The Migration Law Review, August 2006

Edited by Guidy Mamann

Contents

The Migration Law Review^™

is a monthly review of current developments in Canadian and American immigration and naturalization law. It is a publication of the lawyers and attorneys at the Toronto law firm of Mamann & Associates P.C. The articles contained herein are intended for lawyers, immigration professionals, community agencies and other consumers of professional immigration services.

For a free subscription of The Migration Law Review™, The Corporate Relocation Quarterly^™ or Guidy Mamann’s weekly immigration column, please visit our website at www.migrationlaw.com.

Re-Inventing The Wheel - CIC’s Interim H & C Policy
By Jeinis Patel, B.A., LL.B.

On June 7, 2006 CIC issued interim instructions to CIC officers who examine humanitarian & compassionate (H&C) applications for permanent residence. The purpose is to ensure H&C policy guidelines are consistent with the wording of the H&C provisions in IRPA, which require the Minister to examine requests for exemptions from inadmissible foreign nationals.

Prior to the invocation of this policy, CIC adopted a bifurcated approach towards the processing of H&C applications for permanent residence. The first step involved determining whether the applicant would face undue hardship or disproportionate harm in trying to comply with all of the provisions of the act and regulations. If so, the application would result in an ‘Approval in Principle’ ("AIP"). The AIP alone did not necessarily ensure the granting of permanent residence. Hence, the purpose of the second step was to determine whether the applicant is inadmissible to Canada. Previously, inadmissibility to Canada would result in a permanent residence application being refused without any consideration of the equitable factors. The interim policy seeks to more closely embrace the wording of section 25 of the IRPA to permit the Minister to simultaneously overcome all ‘inadmissibilities’ on H&C basis.

Subsection 25 (1) Of IRPA States:

The policy makes the intent of the section clearer and now directs H&C officers to consider exempting any applicable criteria or obligation of the Act, including an inadmissibility on medical, criminal, and other grounds, when the foreign national has specifically requested such an exemption, or if it is clear from the material that the foreign national is seeking such an exemption. Officers may grant an exemption from a ground of inadmissibility if:

(a) they are of the opinion that it is justified by humanitarian and compassionate considerations; and

(b) they have the delegated authority to grant the exemption.

In practical terms, if an H&C applicant has requested an exemption , CIC officers are now required to engage in balancing the H&C considerations put forth in the application against the ‘inadmissibility’ in question to determine if the granting of the exemption is appropriate.

It is important to note that an officer’s decision to grant an exemption does not "remove" the ground of inadmissibility’. It only permits the CIC officer to allow the H&C application to be processed without requiring the applicant to satisfy the officer that he or she is admissible to Canada.

If the officer is inclined to grant the exemption but does not have the delegated authority to do so under the terms of this interim instruction, the officer is required to forward the case to the Director of Case Review at NHQ for assessment.

This policy finally gives effect to the views of many experienced practitioner that a request for an exemption under s. 25 can include a request to exempt the applicant from any requirement of the Act.

Hilewitz clarified – Not just for business applicants
By Ron Poulton, B.Sc., LL.B

The Federal Court has decided that the principles as set out by the Supreme Court of Canada in Hilewitz v. MCI [2005] S.C.J. No. 58, issued on October 21, 2005, have application to all classes of applicants for landing, not just entrepreneurs and other business applicants.

Hilewitz involved the denial of a self employed application and an entrepreneur application because of the intellectual disability of a dependent child in each case. Medical officers assessed the levels of social services that would likely be accessed by the families in Canada on behalf of the affected dependents, and concluded that the associated costs would place an excessive demand on Canadian social services. The Supreme Court held that a visa officer had an obligation to consider a family’s actual circumstances and to carry out individual assessments of the needs of the affected individual and their own and their family’s willingness and capability to meet those needs through their own means. The Supreme Court found it incongruous to take into account the financial means of the business applicants for the purpose of selection but not for the purpose of determining whether the families are likely to resort to social assistance for their children. Practitioners have wondered if the reasoning in Hilewitz would apply to non-business applications.

In Colaco v. MCI [2006] FCJ No. 1134, issued on July 19, 2006, the applicants had applied under the skilled worker category. One of the children was diagnosed with mild mental retardation and their application was then rejected on the grounds that he was inadmissible to Canada on health grounds.

The rationale for this rejection related to the projected use of and cost to social services for the child once in Canada.

