deal with the serious criminality? Solution DetailsWhen serious criminality is in issue for a refugee claimant, IRPA is designed to deal with admissibility before eligibility. Unless the FN has already satisfied the Minister under A36(3)(c) that they have been rehabilitated, the officer will form the opinion that the person is inadmissible. In this particular situation, the officer should prepare an A44(1) report, and the report must be referred to the Minister's delegate for a determination of whether it is well-founded [A44(2)], and then be referred on to the Immigration Division (ID) for an admissibility hearing. While an officer can form an opinion that a FN is inadmissible for serious criminality committed outside Canada, the ID must make this determination, after a hearing. In this situation, eligibility should be suspended until that hearing is completed. While the outcome of this hearing will not determine the validity of the refugee claim, it will determine what will happen if their refugee claim is unsuccessful. Additionally, the evidence and findings of that hearing will determine the circumstances of eligibility (or ineligibility) for referral of the refugee claim to the RPD [101(1)(f)]. In some cases the front-line officer may not have prepared an A44(1) report. For example, in certain circumstances the officer may have allowed the FN entry on a TRP, and were not made aware that the person would seek to remain permanently via a refugee claim. Another example would be if the officer was not made fully aware of background circumstances regarding criminality, but later gains significant additional information. If for any reason an A44(1) report is prepared after the matter has been referred to the RPD, A103(1) allows suspension of RPD proceedings pending the ID admissibility hearing.After admissibility is determined, the determination of eligibility for referral to the RPD is then made by the officer. A101(2)(b) would apply to this case if a determination of inadmissibility due to serious criminality was made by the ID [A101(1)(f)]. When determining eligibility the officer can review the evidence and outcome from the admissibility hearing. If the officer determines that an A101(2)(b) danger opinion is not warranted, the refugee claim is eligible for referral to the RPD.
QuestionWe are getting ready to deal with the applications for redetermination of status. Few questions still exist:Period to be assessed:A client showed up at the POE prior to June 28. There was a A20 written up + order for inquiry. Following the implementation of IRPA, we withdrew the order for inquiry and transmitted the report for decision. Does the 5-year period stop on the date the A20 report was written up? (except for cases where A28(2)(b) apply).
Solution DetailsPlease refer to tickets No. 1304. The date a report is prepared is the relevant date.
October 15, 2004 Page 703 of 779
Request IDIRPA00000001613ItemENF 10-12.10 Overview of A50(a)CategoryENFORCEMENT: Investigations, Stays and Removals
QuestionAn appellant, originally from Ukraine, who was placed by the IAD on a 2-year "stay" in September asked me if he would be able to visit his parents there. Subsection 56(2) of the former Act did NOT require the Minister's consent for the return to Canada of a person on an IAD stay. What should I advise this and other appellants ? Under IRPA, if such a person appears at a port of entry with a copy of the Board's order, will he be admitted to resume his residence under a stayed removal order ? Is there any need for him to apply at a CIC for consent to return ? IRPA does not seem to have a section similar to 56(2) of the previous Act.
Solution DetailsThe removal order in question is stayed pursuant to A 50(c) which provides that a removal order is stayed for the duration of the stay imposed by the Immigration Appeal Division or any other court of competent jurisdiction.A 48(1) provides that a removal order is enforceable if it has come into force and is not stayed.Therefore, according to the Act, the removal order in question is not an enforceable removal order during the duration of the stay. These guidelines will be included in the ENF manual in the future.A 52(1) provides that if a removal order has been enforced, the foreign national shall not return to Canada unless authorized by an officer or in prescribed circumstances. IRPA is silent regarding the issue of consent and unenforced removal orders.In this scenario, section 52(1) of the Act is not applicable - the person does not require consent to return to Canada - because the removal order has not been enforced (since it is not enforceable). IRPA's silence on the issue of consent and unenforced removal orders, combined with the specific instructions regarding when consent is required [in A52(1)] is further support for the presumption that consent to return to Canada is not required when dealing with a removal order that has not been enforced.Note; The person should have a copy of the removal order and the IAD's order (outlining the terms of the stay) with him/her when leaving and re-entering Canada. (The answer provided of course assumes that the person has no interest in voluntarily enforcing his/her removal order during the duration of the stay).
October 15, 2004 Page 704 of 779
Request IDIRPA00000001615ItemENF 23-7.00 ProcedureCategoryENFORCEMENT: Examinations, Seizure and Transportation
QuestionPlease refer to previous Q#1113 which still remains unanswered. The scenario is similar to Q.1585 which allows the visa officer to waive the former Permanent Resident's appeal rights when the person accepts the Visa Officer's decision that they do not meet the residency obligations. Can the same procedure occur at the POE when the Minister's Delegate determines that the person does not meet the residency obligations, and the person accept this finding. If the person wants to waive his/her appeal rights in writing, it would seem that the same rationale can apply as outlined in response to ID:IRPA
Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered by the Helpdesk but was never approved by the appropriate Service Line. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Helpdesk Answer is:Q's & A's for tickets 1585 and 1586 were provided to the NATIONAL IRPA HELP DESK from the service line on the same day and by the same person. It is clear from his answers that once the permanent resident has reached the Canadian border, officers must apply the procedure set out in 1586. Had he thought it applicable, a similar procedure as in 1585 would have been considered either at the POE or Inland.
QuestionA person was granted discretionary entry under the old act on 27 June 2002. Under IRPA, discretionary entry no longer exists. Is this person now eligible to apply for an extension of visitor status or restoration of status as the case may be?Solution DetailsAssuming the new deemed rehabilitation provision does not apply if A19(3) was granted for a minor criminality, here are the main options for an officer dealing with this case:1) Ask the person to leave Canada, no report written2) Ask the person to leave Canada, report written but no direction to an admissibility hearing. 3) Report the person and issue removal order or send to admissibility hearing4) Issue Temporary Resident Permit (TRP) to overcome the inadmissibility (criminality and/or overstay if the application to extend his status was after the expiration of his status).
October 15, 2004 Page 705 of 779
Request IDIRPA00000001619ItemENF 06-19.00 Decisions to refer a report to the Immigration Division of the IRBCategoryENFORCEMENT: Inadmissibilities, Bonds, Removal Orders, Hearings
QuestionCan you please clarify what is meant in R229(4)? In R228 it states that if a report does not include any of the inadmissibilities other than those set out in R228(1)(a)-(d) the report SHALL NOT be referred to the Immigration Division (ID). However, in R229(4) it states that if the ID makes a removal order against a foreign natinal (FN) with respect to inadmissibilities set out in R228(1) the ID shall make the removal order the Minister's Delegate (MD) should have made.
Solution DetailsR229(4) applies in situations where the officer decided to prepare ONLY one report in which there is allegation(s) that is/are both under the DM's jurisdiction AND allegation(s) that is/are only under the ID's jurisdiction. In these cases, the MD, if he/she believes that all the allegations contained in this ONLY report are well-founded and decides that a removal order is warranted, shall transmit this ONLY report to the ID. In other words, if on the same A44(1) report some of the allegations are not under his jurisdiction as per R228, he/she cannot take jurisdiction on the report. In this case, the ID if all the allegations are well-founded will make a removal order based on R229 for the allegation(s) within its jurisdiction and make a removal order pursuant to R229(4)/R228 for the allegation(s) on the report that would have been under the MD's jurisdiction. If the MD wants to keep jurisdiction on the allegations referred to in R228, two separate A44(1) reports must be
Request IDIRPA00000001620ItemPP 01-16.00 SuspensionCategoryREFUGEE: Asylum: Making a Claim
QuestionIn response to the draft answer I got re: IRPA1609 - I am not sure I understand the answer:"since the officer is not seeking a danger opinion as per A115(2), the officer must suspend". The way that I read it - it appears that the officer shall suspend if a report is referred prior to eligibility being determined...my question is: if the officer is able to determine that -not withstanding the criminality- they are not seeking a danger opinion and therefore the client is eligible, could they not do the eligibility first and then do the criminality report in order to have a deportation order issued rather than a departure order (thereby dealing appropriately with the criminality issue)? Is it not possible that after eligibility is done and the report referred for adm hearing that the officer would then have a choice about whether they wished to suspend the case post RPD referral??I guess I am seeking clarification - as it appears that it takes the eligibility decision out of the officer's jurisdiction until the person is ordered - and once ordered puts it back in the jurisdiction of the officer to determine what they were already able to determine - this does not appear to be very efficient.
Solution DetailsThe way IRPA is written it gives the officer no option but to suspend the eligibility if a criminality report is written and forwarded to the Immigration Division (ID) As per A100(2)(a): an officer shall suspend eligibility determination if the report has been referred to the ID for an admissibility hearing. If for some reason the officer does not suspend eligibility and the claim is deemed referred to the Refugee Protection Division, the officer could write a A44(1) report and the ID could make a decision on the allegation. Also see #1609.
October 15, 2004 Page 706 of 779
Request IDIRPA00000001621ItemIP 05-3.1 Forms requiredCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionWhen processing a Protected Person who failed to apply for Permanent Residence within the 180 day time limit, PP4- 9.3 states that" they are required to submit an application for PR from within Canada (IMM5205) accompanied by an H&C application (IMM5291) with the required proof of payment of the processing fee [R301(1)(b). Pre IRPA, these cases were referred to the local CIC for processing by CPC-Vegreville. Are these cases now to be processed at CPC-Vegreville?
Solution DetailsIt is technically correct for them to submit either a 5001 or a 5202, along with supporting documentation. If using a 5001, the applicant should be aware that the application will be treated like any other unsponsored H&C application - ie referred to a local CIC prior to being seen by a CPCV decision-maker. (These are "mandatory referrals:" there is no value in keeping them in the office until seen by a decision-making officer.) If using the 5202, the application will be retained in CPCV inventory, and assessed on H&C grounds. This should ordinarily be a faster process. Both the former IP5 and the current draft IP5 indicate, generally, these applications will warrant favourable consideration. Therefore, CPC began retaining them when they present as CR applications.
Request IDIRPA00000001623ItemENF 04-16.50 Allow to withdrawCategoryENFORCEMENT: Examinations, Seizure and Transportation
QuestionSubject was Allowed to Leave pursuant to R42(1) but not detained. Subject was instructed to verbally report the next day to verify his departure from Canada, but did not report. Should a warrant for examination be issued even though the examination has technically been completed when a decision to offer withdrawal was given. Once a decision to withdrawal has been given can terms and conditions be imposed?
Solution DetailsRegulation R37(c) states "The examination of a person who seeks to enter Canada, or who makes an application to transit through Canada, ends only when the person is authorized to withdraw their application to enter Canada and an officer verifies their departure from Canada"
October 15, 2004 Page 707 of 779
Request IDIRPA00000001624ItemENF 28-7.2 When to Request the Minister’s opinion - A101(2)(b) , A115(2)(a) and (b)CategoryENFORCEMENT: Inadmissibilities, Bonds, Removal Orders, Hearings
QuestionPerson concerned was deemed to be a Convention Refugee in 1995. He has not been landed due to criminality. Most recently he has been convicted of sexual assault in Canada. He has been reported A36(1)(a) and we wish to seek a Danger Opinion A115(2). Under the previous Act we would seek the Danger Opinion prior to the inquiry. Under IRPA, should we request the Danger Opinion before the client goes to the Inadmissibility Division or after the person concerned is found
Solution DetailsThe request should be made after the person has been determined to be inadmissible and a removal order has been issued against them and not before. Manual ENF 28 establishes the guidelines in seeking danger opinions. A115 ensures the non-refoulement of protected persons or convention refugees. A115 is applicable only when a removal order has been issued against a protected person for serious criminality. In cases of A115(2)(a), the officer should initiate a request for the Minister's opinion approximately six months prior to the date of the person's anticipated date of release. In cases of 115(2)(b), the officer should initiate a request for the Minister's opinion according to the guidelines enunciated in manual ENF 28, section 7.2. A danger opinion may be requested prior to an admissibility hearing under A101(2)(b) for convictions outside of Canada only. Decisions to issue removal orders under A44(2) are to be made independent of decisions under A115. (Note: question has been reworded)
QuestionAn Australian citizen is coming to Canada to do research for the David Suzuki Foundation (charitable organization). He will not be paid but will get credit at his university in Australia. Does this person require a work permit or is he considered a "volunteer"?Solution DetailsIf the position within the David Suzuki Foundation is considered to be a valuable learning experience, or an internship that a Canadian student might benefit from then it is "work", as per the definition in R2. A confirmed work permit would be required even if there is no remuneration received for the work. HRDC is prepared to give an opinion on this type of work.If the student is doing research for his own benefit and is not actually occupying a position within the foundation then he would not be "working" as per the definition, and would not require a work permit.
October 15, 2004 Page 708 of 779
Request IDIRPA00000001626ItemENF 19-7.7 Loss of appeal rightsCategoryENFORCEMENT: Inadmissibilities, Bonds, Removal Orders, Hearings
QuestionA person was deemed to be a Convention Refugee and then landed. He has criminal convictions in Canada for which he was reported and then a deportation order was issued. He has filed an appeal. He was convicted of 2 counts of robbery for which he received a one-year sentence for the first count and then another one-year sentence (consecutive) for the second count. He was also convicted of forcible confinement and received one-year (concurrent). In order to fall under A64(2) (no appeal) would the two years have to be for only one conviction?
Solution DetailsIn order to fall under A64(2), a term of imprisonment of at least 2 years has to be imposed for a single conviction. A64(2) does not refer to consecutive or concurrent sentences.
October 15, 2004 Page 709 of 779
Request IDIRPA00000001628ItemIP 02-5.33 Appeal rightsCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionAn applicant for permanent residence, category FC-1 who was refused pursuant to A19(2)(a.1) (former Act - now A36(2)(b). The adjudicator ordered his removal but the applicant and his sponsor were accepted by the Immigration Appeal Division (IAD) for humanitarian reasons.Now that the IAD's favourable decision to quash the removal order has been communicated, what do we do with application for landing (AFL)? - Shall we continue the process of the AFL and "land" the applicant without an application for rehabilitation? Shall the applicant wait 5 years following the end of his sentence and submit an application for rehabilitation to the proper authority?
Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered by the Helpdesk but was never approved by the appropriate Service Line. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Helpdesk Answer is:A67(2) stipulates: "If the Immigration Appeal Division allows the appeal.......or refer the matter to the appropriate decision-maker for reconsideration". A70(1) stipulates: "An officer, in examining a permanent resident or a foreign national, is bound by the decision of the Immigration Appeal Division to allow an appeal in respect of the foreign national". Manual ENF 19 - section 8.17 states (even if it deals with sponsorship outside Canada as there is no more right of appeal for sponsors in Canada): " Where an officer determines that the sponsor and the applicant meet the requirements of the Act and its Regulations other than those on which the IAD ruled on in its decision, the application will be approved. It is possible that additional grounds warranting a second refusal of the application will come to light, although in the first refusal, the decision should have included every ground applicable to the case. In other words, as before IRPA, the officer "does not take into account" the inadmissibility which led to the refusal to grant permanent residence and, unless in reactivating the statutory requirements one/other inadmissibility(ies) is/are found, the applicant will become a permanent resident even if he did not obtain his rehabilitation.
October 15, 2004 Page 710 of 779
Request IDIRPA00000001629ItemIP 03-39 Approval and Refusal of ApplicationsCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionI am dealing with a foreign national who was deemed to be a Convention Refugee prior to IRPA. He submitted his application for permanent residence pursuant to the former A46.04(1). His medical examination has been furthered. Do I have to wait for the results of his medical examination or can I grant him permanent residence status?Solution DetailsPursuant to R347(1), if landing was not granted before IRPA, an application under A46.04 is an application under A21(2) of IRPA. Pursuant to A21(2) a protected person (which includes Convention refugees) becomes a permanent resident unless they are inadmissible on any ground referred to in A34, A35, A36(1), A37 or A38 (health grounds). Pursuant to A38(2)(c), a protected person is not inadmissible for A38(1)(c)- excessive demand. So before you can make a decision as whether A38 applies or not, you must wait for the medical examination results. Please DO NOT refer to PP 4 - section 10.1 and section 10.3 as the information is not current.
Request IDIRPA00000001630ItemOP 08-10.2 ConditionsCategorySELECTION: Business
QuestionHas Section 15 of the former Act concerning an application to vary or cancel terms and conditions imposed on a permanent resident been reproduced in IRPA?Solution Details(Answer revised on 15/10/02) There are numerous provisions within IRPA that provide for conditions to be imposed, varied and/or cancelled.References in the Act to where conditions can be imposed, and in some situations varied and/or cancelled include:A9(1)(d), A14(2)(d), A26(d), A27(2), A29(2), A32(d), A44(3), A53(a), and A58(3).Regulatory references include:R183, R184, R185, R193, R32, R43, R48, R92, R98, R251 and R318.Section 318 is a transitional provision that imports the conditions in the old Act into IRPA. It is a question of interpretations as to whether this also imports the variations power of the old Act into IRPA, but since this is not explicitly done, we are of the view that a separate and distinct variation power has to be found in IRPA. Although the Act does give authority to make or vary conditions, as you can see there are only a few places in the Regulations where conditions are actually made or varied.
October 15, 2004 Page 711 of 779
Request IDIRPA00000001631ItemOP 05-5.4 Rapid family reunificationCategoryREFUGEE: Asylum: Making a Claim
QuestionI had a client who became a permanent resident in March 2002 under CR8. He had listed his son and his brother on the application IMM 5202 but indicated that he did not want to include them. Does R176(2) apply even if he checked off "no" or does he have to sponsor his son who is 15 years old?Now I know that his brother can't be concurrently landed with him (25yrs).
Solution DetailsFurther information is required for a complete answer. Further information for the ticket is that if the son is ineligible under R176(2) another option could be to sponsor the son in the family class. However, the son would only be eligible to be a member of the family class if he was examined at the time of the Permanent residents original application, otherwise he is excluded from being a member of the family class by virtue of R117(9)(d).
