Federal Court Success re MPNP and Misrepresentation

Congratulations to our client Ievgen Agapi, a truck driver from Ukraine, and all the supporting people who assisted with this case. Justice Ahmed of the Federal Court of Canada agreed with our arguments that the Visa Officer in Kiev failed to consider whether the alleged misrepresentation was honestly and reasonably made. Click here to read the full decision.

This is a significant decision in the jurisprudence of misrepresentation, as well as the processing of MPNP applications.

In the words of Justice Ahmed:

14]  The Applicant points out that section 40 of the IRPA does not apply to misrepresentations made honestly by an applicant who reasonably believes they did not withhold material information (Medel v Canada (Minister of Employment and Immigration)[1990] 2 FC 345Baro v Canada (Citizenship and Immigration)2007 FC 1299 (CanLII) at para 15, and Goudarzi v Canada (Citizenship and Immigration)2012 FC 425 (CanLII) at para 33). The Applicant submits that his response to the procedural fairness letter provided evidence that this exception applies to his alleged misrepresentation; he explained that the knowledge of the potential fraud was beyond his control and in his view he reasonably and honestly believed that he was not misrepresenting any material facts. Despite his response to the procedural fairness letter, the Applicant submits the Manager failed to consider whether any alleged misrepresentation was honestly and reasonably made.

[15]  The Respondent submits that the Applicant is merely “blaming” a third party for his misrepresentation and argues that efforts to get the original results were not before the decision-maker. The Respondent acknowledges that there is a “narrow exception” for innocent misrepresentation, but reiterates that it only applies in exceptional and narrow circumstance. The Respondent cites a line of jurisprudence for the proposition that misrepresentation made by a non-party to an application, without the applicant’s knowledge, does not save an application from an inadmissibility finding under section 40 of the IRPA. The Respondent also takes the position that the Applicant’s response to the procedural fairness letter did not meet the high standard to warrant such an exception.

[16]  I agree with the Applicant that the Manager failed to consider whether the Applicant honestly and reasonably believed he was not withholding material information.

CONGRATULATIONS TO EVERYONE WHO CONTRIBUTED TO THIS POSITIVE DECISION!

Major Changes to Medical Procedures

We recently had a conference call with IRCC regarding the major changes in policy to the treatment of cases with medical issues. These cases involve family members with health problems that may cause “excessive demand” on Canadian resources. Our office has been assisting many families with many cases of medical inadmissibility. The Warkentin case, filed with Federal Court, was key to having the policies changed.

It has been a pleasure to work with the Warkentin family and the community. We are thrilled and honored that our hard work has paid off. This has been a national effort and I applaud our colleagues in Toronto, in particular Adrienne Smith and all her hard work.

The changes have been reported on the IRCC website included a few details on the changes to how they process allegations of medical inadmissibility. The two (2) major changes listed are:

The new policy on medical inadmissibility strikes a balance between protecting publicly funded health and social services and updating the policy to bring it in line with current views on the inclusion of persons with disabilities. The changes include:

  • increasing the cost threshold for medical inadmissibility to 3 times the previous level, and

  • amending the definition of social services by removing references to special education, social and vocational rehabilitation services and personal support services.

This case has also been reported in the Winnipeg Free Press in an article by Carol Sanders. Here is an excerpt that that article:

On Monday, Immigration, Refugees and Citizenship Minister Ahmed Hussen announced changes to the medical inadmissibility provision of the Immigration and Refugee Protection Act so that Canada’s immigration policies “better align with Canadian values and reflect the importance that the government places on the inclusion of persons with disabilities.”

“This is really good news,” Winnipeg lawyer Alastair Clarke said after a conference call with Jon Warkentin and federal immigration officials Monday.

“We’re changing the law,” he said of those who spoke out against the 40-year-old immigration policy.

“If it did, then that’s great,” said Jon Warkentin by phone from the family’s home 320 kilometres northwest of Winnipeg in Waterhen. “That’s what we were hoping for, for some changes there. If our family was part of that, then that’s great.”

