With the backlog having climbed to more than 165,000 parents and grandparents waiting for a decision on their Canadian permanent residence applications, and with the waiting time for processing exceeding seven years, CIC has announced a four-part Action Plan to tackle this problem. This Action Plan encompasses the following:

1. Increasing the number of parents and grandparents to be admitted in 2012 to 25,000 (up from nearly 15,500 in 2010).
2. Introduction of a new Super Visa for parents and grandparents, which will be valid for 10 years, and which will allow eligible applicants to remain in Canada for up to 24 months at a time with the possibility to renew for a further 24 months. This Super Visa will come into effect on December 1, 2011.
3. Public consultation on how to redesign the parents and grandparents program, so that it will become sustainable and avoid huge backlogs.
4. CIC will not accept new sponsorship applications for parents and grandparents for two years starting November 5, 2011.

This Action Plan appears to have some “give and take”. While no new sponsorship applications will be accepted for two years so that the backlog of applications can be attacked, eligible parents and grandparents can obtain the new Super Visa so they can join their family members in Canada, albeit with temporary status. Full details on eligibility criteria for the new Super Visa have not yet been announced, although CIC has announced that parents and grandparents will have to take an immigration medical test, prove that they have purchased Canadian medical insurance, and prove that there is a child or grandchild in Canada who will provide financial support and who meets a minimum income threshold. CIC aims to process Super Visa applications in eight weeks on average.

Read the full announcement here. 

Citizenship, Immigration and Multiculturalism Minister Jason Kenney announced that Canada will accept more immigrants in the Federal Skilled Worker permanent residence application category in 2012 than in the 2011 Immigration Levels Plan.  Underscoring the importance of this economic class category, the 2012 figure is set at 55,000 to 57,000 Federal Skilled Workers, an increase from 47,000 to 47,400 in the 2011 Immigration Levels Plan.

Each year Canada welcomes approximately 250,000 permanent immigrants, who qualify among the various immigration application categories.  One of the more difficult decisions that must be made each year by the government, which has been reluctant to increase overall immigration above approximately 250,000 permanent immigrants each year, is the distribution of these 250,000 visas among all of the various permanent residence application categories. The categories are, generally speaking, ”economic class” categories (which include Federal Skilled Workers, the Canadian Experience Class and Provincial Nominees), and the “family class” categories, which include sponsorships of spouses, common-law partners, dependent children, parents and grand-parents. The government faces a difficult role each year in trying to get the balance “just right” between economic and family classes, and within the various sub-categories within these general classes.

As Minister Kenney announced:

The government’s number one priority remains the economy. We recognize the importance of immigration to our labour market and we value the contributions of skilled immigrants who add to our international competitiveness, said Minister Kenney. We are committed to facilitating the arrival of the best and the brightest to our country.

Read the full anouncement here.

In a unanimous decision dated June 10, 2011 (Canada (Attorney General) v. Mavi, 2011 SCC 30), the Supreme Court of Canada has confirmed that the sponsorship undertaking signed by a sponsor in a family class sponsorship application for Canadian permanent residence status is binding on the sponsor despite any change in the sponsor’s circumstances.

Canadian law allows Canadian citizens or permanent residents to sponsor certain relatives such as spouses, common law partners and parents to immigrate to Canada and become Canadian permanent residents. As part of such a sponsorship, the sponsor must give an undertaking to the government and thereby promise to provide financial and other support to the sponsored person for a certain period of time. As part of that arrangement, if the sponsored person obtains social assistance while the undertaking remains valid, the sponsor is deemed to have defaulted in the undertaking of support, and either the provincial or federal government may recover from the sponsor the cost of providing social assistance. As characterized by the Court, “Family reunification is based on the essential condition that in exchange for admission to this country the needs of the immigrant will be looked after by the sponsor, not by the public purse”.

In this case it was argued that the Crown (the federal or provincial government) has a choice about whether or not to collect reimbursement from a sponsor when there has been a default in the sponsorship undertaking. However, the Supreme Court of Canada found that the Crown does not have discretion to forgive this kind of debt. Instead, the only discretion that the Crown has is to delay enforcement action and enter into agreements respecting terms of payment after considering any relevant personal and financial circumstances that might militate against immediate collection. “In dealing with defaulting sponsors, the government must act fairly having regard to their financial means to pay and the existence of circumstances that would militate against enforcement of immediate payment (such as abuse)”.

• Read the full decision: Canada (Attorney General) v. Mavi

As previously written in this space, the current Canadian Citizenship Act requires that a Canadian permanent resident have at least three years of residence in Canada in the four year period immediately before a citizenship application is made, among other things, to be eligible to apply for Canadian citizenship. However, “residence” is not defined in the current legislation. This lack of definition has led to multiple judicial tests of “residency”, one requiring physical presence (a quantitative test), the other looking at “constructive” residence (a qualitative test), which is sometimes referred to as the Koo test. In turn, that has created an unsatisfactory state in the law.