QuestionWhen PRRA has made a positive decision on an H&C with risk application based only on the H&C factors, NCMS is not allowing us to enter decision as a positive H&C. Option is limited to H&C at risk or H&C not at risk.Solution DetailsPP3 section 5.26 states that the [A114] (H & C) process in NCMS will no longer be generated after June 28, 2002.This section of the manual will be updated/revised. There appears to be a NCMS production problem as the options currently available would not be appropriate in the type of case you described. In such cases, the PRRA officer looks at H&C factors first and if there are sufficient grounds to proceed on just the H&C, a risk assessment is not done. Inputting H&C at risk would capture the data incorrectly in that a report would indicate these people are at risk (therefore a protected person) when in fact, they are not. It is recommended that you contact your NCMS Regional coordinator/super user and report the problem. Contact names can be found in CIC Explore under "NCMS Production Problem Reporting Process".
October 15, 2004 Page 712 of 779
Request IDIRPA00000001634ItemIP 01-11.3 DecisionCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionI have an immigrant with an incomplete imm1000 at a POE. He married in the last six months before coming. Spouse is not on the document. The wife is now expecting a child. It appears that he notified the consulate twice and never received a reply. He has proof of this. I have now sent the document back to the consulate at its request. Subject is submitting documents to the consulate for his wife (who is still back in India). Unfortunately he only has enough money to last six months. Can I issue a TRP for lack of immigrant visa and then an open work permit under R208(b)? So far he has been adjourned. I could offer withdrawal but if he chooses not to take it then the case would be weak before the ID.
Solution DetailsIf you are satisfied that the consulate/visa office was aware of the change of marital status and you choose to do so, you may issue a TRP as per A24(1) and WP as per R208(b), FOR THE WIFE.Although a work permit may be issued, the officer would have the discretion when reviewing the individual circumstances of a case to decide whether a work permit is warranted or not. If there are concerns later of the applicant receiving social services, the officer could report and issue a removal order. There is no requirement that an officer must issue a work permit in cases where a TRP is issued for more than 6 months.
Request IDIRPA00000001635ItemIP 02-5.35 Withdrawal of undertakingCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionPrior to the implementation of IRPA, I approved the sponsorship and 9(1) was waived. The application was subsequently refused due to her medical inadmissibility. The sponsor was given appeal rights, which he chose not to carry out. The applicant was then issued a permit. The sponsor is now requesting that the sponsorship be cancelled. Is there anything to cancel? In reality, there is no application as the applicant was refused. However, she was issued the permit based on the sponsorship and the marriage to a CC. Under IRPA, does the sponsorship stand? Is he still under obligation for ten years?
Solution DetailsThe application for permanent residence was refused. Therefore, there is no sponsorship undertaking to be "cancelled". The fact that the applicant was issued a TRP based on the fact that a sponsorship undertaking had been submitted, does not make that undertaking valid when the application for permanent residence is refused.
October 15, 2004 Page 713 of 779
Request IDIRPA00000001636ItemENF 07-15.30 Arrests with a warrantCategoryENFORCEMENT: Investigations, Stays and Removals
QuestionI have a ship deserter. How can I issue a warrant for his arrest under A55(1) as there is no box on the form for "proceeding that could lead to the making of a removal order by the Minister under subsection A44(2)"?Solution DetailsPlease refer to ticket No. 1455 which was vetted by the Service Line. As a warrant cannot be issued for that purpose, we would suggest that, at least, a NCB - "Attention to" could be created in case the subject would contact CIC for any other purposes.
QuestionAn application for permanent residence from within Canada was processed as immigrant category AR1, with a five year undertaking. The case is now ready to be granted permanent residence from within Canada. Because the Assisted Relative (AR) category does not exist in IRPA, should the applicant be granted permanent residence as immigrant category ND2?Solution DetailsUse the immigrant category code AR 1. The original immigrant category code should be used if you are ready to grant permanent residence. However, where a final decision is still pending, or the Federal Court directs re-examination of a case, and IRPA is silent on how to finalize the case, await further instruction.
QuestionHow will section A36(3)(e) impact the Hearing of a A27(1)(d) report of a young offender tried in Adult court? The convictions were for sections 212, 266 and 267 of the Criminal Code. We are expecting the Hearing to be in the next two weeks. Counsel requested an adjournment last week so as to prepare his arguments per A36(3)(e). The client is presently serving time and due for release in April. The counsel is maintaining that the new section of A36(3)(e) requires that if the person was charged in Youth Court for the offences - A36(3)(e) applies regardless of the fact that it was subsequently transferred to Adult court. This is a departure from the former Act. Could provide the 'policy intent' associated with this section?
Solution DetailsThe basic concept either before or after implementation of IRPA is that if the individual is transferred to Adult court or is otherwise convicted as an adult, then the applicant has a conviction. A36(3)(e) has to be considered when an officer is dealing with a young offender and whether this young offender can be reported under IRPA pursuant to A36(1) or A36(2). Ref. http://laws.justice.gc.ca/en/Y-1/index.html. In your case, the decision was already made under the former Act with the writing up of a A27(1)(d) report since the permanent resident/young offender was tried as an adult. What you now have to consider are the transitional provisions found in R320(5) which explains how to determine if this PR is still inadmissible under IRPA. If he meets R320(5)(a) or (b), then you can pursue the enforcement action. Background info: Section 16 of the Youth Criminal Justice Act deals with transfer to ordinary court. In the process of determining if the trial should be transferred to an ordinary court the person concerned or their counsel would have had opportunity to argue why the matter should remain in youth court. Where a judge has determined a matter should be heard in an ordinary court it should no longer be considered an offence under the Youth Criminal Justice Act and 36(3)(e). Sections 16 (1.1) and 16(2) state the criteria which must be considered under the YCJA when deciding how to proceed with a case. Section 16(7) of the YCJA states the effect of the order is to discontinue proceedings under the YCJA and the person against whom the proceedings were taken shall be taken before the ordinary court. Clearly the effect of 16(7) is that the charges are not proceeded with under the YCJA, they are proceeded with in an ordinary court. It would be ludicrous to interpret 36(3)(e) so strictly that if charges were initially laid under the YCJA they could not later be considered for the purpose of assessing inadmissibility when the matter was dealt with in an ordinary court.
October 15, 2004 Page 715 of 779
Request IDIRPA00000001639ItemFW-05.39 R205(c)(ii) Public Policy, Competitiveness and EconomyCategorySELECTION: Economic (Skilled Worker, Temporary Workers, Students, Provincial Nominees)
QuestionI have taken a look at the Help Desk Q/As, and also at the FW Manual, and can't find the guidance I need. Under the former Act, post-graduate employment was limited to degree-granting institutions. We had numerous instances where students at colleges or technical schools (institutions were not authorized to confer degrees) were not able to qualify for post-graduate employment. Has this changed under IRPA? Can a student who graduates with a diploma from college not authorized to grant degrees eligible for post-graduate employment? What about a non-publicly funded institution, such as a computer sciences private school, or a cosmetology school? Can students who obtain diplomas from those institutions apply for post graduate employment?
Solution DetailsFW 5.39 (C) describes Post Graduate Employment, C43 including eligibility criteria, WP issuance and validity .The following note included in FW 5.39(A) describes institutions "The provisions outlined for C42 and C43 only apply to students engaged in full-time studies at a university, community college, CEGEP, publicly funded trade/technical school or at a private institution authorized by provincial statute to confer degrees." "Therefore, graduates of colleges or private institutions authorized by the province to confer degrees who meet the criteria set out in 5.39(C) may apply for post graduate employment."
QuestionFW manual section 5.25 states that National Confirmation letters exist for 3 working groups. I am interested in getting information in the third group: IT Workers. The web page indicated in this section can not be displayed.Solution DetailsGo to Operations Memoranda in CIC Explore, scroll down to Temporary Foreign Worker Guidelines (FW) 1999 and look at OM FW 99-03 Facilitated Processing of Employment Authorizations for Information Technology Workers.
October 15, 2004 Page 716 of 779
Request IDIRPA00000001642ItemENF 11-10.00 Procedure: Voluntary complianceCategoryENFORCEMENT: Investigations, Stays and Removals
QuestionI am issuing an exclusion order, in the instructions it states to give the foreign national a removal order kit that includes instructions for the FN on verifying departure, the consequences of the not verifying departure, the POEs available etc. We use to have a brochure that explained information like that but it is out of date. Do you know where I could find the updated one?
Solution DetailsSection 17.2 of ENF10 (Removals Manual) describes the information that may be provided in the removal order information kit. The manual provides officers guidance to assist in the preparation of the kit when it is determined necessary. In recognition that the information contained in the removal order information kit may vary depending on the location and circumstances of the case, form letters should be developed and maintained at a regional or local level.
QuestionI am at the airport and I have two American elementary school children. Their father is already in Canada as a visitor/tourist and the mother is seeking entry as a visitor/tourist. I know that they are not allowed to study without a study permit pursuant to A30(2) as their parents are/seeking entry as visitor/tourist. Back in September 2002 the children started school without a study permit while the father was a visitor/tourist in Canada. So as A30(2) did not apply, an officer determined that they studied without authorization, but no report was prepared as they left Canada to go back to the U.S. Can I issue study permits at the POE?
Solution DetailsYou are right in saying that A30(2) does not apply to them since the father is already a visitor/tourist in Canada and the mother is seeking entry as a visitor/tourist. Also, normally as nationals of the U.S., pursuant to R214(a), they can apply upon entry for a study permit as long as they meet the requirements to obtain such a document and that they would leave at the end of their stay [A29(2)]. HOWEVER, since there was a determination by an officer that they have engaged in unauthorized study in Canada, you shall not issue a study permit unless a period of six months has elapsed since they engaged in the unauthorized study. The period of six months would start when they stopped studying without authorization.
October 15, 2004 Page 717 of 779
Request IDIRPA00000001644ItemENF 04-16.10 Further examinationCategoryENFORCEMENT: Examinations, Seizure and Transportation
QuestionAt a POE a refugee claimant's examination is furthered A23 and he is released. The person concerned does not appear. In order to issue a Warrant for Arrest, should we be completing an A44 report (no immigrant visa, no documents) and then issuing the Warrant? Is preferred that we complete a report before issuing a Warrant? We haven't been receiving any comments/returned warrant packages from IWRC if there is no 44 report.
Solution DetailsENF 04 - 16.10 states that "Persons whose examination has been furthered and who fail to report for continuation of their examination are reportable for non-compliance under A41(a)." As long as the application has not been concluded, the refugee claimant is still the subject of an examination.
QuestionA minister is coming to Canada for a period of 2 years to perform religious duties as per R186(l). He is accompanied by his wife and 2 children. The minister is documented on a Visitor Record, with the condition not to study. The prohibition against working is not enforced, as he is allowed to work without a work permit. Do his children require a study permit?Solution DetailsSince the father is working under R186 the minor children can study in Canada under A30(2).
October 15, 2004 Page 718 of 779
Request IDIRPA00000001646ItemENF 04-5.20 Persons to be examinedCategoryENFORCEMENT: Examinations, Seizure and Transportation
QuestionA person who is on a valid work permit appears at the border (Customs - PIL). He did not enter the USA but made a U-turn before the US border and is now at PIL. A check is done and it appears that this person has been convicted in Canada of theft and is now inadmissible. This client is now seeking entry (and is reportable) even though he did not actually leave Canada, correct?
Solution DetailsYes, he is seeking entry and is reportable for the criminality.
QuestionWe have a foreign national (FN) who was allowed entry into Canada - passport stamped. He engaged in unauthorized study in Canada, but stopped studying. Can we restore him to visitor/tourist? Solution DetailsSee ticket No. 1665. Answer could be revised.R182 specifies that a FN can lose their temporary resident status as a result of failing to comply with a CONDITION imposed in R185(a), R185(b)(i) to (iii) as long as a work permit was issued or R185(c) as long as a study permit was issued. In your scenario, the FN was never issued a study permit; he could not then have failed to comply with a condition in R185(c) - restoration of temporary resident status in not an option. Pursuant to A47(b), he lost his temporary resident status on the day the officer determined that he failed to comply with any other requirement of the Act/Regulations, namely one of the conditions imposed pursuant to R183, that is (c). You may prepare a report A41(a) X A29(2) and transmit it to the Minister's delegate (DM) pursuant to A44(1) or if you really want to facilitate, you can only consider issuing a temporary resident permit (TRP) - ref: IP 1. He is also barred from obtaining a study permit under to R221 or work permit under R200(3)(e).
QuestionI am of the opinion that a person can make a verbal application for restoration and, assuming there is no other inadmissibility, restoration is done. Another colleague is of the opinion that restoration is not possible in this scenario & that an A44 report is mandatory. That opinion is based on the statement, in an answer to IRPA482, that states "Note: restoration is not an option: once an overstay appears before, or is brought before an officer the person loses the ability to apply for restoration, even within the 90 day period." I am of the opinion that this statement is correct, in the context of the scenario described (i.e. there is another inadmissibility, in addition to the overstay) but would be incorrect in the case of an overstay who comes to our attention within the 90 day period and there is no other inadmissibility.
Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered and/or approved by the appropriate Service Line. The CIC Legal Services Unit has not yet vetted the final version of this answer. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Service Line Answer is:Restoration is possible if TR status was lost as result of failing the conditions listed in R182. Note about the A44 report, it « may » be issued.
QuestionA foreign national (FN) applied for the renewal of his work permit. The renewal was refused (was unable to obtain HRDC confirmation). He currently has an application for permanent residence in Buffalo. Can we restore his temporary resident status?Solution DetailsR182 specifies that a FN can lose their temporary resident status as a result of failing to comply with a CONDITION imposed in R185(a), R185(b)(i) to (iii) as long as a work permit was issued or R185(c) as long as a study permit was issued. In your scenario, the FN, even if he was issued a work permit, is not in a situation described in R185(b)(i) to (iii), but in a situation where he does not meet the requirements of the Regulations for the issuance of a work permit under R200(1). So the restoration of his temporary resident status/visitor or temporary resident status/work permit is not possible. He must then leave Canada and, unless he meets the requirements of R198(1), he will have to apply for a work permit outside Canada. Of course, they can leave and re-enter as a visitor who does not have the right to work if they meet the requirements of the Act.
October 15, 2004 Page 720 of 779
Request IDIRPA00000001650ItemENF 07-15.30 Arrests with a warrantCategoryENFORCEMENT: Investigations, Stays and Removals
QuestionThis question follows up tickets No. 265 and 1389. I was looking at A55(1) and noticed that we cannot issue a warrant for a proceeding that could lead to the making of a removal order by the Minister under subsection A44(2). As of the 16th of December, 2002, most of these AWOL foreign nationals (FN's) will be out of status (we have reasonable grounds to believe that they will still be in Canada) and we can prepare A41(a) X A29(2) reports; unfortunately, as per R228(1)(c)(iv) - "failing to leave Canada by the end of the period authorized for their stay" is under the Minister's jurisdiction = no possibility of issuance of warrant for arrest under A55(1). On the other hand, through a very specific process put into place for the AWOL workers, we know that a majority of these FN's never actually worked on the farm as specified as a condition on their work permit, thus failing to comply with a condition imposed under the regulations. I looked at the table of non-compliance on CIC Explore for A41 reports and noticed that the "equivalency" for former A27(2)(e) X A26(1)(a) reports is A41(a) X A29(2) reports - line 16. However, under R228(1)(c)(iv), the Minister, as mentioned above, seems to only have jurisdiction for part of A29(2),namely for "failing to leave at the end.....", but it does not seem that he has jurisdiction for the other part of A29(2), namely "must comply with any conditions imposed under the regulations" (even if the table of non-compliance says otherwise). Would it then be possible to argue that this other part of A29(2) is under the jurisdiction of the Immigration Division under R229(1)(n) and then a warrant for arrest for an admissibility hearing could be issued under A55(1)? If that is the case, the table of non-compliance would need to be amended. If not, hopefully this very major omission will be addressed should there be amendments to IRPA as a lot of these FN's get involved in drugs and not being listed in CPIC is very unfortunate.
Solution DetailsThis question follows up tickets No. 265 and 1389.
QuestionThis is a supplementary question to ticket No. 1650 which was assigned to the Service Line. Going back to the table of non-compliance A41 - line 16. Former A27(2)(e) X A26(1)(a) reports = A41(a) X A29(2). R185 stipulates that officer may impose....conditions on a temporary resident (TR). 1) For example under R185(b)(i), it is clear that if a TR who was permitted as a condition on his work permit to work for employer "A" and changes to employer "B", he can be reported A41(a) X A29(2) for failing to comply with this specific condition. 2) What if pursuant to R185(b)(i), the TR was permitted as a condition on his work permit to work for employer "A", does not work for that specified employer, but, contrary to the above scenario, he does not work at all and "stays home" as a mere tourist. Could we argue that he failed to comply with a condition which is to work? 3) Same example, for a TR permitted as a condition on his study permit to study at a university under R185(c)(ii) in a four-year program under R185(c)(iv). He does not attend university at all and "stays home" as a mere tourist. Again, could we argue that he failed to comply with a condition which is to attend university?4) What if the TR was permitted as a condition on his work permit to work for employer "A", works for that specified employer for three months out of an allowed period of stay of 12 months, and then stops working and "stays home" as a mere tourist. Could we argue that he failed to comply with a condition which is to work? As per ENF 4 - section 13.19 which stipulates: "if an officer imposes conditions on a temporary resident concerning attendance at a school, working, or medical observations, an officer should also impose a condition requiring the person to furnish evidence of compliance with the conditions imposed, as a control measure, R185(e)(ii)". This would lead us to believe that if a TR is here to work, he must work or if he is here to study, he must study. He cannot just use the time allowed into Canada to become, on his own, a visitor/tourist without asking to vary or cancel the conditions.
Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has never been answered nor approved by the appropriate Service Line.Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.
QuestionI'm looking for clarification on the issue of children in Canada studying without a study permit. IRPA questions #1645 and #1441 seem to address the same issue but have different answers. That is, in both situations the parents are authorized to work in Canada without work permits but in one case it says the children don't need permits and in the other it says they do. Do their children need study permits or are they exempt under A30(2)?
Solution DetailsThe answer to # 1645 was modified. As per A30(2) they do not need Study Permits.
QuestionAn Enforcement Officer has an FN (from a visa-requiring country) in Canada. When he presents his passport, the officer finds no stamp or TRV. The officer reports the person A41(a) for A20(1)(b). Is A20(1)(b) only for POE cases? Should this person be reported for misrepresentation A40(1)(a) instead since he is already in Canada?Solution DetailsThe FN is already in Canada, he should be reported A41a) for A20(1)(b) or A18(1) for failing to hold a visa or other document required by A11(1). Moreover there is no stamp nor TRV in his passport. The officer should interview the person about their entry to Canada to determine whether the FN did not appear for his examination when he entered Canada as required by A18(1).To be able to apply A40(1)a) in such a case, the officer would need some kind of evidence suggesting that the FN entered Canada fraudulently by submitting fraudulent travel documents or by misrepresentation. Then the FN could be reported for misrepresentation and no TRV.