The Warkentin family have been pillars of the community in western Manitoba. Our goal is to help all families achieve their goals – for their benefit as well as the benefit to Canada. In our practice, we often see that the contributions of the families with medical inadmissibility issues are overlooked. We firmly believe that our clients are truly beneficial to Canadian society and they represent the future of our country.

Have you or any friends or family been accused of medical inadmissibility?

Currently, the law is in a state of flux. The IRCC policy changes have been announced; however, all the cases in the inventory within the government may be reassessed.

The relevant section of the law in IRPA sets out the section:

(1) A foreign national is inadmissible on health grounds if their health condition

  • (a) is likely to be a danger to public health;

  • (b) is likely to be a danger to public safety; or

  • (c) might reasonably be expected to cause excessive demand on health or social services.

Any applicants who may fall under the above section of Canadian immigration law may have their applications reconsidered under the new procedures. We highly recommend that any applications with medical issues be reexamined by a professional, certified immigration lawyer to make sure the cases are handled properly. Feel free to contact our office directly with any questions or concerns.

MCJA Conference: Guest Speaker on Criminal Justice

On 9 November 2017, Alastair will be a Guest Speaker at the annual Manitoba Criminal Justice Association conference. Here is a description of the Association and its importance in criminal justice:

criminal justice

The Manitoba Criminal Justice Association (MCJA) is a provincial affiliate of the Canadian Criminal Justice Association (CCJA) and has been actively engaged in promoting crime prevention initiatives in Manitoba for over 40 years. It is an independent, community-based organization, governed by a Board of Directors which is comprised of citizens interested in achieving the objectives of the Association. The Manitoba Criminal Justice Association exists to promote rational, informed, and responsible debate in order to contribute to the development of a more humane, equitable, and effective justice system.

Alastair will be speaking on criminal justice issues and the rights of refugees. He regularly represents refugees at the IRB, Refugee Protection Division. He also represents clients at all levels of tribunal, as well as Federal Court on appeals. He also assists clients who have criminality issues who face Section 44 Reports from CBSA and foreign nationals who have criminal convictions and need a TRP to enter Canada. His talk will cover:

The talk is part of a larger series that includes many perspectives and we welcome any questions at the end of the presentation. Please note that Alastair cannot give any legal advice on any individual matters at the conference.

MCJA is currently still accepting new registrations which can be done through their website here.

Participants at the conference will have access to all materials provided by MCJA. The purpose of the workshop is to foster coordination between agencies and to make sure that refugees are provided with sound advice and resources to potentially establish themselves in Canada.

SCC Decision: Conditional Sentences

Today, the Supreme Court rendered an important decision on the rights of permanent residents with criminality issues. The Tran decision from Federal Court of Appeal was overturned and the highest court in Canada has held that “conditional” sentences from criminal court are not considered “imprisonment”. This has a huge impact on minor convictions where the Sentencing Judge have a conditional sentence to the offender. Those Permanent Residents were subject to harsh treatment by CBSA and, in turn, the tribunal and they faced deportation.

Here is a key section from the decision by Justice Côté, paragraphs 32 to 34:

If s. 36(1)(a) is interpreted such that a conditional sentence is a “term of imprisonment”, absurd consequences will follow. As previously mentioned, conditional sentences are “for less serious and non-dangerous offenders” (Proulx, at para. 21). Thus, more serious crimes may be punished by jail sentences that are shorter than conditional sentences imposed for less serious crimes ― shorter because they are served in jail rather than in the community. It would be an absurd outcome if, for example, “less serious and non-dangerous offenders” sentenced to seven-month conditional sentences were deported, while more serious offenders receiving six-month jail terms were permitted to remain in Canada. Public safety, as an objective of the IRPA  (s. 3(1) (h)), is not enhanced by deporting less culpable offenders while allowing more culpable persons to remain in Canada.

   It would also be absurd for offenders to seek prison sentences instead of conditional sentences so that they can remain in Canada, as Mr. Tran has done in this case. Conditional sentences are designed as an alternative to incarceration in order to encourage rehabilitation, reduce the rate of incarceration, and improve the effectiveness of sentencing (Proulx, at para. 20). These objectives would be sabotaged if individuals who are subject to conditional sentences sought to replace them with prison terms, thinking the latter to be their only path for a future in the Canadian communities from which incarceration would remove them.

