Decisions and Decision Makers Outside Canada

1
Decisions and Decision Makers (Outside Canada)

• The Legislative Framework

2
Three Categories of Individual

• Foreign National, Permanent Resident and Canadian
  Citizen.
• The first two are defined in IRPA, the third in
  the Regs. (definitions are unhelpful)

3
Issuing a Visa (PRV and TRV)

• General Rule s. 11 IRPA - before arriving in
  Canada, Foreign National must obtain a visa.
  (whether aiming to come as temporary or permanent
  resident) Confirmed in Regs. ss. 6 and 7
• Application can be made on behalf of a principal
  applicant and accompanying family members (Regs.
  s.10)

4
Place of Application

• Application must be made in country of residence
  (or presence for a temporary resident visa) or
  country of nationality (s.11 Regs)
• One year residence required for PRV.

5
Need for Visa Exceptions

• Regs s. 7(2)
• temporary resident visa not needed for countries
  listed in s. 190 Regs
• Those who have a Temporary Resident Permit under
  s.24 of IRPA are also exempted Note the
  difference between a Permit and Visa.
• Some individuals and classes of individual may
  apply for Permanent Resident Visa from within
  Canada Regs. s.72 and discretion under s.25 of
  IRPA

6
Obligation to tell truth

• Since Misrepresentation is a ground of
  inadmissibility, (IRPA s.40) failure to abide by
  the obligation to tell the truth (IRPA s.16 ) may
  have serious consequences.
• Its also an offence under s. 127 IRPA (Huge
  penalties)

7
Requirements for TRV

• Regs s. 179 2 factors are very important
• Claimants must establish that they will leave
  Canada by the end of authorized period and must
  establish that they are not inadmissible
• Not all TRV applicants must undergo a medical
  check Regs s. 30
• The applicant is asked to identify if they have a
  criminal record.

8
Examination

• The IRPA provides for an examination. There is no
  specific provision for an interview.

9
Application for a PRV
10
Classes of Applicant

• IRPA s. 12 Classes (Family, Economic, Refugee, )
• Discretion to disregard the criteria (e.g.Regs
  s.87(3))
• Details found in PARTS 6, 7 and 8 of Regs
  (ss.73-178)

11
Medical Assessment

• The criteria of Medical inadmissibility are found
  in IRPA s.38.
• Under Reg 30 applicant for PRV and family members
  (as defined in Reg 1(3) must submit to medical
  examination A Medical Certificate indicating
  admissibility on health grounds must be obtained

12
Medical Assessment

• For details on medical assessment, see Policy
  Manual OP-15 and Designated Medical Practitioner
  Handbook (See CIC website under publications) S.6
  of Handbook
• Note the Medical Practitioner does not decide the
  question of Inadmissibility Medical Officer
  sends assessment to regional office that makes
  recommendation to Visa Officer

13
Police and Security Checks

• Applicants for Permanent Resident visa may
  require a Police certificate of non-criminality.
  Each country has different process (Check
  website)
• A background check will also be conducted.

14
Other Checks

• Funding Check
• Visa Office will determine whether the applicant
  has funding to support self and family (IRPA
  s.39)
• Check of Relationship amongst Applicants
• See OP-1 for use of DNA
• Document Check

15
Classes of Individuals in Canada who can apply
for visa

• Regs. s.72 (Live-in Caregiver,
  spouse/common-law partner in Canada, protected
  temporary resident)
• Regs s. 63 Permit Holder
• Since Aug 2008, Experience in Canada Class
  (processed in Buffalo)

16
Legal Issues

• Canadian Human Rights Act
• Charter?
• Judicial Review (Federal Court Act s.18.1)
• Factual errors, procedural errors, abuse of
  discretion, legal errors, egregious delay

17
Application for Work Permit or Study Permit

• Foreign National may wish to come to Canada to
  visit, work or study. The general rule is that
  foreign nationals may not work nor study in
  Canada without authorization (IRPA s. 30) and
  also that you may not enter Canada to work or
  study without obtaining a Work Permit or Study
  Permit (REGS ss 8 and 9)
• The criteria and process for getting TRV, Work
  Permit and Study Permit are outlined in Parts 9
  -12 of REGS (ss.179 -222)

18
Work permit

• Work and Study without Permit possible Regs 186,
  188

19
Live-in Caregivers

• Note the special situation of Live-In Caregivers.
• Regs ss. 110 115
• Specific education and experience required.
• No accompanying family members. See Policy Manual
  OP-14

20
Other applications

• Permanent Resident Status Determination The
  question may arise whether a person has lost
  their PR Status because they have not been in
  Canada for sufficient period
• Under s.31 of IRPA a person without PR ID card
  may be given travel papers to for individual who
  has lost PR Identification Card if they still
  have status.

21
More applications

• Application for Humanitarian and Compassionate
  Leave under s.25 IRPA
• Application for rehabilitation for those who have
  committed offences
• Application for Temporary Resident Permit (s.24
  IRPA)

22
Decisions Made Outside Canada

• Migration Control Officer See CBSA Fact Sheet
• http//cbsa-asfc.gc.ca/media/facts-faits/030-eng.h
  tml

23
Migration Integrity Officers

• Migration Integrity Officers. The Immigration
  Intelligence network has 45 Migration Integrity
  Officer (MIO) positions located in key locations
  overseas to work with other government
  departments, international partners, local
  immigration and law enforcement agencies and
  airlines to combat irregular migration, including
  people smuggling and trafficking.

24

• The work of these officers has resulted in an
  interdiction rate of 72 in 2003. This means that
  of all those attempting to travel to Canada by
  air, using improperly issued documents, 72 (more
  than 6,400 individuals) were stopped before they
  got to Canada. In addition these officers have
  maintained a steady flow of key intelligence
  information which allows us to continually
  enhance the integrity of Canada's immigration
  program

25
Decisions of International Committees

• Where an aggrieved individual has exhausted all
  domestic avenues of redress a complaint may be
  made against Canada at an international tribunal
• The United Nations Human Rights Committee
• (established by the Protocol of the Intl
  Covenant on Civil Political Rights
• The Committee Against Torture (established under
  Article 17 of the Convention against Torture
• The Inter-American Commission on Human Rights
  (Limited powers because Canada is not a signatory
  to to the Inter-American Convention on Human
  Rights) put can hear individual petitions against
  Canada