October 15, 2004 Page 723 of 779
Request IDIRPA00000001655ItemENF 04-13.10 Visa requirements for temporary residentsCategoryENFORCEMENT: Examinations, Seizure and Transportation
QuestionSomeone lawfully admitted to Canada from Hungary before imposition of TRV would like to go to USA and return to Canada within the validity of her original entry. Since it is contiguous territory and she was lawfully admitted to Canada, would she require a TRV to re-enter Canada? Would R190(3)(f) contiguous territory apply?Solution DetailsNo visa is required. The person is visa exempt under R190(3)(f).
Request IDIRPA00000001656ItemENF 10-10.10 Calculation of the applicable period for departure ordersCategoryENFORCEMENT: Investigations, Stays and Removals
QuestionIn reference to ticket numbers 693 and 901. In your answer, you have suggested the officer at the port of entry to put in an NCB in FOSS when a client leaves Canada, when the removal order is not in force. And when the removal comes into force, your last instructions states the following: "4. The officer should follow-up the case and mail the IMM0056 to the address provided by the person after the removal order has come into force under A49(2)." Can you explain to us how to complete the IMM 56; in particular Part C of the form. In the date of departure, do we put the date the client left or the date that the removal order came into force? Do you want remarks on the IMM 56? How do we distinguish between the date which the client left and the date the removal became into force, esp when the date of the removal order coming into force is after the date of the actual departure?
Solution DetailsWhen a person voluntarily departs Canada and their removal order is not yet into force, the Certificate of departure (IMM0056) should be completed accordingly: 1. At the time of the person's departure from Canada, the POE officer is required to complete the case particulars in part A of the IMM0056. In part B, the officer should obtain the person's signature beside the applicable removal order that will be enforced and leave the "date of confirmation" field blank as the removal order is not enforceable at that time. In part C, complete all fields except for the signature box. The "date of departure" field should be completed at the time of the physical departure from Canada. 2. After the removal order is enforceable under A48 and the person has departed Canada, the POE officer should complete the "date of confirmation" field in part A and sign the signature box in part C. The removal order will become enforced on the date of confirmation as indicated in part A.For further information on the procedures verifying departure of removal orders not into force, refer to questions #693 and #901
QuestionA Study Permit holder is working on the internet for a U.S. based company. They are receiving a cheque from the U.S.. Are they required to have a Work Permit?Solution DetailsYou will find in The FW Foreign Worker Manual , in section 5: Departmental policy; 5.1 OverviewWhat kind of activities do we not consider to be "work"?An activity which does not really 'take away' from opportunities for Canadians or permanentresidents to gain employment or experience in the workplace is not "work" for the purposes ofthe definition.Examples of activities not considered to be "work" include, but are not limited to:Long distance (by telephone or Internet) work done by a visitor whose employer is outsideCanada and who is remunerated from outside Canada.
Request IDIRPA00000001658ItemIP 02-13.20 Ineligible sponsorsCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionWhy is there a provision in Regulations (117(9)(c)) that states clearly that you can sponsor one spouse (and this would be the first in a polygamous situation as the marriage has to have been entered into while not married to others) and there is not a similar provision for common-law partners? Some have expressed concern that it appears that in the absence of a similar provision for common-law partners, one could sponsor multiple partners. The short answer is that if you have multiple common-law partners, you cannot sponsor any of them, not even the first, as none of the relationships are recognized in law.
Solution Detailssee OP-2, sections 5.22 , 5.23 and 5.27
October 15, 2004 Page 725 of 779
Request IDIRPA00000001659ItemFW-05.11 Work without a work permit [R186(j)]—Public speakersCategorySELECTION: Economic (Skilled Worker, Temporary Workers, Students, Provincial Nominees)
QuestionIn regard to R186(j), would you please provide definitions for the terms, "commercial speaker" and "seminar leader". There has been some discussion in this office that persons coming to provide training (not intra company trainers who now enter as visitors) for a period of no longer than 5 days might fall under this categoryThey are coming to provide training on the usage of equipment when this was not provided for under a sales agreement; persons hired by a business to provide technical training, for instance, a city hiring persons to provide training on how to locate water mains). It does seem to me, that these situations would fall under this category, as there is no "public speaking" involved in such scenarios. A clear definition of these terms would be most helpful.
Solution DetailsWe would support your broad interpretation of this regulation R186(j). Generally, the giving of a seminar or commercial speech implies that there will be an audience of people paying to hear and see the speaker. However, a company or a university might bring a person in to deliver a seminar or some training to a specific audience. For the examples you give, for instance, a trainer coming in for a period of no longer than 5 days to provide technical training, this person should be admitted under R186(j). Forcing a person who has the specific knowledge that they are hired to share to seek a confirmed work permit would not serve the interests of the Canadian company or organization, and would not necessarily benefit the Canadian labour market, given the short period.We will add this guidance to the FW manual.
Request IDIRPA00000001660ItemIP 01-17.3 Restoration of statusCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionStudent is on a study permit that authorizes him to work on campus. He begins post-grad work prior to receiving a work permit. Is he eligible for restoration within 90 days as per 185(b)(i-iii)? I am of the opinion he is.Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered by the Helpdesk but was never approved by the appropriate Service Line. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Helpdesk Answer is:Please look at ticket number 1262 which explains restoration of status.In cases where the FN was authorized entry as a TR within the student class, status can only be restored for losing status under R185(c).In this case you canot restore as per 185(b) .
October 15, 2004 Page 726 of 779
Request IDIRPA00000001661ItemIP 01-17.3 Restoration of statusCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionStudent is attending a publicly funded college, but the terms and conditions of his study permit prohibit him from engaging in employment. Starts post-grad work without a work permit. Is he eligible for restoration within 90 days since he should have been eligible to work on campus if he was in full-time attendance?Solution DetailsPlease look at ticket number 1262 which explains restoration.In this case since the FN(student) started work without authorization restoration cannot take place.
QuestionUnder Regulatory Impact, section II, page 186 - Temporary Foreign Workers, states:"Unenforceable removal orders" will be interpreted generously in order to allow access to the labour market until applicants are "removal ready". Does a failed RC who is applying either for Judicial review or PRRA, is eligible for a study permit?Are there fees involved?How do we assess when the individual is "removal ready" and the duration/validity of the study permit to be issued?
Solution DetailsR215(1)(d) allows foreign nationals who "are subject to an unenforceable removal order" to apply for a study permit from within Canada. A study permit should be granted to such an applicant if they meet the conditions noted in R216(a), (c), and (d). Regular application fees for a study permit apply. The duration of the study permit should be determined in the same manner as all study permits (i.e. according to length of program, etc.). When determining this, you are not required to assess if an individual is 'removal ready', as a study permit does not in itself give the right of temporary residence to a
QuestionIf someone was convicted of an offence in Canada under the Narcotic Control Act (which has been changed to the control drug and substance act), I would assume that I go by the legislation of the C.C.C. that was in place at the time of conviction, and I can report them 44 and issue a deportation order. The reason I ask is because possession under the NCA had no amount were the CDSA has a minimal amount for conviction. So someone who was convicted in Canada prior to the CDSA would be dealt with differently. Or if I go back to the NCA do I then have to also go back to the Immigration Act that was in force at the time of the persons conviction? I know that when I equate an American offence I go by the CCC of today even if there convictions were from 20 years ago, but as it is a conviction in Canada I do not have to do an equivalence, it make the situation different.
Solution DetailsIf the conviction was registered under the Narcotic Control Acts (NCA) the inadmissibility report would be for a conviction under the Narcotic Control Act. The notes at the beginning of the Controlled Drugs and Substances Act(CDSA) indicate the ongoing relevance of the NCA. Where there is a question of relevance for a conviction under the NCA you may wish to refer to the transitional provisions of the CDSA. An inadmissibility report that is written post June 28, 2002 would be under IRPA. You cannot go back in time and right a report under the Immigration Act.
Request IDIRPA00000001664ItemENF 27-13.10 Application for a Permanent Resident CardCategoryPERMANENT RESIDENT CARD (PRC)
QuestionI have in front of me an American citizen who was landed in 1959. She presented herself to our CIC seeking help in completing her application "Applying for a Permanent Resident Card (PR Card) - IMM 5445". On page 4 of the form it states: "If any of the required documents are missing, or photocopies are not clear, your application will be returned to you." "A certified copy of - your current passport or the passport you held at the time you became a permanent resident." Unfortunately, as many other American citizens, she does not have either of these passports since she does not intend, for the time being, to travel abroad except go to the U.S. where a passport is not required either to enter the U.S. or to come back to Canada. We checked Manual - ENF 28 but it does not contain any information on whether these American citizens (there are quite a few in Canada who are PR's) can be waived the requirement of applying for a passport prior to applying for their (PRC). Is it the intention of CIC to oblige these PR's who do not intend to travel abroad to apply for a passport even if they do not really need it or is there a way out. If so, then form IMM 5445 would have to reflect any solutions to the lack of a passport. I sent the client home and told the client that I will get back to her as soon as possible.
Solution DetailsThe requirements outlined in the application for a permanent resident card are taken directly from the regulations. R56(2)(c)(i) specifies a certified copy of the passport currently held by the applicant or the passport held at the time they became a permanent resident. Alternatives are provided in (ii) and (iii) for stateless applicants who are unable to obtain a passport. Permanent residents travelling to the United States by private vehicle will not require a PR Card, but PRs travelling by commercial carrier will require a PR Card to facilitate their return travel as of 31 December, 2003. The regulations do not provide an exemption from the passport requirement for citizens of the United States.
October 15, 2004 Page 728 of 779
Request IDIRPA00000001665ItemIP 01-24 Procedure : Work and study permitsCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionThis is a follow up to ticket No. 1647 vetted by the Service Line. We do not understand the answer and how to apply it to the following scenarios: 1) My example is concerning the student permits R221 scenario: if we accept someone for Humanitarian and Compassionate considerations (H&C) in Canada, he is here as a visitor but started to study in Canada without a study permit (SP). If he is barred for 6 months from being issued a SP as suggested in ticket No. 1647, it does not make sense to say that H&C's apply but he cannot request a SP.2) I have a person who applied for permanent residence still in process (approbation in principle accepted) in the category of spouse and common law partner in Canada class. This person has a valid visitor status. She started to work without a work permit (WP). May I restore her status and issue her a WP?
Solution DetailsProposed amendments to R200(3) will make it possible to issue a TRP authorizing a person in a situation described above to work or study in Canada. The recommendation is to wait until the amended regulations come into force.
QuestionThis question is similar to IRPA68. My question is regarding R229(3)(a) and where it is applied. If an exclusion order is issued inland and the subject of the order does not leave Canada as is required can they be written up again and sent to an admissibility hearing to seek a deportation order. According to 229(3)(b) this is a possible course of action. Please confirm if this can be done.
Solution DetailsAll of 229(3) refers to A44 reports that have been referred to the ID for an admissibility hearing. If the original allegation fell within the Minister's Delegate's jurisdiction, a report on the same grounds could not be written again, as the matter has been decided. If the officer is contemplating a report based on non-compliance with the exclusion order under A44(a), 229(3) (b) would preclude the member from issuing a deportation order as the exception "unless the failure(to comply) is the basis for the removal order" would apply. Moreover, the net gains of referring someone who is under removal order (exclusion) to an admissibility hearing once the person is located are very limited. The delay of the persons removal once they have been located, the use of CIC hearings and IRB resources and likely litigation offset the possible benefit, given that if the person should return within one year without consent, the MD can issue a deportation order.
October 15, 2004 Page 729 of 779
Request IDIRPA00000001668ItemIP 08-15.00 RefusalCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionClient submitted In - Canada Spousal application to Veg. Have not yet received AIP. Applicant leaves Canada to go to Hungary, now requires visa to enter Canada. V/O refuses to give her TRV. What is client's next step? Will the application continue in her absence or will they refuse as she does not meet criteria of in-Canada class?Scenario 2: What would happen if CPC-V had done AIP already and were now processing the application for landing?
Solution DetailsPlease look at Manual IP8 Sections 5.5 and sections 5.29.Since the application would be refused if the non-issuance of the visa negates the temporary residence status. The same would stand for scenario number 2. If the application has not been assessed by CPC you may want to counsel the sponsor to contact CPCV for possible withdrawal (would be eligible for a refund) and resubmit for processing of the application overseas. In the 2nd scenario would not be eligible for a refund. There have never been any guarantees that foreign nationals who leave Canada will be allowed to return or re-enter Canada even though they have an application for permanent residence pending in Canada. An In Canada Application for Permanent Residence submitted in the Spouse or Common-law partner in Canada class cannot be transferred or converted to a Family Class application for permanent residence outside Canada. The Spouse or CLP in Canada guide includes a warning about leaving Canada before permanent residence is received.
QuestionWe have a client who was ordered deported and lost his appeal (pre IRPA). He was a permanent resident ordered deported for criminality. He is serving his sentence and not eligible for release until December 2002. While he was serving his sentence he appeared on other charges and was recently convicted of summary offences. Is our client considered a foreign national or permanent resident until he is removed?
Solution Details24(1)(b) of the 1976 Immigration Act specifies that a person loses permanent residence when a removal order has been made against that person and the order is not quashed or its execution stayed pursuant to subsection A73(1).Your client would have lost permanent resident status and could be reported as a foreign national.
October 15, 2004 Page 730 of 779
Request IDIRPA00000001670ItemENF 02-12.30 Violators of human or international rights / security threats / organized criminalityCategoryENFORCEMENT: Inadmissibilities, Bonds, Removal Orders, Hearings
QuestionA sample A115(2)(b) notification letter is available in Appendix D of the Danger chapter ENF 28. The letter indicates the form of information that we are to consider when requesting a danger opinion on a person based on the nature and severity of acts committed.<relevant section>-------------------------------" If the minister is of the opinion that you are a person who should not be allowed to remain in Canada on the basis of the nature and severity of acts committed, you may be removed from Canada to the country from which you have been determined to be a convention refugee."" In order for the Minister to consider whether it can be reasonably concluded that you are a person who should not be allowed to remain in Canada on the basis of the nature and severity of acts committed, an assessment will be done on the threat that you pose to Canada. In addition, an assessment will be done on the possibility of risk, which could be precipitated by your return to (country of birth, nationality, permanent residence or from which they arrived."--------------------------------Looking at this material, it seems that once we have reported someone inadmissible A35, similar material must be submitted for the danger opinion, with the addition of H&C considerations and a weighing of the nature and severity of acts committed and any possible threat to the security and safety of Canada.This seems a bit problematic to me. Many of our clients have committed crimes against humanity or were members of organizations which have done so, but have not been involved with such actions for a significant span of time. If we are forced to prove that they are a continuing threat to Canada, obtaining the danger opinions could become very difficult. In other words, someone may have killed a lot of people in his country, but in Canada are going about minding their own business. What is it that we must consider (including the documentation that must be provided to the Minister) to be able to make a recommendation that they will continue to pose a threat to the Canadian public? Additional information on evidence required for a war crimes danger opinion would be appreciated. Section A115 IRPA, however seems to differentiate between the two, with subsection (2) stating:(a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada; or(b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada.At this time, I am unsure which interpretation is correct. If you could clarify this point for me, it would be greatly appreciated.
Solution DetailsWhen reading the Appendix D of manual ENF 28, you must also refer to section 7 of said chapter for the procedure to follow for a request for a ministerial opinion on danger to the public and to the security of Canada. The distinction between A115(2)(a) and 115(2)(b) is that a) is for danger to the public and b) is for danger to Canadian security. The determinant factors, the documentation and the procedure to follow are all explained in section 7 of manual ENF28.
October 15, 2004 Page 731 of 779
Request IDIRPA00000001671ItemENF 10-12.30 Person subject to a removal order has pending criminal chargesCategoryENFORCEMENT: Investigations, Stays and Removals
QuestionA person is going to an Admissibility Hearing for working without authorization. He currently has pending criminal charges (fraud) and a trial date has been set. If the person concerned is issued an exclusion order today for working without authorization, is it our obligation to inform him re the possibility of a stay of removal pursuant to A50(a)? Does it depend on the conditions of his release for the criminal charges? Basically, what are the officer's obligations in this case regarding A50(a)?
Solution DetailsIn order for an A50(a) stay to occur, there are specific criteria that must be met. These criteria are described in section 12.1. ENF10 and include: 1) a decision was made (including final judgements and interlocutory orders); 2) in a judicial proceeding; 3) at which the Minister shall be given the opportunity to make submissions; and 4) would be directly contravened by the enforcement of a removal order. The obligation on the part of the officer is to determine whether a stay applies and to take whatever action is necessary to ensure that removal can legally occur. If a stay applies, then removal cannot legally occur. Officers should follow the procedures set out in section 12.3. of ENF10 and will have to contact Crown counsel for determining when an A50(a) stay is applicable when criminal charges are pending. If officers are unsure whether a stay of removal may be applied under A50(a), the officer should consult with their regional program specialist and/or their regional justice liaison officer for further assistance.
Request IDIRPA00000001673ItemIP 01-17.3 Restoration of statusCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionCan I restore status in the following situation? The subject came to Canada as a student and completed his degree. He then received a post-graduate work permit as a psycho-therapist (code E08) which expired 04Jun2002. When he applied to renew he was refused by CPC Vegreville on 26/jun/02 as E08 cannot be extended beyond 1 year and subject was advised would require HRDC validation in order to extend. The subject subsequently submitted an application to restore status to visitor with an offer of employment as a pastor in a church. This appears to be the same church that he did his post-grad employment with. My questions; 1) Can he be restored to a status that he would no longer qualify for (one year only for E08)?2) Can I restore a status other then what he originally qualified for?
Solution DetailsI believe in this scenario the person would qualify for restoration if his application for the new work permit is made within 90 days of the expiry of his original work permit.