For these reasons, the phrase “term of imprisonment” in s. 36(1) (a) of the IRPA  cannot, by either standard of review, be understood to include conditional sentences.

As noted above, the Tran decision from the FCA has caused harsh, even “absurd” consequences for our clients. We strongly agree with Justice Côté’s decision and this has had an immediate impact on one of our clients.

12 Month Conditional Sentence

Our client was given a 12 Month Conditional Sentence in Feb 2017 and his matter was referred to the Immigration and Refugee Board of Canada, Immigration Division. Based on the SCC Tran decision, he now has a good chance of staying in Canada with his Canadian children. His conditional sentence will now not be counted as “imprisonment” and, therefore, the SCC decision will have a strong positive impact on his case.

Congratulations to Peter and all the lawyers who worked on the Tran decision!

WFP: American family gets another chance to stay in Canada

Clarke immigration law has been representing the American family with their application for Permanent Resident Status in Canada through the MPNP-Business program. The media has been extremely supportive and this American family has received significant support from their rural community in Manitoba and across Canada.

The Winnipeg Free Press published an article with an update yesterday. Here is an excerpt:

MPNP

MPNP

The Warkentin family, faced with a looming deportation deadline, learned this week Immigration, Refugees and Citizenship Canada is allowing them to renew their application for permanent residency.

“Canada is letting us reopen our file and we have 60 days to resubmit more information and show our worthiness,” Jon Warkentin said over the phone from the family-owned Harvest Lodge outfitting business on the Waterhen River.

The Warkentins came to Canada from Colorado in 2013 to operate the outfitting business. They applied for permanent residency, intending to put down roots in the village of Waterhen, about 320 kilometres northwest of Winnipeg.

A year after they arrived, the family was given a bleak diagnosis: the youngest of Jon and wife Karissa’s four children, then-three-year-old daughter Karalynn, had epilepsy and global-developmental delay.

The diagnosis threw a bureaucratic wrench into the family’s dreams of staying in Canada.

Ottawa denied their application this spring on the grounds Karalynn might cause “excessive demand” on health or social services in this country. As a result, the entire family faced being the imminent prospect of being forced out of the country when their current work permit expired Nov. 24.

This summer, they hired Winnipeg lawyer Alastair Clarke to explore their options.

Clarke worked through the bureaucracy, trying to convince federal officials to give the family a second shot. At the same time, he filed a motion in to have a federal judge look at the case.

It was the bureaucracy that came through first, Warkentin said, adding the family now has the choice of withdrawing the court action. The second chance offered this week gives the Warkentins what they wanted from a judge, without the need for time in court.

“The permanent residency is back in process, and they qualify for an extension to their work permit,” Clarke said.

Click here to read the full story by Alexandra Paul.

We will continue to support this American family with their goals of coming to Canada. This family came to invest in Manitoba as business leaders. They have invested more than $600,000.00 in Canada and, we believe, they will be contributing to Canada for decades in the future.

Global News: Immigration Canada reopens application

We want to thank Global News for highlighting our cases. The media attention and support from the community has been helpful to bring light to these important issues. We use all the tools available to us to make sure our clients get positive results.

Here is an excerpt from the article posted on Global News:

The decision to reopen the family’s case comes after more than a month of back and forth between the Department of Justice, which represents Immigration Canada in legal matters, and the family’s lawyer, Alastair Clarke.

Clarke said the decision by Immigration Canada to overturn its earlier ruling – which would have seen the Warkentins and their four children sent back to the United States once their temporary working visas expire in November – is a direct result of public pressure and attention placed upon the government following Global News’ in-depth look into the family’s situation.

“We received notification today from [Immigration Canada] that they have reversed their decision and reopened the Warkentin application,” said Clarke, who argued the government overlooked important information and relied on unfounded medical diagnoses when initially denying the family’s application. “We have been working on this file for a long time and thank you to Global News for all the coverage in addition to all the public support.”

For the full article, please visit the Global News website. For this case, we have also been working with the MP’s office as well as MPNP. We will continue to work on this file to make sure that Jon and Karissa’s status in Canada is secure. We believe that this result was achieved through our litigation strategy to make sure that we use all our resources to ensure that IRCC Officers fully consider all the circumstances of the case. In cases where the IRCC Officer has not fully considered all the information, we want to work with Officers and Managers to make sure they understand all the important aspects of the application.

