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From: Tim Leahy [mailto:tel@myforefront.com]
Sent: Friday, September 28, 2012 8:51 PM
Subject: question for the minister
Good evening,
Building on what one of your number proposed, I have sent the following to the Daily Telegraph reporter:
This email is from one of about two dozen of my litigants whom the Canadian Consulate General at Hong Kong directed in February to submit a complete set of new forms and documents. Then in April, sent them a letter telling them to disregard the first letter (because the files were going to be closed.) After applicants' counsel objected to CIC's acting on the basis of a law not yet passed, HK sent out a third letter, advising applicants to disregard the second letter. In May many were approved and directed to take medical results and, subsequently, to pay the head tax, but June 29th came along and their files were closed even though they were visa-ready.
I wrote to the program manager in HK -- "Angela Gawel" <Angela.Gawel@international.gc.ca>, -- asking if she would access s. 25 of IRPA, which permits landing for humanitarian and compassionate reasons not with standing any other provision of the act, but she choose not to respond. Here is the operations bulletin -- 442 -- which tells the field to close these files.
http://www.cic.gc.ca/english/resources/manuals/bulletins/2012/ob442.asp
Here's my rephrasing of the question below:
1. Are you aware that Operations Bulletin 442, issued the very day Bill C-38 passed, instructed the field to close files of applicants who had received positive selection decisions after March 28th and had, complied with the visa-post's orders, taken medicals and paid the landing fee?
2. Approximately how many visa-ready applicants had their immigrant visa taken away from them in this manner?
3. As I understand, your act allows people to be granted permanent residence for humanitarian or compassionate reasons or for reasons of public policy. Could you not, therefore, legally issue visas to these few dozen applicants, showing some Canadian compassion in the process?
Here are the actual provisions:
http://laws.justice.gc.ca/eng/acts/I-2.5/FullText.html
Humanitarian and compassionate considerations — request of foreign national
25. (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible or does not meet the requirements of this Act, and may, on request of a foreign national outside Canada who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
Marginal note:Restriction — designated foreign national
(1.01) A designated foreign national may not make a request under subsection (1)
(a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;
(b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or
(c) in any other case, until five years after the day on which they become a designated foreign national.
Marginal note:Suspension of request
(1.02) The processing of a request under subsection (1) of a foreign national who, after the request is made, becomes a designated foreign national is suspended
(a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;
(b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or
(c) in any other case, until five years after the day on which they become a designated foreign national.
Marginal note:Refusal to consider request
(1.03) The Minister may refuse to consider a request under subsection (1) if
(a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any requirement imposed on them under section 98.1; and
(b) less than 12 months have passed since the end of the applicable period referred to in subsection (1.01) or (1.02).
Marginal note
ayment of fees
(1.1) The Minister is seized of a request referred to in subsection (1) only if the applicable fees in respect of that request have been paid.
Marginal note:Exceptions
(1.2) The Minister may not examine the request if
(a) the foreign national has already made such a request and the request is pending;
(b) the foreign national has made a claim for refugee protection that is pending before the Refugee Protection Division or the Refugee Appeal Division; or
(c) subject to subsection (1.21), less than 12 months have passed since the foreign national’s claim for refugee protection was last rejected, determined to be withdrawn after substantive evidence was heard or determined to be abandoned by the Refugee Protection Division or the Refugee Appeal Division.
Marginal note:Exception to paragraph (1.2)(c)
(1.21) Paragraph (1.2)(c) does not apply in respect of a foreign national
(a) who, in the case of removal, would be subjected to a risk to their life, caused by the inability of each of their countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, to provide adequate health or medical care; or
(b) whose removal would have an adverse effect on the best interests of a child directly affected.
Marginal note:Non-application of certain factors
(1.3) In examining the request of a foreign national in Canada, the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national.
Marginal noterovincial criteria
(2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.
2001, c. 27, s. 25; 2008, c. 28, s. 117; 2010, c. 8, s. 4; 2012, c. 17, s. 13.
Previous Version
Marginal note:Humanitarian and compassionate considerations — Minister’s own initiative
25.1 (1) The Minister may, on the Minister’s own initiative, examine the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
Marginal note:Exemption
(2) The Minister may exempt the foreign national from the payment of any applicable fees in respect of the examination of their circumstances under subsection (1).
Marginal noterovincial criteria
(3) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.
2010, c. 8, s. 5.
Marginal noteublic policy considerations
25.2 (1) The Minister may, in examining the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act, grant that person permanent resident status or an exemption from any applicable criteria or obligations of this Act if the foreign national complies with any conditions imposed by the Minister and the Minister is of the opinion that it is justified by public policy considerations.
Marginal note:Exemption
(2) The Minister may exempt the foreign national from the payment of any applicable fees in respect of the examination of their circumstances under subsection (1).
Marginal noterovincial criteria
(3) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.
Marginal note:Conditions
(4) The conditions referred to in subsection (1) may include a requirement for the foreign national to obtain an undertaking or to obtain a determination of their eligibility from a third party that meets any criteria specified by the Minister.
2010, c. 8, s. 5; 2012, c. 17, s. 14.