QuestionFurther to IRPA 1666:To clarify an officer cannot use R229(3)(a) provision? Why does 229(3)(a) exist in the regulations if it is not meant to be used? More specifically if someone is issued an exclusion order and stays underground for example 3 years before we locate them there is no further repercussion than the original order of one year? What then is the incentive to appear for removal if nothing further can be done against someone who is the subject of a removal order? It would be like choosing which year you would like to leave Canada for. As well it is also my impression that locating illegals in Canada is an expensive undertaking, therefore would it not be more cost effective in the long term to seek higher enforcement orders as a deterrent to not complying with an original order?
Solution DetailsAs stated in the earlier answer section 229(3) refers to section 229(1) and applies when there is an admissibility hearing. Section 229(3) will be used when a person is at an admissibility hearing and there is evidence that section 229(3) applies. In these circumstances the Immigration Division shall issue a deportation order.
Request IDIRPA00000001675ItemENF 23-7.10 Calculating days physically present in CanadaCategoryENFORCEMENT: Examinations, Seizure and Transportation
QuestionA student, date of birth 5-7-65, was issued a study permit by a visa officer. He entered Canada on 27-08-2000 and his student status at Concordia University expires tomorrow, October 31, 2002. He claims to still have permanent resident status, which was granted in Winnipeg on January 8, 1971, to him and his parents. This proof is included in the file. He says that he left Canada with his parents in September 1973 and only returned to Canada on August 27, 2000. Naturally, he claims that an immigration officer told him over the phone that he had not lost his permanent resident status because he left Canada as a minor with his parents, who had made the decision to leave. This is why he is now claiming this right. The officer already conducted his evaluation and established that there are no valid humanitarian concerns in this case. If the date of examination according to A28 is today, this claimant has been in Canada for more than 730 days (in Canada since 27-08-2000). This means that he would have fulfilled the residency obligation set out in A28, and the officer should thus confirm his permanent resident status.
Solution DetailsYes. If no absence from Canada since August 2000, A 28 is met and subject is PR, provided subject was not deported in 1973.
QuestionThis is the second scenario under ticket no. 1597. We decided to separate them.Could you explain the fees to be paid for the principal applicant in the following cases? I am asking the question because there is not necessarily agreement between the kits and the Regulations (according to the interpretation given here):In-Canada humanitarian and compassionate application from a rejected refugee claimant who is less than 22 years old - $550 for the principal applicant even if he is less than 22 years old [R307(a)] and $975 for the principal applicant even he is less than 22 years old [R303(1)]? Reference to kit IMM 5291.
Solution DetailsThe person who applies for permanent residence on humanitarian and compassionate grounds must pay $550 to have his application processed if he is the principal applicant, regardless of his age. The fees set for members of his family are $550 if they are over 22 years old or are married or in a common-law partnership and $150 if they are less than 22 years old AND single. [R307]With respect to the $975 required to acquire permanent resident status, as a general rule, it has to be paid for the principal applicant who submits an application on humanitarian and compassionate grounds, regardless of his age, and any other member of his family who is not his dependent child or the dependent child of his wife or common-law partner or even the dependent child of that dependent child (grandson or granddaughter) [R303(1) et R303(2)a)]
Request IDIRPA00000001677ItemENF 14-7.10 When is deemed rehabilitation applicable?CategoryENFORCEMENT: Investigations, Stays and Removals
QuestionI have this client here who has multiple convictions outside Canada, the eldest one back in 1985. Some I can equate, other I cannot since I do not have sufficient information. Am I right in understanding that if some of them I can equate to A36(1)(b), the deemed rehab provision does not apply?Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered by the Helpdesk but was never approved by the appropriate Service Line. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Helpdesk Answer is:A person can be considered for the "deemed rehabilitated" provision only for convictions or commissions of an act outside of Canada that can be equated to a sentence of LESS THAN 10 years. It also applies to two or more summary convictions in Canada or outside Canada not arising out of a single occurrence. R18(2)
QuestionWe repeatedly get applications for student permits from minor children who are the dependants of US Citizens who are applicants for Permanent Residence in Canada. Most often, these children are the stepchildren of Canadian citizens. It would appear that A 30(2) does not exempt them from the requirement to obtain student permits if the parent is an AFL documented on a visitor record. Requiring these children to obtain student permits does not seem consistent with the spirit and intent of the legislation which was to allow children who should be in school in Canada to do so without a permit. Please
Solution DetailsSubsection 30 (1) of the Immigration and Refugee Protection Act (Act) stipulates that a foreign national may not work or study in Canada unless authorized to do so under the Act. Section 212 of Immigration and Refugee Protection Regulations (Regulations) stipulates that a foreign national (minor or of a legal age) may not study in Canada unless authorized to do so by a study permit or the Regulations. Furthermore the subsection 30 (2) of the Act clearly stipulates that every minor child in Canada, other than a child of temporary resident not authorized to work or study, is authorized to study at the pre-school, primary or secondary level. Therefore if the minor children described in the present situation are dependents of US Citizens who are applying for a Permanent Residence in Canada and are temporary residents who are not authorized to study or work in Canada then these children are not authorized to study in Canada at the pre-school, primary or secondary level without a study permit. However you might want to specify that section 188 of the Regulations enumerates situations which allowed a foreign national (minor or of a legal age) to study in Canada without a study permit.
October 15, 2004 Page 735 of 779
Request IDIRPA00000001679ItemENF 11-18.00 Procedure: Options available after being refused entry to another countryCategoryENFORCEMENT: Investigations, Stays and Removals
QuestionSection 18 of ENF 11 of the IRPA manuals set out 3 options available to an officer at the port of entry who encounters a foreign national who was issued a certificate of departure but was refused entry to another country. They are:1) Allow the person back into Canada pursuant to R39(a)2) Impose conditions and/or a bond under A44(3)3) Arrest and detain for removal under A55(2)While I concur with the utilization of options # 1 and # 3, I am not so sure that option # 2 is available in this instance. My understanding of A44(3), is that it applies at the time that the foreign national is made the subject of a report, an admissibility hearing, or a removal order. I do not believe that it extends to any time after these procedures have occurred. As it reads, option # 2 appears to suggest that A44(3) can be applied to impose conditions and/or take a security deposit or guarantee any time after a foreign national is under removal order. I wonder about the legality of this position. It would seem that once the foreign national has been subjected to the procedures set out in A44(3), the matter has been dealt with and cannot be revisited by another officer at a later date. I believe that the only time an officer could impose conditions and or a security deposit or guarantee on a foreign national under removal order who was refused admission to another country, is if the foreign national is arrested and detained for removal under A55(2) (option # 3) and an officer subsequently orders the release of that foreign national under A56.Would you please seek clarification from service lines on this matter?
Solution DetailsIn the scenario described below, a deported person returns to a POE after having been refused entry by their country of destination. Under those circumstances, the Certificate of Departure is cancelled. The person, therefore, remains subject to the original removal order, and conditions may, therefore, be imposed under A44(3). See Sections 14.1 and 14.2 of ENF 4 which deal with bounce backs. For more information refer to manual chapter ENF 11, Verifying Departure. For guidelines on certificate of departure cases, see ENF 11, Verifying Departure. Seizure of documents - See ENF 12 for procedures relating to the seizure of documents.If the person is in possession of any travel or identity documents, the officer should consider whether it is appropriate to seize the documents to facilitate their future removal from Canada. The documents would be forwarded to the office handling the removal.
October 15, 2004 Page 736 of 779
Request IDIRPA00000001681ItemIP 02-5.00 Departmental PolicyCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionAccording to R124(b), foreign nationals must have temporary resident status to be considered part of the spouse or common-law partner in Canada class. Therefore, what should we say to a client who wants to sponsor her refugee claimant spouse who has no status in Canada and who asks us whether she can sponsor him through CPC Mississauga (eg: application processed in Buffalo)?
Solution DetailsIt is correct to indicate that refugees do not have temporary status and can therefore not qualify in the Spouse or CLP in Canada Class. The sponsor can submit an application to sponsor and permanent residence application to CPC-Mississauga for processing through Buffalo as long as her spouse has had valid status in Canada for one year.
Request IDIRPA00000001682ItemENF 06-19.00 Decisions to refer a report to the Immigration Division of the IRBCategoryENFORCEMENT: Inadmissibilities, Bonds, Removal Orders, Hearings
QuestionI am looking for clarification on question #1235--limited delegation for long-term permanent residents. Must the PR meet all three criteria (landed before was 18, PR for 10 years and ineligible for appeal) in order for the delegation to rest with the Director, Case Review, NHQ? Or is only one of these sufficient to have the report referred to NHQ?Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered by the Helpdesk but was never approved by the appropriate Service Line. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Helpdesk Answer is:Enforcement manual 6 section 19.3 states "Reports concerning long term permanent residents who: became permanent residents before attaining the age of 18 years; and were permanent residents of Canada for a period of 10 years before being convicted of a reportable offence or, in cases not involving a conviction, the preparation of the A44 report; and would not have a right to appeal a decision of the Immigration Division to the Immigration Appeal Division by virtue of A64 of the Immigration and Refugee Protection Act must be referred to the Director, Case Review, Case Management Branch, NHQ for a decision."
October 15, 2004 Page 737 of 779
Request IDIRPA00000001683ItemIP 05-5.8 Second-step assessment: Toward the decision to confirm permanent residenceCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionSubject is in Canada approved as FC1 pre IRPA. Now medically inadmissible (excessive demand only). Subject's application must be refused because of inadmissibility. Options: put subject on a TRP for three years & then she would be eligible for processing under Permit In Canada Class. OR subject can submit new application under IRPA and not be inadmissible and proceed to landing. However, does medical inadmissibility cause subject to lose visitor status? If yes, subject may be excluded from FC category (i.e. no valid status) & therefore cannot benefit from EDE.How would we proceed in these cases?
Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered and/or approved by the appropriate Service Line. The CIC Legal Services Unit has not yet vetted the final version of this answer. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Service Line Answer is:There are no provisions in IRPA to convert pre-IRPA H&C applications into Family class applications. Since the applicant is inadmissible for excessive demand, the H&C application should be refused as per IP-5. In light of the particular circumstances of this case, consideration should be given to the issuance of a TRP.An applicant in the Spouse or Common law partner in Canada class who meets all the requirements of the class would not fall out of status because of the excessive demand provision. Pursuant to A47 a foreign national (FN) loses temporary status upon ''determination'' that the FN has failed to comply with the requirements of the Act. If at the time of the ''determination'' the applicant falls within the exceptions of A38(2), then this person is not considered to be inadmissible.
Request IDIRPA00000001684ItemPP 04-10 Assessing Admissibility: for Granting Permanent Residence Status to a Protected Person and Family MembersCategoryREFUGEE: Resettlement
QuestionIn accordance to the current instruction, in Canada applicants for landing can be granted permanent residence status if their medical examinations have occurred within the last 18 months until 31Dec02. Is this also apply to the persons who were deemed to be Convention Refugee since they can be landed even they failed meds?Solution DetailsThe 18 month policy was created as a temporary measure to facilitate permanent residence to applicants whose meds may expire due to backlogs. As per IR3, medical validity is 12 months from the date of the immigration medical examination. If the medical validity has expired and the immigration medical examination was conducted within the last 24 months an extension may be requested from Medical Services Branch. Protected Persons and their accompanying family members are required to undergo an Immigration Medical as per R30(1)(a) and the medical must be valid at the time permanent residence is granted.
October 15, 2004 Page 738 of 779
Request IDIRPA00000001685ItemIP 05-5.19 SponsorshipCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionI have an application on humanitarian and compassionate considerations (H&C) for a dependent daughter sponsored by her mother FC 3 accepted at step 1 prior to IRPA. I currently have information to the effect that her mother is on welfare, however, the daughter is working. How do I apply R133(1)(k)?Solution DetailsSponsorship that accompanies an H&C application is not a sponsorship within the meaning of the regulations. It is not a legal requirement, however, CIC will accept a "sponsorship" when the Canadian citizen or permanent resident meets the same requirements in the regulations in order to support the bona fides of a relationship and to the admissibility requirements related to ability to support (A39). When you assess the sponsorship you should use the requirements in the regulations for sponsorship (including R133(1)(k)) as a guide - it would not be in Canada's interest to accept an undertaking from someone who is supporting an H&C application when we do not do the same for family class applications. For example, someone who is convicted of spousal abuse is not allowed to sponsor in the family class, therefore, this should be a consideration when you assess the H&C sponsorship. If the Canadian citizen or permanent resident does not meet the requirements, the sponsorship should be set aside and the H&C application should be considered independent of the sponsorship.
Request IDIRPA00000001686ItemIP 02-14.00 Assessing bars to sponsorshipCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionCan a person sponsor his mother, if that person has signed a 10 year undertaking (still in force) for the sponsoring of his child?Solution DetailsThe person can sponsor his mother notwithstanding that a previous undertaking for his child is still in effect. There are only two restrictions on the number of undertakings a person can give. A person cannot sponsor a second spouse or partner if an undertaking for a previous spouse or partner is still in effect [R117(9)(b)]. Sponsor has to comply as well with the requirements of division 3 of part 7(sections 130-137) of the Immigration and Refugee Protection Regulations. Sponsors cannot file a second sponsorship application on behalf of the same person if a final decision (including a decision on an appeal to the IAD) has not been made on the first application [R10(5)].
October 15, 2004 Page 739 of 779
Request IDIRPA00000001687ItemENF 14-14.00 Procedure: Conversion of foreign monetary values for criminal equivalenceCategoryENFORCEMENT: Investigations, Stays and Removals
QuestionSection 14 of ENF 14 of the IRPA manuals on criminal rehabilitation sets out that when determining equivalency for offences involving monetary value, the exchange rate in effect at the time of the application should be used. This is not accurate. The 1986 Federal Court of Appeal decision in Kent Douglas DAVIS and the Minister of Employment and Immigration held that it is the exchange rate on the date of the commission of the offence in question.Is it means that the date of conviction must be considered?What is the opinion of the appropriate service line, so that the manual can be amended.
Solution DetailsENF 14/OP 19 Criminal Rehabilitation of the IRPA Manuals, states that in the course of converting foreign currency to Canadian currency so that criminal equivalency can be established, "the exchange rate in effect at the time of the application should be used". In an immigration case (Kent Douglas Davis) heard a the Federal Court of Appeal on the same issue, the court ordered the adjudicator who heard the case to use the respective exchange values on the "date of commission of the offences" with which the applicant was charged. The present policy of CIC using "the exchange rate in effect at the time of the application" is therefore at variance with the Davis decision.During my research, I failed to come across any decision that has over turned the Davis decision. It is therefore my opinion that CIC should modify its policy to be in line with the Davis decision.Facts: Mr. Kent Douglas Davis, an American, had told the CIC adjudicator who initially heard his immigration case that he had been convicted of theft of over $750.00 in Texas, USA, although he was unaware of the exact amount involved. The CIC adjudicator determined that Mr. Davis had committed the offence of theft of over $750.00 under the Texas statute and drew the equivalent with the Canadian offence of theft over $1000.00 on the basis of the exchange rate between American and Canadian money.The adjudicator stated:"I am satisfied that I can take judicial notice of the standing of the Canadian dollar as opposed to the American dollar… in looking at your case from the point of view that it was at bare minimum of $750.00. I must find that theft conviction in Texas finds an equivalent under Canadian law. That is had all these occurred in Canada, under Canadian law, and you were convicted for it under Canadian law, that this would occur under Section 294 of the Criminal Code".Mr. Davis appealed the adjudicator's decision to the Federal Court of Appeal. On June 19, 1986, the Federal Court of Appeal sitting in Winnipeg, Manitoba, referred the matter back to the adjudicator for reconsideration at a new Inquiry on the following basis:(a) "that the Adjudicator is ascertaining any differential in exchange values of the Canadian and the United States dollars ensure that evidence is adduced a to the respective exchange values on the "date of the commission of the offences" with which the applicant was charged in Texas before determining the equivalency of the Texas law for such offences with the Canadian law".
October 15, 2004 Page 740 of 779
Request IDIRPA00000001688ItemENF 07-15.12 Arrests without a warrantCategoryENFORCEMENT: Investigations, Stays and Removals
QuestionA55(2)(b) - Legal opinion re powers of arrest without warrant for identity - "An officer may without warrant, arrest and detain a foreign national, other than a protected person, (b) if the officer is not satisfied of the identity of the foreign national in the course of any procedure under this Act" - the term "any procedure" is unclear. In our training the opinion (Dept. of Justice) was expressed that an investigation was not a satisfactory qualifying procedure for purposes of this section. The ability to arrest for identity is an important issue and requires clarification.
Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered and/or approved by the appropriate Service Line. The CIC Legal Services Unit has not yet vetted the final version of this answer. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Service Line Answer is:May 28th, 2003 - Issues still under consideration
Request IDIRPA00000001689ItemENF 20-5.80 IdentityCategoryENFORCEMENT: Arrest and Detention
QuestionWhen trainers were taught about IRPA, they were told that A55(2) (b) allowed an officer to arrest and detain a foreign national, other than protected persons if they were not satisfied of the identity of that person under any procedure under this Act. However, we were cautioned that an investigation was not considered to be a procedure under this section. The manuals do not seem to contain this caution, nor does there appear to be any legislation that precludes the application of an investigation when applying A55(2)(b). Is there anything wrong in encountering an individual -during an investigation-and arresting/detaining them if they refuse to answer questions regarding their identity or status in Canada? Even if there are 'reasonable grounds' to believe that they are inadmissible? Can A55(2)(b) only be used when an individual approaches an officer for an application, or when brought to us by the police? What do we need know about this limitation, if there is one?
Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered and/or approved by the appropriate Service Line. The CIC Legal Services Unit has not yet vetted the final version of this answer. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Service Line Answer is:May 28th, 2003 - Issues still under consideration
October 15, 2004 Page 741 of 779
Request IDIRPA00000001690ItemPP 04-11 Processing Family Members OverseasCategoryREFUGEE: Resettlement
QuestionRequest to include a spouse by the principal applicant accepted in Canada as a refugee or protected person where fraud is evident:Under the former Act it was not possible to refuse the inclusion of a dependent person by a refugee (most of the time a spouse) even if we had serious indications that the relationship was not genuine.Has R4 been implemented in order to allow us to refuse the inclusion if we are not satisfied with the relationship between the principal applicant and the presumed dependent person? [R(4)]
Solution DetailsR4 stipulates that a foreign national shall not be considered,if the marriage, common-law partnership,. . . . adoption is not genuine AND was entered into primarily for the purpose of acquiring any status or privilege under the Act. The definition of "foreign national" under IRPA is: a person who is not a Canadian citizen or a permanent resident, and includes a stateless person. Thus, a protected person is a foreign national and R4 applies to that person.