We will be continuing to work on medical inadmissibility files and helping to assist families in Manitoba. If you or your loved ones need legal assistance, please contact our office.

Canada 150 and the Meaning of Citizenship

Last week, I attended a ceremony for 80 new citizens as a guest of Friends of Filipino Immigrants in Manitoba. The room was packed with folks from 18 different countries all coming together to celebrate becoming Canadian. The atmosphere was festive, bordering on jubilant. A choir of children started the national anthem and we all joined in. Some sang in English and others in French. And the Citizenship Judge, Dwight MacAulay, reminded us of some of the key events over the past 150 years that have built this country before he bestowed the prize that each of them had been waiting to receive: Canadian citizenship.Canadian Citizenship

As an immigration lawyer, I toil away trying to fix all the problems that come across my desk but I realized during the ceremony that it is also important to step back sometimes and remember the prize: Canadian Citizenship. It is so easy to take it for granted.

In the wake of everything going on south of the border, or across the oceans, I truly believe that we should be celebrating more of what we have accomplished in Canada. We have our problems here, of course. We are not immune from hate speech, racism and ignorance. But I also believe that we have achieved significant milestones in terms of cultural awareness and celebrating our differences. It may be trite to say but our diversity is our strength.

With each family filing up to greet the Citizenship Judge, I could not help but wonder how they came to Canada and all the possible strife they may have had to overcome to get to that moment. How many of them arrived as refugees? How many had to fight for refugee status? How many were sponsored by a family member? How many came as international students and figured out how to stay? There are so many potential paths and yet they all lead to one potential prize.

My mum said to us growing up, “never miss an opportunity to celebrate.” Our day to day work is focused so much on resolving issues, mitigating risk and finding solutions to problems (some of them created by our clients while others are based on jaw-dropping miscarriages of justice), we can easily lose sight of the importance of celebration and reminding ourselves of everything we have to be thankful for.

As noted by Dwight MacAulay, who gave a speech from the heart, the 80 new Canadians immediately made Canada a better place to live. Each immigrant brings skills, knowledge, and life experience to share. I was reminded of the Syrian refugees out east who rebooted their chocolate business, my Burundi client who is starting his IT company and my American clients with their hunting lodge in rural Manitoba. Not to mention my client who came as a refugee and now works for Air Canada (and is one of their best employees, IMHO) or the Chinese clients who bought a dairy farm. So many success stories. Our diversity is truly amazing.

OK – back to work. I need to help some more folks get closer to their prize. In the meantime, if you, dear reader, are Canadian, I hope you have spent a moment to be thankful for the prize you have before you have to get back to trying to solve the wrongs in the world.

*Republished from Slaw.ca

Free Presentation: Law in the Library – Transcona

Please note that Alastair Clarke will be giving a free presentation on citizenship law and other changes to immigration law at Transcona Library as part of the Law in the Library Series presented by the Community Legal Education Association.

Here is a description of the program:

Are you new to Canada? Are you looking for help in some legal aspects of immigration? Join us for a free program to help provide you with legal information that you may need. Our guest lawyer Alastair Clarke will cover issues like immigration options, sponsorship, citizenship applications, bringing family members to Manitoba, MPNP and other options. Please bring questions for the lawyer to answer!

For more information, contact the library directly at 204-986-3954.

In the News: “Repeal Safe Third Country Agreement, says Manitoba lawyer”

Published by Law Times, 6 Feb 2017, article: “Repeal Safe Third Country Agreement, says Manitoba lawyer”.

A Manitoba lawyer who handles refugee claims says more people are coming to Canada due to the rising rhetoric in the United States and Canada needs to act now to suspend the Safe Third Country Agreement.

Challenges facing immigrants and refugees have gained widespread attention since Jan. 27, when Trump suspended the U.S. Refugee Admissions Program for 120 days, and stopped nationals from Yemen, Sudan, Libya, Somalia, Syria, Iran and Iraq from going into the United States for 90 days.