Previous Version
From: Tim Leahy [mailto:tel@myforefront.com]
Sent: Friday, September 28, 2012 8:51 PM
Subject: question for the minister
Good evening,
Building on what one of your number proposed, I have sent the following to the Daily Telegraph reporter:
This email is from one of about two dozen of my litigants whom the Canadian Consulate General at Hong Kong directed in February to submit a complete set of new forms and documents. Then in April, sent them a letter telling them to disregard the first letter (because the files were going to be closed.) After applicants' counsel objected to CIC's acting on the basis of a law not yet passed, HK sent out a third letter, advising applicants to disregard the second letter. In May many were approved and directed to take medical results and, subsequently, to pay the head tax, but June 29th came along and their files were closed even though they were visa-ready.
I wrote to the program manager in HK -- "Angela Gawel" <Angela.Gawel@international.gc.ca>, -- asking if she would access s. 25 of IRPA, which permits landing for humanitarian and compassionate reasons not with standing any other provision of the act, but she choose not to respond. Here is the operations bulletin -- 442 -- which tells the field to close these files.
http://www.cic.gc.ca/english/resources/manuals/bulletins/2012/ob442.asp
Here's my rephrasing of the question below:
1. Are you aware that Operations Bulletin 442, issued the very day Bill C-38 passed, instructed the field to close files of applicants who had received positive selection decisions after March 28th and had, complied with the visa-post's orders, taken medicals and paid the landing fee?
2. Approximately how many visa-ready applicants had their immigrant visa taken away from them in this manner?
3. As I understand, your act allows people to be granted permanent residence for humanitarian or compassionate reasons or for reasons of public policy. Could you not, therefore, legally issue visas to these few dozen applicants, showing some Canadian compassion in the process?
Here are the actual provisions:
http://laws.justice.gc.ca/eng/acts/I-2.5/FullText.html
Humanitarian and compassionate considerations — request of foreign national
25. (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible or does not meet the requirements of this Act, and may, on request of a foreign national outside Canada who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
Marginal note:Restriction — designated foreign national
(1.01) A designated foreign national may not make a request under subsection (1)
(a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;
(b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or
(c) in any other case, until five years after the day on which they become a designated foreign national.
Marginal note:Suspension of request
(1.02) The processing of a request under subsection (1) of a foreign national who, after the request is made, becomes a designated foreign national is suspended
(a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;
(b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or
(c) in any other case, until five years after the day on which they become a designated foreign national.
Marginal note:Refusal to consider request
(1.03) The Minister may refuse to consider a request under subsection (1) if
(a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any requirement imposed on them under section 98.1; and
(b) less than 12 months have passed since the end of the applicable period referred to in subsection (1.01) or (1.02).
Marginal note
ayment of fees(1.1) The Minister is seized of a request referred to in subsection (1) only if the applicable fees in respect of that request have been paid.
Marginal note:Exceptions
(1.2) The Minister may not examine the request if
(a) the foreign national has already made such a request and the request is pending;
(b) the foreign national has made a claim for refugee protection that is pending before the Refugee Protection Division or the Refugee Appeal Division; or
(c) subject to subsection (1.21), less than 12 months have passed since the foreign national’s claim for refugee protection was last rejected, determined to be withdrawn after substantive evidence was heard or determined to be abandoned by the Refugee Protection Division or the Refugee Appeal Division.
Marginal note:Exception to paragraph (1.2)(c)
(1.21) Paragraph (1.2)(c) does not apply in respect of a foreign national
(a) who, in the case of removal, would be subjected to a risk to their life, caused by the inability of each of their countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, to provide adequate health or medical care; or
(b) whose removal would have an adverse effect on the best interests of a child directly affected.
Marginal note:Non-application of certain factors
(1.3) In examining the request of a foreign national in Canada, the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national.
Marginal note
rovincial criteria(2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.
2001, c. 27, s. 25; 2008, c. 28, s. 117; 2010, c. 8, s. 4; 2012, c. 17, s. 13.
Previous Version
Marginal note:Humanitarian and compassionate considerations — Minister’s own initiative
25.1 (1) The Minister may, on the Minister’s own initiative, examine the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
Marginal note:Exemption
(2) The Minister may exempt the foreign national from the payment of any applicable fees in respect of the examination of their circumstances under subsection (1).
Marginal note
rovincial criteria(3) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.
2010, c. 8, s. 5.
Marginal note
ublic policy considerations25.2 (1) The Minister may, in examining the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act, grant that person permanent resident status or an exemption from any applicable criteria or obligations of this Act if the foreign national complies with any conditions imposed by the Minister and the Minister is of the opinion that it is justified by public policy considerations.
Marginal note:Exemption
(2) The Minister may exempt the foreign national from the payment of any applicable fees in respect of the examination of their circumstances under subsection (1).
Marginal note
rovincial criteria(3) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.
Marginal note:Conditions
(4) The conditions referred to in subsection (1) may include a requirement for the foreign national to obtain an undertaking or to obtain a determination of their eligibility from a third party that meets any criteria specified by the Minister.
2010, c. 8, s. 5; 2012, c. 17, s. 14.
Previous Version