October 15, 2004 Page 742 of 779
Request IDIRPA00000001692ItemENF 04-11.10 Permanent resident statusCategoryENFORCEMENT: Examinations, Seizure and Transportation
QuestionIf a Permanent Resident was ordered deported under the previous Act and appealed that decision to the Appeal Division but left Canada before June 28, 2002 (without verifying their departure) and wishes to come back to Canada for their appeal hearing do they need to apply for permission from the Appeal Division or CIC or is their order considered to not be in force pursuant to A49(1)?
Solution DetailsThat person can return as the removal order has not yet been enforced and the appellant is coming back for the hearing of the appeal of the order. The removal order is not into force under A49(1)(c). However, the person, as with all permanent residents, is required to demonstrate compliance with A28, independent of any other action that is under way.In this scenario a removal order has been issued against a permanent resident. The person concerned has filed an appeal (under the former Act) of the removal order with the IAD, and the appeal has not yet been heard. In addition, the person has left Canada, without voluntarily enforcing the removal order issued against them and wishes to return to Canada for the purpose of the hearing of the IAD appeal.A person who was a permanent resident immediately prior to IRPA's coming into force remains a permanent resident R328. The appeal that was filed with the IAD under the Immigration Act is continued under A192 (assuming that the person concerned is not inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality A64 and A196). The removal order itself is still valid R319.The matters associated with the appeal and the individual's status in Canada are governed by A190.According to A49 a removal order comes into force on the latest of the following dates: {c} the day of the final determination of the appeal, if an appeal is made.As a result of this section, combined with A 46 and A 48, the person retains PR status and the removal order is not in force and therefore not enforceable, provided that the absence from Canada has not resulted in a failure to meet the residency requirement A28. The person may therefore be readmitted to Canada pursuant to A27 and A19(2).
October 15, 2004 Page 743 of 779
Request IDIRPA00000001693ItemENF 19-3.3 IAD RulesCategoryENFORCEMENT: Inadmissibilities, Bonds, Removal Orders, Hearings
QuestionAppeal filed by a sponsor to the Immigration Appeal Division (IAD) prior to the implementation of IRPA on 26/06/02. Counsel argues that the IAD should apply the new rules. I intend to argue that the old Act prevails. Could you confirm?Solution DetailsPursuant to A192, a notice of appeal filed to the IAD immediately before the coming into force of IRPA, the appeal shall be continued under the FORMER ACT by the IAD.A196 and A197 are some exceptions of appeals filed to the IAD prior to IRPA but where IRPA applies.
Request IDIRPA00000001694ItemENF 04-5.20 Persons to be examinedCategoryENFORCEMENT: Examinations, Seizure and Transportation
QuestionA15(1) says that an officer is authorized to proceed with an examination where a person makes an application to an officer (application = R28(b)seeking to enter Canada).Following R27(2), A person who seeks to enter Canada at a place other than a port of entry must appear without delay for examination at the POE that is nearest to that place. If the person does not appear at the nearest POE: (A) Is he under examination even if he did not see an officer?(B) Can we issue a warrant for examination under A55(1)?
Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered by the Helpdesk but was never approved by the appropriate Service Line. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Helpdesk Answer is:The person is required to present themselves for an examination at the nearest Port of Entry in order to determine if the person seeking to enter Canada has a right to enter Canada or is or may become authorized to enter and remain in Canada, as per A18(1). If the officer has reasonable grounds that the person did not appear for an examination within a reasonable amount of time along with the persons tombstone data, the officer may write an A44 report for non-compliance coupled with A18(1). Once a report has been written a warrant may be issued for the Arrest and Detention of the foreign national under A55(1).
QuestionIn regard to question 1659: I would appreciate further clarification in regard to R186(j) and training under NAFTA: After Sales Service. 1) I will assume, unless otherwise directed, that this section would not supersede NAFTA requirements; i.e. - training performed on industrial and commercial equipment manufactured outside Canada. NAFTA allows for this training, if this service was provided for in the original sales agreement for the equipment. 2) Considering that NAFTA is based on reciprocity, I would assume that R186(j) would not be appropriate in these cases - as, this would not be a benefit afforded Canadians under NAFTA seeking entry to the US.3) Further, I am also assuming that the 5 days allotted is a total. In other words, someone in this category cannot leave Canada after 5 days and start again at day one for the same job. Your earliest response would be appreciated, as this is a scenario dealt with at the POE on a daily basis.
Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered and/or approved by the appropriate Service Line. The CIC Legal Services Unit has not yet vetted the final version of this answer. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Service Line Answer is:Your assumptions are correct. The answer given in 1659 was a bit too broad, we now think. For the purposes of R186(j), we will use the dictionary definition of 'seminar', which is a small class at a university, etc. for discussion and research, or a short intensive course of study, or a conference of specialists. Commercial speakers are people who sell tickets or registrations to people who come to hear them speak on a particular topic.
October 15, 2004 Page 745 of 779
Request IDIRPA00000001697ItemENF 04-7.60 CriminalityCategoryENFORCEMENT: Examinations, Seizure and Transportation
QuestionWe have a client who in July 1997 was convicted of a DUI in the State of New York, had to pay a fee which he paid the same day. He then moved back to his home state, Michigan, and because he was convicted for DUI in another state and, in his state, for the same offence you get an automatic suspension of your driver's license, his license was suspended by the "license department" of Michigan somewhere in April 1998. It would seem that there exists a reciprocal agreement between some states and some provinces in Canada where if there is a conviction they inform the other state of this conviction and whenever a resident goes back, he is penalized as if he would have been convicted in his state, namely Michigan in this case. They do not go back to court.He wants to apply for rehabilitation, but we would like to know when does the 5 year period starts: is it in July 1997 or April 1998?
Solution Detailsa person may apply to satisfy the Minister that he is rehabilitated five years following the completion of his sentence. A sentence is not necessarily jail time. It can be the imposition of a fine or that the person simply has to pay the court fees (which is like a warning). Therefore in the present case, the fact that another State takes an administrative measure and suspends the person's license is not part of the sentence unless it is clearly stated in the conviction decision that the sentence is a fine and suspension of the driver's licence. Therefore, in this case the 5 year period ended upon completion of the sentence which was payment of the fine in July 1997. It is important that the suspension be part of the sentence in order for it to count for the determination of the 5 year time clock. If the conviction and sentence mentions that the license is to be suspended when he goes back home or whenever, then the period of suspension is part of the sentence and it must be completed before the 5 year period starts.
QuestionI would like to draw your attention to a file that we dealt with in our office lately. It concerns a French citizen who was admitted on September 13, 2001 as a foreign worker ending on August 28, 2002. On August 15, 2002, he requested an extension of his status, but as a visitor. On September 15, 2002 we assessed his application and have refused to extend his visitor status. On September 16, 2002, subject was out of status thus failing to comply with R185(a). On September 25, 2002, subject presented himself to our office with a new letter from his former employer and wanted his status restored to his initial status, namely worker. In this particular case, taking into account that I am not sure that the client will leave Canada at the end of his authorized stay, I am of the opinion that A29(2) could apply. Am I obliged to restore him in his status pursuant to R182?
Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered and/or approved by the appropriate Service Line. The CIC Legal Services Unit has not yet vetted the final version of this answer. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Service Line Answer is:In order to restore status, you still have to be satisfied that he meets the initial requirements for the stay (R182) and the FN will leave by the end of the period authorized (R200) and of course, A29(2).
Request IDIRPA00000001699ItemPP 01-13.10 Circumstances where a claimant is ineligible for consideration by the RPDCategoryREFUGEE: Asylum: Making a Claim
QuestionParagraph 101(1)(a) of IRPA sets out that a claim is ineligible to be referred to the Refugee Protection Division if refugee protection has been conferred on the claimant under this Act.Section 13.1 of PP 1 of the IRPA manuals lays out the intent of paragraph 101(1)(a), namely that persons who have already been determined to be refugees in Canada are not eligible to make another claim, as a person can only be deemed to be a refugee once. The wording of A101(1)(a), however, appears to suggest that the only persons who can be found ineligible under this provision are those upon whom refugee protection has been conferred under IRPA, as the use of the words "under this Act" appears to limit this provision to the current Act. If that is the case, persons who were found to be refugees under the former Act can still be eligible to make a claim under IRPA.It appears that paragraph 101(1)(a) of IRPA was meant to be a roll over of paragraph 46.01(1)(d) of the former Act, but I wonder if that has been accomplished by the wording utilized. Is this another one of those situations where the intent of the provision was not properly conveyed in the drafting of the legislation and an amendment is required to correct the oversight, or am I missing something?
Solution DetailsR338(a) provides that 'Refugee protection is conferred under the IRPA on a person who has been determined in Canada before the coming into force of this section to be a Convention refugee and...' So, A101(1)(a) *does* apply to persons determined, pre-IRPA, to be Convention refugees.
October 15, 2004 Page 747 of 779
Request IDIRPA00000001700ItemIP 01-6.3 Permit holders class (R64 and R65)CategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionI have a client (family) who have been in Canada for over 5 years. The husband is a minister on continuous Visitor Records, and the wife has been on Minister's Permits for the same period. Under IRPA, she is now eligible to apply for PR status. She becomes the principal applicant, and the rest of the family are now dependants. My question is... Which application do these people fill out, they have received conflicting answers.
Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered and/or approved by the appropriate Service Line. The CIC Legal Services Unit has not yet vetted the final version of this answer. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Service Line Answer is:In ticket Nol 1605, we can read: "This 10/10/02, we have been informed by the service line that the kits should be available in a few weeks. In the meantime, they can use the IMM 5002 and add a field at the top of the form and write "Permit Holders Class". http://www.cic.gc.ca/english/pdf/kits/forms/IMM5002E.PDFOn CIC Explore = http://www.cic.gc.ca/english/applications/menu-inside.html and you will notice that the kit is not available yet. So until further notice, ask your client to complete IMM 5002 for the purpose of her application for permanent residence in the Permit Holders Class.
QuestionTwo answers were recently distributed to us by Ontario SIR - IRPA 1441 and 1645. 1441 refers to the children of farm workers who are working in Canada. 1645 refers to the children of a minister working in Canada. Neither of these workers require work permits. 1441 says the children can attend school without study permits, as the parent is "authorized to work". 1645 says they NEED study permits because the parent does not hold a work permit. The legislation only refers to a parent "authorized to work", not/not to a work permit, so I believe the answer to 1441 should also apply to the situation in 1645. Please advise.
Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered and/or approved by the appropriate Service Line. The CIC Legal Services Unit has not yet vetted the final version of this answer. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Service Line Answer is:Tickets No. 1441 and 1645 now have a similar answer, namely that minor children of a foreign national for the purpose of A30(2) are allowed to study without a study permit if the foreign national is authorized to work WITHOUT a work permit. For the purpose of A30(2) it is not the document that guides its application but the AUTHORIZATION to work. So in these two specific situations the minor children can study without a study permit.
October 15, 2004 Page 748 of 779
Request IDIRPA00000001703ItemENF 04-8.40 Right to counsel at port of entry examinationsCategoryENFORCEMENT: Examinations, Seizure and Transportation
QuestionFollow up question to ticket No. 381.It is a settled fact that there is no right to counsel at examination (Deghani, etc.). Once a person has been detained/arrested A55(3) for continuation of examination and is given Charter Rights (Rights to Counsel), allowed to contact counsel, etc., and they are then brought back the next day, do they then have the right to have counsel present, if counsel is available and ready to proceed obviously, at the examination which is now taking place? My own opinion is that they do, as the right to counsel cannot be given and then taken away the next day. However, I think that this is a point that needs some clarification.
Solution DetailsThe facts of the matter are as follows:Legal Services has already answered an earlier question on the issue of "right to counsel at an examination". The answer from CIC Legal Services is that there is no legal right to be represented by counsel at an examination. See IRPA Question # 381 You have asked the present question on the same issue but with a slightly different factual situation. In the present scenario, the foreign national has been arrested and detained pursuant to A. 55(3), for an examination. The examination was started, then suspended and the foreign national was detained to appear the next day for the continuation. Meanwhile, the foreign national was advised of the right to counsel and he or she retained one. Counsel was available to represent the foreign national when the examination resumed the next day. Your question is whether the foreign national has a right to counsel since the "right to counsel" is a right that cannot be given and taken away the next day. The law:A. 55(3) of IRPA states that: "A permanent resident or a foreign national may, on entry into Canada, be detained if an officer (a) considers it necessary to do so in order for the examination to be completed".Assumption:It is CIC's policy that there is no right to counsel at an examination for admissibility, which includes secondary examination, so long as the examination does not go beyond what is required to establish admissibility. From the facts as you have presented them, I have assumed that the foreign national you have in mind was kept overnight at a CIC detention facility and was not given the freedom to go and come back the next day. If that is what happened then the examination went beyond what is required to establish admissibility. The foreign national was detained as contemplated by s. 10(b) of the Charter and so is entitled to the services of counsel at the resumed examination.Opinion:From the foregoing analysis, it is my opinion that the detention is the type contemplated by s. 10(b) of the Charter and so this foreign national is entitled to the services of counsel at the resumed examination the next day.
QuestionWe have concerns that the response to Ticket Item 1483 did not fully address the issue.It is our understanding that the intent of policy changes in C12 surrounding intracompany transferees introduced at IRPA implementation were to simplify the myriad requirements that existed in the General Provision and the provisions contained in the international agreements, namely the NAFTA, CCFTA, and the GATS.It is also our understanding that a decision was made to treat executives, senior managers, and specialized knowledge workers under the General Provision no differently from how they are treated under the NAFTA, at least as far as qualifying for consideration in this category.The intention as we understand it was for executives, senior managers, and specialized knowledge workers to qualify for this category as long as they have been employed for 1 year in the previous 3 years with the company that is transferring them to Canada. This is no different from the requirements for consideration under the NAFTA and now allows for citizens of all countries, including Americans and Mexicans, to benefit for consideration under C12.As we understand it, the issue in the original question was: if someone was not currently employed abroad by the company transferring them to Canada, then they did not qualify for consideration under C12. The questioner felt that this was supported by the first item in the bulleted list in S. 5.31, page 31, of the FW Manual despite the fact that the previous page which spells out the eligibility criteria clearly allows for this.If the intent of the policy change was to allow intracompany transfer applicants to qualify for consideration under C12 as long as they were employed for at least 1 year in the previous 3 years, this means that indeed some applicants would not be employed by the same company immediately prior to transferring them in Canada.If the policy changes were intended to allow for this it is our suggestion that the first item in the bulleted list on page 31 of the Manual be reworded to reflect this.Please advise if this interpretation is correct.
Solution DetailsYour understanding is correct. The word 'current' has been removed from the second bullet under 'documentation requirements' for C12. As per the practice in the U.S., and therefore in keeping with reciprocity, a person does not have to be employed by the company immediately before the transfer, as long as they were employed for at least one year within the previous three.
October 15, 2004 Page 750 of 779
Request IDIRPA00000001705ItemPP 04-7 Processing Applications for Permanent Resident StatusCategoryREFUGEE: Resettlement
QuestionApplicant was deemed to be a Convention Refugee. Applicant has listed a dependant on his application as 'Non accompanying" and does not want the dependant to be included in his/her processing for permanent residence from within Canada. Does that dependant overseas still require to complete the appropriate security/medical check, even though the applicant wishes not include the dependant on his/her application, but may wish to sponsor at a later date?
Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered and/or approved by the appropriate Service Line. The CIC Legal Services Unit has not yet vetted the final version of this answer. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Service Line Answer is:YES, the person overseas does have one year from date of PA's landing to apply to come to Canada under R176(2) 'one-year time limit' of the regulations. Certainly, at that point, the person would have to go through the examination process, as does any other immigrant applicant. However, as per section 30(2)(d), a family member overseas who is 'not included in the protected person's application' to remain in Canada as a PR, does not need to be examined. 30(2)(d) is referring to IRB claimants who are applying for landing. In the refugee context, we usually interpret 'included' to mean someone who is actually accompanying the principal applicant. So, this to mean that the person overseas does not need to be examined. Section 30(2)(e) goes on to say that a non-accompanying family member of someone who is applying for protection from overseas, does not need to be examined (resettlement applicants). This refers directly to refugees overseas; their non-accompanying family members (who are listed or 'included' in the application do not need to be examined if they are not accompanying the Principal applicant.
October 15, 2004 Page 751 of 779
Request IDIRPA00000001706ItemPP 01-13.00 Determining eligibilityCategoryREFUGEE: Asylum: Making a Claim
QuestionI am awaiting three deserting crew members, and I expect that they will claim refugee protection. Are there countries designated in the Regulations, as described in A101(1)(e)?Solution DetailsRefer to PP1 Manual - Section 11.1.5 and Appendix B - Posted11.1.5 The claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence. [A104(1)(a), A101(1)(e), A102]In order for a country to be designated a "safe third country" pursuant to the Regulations of the Immigration and Refugee Protection Act, it must comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture. The United States is the only country that has been designated to date. The Agreement Between Canada and the United States for Cooperation in the Examination of Refugee Status Claims by Nationals of Third Countries, commonly known as the Safe Third Country Agreement outlines the application of the Agreement. For more information, refer to the section on the Safe Third Country Agreement.
Request IDIRPA00000001707ItemENF 04-13.30 Re-entry to Canada on original visaCategoryENFORCEMENT: Examinations, Seizure and Transportation
QuestionIn ENF-4 POE examinations 13.3 & 13.4 Re-entry on a TRV. The manual states that if the client is in possession of a valid VR, SA, WP authorized for re-entry they do not need a TRV no matter were they are entering from. Does this mean any of those documents or does the disclaimer on the FOSS generated version "does not authorize re-entry " nullify this?Solution DetailsThere is currently no legal mechanism to grant "prior authorization to re-enter Canada". FOSS automatically defaults to "This document does not authorize re-entry to Canada" and this default cannot be overridden by an Officer at present. A person who leaves Canada and seeks to re-enter is subject to all statutory obligations which may include a valid TRV. The fact that the subject holds a valid document does not in and of itself guarantee re - entry. The default may exist to alert other parties (ie: transportation companies) that the document itself is not sufficient to guarantee re-entry to Canada (ie: does the person have a passport). The manual sections cited seem to contemplate a future scenario but not one that exists now.See #1502 and #948
October 15, 2004 Page 752 of 779
Request IDIRPA00000001708ItemPP 01-17.00 Redetermination of ClaimsCategoryREFUGEE: Asylum: Making a Claim
QuestionCan you please direct me to where I can find the documentation and procedures in regards to re-determination of eligibility (clawback)? See IRPA1374 for directions on how to locate the IMM forms required. However, as stated in 1374, the manuals are silent on exact procedures to follow. The manuals related to the 1976 Act can be found on the Intranet. The C44 manual, Part 11 which outlines the processes that were followed for eligibility redeterminations will serve as a good guideline for the process under the current act. Obviously, the letter to client will have to be modified to reflect the current legislation. Issue sent to service line to address.