A U.S. federal judge suspended the order last week, and now, the government has a chance to submit legal briefs in support of Trump’s intended policy changes. The battle may end up before the U.S. Supreme Court.

[Update: There is now litigation in 4 states and the case will be heard at the Federal Court of Appeal.]

Manitoba has garnered attention since CBC reported that more than 400 people were intercepted near the U.S.-Canada border at Emerson between April to December 2016.

Crossing the Land Border Into Canada

“I think there’s just a general impression that Canada is a safer country than the United States, and they will have more support here, and that [they] will have a better life,” says Alastair Clarke, founder of Clarke Immigration Law in Winnipeg.

Due to Trump’s changes, the Canadian Association of Refugee Lawyers last week was “calling on Canada to immediately suspend the Safe Third Country Agreement.”

“Under the STCA, those who try to enter Canada through the U.S. to make a refugee claim at the border are returned to the U.S. regardless of whether they will or already have had access to asylum in the U.S. The U.S. and Canada have considered one another “safe” for asylum-seekers,” said a CARL news release.

“The STCA creates a North American approach to refugee approvals. With President Trump’s Executive Orders, the U.S. is unilaterally changing the terms of that approach, with potentially disastrous consequences for vulnerable asylum-seekers.”

Here is a link to the CARL Press Release.

In Winnipeg, Clarke works with groups that have housing set up and are working “as hard as they can to bring as many people” as they can support.

“The government can’t keep up with the demand,” says Clarke, adding that the biggest legal hurdle he’s grappling with is the STCA.

“Unless the refugee claimant is able to fall under one of the exemptions listed in the agreement, then they are denied at the border,” says Clarke, who says most people who are successful are able to do it due to exemptions related to having family in Canada.

Clarke has handled about 30 to 35 files involving refugee claimants since January 2015, from countries such as Haiti, Burundi, Ethiopia, Eritrea, Somalia, and Nigeria.

“I think more people are coming based on the rhetoric coming from the United States. It’s partially Trump, but I mean Trump was elected, because in general, there is an anti-refugee sentiment in the United States,” he says. “It’s not just him, but I think — generally speaking — there is less of an appetite for refugees in many parts of the United States.”

The above is an excerpt from the article published by Law Times. For the complete article, please click the link above.

For a description of the Safe Third Country Agreement from CBSA, click here.

For the full text of the Agreement between Canada and the United States, click here.

Immigration Questions from Presentations

These past few weeks have been very busy and we wanted to thank everyone for their support. At the PCCM event on Jan 30th, more than 100 people came to the event. The room was full and the audience was engaged. Last night, we have a presentation at Munroe Library in Winnipeg and, again, the room was packed and there was active participation. We met folks from Ukraine, Philippines, India, Pakistan, the USA, Nigeria, Egypt, Australia, El Salvador and many others. We answered many immigration questions. Here are some of the questions that Mr. Clarke answered during the 5 hours of presentations:

  • If my Super Visa is going to expire but my husband has submitted an In-Canada Spousal Sponsorship application, do I need to apply to extend my Visa?
  • Can I sponsor my brother in Punjab?Immigration Questions
  • If my MPNP application is refused, how do I appeal the decision?
  • I want my mother from the Philippines to come and take care of my children. How do I bring her to Canada?
  • MPNP is no longer accepting applications from Nurses and my sister is a Nurse. How I can I help her come to Manitoba?
  • My son married a woman from Wisconsin and she has children from a previous marriage. Do the children become Permanent Residents too?
  • What are the benefits of becoming a Canadian citizen?
  • If I become a citizen, do I lose my American citizenship?
  • My brother was refused entry to Canada but we don’t know why. How can we find out?
  • How long does it take for a MPNP application?
  • How many people can I support for MPNP applications?
  • My brother wants to come to Canada but he is not sure if he will come to Manitoba. He is interested in Toronto. If I help him with his MPNP application, can he move to Toronto? Can Manitoba come after me?
  • How long does it take to process a Parental Class application?
  • How many times can I extend my visa?
  • And many more!

If you have any of these questions or you have other immigration questions, please come to the next presentation or contact our office. Click here for information on how to schedule an appointment.