The evidence before the visa officer was that the family had provided all of the support required by the child from their own resources and they intended to continue with this practice once landed in Canada. In refusing the application the visa officer failed to take into account the family’s financial circumstances and their ability and willingness to contribute to the future costs of support for their child.

Mr. Justice Barnes allowed the judicial review application and applied the principles in Hilewitz.

Minister’s counsel argued that the principles in Hilewitz were limited to cases of business applicants, those who were applying for landing on the basis of their economic worth. The Court rejected this argument, noting that:

"To hold that such a family is undeserving of an individual assessment of the sort described in Hilewitz…would import an arbitrary element into the legislative scheme that cannot have been intended…"

The Court held that the applicants deserved an individual assessment of their willingness and ability to support their child and that whether they applied under the business class or not, was not a relevant factor.

It seems that the principles set out by the Supreme Court of Canada in Hilewitz apply to all applicants…not just the wealthy ones.

A common misconception among refugee practitioners is that the risk of harm due to inadequate medical care in a country of reference for a health condition cannot form the basis of a claim to protected person status under sections 96 or 97 of IRPA. In fact, a person can be found to be a protected person on this basis.

With respect to s. 96, a person can be found to be a Convention refugee for inadequate health care if the denial of health care exposes the person to a serious risk of physical harm, and if it is based on a Convention ground. Finding such a ground will be an evidentiary matter to be determined on a case-by-case basis.

If no basis in the Convention can be found for the inadequate medical care, where the person nonetheless suffers from a serious risk of physical harm or death due to the inadequate care, it is still open to establish that the person faces a risk to life or a risk of cruel and unusual treatment and so is a "person in need of protection" for the purposes of s. 97.

However, s. 97(1)(b)(iv) of the Act specifically excludes persons from protection as a person in need of protection if the risk is "caused by the inability of that country to provide adequate health or medical care". This exclusion has recently been considered by the Federal Court.

In Travers v. MCI, 2006 FC 444, the Federal Court has established that the proper approach to an application for status as a "person in need of protection" for s. 97, where the risk relates to inadequate medical care, is first to determine whether the risk to life or risk of cruel and unusual treatment exists. If so, the tribunal must determine whether the lack of adequate medical care is due to the state’s inability to provide care, or an unwillingness to do so. The Court clarified that a person can be accorded protection under s. 97 where the state is unwilling to provide the care, but not where it is merely unable to do so.

Barnes J. in Travers considered the refusal by the RPD of a refugee claim based on a risk to life for inadequate medical care in Zimbabwe, by a person suffering from HIV. In refusing the claim, the Board refused to make specific findings about the level or quality of care that would be available to the claimant if he were required to return to his country.

Barnes J. quashed the RPD decision on the basis that the Board was required to consider the issue, as follows:

"To my thinking, the correct approach to the application of section 97 of IRPA in a context like this one is to first decide if there is sufficient evidence to establish that an applicant’s life would be at risk and then to determine if the health care exclusion applies. In this case, the Board appears to have wrongly conflated the two parts of the test."

This approach is necessary, Barnes J. held, because it is open to a claimant to demonstrate that the exclusion does not apply because the state is unwilling to provide the treatment or care required, and is not merely unable to do so. Section 97(1)(b)(iv) makes clear that it is only an inability to provide care that excludes protection.

As in Travers, this issue often arises in the case of a person suffering from HIV/AIDS. In many countries, the necessary treatment for these persons is not publicly funded, and is prohibitively expensive. It may be established in a case that the denial of health care to the claimant is the result of state discrimination against persons suffering from HIV/AIDS, thereby establishing a nexus to the Convention on the ground of "membership in a particular social group" for the purposes of establishing a s. 96 claim. In the alternative, even where there is no discriminatory basis for the denial, where it can be shown that the state is able but not willing to provide this care, a case for protection under s. 97 can be made.

It should be noted that the Federal Court of Appeal will shortly consider whether the exclusion under s. 97(1) (b)(iv) violates sections 7 and/or 15 of the Charter of Rights and Freedoms, in an appeal from the decision of the Federal Court in Covarrubias v. MCI, 2005 FC 1193 in which the trial Division found that it did not.

When representing a client with medical issues, one should obviously also consider whether there is a risk of harm due to the medical condition from non-governmental sources. This risk may exist in certain countries for persons with HIV/AIDS, for example, where severe discrimination and social fear of the disease can lead to violence against the individual, from which the state may be unable or unwilling to protect.