Solution DetailsSee IRPA1374 for directions on how to locate the IMM forms required. The procedures regarding re-determination are found at PP 01-11.2.
Request IDIRPA00000001709ItemFW-05.33 R205, Canadian interests: (b) Reciprocal employment, C20 General guidelinesCategorySELECTION: Economic (Skilled Worker, Temporary Workers, Students, Provincial Nominees)
QuestionWould a Custom Combiner who is a citizen of Australia, and working for an American Custom Combiner, qualify for a work permit, under validation exempt category C20? An American Citizen would qualify under C20 based on the reciprocity - supposed reciprocity between Canada and the USA; but there is no reciprocity with Australia to my knowledge. Would the Australian Custom Combiner be required to get validation and his work permit abroad?
Solution DetailsR205(b) - provides for the issuance of a WP to a FN where this would create or maintain reciprocal employment of CC's or PR's in other countries. This provision is more clearly explained in the FW manual, section 5.33. In order to qualify under this exemption, the Canadian employer must clearly demonstrate reciprocity. If that cannot be done to the satisfaction of the examining officer, then this exemption cannot be used. Even assuming Reciprocity is demonstrated, an australian national would still need to apply for the work permit outside Canada.
October 15, 2004 Page 753 of 779
Request IDIRPA00000001710ItemIP 01-6.4 Temporary resident permit (TRP) [A24(1)]CategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionI have an applicant who was granted a 9(1) waiver under the old act. Her landing had to be refused because she is criminally inadmissible under section 36(2)(a) of IRPA. I am considering issuing the client a temporary resident permit (TRP), but the client is under a removal order as she is also a failed refugee. Section 5.5 of IP1 states that people under a removal order are not eligible for a TRP. However, as per R233, a removal order made against a foreign national is stayed if the Minister is of the opinion that H&C grounds exist. Does this also apply for TRP consideration?
Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered and/or approved by the appropriate Service Line. The CIC Legal Services Unit has not yet vetted the final version of this answer. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Service Line Answer is:IP 1 - Temporary Resident Permits. Under IRPA, persons under a removal order can technically be issued a temporary resident permit. However, it is not the intention of the Department to allow an individual to be a permit holder while under a removal order. Consequently, a removal order should be enforced before a permit is issued, as was the practice under the old Act (Buffalo Shuffle). The permit does not negate the removal order and there is no statutory stay in place for these cases. However, since this person is under a removal order that can be enforced, you would have to discuss the PRRA issue with a removal officer even if you want to facilitate her return to Canada. Section R233 considers a stay if there are H&C's until you make a decision at "step 2", statutory requirements. If the person meets the statutory requirements, you can then grant permanent resident status without removing the person. In your case, the person cannot be granted permanent residence status because she is inadmissible.
QuestionWhat exactly constitutes "end of examination" in particular in an inland situation. Under IRPA, an officer is authorized to proceed with an examination where an application is received. Examination is defined in 76 Act as any procedure whereby an immigration officer determines whether a person seeking to come into Canada may be allowed to come into Canada or may be granted admission. The final decision on a person who is the subject of a report as to whether they may be allowed in or granted admission rests with a senior immigration officer (A22 - 76 Act). A12(3) (76 Act) contemplates the adjournment of an examination to refer the person to another immigration officer to complete the examination. There are multiple references in A23 (76 Act) to a Senior Immigration Officer "completing" the examination by: -granting landing -granting entry -making an order -referring for inquiry With the above in mind: With respect to an application submitted to an inland office by a subject , for illustrations point, a refugee claim. The subject submits a completed application containing specified information which is given to an Immigration Officer to evaluate. That officer may form the opinion that the subject is inadmissible and write a report which must be transmitted to the Minister's Delegate. However, the decision as to whether the report is founded and the person is indeed inadmissible and what the next appropriate course of action is rests with the Minister's Delegate therefore, does it not follow that the examination ends with the Minister's Delegate's decision (which remember, may be to admit if the report is not founded). If so, then if a subject fails to appear for the proceeding in which the Minister's Delegate renders his/her decision, would that not constitute a failure to appear for examination? Consequently, a warrant for examination could be issued as opposed to proceeding to "order in Absentia" and a warrant for removal. See also for reference: Processing Temp Residents POE - Handout 1. from the training manuals.
Solution DetailsAlthough R37 of IRPA identifies when an examination ends at a POE, the Act is silent on when an examination ends in Canada. Under A15 and R28 an examination in Canada will occur when the person either makes an application in writing or makes a claim for refugee protection. An examination will end in Canada when:A) An application is made in writing (for example, an application is made to extend status) and a decision is made either to grant status or deny the application. If the application is approved, the examination will end on the granting of status. If the application is denied, the examination will end when an A44(1) report is made and referred to the Minister's Delegate under A44(2), or when the officer decides not to write a report and takes no enforcement action. B) A person makes a claim for refugee protection and the claim is received by a designated officer under A100(1). The examination in Canada ends when an A44(1) report is made and referred to the Minister's Delegate under A44(2) and on the completion of the eligibility determination by the same or another officer. If the claimant is inadmissible to Canada and the conditions outlined in A100(2) are met, the officer will suspend consideration of eligibility and write a report to have the case referred to the Immigration Division (A100(2)(a)); or await a decision by a court (A100(2)(b)). In these cases, the examination has not ended until the outcome of the Immigration Division or the court proceeding. In either circumstance, the examination resumes for eligibility determination once the Immigration Division has heard the report on admissibility or the court has made a decision with respect to a charge. The examination ends when eligibility is determined. Applicable to A and B): For the purpose of determining when an examination ends in Canada, the making of a removal order at an 44(2) proceeding by the Minister's Delegate does not constitute part of the examination and is considered a quasi-judicial administrative review of the A44(1) report that was made as a result of the examination.
October 15, 2004 Page 755 of 779
Request IDIRPA00000001712ItemIP 05-5.9 Applicants under a removal orderCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionAn H&C application submitted prior to IRPA created a stay of removal. With the implementation of IRPA, are old H&C cases still under a stay of removal?Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered and/or approved by the appropriate Service Line. The CIC Legal Services Unit has not yet vetted the final version of this answer. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Service Line Answer is:First of all, any applications pending prior to IRPA is dealt under IRPA pursuant to A190.This being said prior to IRPA, an application on humanitarian and compassionate considerations (H&C) did not create a stay of removal. Under IRPA, H&C applicants are subject to removal, unless the H&C application has been approved in principal. According to R233, a removal order is stayed once the Minister (or his delegate) has formed the opinion that there are sufficent H&C considerations to grant an exemption . The stay is effective until a decision is made to grant or not, permanent resident status
QuestionAccording to A47(b), a foreign national loses temporary resident status - on a determination by an officer that they have failed to comply with any other requirement of this Act. - the way I understand it, it refers to "other" in reference to A47(a) and (c) which refer to the end of the period for which they are authorized to remain in Canada and on cancellation of their temporary resident permit (TRP).In reference to the wording of the section 182 of the Immigration and Refugee Protection Regulations (Regulations) on the subject of restoration as this is more precise and covers all the situations where the restoration of the status shall be done by an officer. Section 182 of the Regulations stipulates that: ``on application made by a visitor, a worker or a student within 90 days after loosing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185 (b) (i) to (iii) or paragraph 185 ( c ), an officer shall restore that status if, following an examination , it is established that the visitor, worker or student meets the initial requirements for their stay and has not failed to comply with any other conditions imposed``.In the above-mentioned cases, restoration in not applicable.Question: is my interpretation correct?
Solution DetailsYour interpretation is indeed correct
QuestionSUBJECT: Clarification on loss of status, reinstatement and six-month period for failing to comply with conditions - SECTIONS: A47(b), R182, R200(3)(e)(i), R221(a) - I present to you the following cases based on my interpretation; please correct me if my reasoning is incorrect. CASE 1: I am interviewing Mister X, a visitor who is asking that his status be extended. During the interview, he tells me he worked two months ago for a period of 12 weeks. According to R182, his status cannot be restored - according to A47(b), this person, if he has implied status, lost his status for committing an offence (i.e. working without a permit). I thus have two possibilities: A - FIRST - complete an NCB-01 (offence without preparing an A44(1) report OR preparing an A44(1) [A41, A30(1)] report with a "no direction" recommendation. SECOND - prepare an A44(1) [A41, A29(2)] report, recommending an exclusion order; B - issue a temporary resident permit (TRP) if I conclude that the situation warrants it. QUESTION: 1) Can an A44(1) [A41, A29(2)] report be prepared immediately, i.e., as soon as the offence is noted? 2) Is my interpretation correct and are there any other possibilities?
Solution Details1) Yes, the [L41, L29(2)] report can be prepared as soon as the offence is noted. 2) The Department is of the opinion that it is an acceptable risk management decision to leave it up to the discretion of the same officer who made the decision not to prepare an official report on the person the first time to also enter an NCB in the case of inadmissibility for less serious reasons. Therefore, your interpretation complies with the principles set out by the Department with regard to an officer's discretion, and there are no other possibilities than those presented for this case.
QuestionSUBJECT: Clarification on cessation and reinstatement, and on the period of six months for failure to comply with conditions - SECTIONS A47(b), R182, R200(3)(e)(i), R221(a).Based on my interpretation, I am presenting you with the following cases. Please correct me if my reasoning is faulty. Ms. Y (of the preceding case) decides to leave Canada before the exclusion order is made, and comes back to Canada the following month as a visitor accompanying a spouse who holds a specialized work permit. Ms. Y is thus in a position to file an application for an open work permit in Canada. According to R200(3)(e)(i), less than six months have elapsed since the offence, and Ms. Y is therefore not eligible to obtain a work permit although she meets the R199(e) criterion as the spouse of a specialized worker. - Ms. Y's application for a work permit is refused, and no record of offence needs to be written. It is possible for me to issue a temporary resident permit (TRP) if circumstances warrant, + a work permit. Ms. Y subsequently files an application for a study permit.- According to R221(a), less than six months have elapsed since the offence, and Ms. Y is therefore not eligible to obtain a study permit although she meets the R215(2)(b) criterion as the spouse of a specialized worker. - Ms. Y's application for a study permit is refused, and no record of offence needs to be written. It is possible for me to issue a temporary resident permit (TRP) if circumstances warrant, OR to issue a TRP + a study permit. QUESTION: Is my interpretation correct, and are there other possibilities?
Solution DetailsIt is my opinion that the options outlined in question 1716 are correct.
QuestionSUBJECT: Clarification on cessation and reinstatement, and on the period of six months for failure to comply with conditions - SECTIONS A47(b), R182, R200(3)(e)(i), R221(a).Based on my interpretation, I am presenting you with the following cases. Please correct me if my reasoning is faulty. In CIC-Quebec, we have an information counter open two hours a day, where clients can come to obtain information. CASE 4:A client comes to the CIC-Quebec counter. He has been in Canada for two months, having been admitted as a tourist for an authorized stay of six months. One month after arriving, he started to work although he did not have a work permit. The client declares at the counter that he is working. - According to A47(b) this person loses his status in respect of the offence committed (i.e., working without a permit).- Although he obtained authorization to stay in Canada for six months, the subject loses his status when he appears before me (and declares his offence), after staying in Canada for only two months. I thus have two possibilities: A- FIRST - Do an NCB-01 (i.e., offence without writing an A44(1) report), OR write an A44(1) report [A41, A30(1)] with a "without direction" recommendation.SECOND - Do an A44(1) report [41, A29(2)] + recommend an exclusion order.B- Do a temporary resident permit (TRP) if I find that circumstances warrant it. QUESTION: Is my interpretation correct, and are there other possibilities?
Solution DetailsIt is my opinion that the options outlined in question 1717 are correct.
QuestionThis question concerns the provisions under A115(2), whereby we wish to seek Minister's Opinion against a Foreign National found to be a Convention Refugee, and issue a removal order against them. To be clear, subject is NOT a Permanent Resident.Subject was convicted of Sexual Assault and sentenced to 10 months imprisonment. We have prepared a report under A36(1)(a) only (no other allegations), and now wish to have deport order issued against subject prior to seeking Minister's Opinion.We have referred to ENF28, section 5.2, which instructs that, to remove a person determined to be CR, the Minister must have issued an opinion that the person concerned is a danger, and a MEMBER OF THE IMMIGRATION DIVISION has determined that the person concerned is described under A36(1).Given the above, the Minister (our Manager) signed a Referral to Admissibility Hearing and the file was sent to the Immigration Division. The Immigration Division has advised us that, pursuant to R228(1), they do NOT have jurisdiction to proceed.Our instincts tell us that, as in the old A46.01(1)(e), the legislators did NOT intend to give an officer authority to issue a deport order, and therefore the authority to remove a Convention Refugee to the country of persecution, without being first found described in A36(1)(a) by an Immigration Division member. Are we wrong?In summary, ENF28, section 5.2 seems to contradict R228(1) in this case. Your clarification requested.
Solution DetailsThe reference in the manual to the Immigration Division assumes the person is a PR. Where the person is a foreign national, the MD can make the decision. A115(2) does not specify who has to make the determination so the removal could proceed once a danger opinion is obtained.
October 15, 2004 Page 759 of 779
Request IDIRPA00000001719ItemOP 02-5.11 Non-accompanying dependantsCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionI need clarification as to whether a sponsor will have to pay the processing fee for a non-accompanying spouse of a sponsored relative and whether the spouse is required to be listed as an accompanying family member. Example:1) Permanent Resident or Canadian Citizen is sponsoring her mother however, she does not want to sponsor her father as he wants to immigrate to Canada at a later date. Does she have to pay the processing fee of $550 whether he is accompanying or not? 2) IMM 1344A Application to Sponsor and Undertaking Section C #2 is listed as spouse of principle applicant. There is no option for non accompanying spouse. Does that mean it is mandatory to include a spouse as an accompanying family member? If that is the case where is it captured in the regulation.Please quote the section of the regulation that provides this information.
Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered and/or approved by the appropriate Service Line. The CIC Legal Services Unit has not yet vetted the final version of this answer. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Service Line Answer is:Examples:1) All family members, whether accompanying or not must be listed on the application for permanent residence. All family members must also be examined to determine their admissibility R70(1). The only exceptions to the requirement for examination are listed in R23. Any family member not examined as part of the application for permanent residence is later excluded from membership in the family class and may not be sponsored by virtue of their relationship to the sponsor, R117(9)(d). The non-accompanying family member is not applying for a PRV, therefore the processing fee for a PRV does not apply.2) The spouse of the principle applicant does not have to be an accompanying family member. However, the spouse must be included for purposes of calculating whether the sponsor meets the minimum necessary income. In the definition of minimum necessary income (b) it states that the sponsored foreign nationals, and their family members, whether they are accompaying or not must be included. The spouse must also be examined as part of the application for permanent residence.members.
QuestionI have a client who was first convicted in 1983 and subsequently in 1984 in the state of New York. Sentence imposed finished in 1985. Both convictions can be equated to A36(2)(b). On 18/11/02, is he eligible for a "deemed rehab" provision?Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered by the Helpdesk but was never approved by the appropriate Service Line. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Helpdesk Answer is:R18(2)(a) applies for A (one) conviction outside Canada (that can equate to a conviction in Canada punishable by less than 10 years) where 10 years have elapsed from the completion of the imposed sentence and, at the time of the examination, the person has not been convicted of a subsequent offence. In your case, the person was convicted in 1983 however, he was convicted of a subsequent offense in 1984. He does not meet the criteria of R18(2) and he will have to apply for rehabilitation through the minister.
October 15, 2004 Page 761 of 779
Request IDIRPA00000001721ItemENF 23-7.10 Calculating days physically present in CanadaCategoryENFORCEMENT: Examinations, Seizure and Transportation
QuestionPlease treat this question as a semi-urgent item since we have many outstanding cases that are affected....There are many issues concerning the loss of Permanent residence status, however, I have not been able to find anything that deals with "when" we can cause a determination inland. Some have said that it can take place as the result of an investigation, that is, one that is not proceeded by an examination, whereas I felt that an examination must be taking place before a determination could be made. In support of my feeling is A28(2)(b) "it is sufficient for a permanent resident to demonstrate at examination" and then A15(1) "authorizes one to proceed with an examination where a person makes an application" and finally, examination is defined in R28…. a)submitting an application in Writing b)seeking to enter Canada c)seeking to transit through Canada as provided in section 35;or d)making a claim for refugee protection.Please advise the writer, on behalf of many others, whether or not a determination can only take place at an examination or can we cause determinations to take place based upon our own investigations not arising from an application.NOTE FROM C. LAHAIE - IRPA HELP DESK:This "determination INLAND" has become a serious issue. Could you please give it a priority as is the case with the unanswered tickets No. 1473 and 1519.
Solution DetailsThere will be situations where a permanent resident is in Canada and does not meet the residency requirement. Similar to all inadmissibility provisions, whether the person is subject of an examination or an investigation, an officer has the authority to prepare an A44(1) report. When an officer concludes that a person has lost their permanent resident status, and for that reason decides to report the person under the provisions of A44(1), the officer should cite the grounds for the report as a permanent resident in Canada who inadmissible pursuant to A41(b) because the person failed to comply with the residency obligation of section A28. If the person has not made an application under the Act, they will be the subject of an investigation and are not compelled by IRPA to answer questions (unlike the authorities provided in A16(1) when an application is made). For further procedures on in Canada procedures for reporting permanent residents for loss of status
QuestionWe have a student in his first year of university who is on a study permit who was convicted of shoplifting. If we want him to continue for three more years to obtain his degree do we not write a 44 report and allow him to continue on his study permit even though he is inadmissible. Do we issue a TRP until he can leave Canada and if he leaves Canada will he be allowed back into the country being inadmissible. If he stays and continues his education until he has been on a TRP for 5 years does he automatically get to apply for landing provided he is issued a pardon.
Solution DetailsThere is no obligation to write the report and issue a removal order. The study permit remains valid until a removal order is issued. However, if the student leaves Canada they are inadmissible if they attempt to re-enter per A22(1). The student cannot qualify for renewal of the study permit according to R217(2). If the student has recently arrived in Canada referral to the ID should be seriously considered for a criminal conviction. If the student is nearing the end of the study program, a decision to allow the student to remain in Canada on the student permit to complete the program may be considered. If a TRP is issued, either to extend the person's stay or upon re-entry, it would be extremely rare to authorize a 5 year TRP to complete a study program. TRPs in these circumstances should be for limited periods to complete the purpose for the original entry to Canada. If it is to be extended for several years, a break in the validity of the permit would prevent the holder from qualifying to apply for landing.
Request IDIRPA00000001723ItemIP 08-5.00 Departmental policyCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionBefore IRPA I believe the spousal application indicated (as did the Humanitarian and Compensate application) the following information:"LEAVING CANADA" - "If your application is being process we cannot guarantee re-enter, particularly if you require a Canadian visa (visa affixed to a page in you passport.)"This statement no longer shows in the spousal application but is in the Humanitarian and compassionate application.We want to know if it still applies to spousal application or has it change with IRPA? If so, where would this be indicated in IRPA?If there is no change, should a statement be included again to the spousal application?
Solution DetailsThis rule still applies and the next version of the Spouse or Common-law Partner Class guide will include this warning. The answer given is the general rule (and the inclusion of the warning is a policy decision). However, there are some exceptions to this rule. For example, subsection A29(2) stipulates that a temporary resident may only re-enter Canada if their authorization provides for re-entry. And further at subparagraph R183(4)(a) …the period authorized for a temporary residents stay ends on the earliest of .. The day on which the temporary resident leaves Canada without obtaining prior authorization to re-enter Canada.
October 15, 2004 Page 763 of 779
Request IDIRPA00000001725ItemENF 19-3 The Act and RegulationsCategoryENFORCEMENT: Inadmissibilities, Bonds, Removal Orders, Hearings
QuestionA Perm. Resident was ordered deported January 2002. He previously had a danger opinion signed in Dec 2001. Therefore he had no right of Appeal to the IAD which was confirmed by the IAD in a letter dated 26th of Aug 2002. On that same day the Fed. Court sends CIC a letter indicating that the Danger Opinion in this case is quashed. Does he now revert to having a right to appeal to the IAD or is his only recourse through an H&C application.
Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered by the Helpdesk but was never approved by the appropriate Service Line. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Helpdesk Answer is:In this case, the client was convicted of an offence for which a term of imprisonment of more than 10 years could be imposed and more than two years was imposed. Pre IRPA, in order to remove the right of appeal from a PR, a danger opinion was required and was obtained in this case. Had no danger opinion been issued, your client would have had a limited right of appeal. Not withstanding that the IAD would ultimately have decided that they had no jurisdiction to hear your client's appeal, he nonetheless commenced the appeal process. This process was not completed pre implementation of IRPA and thus the matter falls under the transitional provisions, specifically A192 and A196. As the danger opinion was quashed, your client's appeal might have continued under the former Act as a limited appeal. However, in this case, A196 comes into play. Your client was not granted a stay under the former Act and due to the term of imprisonment imposed (4 years), no appeal could be made under IRPA (A64). Your client has no access to appeal rights and would appear to be removal ready.
Request IDIRPA00000001726ItemENF 04-12.60 Confirmation of permanent residence documentCategoryENFORCEMENT: Examinations, Seizure and Transportation
QuestionA client called in panic. After obtaining is permanent resident card (PRC) not too long ago, he went to the U.S. consulate in order to get a visa to go to the U.S. It would appear that they required that he also presents on top of his passport and PRC his confirmation of permanent residence (CPR) which he said has "already" been misplaced. They kept his passport and PRC until he comes back with this document. Is there a way for him to obtain a certified copy of his CPR through the Query Response Centre (QRC) as was the case with the Record of Landing - IMM 1000?
Solution DetailsPlease refer to ticket No. 896 which was vetted by the Service Line on 18/07/02.
October 15, 2004 Page 764 of 779
Request IDIRPA00000001727ItemIP 01-6.3 Permit holders class (R64 and R65)CategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionWould it be possible to explain to us, in greater detail, R65(d) "Permit Holders Class"?IP2, Section 5.3 identifies the members of the family class, including the grandfather or the grandmother. We do not find them in A12 of the Act under "family class"."Father and mother" are also found in the definition of "family class", and these persons need the CSQ if they intend to reside in the Province of Quebec. Is this indeed the case, and where can I find these references in the manuals?Furthermore, persons who have been determined to be "Convention refugees" by the Board do not need the CSQ.Persons who have presented an application for PRRA protection need the CSQ. Is this really the case, and where can I find these references in the manuals?
Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered and/or approved by the appropriate Service Line. The CIC Legal Services Unit has not yet vetted the final version of this answer. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Service Line Answer is:The Permit Holder Class allows inadmissible foreign nationals to become permanent residents from within Canada if they hold a TRP and have resided in Canada on a TRP for 3yrs if the TRP was issued on medical grounds or haved resided continuously in Canada for 5yrs if the TRP was issued under any other grounds except sections 34 and 35 and subsctiona 36(1) and 37(1) of the Act. Their period of residence in Canada on a TRP must have been continuous with no breaks for periods where they were outside Canada, where their permit was expired or where a TRP was issued under other grounds. They must also not have become inadmissible on any grounds other than the grounds for which the permit was issued.
QuestionIn Regulation R(1), at the definition for « studies », we find;Any course of « academic », « professional » or « vocational training ».Would it be possible to obtain a definition and some examples for each of these three categories?Solution DetailsR1 defines "studies" as studies undertaken at a university or college, or any course of academic, professional or vocational training.To provide some examples to clarify 'training':"Academic training" refers to a temporary professional employment related to an academic program. It is a direct application of course-work or research to a professional position in the field of study of a student. Academic training is generally completed in conjunction with studies at post-secondary educational institutions and leads toward a diploma or degree. Examples of academic training courses: articling for law students, co-operative education placements, and medical internships."Professional training" refers to a type of additional education/training usually offered to professionals already in the field. Professional Development is generally "accredited"--that is, recognized by an industry, association or profession. Professional training is offered through community colleges, universities, Cégeps, career colleges, professional associations or unions. Examples of professional training courses: real estate appraisal, accountant certification, production and inventory control, food services management, specialty courses for lawyers, doctors, business administrators, engineers, dentists, teachers and counsellors."Vocational training" is generally preparation for a specific vocation in industry or agriculture or trade. Vocational training generally include technical skills training, organizational skills training, and basic skills training. Vocational training may be offered through on-the-job programs, by unions in conjunction with businesses, by community colleges/universities in conjunction with a specific industry, and by career colleges (private). Examples of vocational training courses: quality control, mechanics, and new technology.
Request IDIRPA00000001729ItemIP 05-5.8 Second-step assessment: Toward the decision to confirm permanent residenceCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionCould you clarify that in the case of an application made under humanitarian and compassionate considerations (H&C's), if the case is accepted at "step 1", all family members both abroad and in Canada will be processed towards either permanent residence (PR) or a permanent resident visa (PRV) concurrently as oppose to prior to IRPA where once the applicant became a PR he had to sponsor his family members abroad?
Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered and/or approved by the appropriate Service Line. The CIC Legal Services Unit has not yet vetted the final version of this answer. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Service Line Answer is:Pursuant to R69 accompanying family members in Canada and abroad may be processed concurrently. For transitional cases, I suggest you consult the Operation memorandum IP 02-09.
October 15, 2004 Page 766 of 779
Request IDIRPA00000001730ItemENF 23-5.00 Departmental policy on loss of permanent resident statusCategoryENFORCEMENT: Examinations, Seizure and Transportation
QuestionA person who signed a Relinquishment of PR Status Document (a Pre-IRPA document) appears at a POE and claims not to have ceased being a PR:How are we to treat him? As a FN or a PR who needs to be examined under sec 28?Solution DetailsBecause voluntary relinquishment is not a final determination of loss of PR status, the person should be examined as though they are still a PR. The next step to consider is if the residency requirement has been met. If the person does not acknowledge that they have given up status since they signed the IMM 1342, we do a status determination under A28. We cannot give consideration to the fact they had signed a IMM 1342 as it is not part of the criteria.This is explained in greater detail in question # 1584Questions 1585, 1586 also address related issues and are quite informative on matters pertaining to the PR Loss of status question.
QuestionAs per IR -8 A clergyman's family members would be fee exempt for the extension of their temporary resident status in Canada:A person who is a member of the clergy, and their family members as described in the Regulations. R186J - Exemption code V02It seems CPC-Vegreville has declined to process the applications on the grounds that they are not fee exempt under IRPA. Please clarify.
Solution DetailsAS per IRPA, Member of the clergy, as described in R186 ( L) and their family members are exempt (fee) for the extension of their TRS; Code V02.Make sure that CPC-Vegreville has declined to process for this specific reason.
October 15, 2004 Page 767 of 779
Request IDIRPA00000001732ItemIP 08-10.10 Assessment of relationshipCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionThis is a follow up to ticket No. 1154 which requires some clarification. Question: Re conjugal relationships: when does the clock start ticking regarding the year prior that they must have lived together? We have a same-sex couple (one Canadian, one American) applying to enter at our POE under dual intent on a VR with plans to apply for permanent residence in the near future. Do they have to wait a year to apply or does the year living in the USA count? You will note halfway through the answer it is stated "the American cannot come into Canada as a VR and seek permanent residence here". This is a big problem for most POE's I believe. For a very long time we traditionally have been allowing undocumented people in under the dual intent policy. I had a case last week just like this ---I tried to do an allowed to leave on her by referring to this question (1154) in order to support my decision not to let her into the country. In the end another officer let her in as a visitor-so that she could be processed inland. I know that it's not just my POE out west that feels this because the question originated in Sault St Marie - an officer who was routinely letting an American in under the Dual intent policy---no prior documentation on her part re an application. I would just like some clarification on this. I believe that there was an OM on this topic a few years ago. If you find it please let me know.
Solution DetailsSuite to answer No. 1320. and see # 1154This does NOT mean that the American in the case above can come into Canada as a visitor and "make it right" by living with the Canadian for one year and applying as a member of the Class. This Class is not meant for persons who have established their relationships outside Canada. Entering as a visitor in order to apply for permanent residence as a member of the Spouse or Common-law Partner in Canada Class subverts the policy and legislative intent of the Class regardless of whether there is a period of cohabitation in Canada. Now that there is a Spouse or Common-law Partner in Canada Class which provides the same benefits to spouses and common-law partners in Canada as those provided to spouses and common-law partners being processed outside Canada (and is a more certain process than the pre-IRPA H&C process), it is important to utilize the Class properly. There is a potential for loss of program integrity if this Class is used to avoid the application process outside Canada or if dual intent is used to allow people into Canada to apply to remain here. It is important to avoid practices which lead people to think there is a "shortcut" enabling them to avoid the proper process and which undermine the principle of application from abroad.
QuestionMy question is with respect to a PR who has not met the residency requirement (A28(1)). In addition, he has failed to comply with the conditions of his permanent residency in that he did not marry within 90 days of becoming a permanent resident (A41(b)). I wrote two reports; one for each allegation. I perfectly understand that R228(1) explains that an SIO may exercise jurisdiction over a hybrid report only where the SIO has jurisdiction over all allegations in the report. However, this case deals with two separate reports. Therefore my question in not with respect to the nature of jurisdiction when there is a hybrid report. Rather, it is whether an SIO has jurisdiction to issue a removal order in this specific case as the subject is not "solely" inadmissible for just the residency requirement? The reason I ask this question (despite R228(1)) is because A44(2) states that the Minister may only exercise jurisdiction for a issuing a removal order where the person is inadmissible "solely" for the residency requirement. This leads me to believe that if there is more than one inadmissibility, an SIO automatically loses jurisdiction to issue a removal order. In this case, the person is inadmissible for more than just the residency requirement; he's also inadmissible for not having complied with conditions of landing. There is more than one inadmissibility; regardless of whether the allegations are written on one report or two separate reports. Does this mean that for the purpose of A44(2), if there are allegations in addition to the residency requirement, regardless of whether those other allegations are in a separate report, an SIO does not have jurisdiction to issue a removal order and the subject must be sent to an admissibility hearing? If the answer is no, then what is the point in mentioning the word "solely" in A44(2) when this would have been addressed through R228(1)?For the record, A44(2) seems to be the only inadmissibility in which the Act states an SIO loses jurisdiction due to the amount of allegations. For all the other inadmissibilities, it seems that an SIO's jurisdiction is determined by way of R228(1). Is this correct?
Solution DetailsFirst of all, let's clarify the use of "hybrid report". When we use the word "hybrid" it is not when there are many allegations in one report that fall within the Minister's Delegate's (MD) jurisdiction, but when in one report an officer would include one or more allegation(s) within the MD's jurisdiction and one or more allegation(s) within the Immigration Division's (ID) jurisdiction.The interpretation of A44(2) should be as follows: 1) in the case of a foreign national (FN) the MD's jurisdiction can be found in the prescribed regulations, namely R228(1). In all other situations he may refer to the ID. 2) in the case of a permanent resident (PR), ALL the reports, if he/she chooses to refer them to the ID, must be sent to the ID except if one of the reports deals mainly with an inadmissibility related to the failing to comply with the residency obligation under section A28. In other words, "solely" must not be interpreted in the context that there must only be one allegation against the PR, but more in the sense that there could be 1 report A41(b) X A28 and 1 report A41(b) X A27(2) against the PR and the MD would know that he/she has "sole" jurisdiction for the A41(b) X A28 report, but not on the A41(b) X A27(2) report.So in your particular situation, the MD has jurisdiction on the report dealing with A28 and if it is well-founded will issue a departure order as per R228(2). Only the ID has jurisdiction on the other report. This interpretation is even more confirmed by reading R229(1) where the ID does not have any jurisdiction to issue a removal order on a A41(b) X A28 report, but only on a A41(b) X A27(2) report - failing to comply with conditions. R229(4) deals only with removal orders that the ID can issue under R228(1), namely on FN's, but not PR' s.Please also refer to tickets No. 91 and 838 and ENF 5 - section 13.1 which stipulates: "Further, on the matter of two separate inadmissibility reports on the same person, if - for whatever reason - the Minister’s delegate refers one report to the Immigration Division, then the remaining report with grounds that need not be referred to the Immigration Division (that is, the report that contains only inadmissibility allegations that fall within the Minister’s jurisdiction), should be held in abeyance pending the result of the Immigration Division hearing."In other words, the DM will have to decide which one of the reports he/she wants to deal with first. What is the end result? In this case, both warrant only a departure order. Does the evidence support the reports?
October 15, 2004 Page 769 of 779
Request IDIRPA00000001738ItemIP 02-16.60 Calculating required incomeCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionClient sponsored his parents. They became permanent residents (PR). They left Canada and relinquished their PR status. Client wants to sponsor his grandparents and will have to calculate the "minimum necessary income".1) Since his parents relinquished their PR status and returned home, does he have to include them in his calculation? Theoretically, he is still responsible.2) The information between IP 2 - section 17.2 - Calculating required income and form IMM 1283 - Financial Evaluation which is found in the sponsorship kit is different, namely:- 17.2: any spouse, common-law partner, conjugal partner and dependent children covered by other valid undertakings they have made or co-signed; the parents are not included.- IMM 1283: every other person you have sponsored in the past and their family members, where anundertaking is still in effect or not yet in effect.
Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered and/or approved by the appropriate Service Line. The CIC Legal Services Unit has not yet vetted the final version of this answer. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Service Line Answer is:1) See ENF 23 for guidelines on determination on loss of permanent resident status and voluntary relinquishment of permanent resident status. Unless a final determination has been made that they have lost their PR status, if they seek to come back to Canada, they have a right to enter Canada as PR's unless they do not meet the residency obligation upon examination. Unless there is evidence that this final determination has been made, the client will have to add his parents when calculating the required income. 2) IP2, section 17.2 was amended to read "The total number of persons determines the amount of income required to sponsor and determines which LICO to use. Sponsors count: themselves, and any family members to whom they provide support; the persons they are now sponsoring, including all family members of the sponsored person, whether these family members are accompanying or not (see definition of "family member" in R1(3) <../../../../act-loi/irpr-ripr/1/index.htm>). any persons covered by still-valid undertakings they have made or co-signed; if the sponsor's spouse or common-law partner is co-signing, persons covered by still-valid undertakings made or co-signed by the spouse or common-law partner; and sponsored applicants not yet granted permanent residence
October 15, 2004 Page 770 of 779
Request IDIRPA00000001741ItemIP 01-5.9 ExtensionsCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionRestoration of status under section 182 of the Regulations deals with restoration of visitor, worker or student within 90 days of refusal. We have case whereby a Temporary Resident Permit (TRP) was refused and the subject is now seeking a restoration of status. The TRP was to allow entry the A19(2)(d) case, mere visitor.We are unable to identify if the client is eligible for restoration to his previously held status of Permit Holder. I don't believe that restoration is possible and am seeking confirmation.
Solution DetailsR182 specifies which conditions the FN can fail to comply with in order to be eligible for restoration and that they must meet the initial requirements for their stay. Obviously, if this FN was the subject of a A19(2)(d) report under the former Act, he did not meet the initial requirements for their stay - there was an inadmissibility which is why he was not allowed entry as a visitor. Furthermore, R182 is strictly applicable to visitors, students or workers. The definition of a visitor found in R192 stipulates that: "a FN is a visitor and a member of the visitor class if the FN has been authorized to enter and remain in Canada as a visitor." A24(1) specifies that a TRP holder only becomes a TR, but not a visitor, worker or student.The only option in the case above is to consider whether a new TRP is justified in the circumstances. Since the previous TRP is expired through the client's own neglect there is no continuation of this TRP. If a new TRP is issued, it should not be backdated. In making a decision whether a TRP is justified officers should remember that a TRP holder can become a permanent resident (PR) AFTER 3 or 5 years. Refer to manual IP 1 to assess whether a new TRP is justified in the circumstances...