To deal with a growing backlog of appeals, as early as October 2005, the Chairman of the Immigration and Refugee Board has introduced an Innovation Plan. The Plan proposes greater early intervention, intended to resolve a greater number of appeals on consent. This fails to consider the extremely adversarial nature of many proceedings before the IAD.

While the Alternative Dispute Resolution (ADR) program has been effective in resolving refusals of members of the family class, to date most counsel would describe it as achieving mixed results at best, given that many ADR decisions made by appeals officers are arbitrary and that the diversion of the file through the ADR process often has the effect of delaying the hearing of the appeal significantly.

Although some of the elements of the Innovation Plan have already been implemented on a limited scale – for example accelerated ADR of removal order appeals by the CBSA and expanding the number of cases heard in "Short Court" – these advances represent only piecemeal changes to the IAD as a whole and have not reduced the backlog of appeals, which continues to grow.  Whether the Innovation Plan is able to address these problems remains to be seen.

Both the United States and Canada have provisions in their respective immigration regulations that allow qualified entrepreneurial applicants to apply for a work permit as an entrepreneur. Many of the established criteria are similar, but there are also some key differences.

An E-2 visa is geared towards individuals who wish to establish a business in the US. In Canada, such work permits can be issued under Regulation 205(a) of IRPA where significant benefit to Canada can be demonstrated.¹

An E-2 applicant must be a citizen of a treaty nation to qualify for the visa. These countries include Canada, Chile, Japan, Mexico, Pakistan, etc. A full list is available in 9 Foreign Affairs Manual s. 41.51, Exhibit 1. In contrast, an applicant who wishes to establish a business in Canada can be from any country.

In applying for an E-2 visa details of the investment must be addressed fully in the submission package. The financial investment must be substantial, which is characterized as,

1) an amount of qualifying funds invested weighted against the total cost of purchasing or creating the enterprise;

2) the amount normally considered sufficient to ensure the investor’s financial commitment to the successful operation of the enterprise; and

3) a magnitude of investment to support the likelihood that the investor will successfully develop and direct the enterprise.

In addition to this requirement, these funds must be "at risk" to the applicant, and their acquisition must be fully documented. Generally, the investment must be made at the time that the application is made. The US Consulate in Toronto has indicated that they will accept money that is in escrow pending the outcome of the visa application.

Canada does not apply the at-risk and proportionality test but merely requires entrepreneurs applying under Regulation 205 to show that the intended investment is reasonable, and that the applicant has the financial ability to establish a business in Canada.

Active participation in the business is a requirement for both Canada and the US. There has to be a need for the entrepreneur to be in the country, and the only mechanism to prove that is through substantive participation. A well-prepared business plan must reflect this requirement. Documentary evidence of past business experience will also substantiate the applicant’s business acuity to establish and/or run the specified business. Since passive investments can be managed from abroad, they are unsuitable for both of these types of work permits.

As with any temporary visa to Canada, intent remains a crucial issue that must be examined by an officer. While I have gone into the implications of intent in a previous article, it bears repeating that in order to receive an entrepreneur visa for either country, the applicant must show a clear intent that they are willing to establish a business and leave once it is running, or that the business is temporary in nature. If an applicant is unable to make a clear case for this, Canadian Immigration officials will be more likely to refuse an applicant’s application, no matter how much money is being shown. While the Canadian visa applicant is not required to maintain a residence abroad, s/he must convince an officer that their intent in Canada is truly temporary. The officer will examine the applicant’s ties to their home country in order to make this assessment. However, in some cases, an applicant can apply for permanent residence as an entrepreneur and request a work permit in order to enter Canada early for establishment, with the knowledge that should their application for permanent residence be refused, they will be required to leave upon expiry of the work permit.

The US addresses intent a bit differently. It is not a requirement that the non-immigrant visa holder retain a separate residence abroad. However, intent to return to their home country must be shown by an entrepreneur’s statement to that effect, or other similar evidence. The US officials will not make an in-depth evaluation of an applicant’s ties to their home country.

It should be noted that neither an E-2 visa nor a Canadian significant benefits work permit will lead the holder directly to permanent residence. In either case, a separate application for permanent residence must be made. Nevertheless, both visas offer an entrepreneur the ability to enter either the US or Canada relatively quickly. For many, the ability to establish business ties before making a permanent residence commitment is the central attraction of these entrepreneur work permits.