Request IDIRPA00000001742ItemENF 10-3.10 Transitional ProvisionsCategoryENFORCEMENT: Investigations, Stays and Removals
QuestionUnder C86 a departure order did not become deemed until 37 days after the negative PDRCC review. Under IRPA the clock starts ticking not after the PRRA but after negative CRDD or LIT. What happens in the deemed PRRA cases. Did the clock start ticking on the 28th of June?Solution DetailsThose failed refugee claimants who had applied for a PCDO review, and whose removal orders were stayed under the old Act were not subject to a transitional provision that kept their orders stayed (or, more appropriately) 'not in force'. Generally speaking, all those failed claimants had 30 days after June 28th to leave Canada under a departure order. After that point, those removal orders converted to deportation orders.One must review the file to ensure that the person was not under another kind of stay that still carries over under IRPA. A stay imposed by the IAD, or someone who was detained before IRPA could still enjoy a stay today. The Transitional Provisions detail what those stays are.
October 15, 2004 Page 771 of 779
Request IDIRPA00000001743ItemENF 08-7.50 Withdrawal, refund and forfeiture of a guaranteeCategoryENFORCEMENT: Inadmissibilities, Bonds, Removal Orders, Hearings
QuestionA guarantee (cash bond) was taken at the port of entry, pre-IRPA, and subject then enters a refugee claim inland pre-IRPA, is the cash bond forfeited as soon as this person has violated his T's & C's? Solution DetailsYes. The transitional provisions of IRPA (A. 331) provided that the performance bond posted under the former Act continues as guarantee under IRPA. ENF 08, section 7.5 states "if a person breaches any term or condition, a guarantee may be enforced " and " a Convention refugee claim in Canada has no bearing on whether to enforce a guarantee".
Request IDIRPA00000001745ItemFW-01.00 What this chapter is aboutCategorySELECTION: Economic (Skilled Worker, Temporary Workers, Students, Provincial Nominees)
QuestionWe have a client who is a foreign national in possession of a study permit valid to 2004. He submitted an application for a work permit to CPC Vegreville, as he is destitute. His application was kicked back to our office for us to determine if he qualifies for consideration under R 208. During an interview on that issue, we discovered that he commenced work without authorization on 03Sep02. Owing to this, he has ceased to be a foreign national by virtue of A 47(b).We are contemplating issuing a temporary resident permit to him to allow him to complete his studies (he has another 2 years to go), as he is not eligible for restoration ( it has been more than 90 days since he began the unauthorized work). If we do so, would he then be able to apply for and receive a study permit under R 215(1)(e), and a work permit under R 199(d), or would we be prevented from issuing these documents to him by virtue of R 221(a) and R 200(3)(e)(i) respectively.Also, what do R 221(b) and R 200(3)(e)(ii) mean?
Solution DetailsAs they presently stand, R221 and R200(3)(e) do appear to prevent this person who has engaged in unauthorized work from being issued a study or work permit unless a period of six monthes has elapsed since the unauthorized work was engaged in per R221(a) or R200(3)(e)(i). I do not believe this person falls within the scope of the R221(b) or R200(3)(e)(ii) exemptions. These two exemptions provide that where unauthorized work or study is engaged in that is unauthorized only by virtue of the breach of certain specified conditions under R185, that will not be a bar to the issuance of a work or study permit. The situation here does not appear to fall within these exemptions. However, new proposed amendments to the regulations will be adding a new exemption to R221 and R200(3)(e) that contemplates the issuance of a work or study permit to a person such as this who has had a TRP issued to them subsequent to the unauthorized work/study or to their breach of the condition.
October 15, 2004 Page 772 of 779
Request IDIRPA00000001747ItemFW-05.23 Application for a work permit on entry (R198)CategorySELECTION: Economic (Skilled Worker, Temporary Workers, Students, Provincial Nominees)
QuestionCan an intra-company transferee from Libya apply at a POE if the application is Economic Effect Determination Exempt?Solution DetailsIt appears that your client is a Libyan National. As Libyans are not included in those persons found in section R190, he must first obtain a TRV, along with a work Permit prior to entry into Canada. As such, he would not be able to apply for a work permit at a POE. Section 13.16 of the FW Manual details this provision. See also questions:157 and 339
Request IDIRPA00000001748ItemIP 08-7.00 Submitting an application with the appropriate feesCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionCan a person submit an application for permanent residence in the Spouse or Common-Law partner in Canada Class sponsored by his wife if he already has a ND2 application in process in Buffalo?Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered and/or approved by the appropriate Service Line. The CIC Legal Services Unit has not yet vetted the final version of this answer. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Service Line Answer is:Yes. There are no restrictions either in the Act or the Regulations to submit simultaneous applications for permanent residence. The ONLY exception can be found in R10(5) which stipulates: "No sponsorship application may be filed by a sponsor in respect of a person if the sponsor has filed another sponsorship applications in respect of that same person and a final decision has not been made in respect of that other application."In your scenario, the application in Buffalo is not a sponsored application so R10(5) does not apply.
October 15, 2004 Page 773 of 779
Request IDIRPA00000001749ItemENF 23-5.00 Departmental policy on loss of permanent resident statusCategoryENFORCEMENT: Examinations, Seizure and Transportation
QuestionI have a permanent resident that he has been a student, residing in the USA for most of the last five years, since he landed. He stated that he has been visiting Canada on occasion, but would not have resided here for 730 days out of the last five and doesn't even come close. He entered Canada in June and was admitted by a Customs officer without being referred. He rented an apartment and has been living here most of the time since then. In November, he came to the border with a trailer full of his goods. He was referred to Immigration and given a form for Customs which indicated that he is a Returning Resident. This is a local form which we issue and Customs uses it to clear goods. The officer admitted him and obviously considered him to have retained status. It doesn't appear that he was checked regarding how long he has resided here. On a return trip to Canada last week, he encountered a different officer who went into his past residency history and wrote him up under 44(1)(b).Counsel is contending that, because he was readmitted by the officer in November, he should maintain his PR status and a new clock would have started at that time. It is her opinion that he is still a PR and as long as he resides here for 730 days in the next five years, he would remain a PR. From my way of thinking, every time a Permanent Resident leaves and re-enters, they are subject to meet the 730 day requirement in the past five years unless the Minister's Delegate makes a decision one way or the other.Is this the case?
Solution Details"Every time a Permanent Resident leaves and re-enters, they are subject to meet the 730 day requirement in the past five years unless the Minister's Delegate makes a decision one way or the other".The fact that a permanent resident was admitted with or without being examined in the past does not constitute a granting of permanent resident status of the sort that would permit them to override any previous or continuing failure to have met the 5 year residency requirement. Nor does it constitute a return of the 5 year clock to zero. Thus, the second officer who examined this person on a return trip was perfectly justified to make the determination that the person had failed to meet the residency requirement in the preceeding 5 years, despite an other officer's failure to do so.It should be pointed out that an officer is still required to consider H&C factors in assessing the residency requirement.Further:A28(1) states that a permanent resident must comply with a residency obligation with respect to every five-year period. A28(2) provides that they comply with this obligation if on each of a total of 730 days in that five year period, they are: Physically present in Canada; Outside Canada but accompanying a Canadian citizen spouse or common-law partner, or in the case of a child, their parent; Outside Canada employed on a full-time basis by a Canadian business or in the public service of Canada or of a province; Outside Canada accompanying a permanent resident spouse or common-law partner or, in the case of a child, their parent, who is employed on a full-time basis by a Canadian business or in the public service or Canada or a province; or Able to meet other conditions for compliance which are set out in the Regulations.When an officer is assessing the residency obligation, the period considered is limited to the five years immediately preceeding the examination. Where persons have been permanent residents for less than 5 years, they must be able to comply with their residency obligation in respect of the five-year period immediately after becoming a permanent resident.
October 15, 2004 Page 774 of 779
Request IDIRPA00000001750ItemIP 08-5.70 Dependent children overseasCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionCould we have a definition of: "...accompanying family members..." in R127?In the case of applicants who have dependent children in Canada and abroad whom were all included in his application for permanent residence (APR), when the sponsor has included in his sponsorship application both the applicant and all the dependent children in Canada and abroad, can the application for permanent residence in Canada be made for those in Canada at the same time as the dependent children who make an application for a permanent resident visa (PRV) at the visa office?In other words, the sponsored applicant in Canada who includes his sponsored dependent members abroad, can he consider that visas will be issued to these dependent members by the visa officer once he becomes a permanent resident or will he have to become a permanent resident and then sponsor his children abroad, as before, even if, according to IRPA, these dependent persons abroad must be examined pursuant to R129(b)?
Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered and/or approved by the appropriate Service Line. The CIC Legal Services Unit has not yet vetted the final version of this answer. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Service Line Answer is:R123 - Spouse or Common-Law Partner in Canada Class is primarily dealt with according to R72(1), (2), (3) and (4). R72(4) more specifically specifies that: "a foreign national (FN) who is an accompanying family member of a FN who becomes a permanent resident (PR) shall be issued a permanent resident visa (PRV)(abroad) or become a permanent resident (in Canada)." Since it is an in Canada class, it clarifies that the family members abroad will be concurrently assessed and issued PRV's once the principal applicant becomes a PR.You may also want to refer to IP 8 - section 5.8 Dependent children living outside Canada which stipulates that for dependent children living outside Canada, CPC-V will forward the child's application and relevant contact information to the responsible visa office. The visa office will advise CPC-V when family members have met all requirements. Once the principal applicant has been granted permanent residence by the CIC, the CIC will NOTIFY the visa office, which will issue permanent resident visas to the accompanying dependent children.
October 15, 2004 Page 775 of 779
Request IDIRPA00000001751ItemPP 01-17.00 Redetermination of ClaimsCategoryREFUGEE: Asylum: Making a Claim
QuestionWe have a case of multiple claims - A104(1)(d). We would like to terminate the second claim pursuant to A104(2)(b). What is the form to be used?Solution DetailsRefer to PP1 Manual - Section 11 - Posted11. Redetermination of eligibilityAn officer "may" proceed with a redetermination of eligibility if there is information to indicate that the claimant should not have been found eligible to make a claim or is no longer eligible to make a claim. A104 allows an officer to redetermine the eligibility of a claim and to notify the Refugee Protection Division that the claim is no longer eligible, thus ending their jurisdiction over the case. Although redetermination is discretionary, if there is evidence to prove that a person is ineligible, redetermination should be the preferred course of action. There may be, however, situations where it is appropriate to have the RPD make a decision on the claim. For example, cases involving exclusion clauses could merit consideration by the RPD (refer to Section F of Article 1 of the United Nations Convention Relating to the Status of Refugees).An officer can end the Refugee Protection Division jurisdiction and redetermine eligibility with respect to a claim that is before it or has been determined when it is not the first protection claim made by the person. If the ineligibility is based on multiple protection claims under A104(1)(d), any decision respecting a claim other than the first claim will be nullified pursuant to A104(2)(b).
Request IDIRPA00000001756ItemFW-10.20 Who can be issued an open work permit?CategorySELECTION: Economic (Skilled Worker, Temporary Workers, Students, Provincial Nominees)
QuestionProfessional athletes historically have been given open work permits for the off season under E99 validation exemption code. There appears to be no replacement for that code, Are we able to use C10-canadian interest. Solution DetailsThis will soon be posted in the FW manualWho can be issued an open work permit?Applicants in the following categories are eligible: Persons described under R206(a) or (b), CEC S61 or S62 [link to policy guidelines]Persons described under R207, CEC A70 [link]Persons described under R208(a) or (b), CEC H81 or H82 [link]Certain workers admitted on a reciprocal basis:Canada World Youth Program Participants, CEC C20 [link]certain International Student and Young Worker Exchange Programs, CEC C21 (some programs are employer-specific vs. being 'open'Dependants of foreign representatives and dependants of military personnel: confirmation exempt, CEC C20, where a reciprocal arrangement exists. [link to Military appendix, Diplomatic appendix]Professional athletes admitted on the basis of CEC C20, who requires other work to support themselves while playing for a Canadian team (eg. CFL)Spouses of skilled workers, eligible under R205(c), C41 [link]Spouses of foreign students, eligible under R205(c), C42 [link]Work permits should be open, or open/occupation restricted if a medical has not been completed
October 15, 2004 Page 776 of 779
Request IDIRPA00000001758ItemIP 08-10.30 Assessing dependent childrenCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionDoes the child of a foreign national in Canada whose mother is not authorized to work and who is legally adopted by a Canadian father require a study permit to go to school?Solution DetailsThe adoption only brings the child into the adoptive father's family; it does not determine whether the child requires, or does not require, a student permit. In this case the child is neither a permanent resident, nor a Canadian citizen. He is therefore subject to the regulations governing issuance of student permits (see Part 12 of the Regulations). Even with a study permit a child could not study if he is the child of a temporary resident not authorized to work or study. The easiest way to avoid the problem is to ask the temporary resident who is member of the spouse or common-law partner in Canada class to request a work permit under section R199(f). If the temporary resident receives the right to work, the child will be authorized to study without a study permit.
Request IDIRPA00000001759ItemENF 23-8.30 Decisions made overseas on loss of PR status and their effect at a Port of Entry (POE)CategoryENFORCEMENT: Examinations, Seizure and Transportation
QuestionWe would appreciate input and guidance on the following questions arising from an application for travel document for PR.Applicant originally applied for a TRV to visit his son .We was initially inclined to consider TRV pending verification that son could meet LICO if necessary and that applicant could pass meds.It subsequently emerged that applicant had been landed on 02JUL74He remained resident in the USA with a US Green Card for about 10 years, during which he travelled extensively in Alaska, Canada, and the continental USA. Applicant has three children in Alaska, one in Canada and six in USA. In 1988 he returned to China. He has remained in China since. Applicant has assured us he is seeking nothing more than a visit to Canada.Our questions about this case are as follows:Should be we counting his ability to meet the residency requirement in the five-year period immediately before his application? The text of A28(2)(b)(i) seems to indicate that we should, but some colleagues believe that only time which has elapsed since 28JUN02 can be counted as part of a five-year period for the purpose of A28. We would appreciate if you could clarify this for us,However, we are inclined to proceed in that way, i.e. refuse Travel Document, find no H&C, then allow the appeal procedure to take its course.
Solution DetailsYou have to assess the five year period up to the time of your examination. If subject does not meet residency obligation and is only seeking to visit Canada, it is difficult to find H&C grounds for maintaining PR status. Once you have done a negative determination, you either wait the 60 day appeal period before issuing a TRV, assuming he qualifies, or you can have subject consider signing declaration as provided in draft OM appendix which deals with overseas negative determinations where the person consents to the determination and waives the appeal right.Once it is signed, you do not have to wait 60 days before the person can be issued a TRV.
QuestionThis is a similar scenario to ticket No. 1651. A foreign national is authorized to enter Canada to study and has a study permit (SP) valid for three years. Finally, we have the proof that he does not study in Canada but specific conditions were imposed on his SP. He has not lost his temporary resident status as per A47a) since the SP, in itself, is still valid. Can we cancel his SP and how? How can we refer him to an admissibility hearing? If we can do something with the above-mentioned scenario, could we have done something if he had only study a few days/months, years out of the three years?
Solution DetailsThe regulations do not require that the holder of a study permit be in fact studying at a Canadian institution. Unless the permit holder is actively violating the conditions of his/her permit (such as attending a school other than that outlined in the conditions) there can be no enforcement action against him or her.
Request IDIRPA00000001763ItemPP 04-10.3 Medical examinationCategoryREFUGEE: Resettlement
QuestionWhat is the new " Consideration of Medical Validity Extension for In-Canada Cases "Solution DetailsConsideration of Medical Validity Extension for In-Canada CasesMedical validity, the period over which the immigration medical examination is valid, is now twelve months from the date of the immigration medical examination. Concerns have been expressed about expired medical validity for in-Canada applicants. Consequently, a procedure has been developed whereby Medical Services Branch officers will give consideration to extending medical validity for certain in-Canada cases. Effective immediately, the medical validity extension procedure is:Where an immigration officer identifies an applicant's medical validity has expired, the immigration officer should refer the case to Medical Services Branch (MSB) at this e-mail address: [email protected] <mailto:[email protected] >Note: Please refer only those cases in which the immigration medical examination has been conducted less than 24 months (2 years) from the date of the request for extension. All other cases will automatically require a new medical examination. The medical case will be reviewed by MSB and a decision regarding medical validity extension or the requirement for a new medical examination will be provided to the requesting immigration officer within ten (10) working days. If a medical validity extension is granted, it will generally be for a period of twelve (12) months from the date of the request for extension.Should you have any questions/concerns on this procedure, please do not hesitate to contact me.Kerry Kennedy,Director, Medical Services Branch, Tel: (613) 954-4470E-mail/ [email protected] <mailto:[email protected]>NOTE: Please be advised: Additional instructions to come regarding who is bearing the cost for the second medical exam for protected persons
October 15, 2004 Page 778 of 779
Request IDIRPA00000001764ItemIP 01-24 Procedure : Work and study permitsCategorySELECTION: Social (H&C, Family Class, LCP, TRP)
QuestionI have a situation of a spouse of a US army member here on NATO orders. They arrived to Canada in July 2001. She obtained a work permit in Jan. 2002 valid until the date her husband's VR expires, namely 31/07/04. She claims that in June 2002 she applied for a study permit to attend Queens University in Sept. 2002. In Aug. 2002, she still had not received any indication and called the call center on a few occasions to inquire about what stage it was at. They told her that it was not in the system and she should resent her application. She then came in to the Kingston office and asked for a new application. This was sent in Oct. 2002. She has been attending school without authorization to do so. It appears as though she has actually been trying to get her situation straightened out, but has been unsuccessful and was unaware that she could not attend school while waiting. As she is a spouse of a US army member, we are not wishing to issue a removal order. What options do we have in order to deal with this situation?
Solution DetailsThe IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered and/or approved by the appropriate Service Line. The CIC Legal Services Unit has not yet vetted the final version of this answer. Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.The Service Line Answer is:R221 does not allow this FN to be issued a SP because she studied without authorization. She must wait 6 months from the time the unauthorized studies ended before being eligivle for a SP. The new regulations (not yet passed), will allow officers to issue a TRP, their discretion, to overcome the 6 month ban.