In 2010 proposed amendments to the Canadian Citizenship Act were introduced in Parliament, however they were not enacted as law.

In recent months there have been many Federal Court decisions which have examined this problem in the state of Canadian law, arising in the context of citizenship appeals. Below are some key highlights from some of the decisions. Uncertainty remains for those applicants for Canadian citizenship who have clearly established themselves and centralized their mode of living in Canada but who have less than 1,095 days of physical presence in Canada in the four years before the citizenship application. Will Parliament again seek to bring certainty?

El Ocla v. Canada (Citizenship and Immigration), 2011 FC 533 (CanLII) Decided May 9, 2011, The Honourable Justice Barnes

[15] In drafting ss 5(1)(c) of the Citizenship Act – a discrete requirement for residency upon which the conferral of citizenship rests – Parliament could not have intended that it be open to a variety of optional interpretations.

[16] … [T]he idea that statutory provisions such as the one applied here are open to a variety of “reasonable” interpretations would lead to administrative chaos and give rise to rampant inequity in a variety of decision-making contexts.

[18] Notwithstanding the considered views of my colleagues who have decided this issue differently, I remain of the view that there can only be one recognized test for residency under ss 5(1)(c) of the Citizenship Act.

[19] As I said in Ghaedi, above, a citizenship judge must apply the test for residency that was recognized in Re Koo, above, in cases where an applicant like Dr. El Ocla has not been physically present in Canada for 1095 days during the preceding four years but presents evidence that he has centralized his mode of living here. Where, as in this case, a citizenship judge applies only the physical presence test, he or she commits an error of law reviewable on the basis of correctness.

[20] It is simply not an acceptable or tolerable situation that some applicants with perhaps less deserving claims to Canadian citizenship than Dr. El Ocla are successful because they have the good fortune to appear before a citizenship judge who chooses to apply the qualitative test for residency. Although many have said that this is a problem that can best be solved by Parliament, that is a solution that has not been forthcoming for more than 30 years and the suggestion is of scant comfort to people like Dr. El Ocla who are the victims of a lack of legislative clarity and a state of judicial inconsistency that has existed for far too long.

• Read the full decision: El Ocla v. Canada (Citizenship and Immigration)

http://www.canlii.org/en/ca/fct/doc/2011/2011fc533/2011fc533.html

Khan v. Canada (Citizenship and Immigration), 2011 FC 215 (CanLII) Decided February 24, 2011, The Honourable Justice Scott

[6] Noting that the Act does not define the concept of “residence”, the Judge chose to adopt the strict “physical presence” test set out by Justice Muldoon in Pourghasemi (Re), [1993] FCJ No 232, under which an applicant must establish that he or she has been physically present in Canada for 1,095 days during the four (4) years immediately preceding the date of application. As the Applicant was 57 days short of this number, she did not meet the residency requirement set out in s 5(1)(c) of the Act.

[31] I am of the opinion that Takla and the more recent line of cases that require a Citizenship Judge to consider the Koo factors, once a threshold of residency is established (as referred to by Justice Harrington in paragraph 21 of Salim, above), should be applied to the present case. As I review the decision of the Judge and her underlying notes, I find her decision to be unreasonable, the Applicant having clearly established her residency. The Judge should then have considered whether, despite the shortfall in her physical presence, the Applicant met the time requirement for residency through the exceptional circumstances found at section 5.9 of the Manual.

[33] I am not convinced by the Respondent’s argument that Takla, above has done nothing to counter the Lam, above, “choice of tests” ratio, nor by the Respondent’s statement that a Federal Court of Appeal decision would be necessary since Section 14(6) of the Citizenship Act precludes any appeal of a decision of this Court to the Federal Court of Appeal. It, therefore, seems that any change in the jurisprudence must originate in this Court, in the manner referred to by Justice Barnes, in which a divergence in the jurisprudence will occur and judges will choose to follow one or the other until one becomes more dominant.

• Read the full decision: Khan v. Canada (Citizenship and Immigration)

http://www.canlii.org/en/ca/fct/doc/2011/2011fc215/2011fc215.html

Alinaghizadeh v. Canada (Citizenship and Immigration), 2011 FC 332 (CanLII) Decided March 18, 2011, The Honourable Justice Gauthier

[26] In Takla, as has been done by many judges for more than a decade, Justice Robert Mainville (as he then was) expressed the Court’s frustration that the use of different tests, to assess whether or not a permanent resident meets the residence requirement set out in the Act, creates what another Judge described as an intolerable situation. In effect, the privilege sought (citizenship) may be granted to one person while denied to another in identical circumstances, depending on which of two or three “reasonable” interpretations of the Act is chosen by the Citizenship Judge reviewing the file.

[27] In an obvious attempt to find a solution to the aforementioned situation, Justice Mainville, after essentially stating that, in his view, the proper and correct interpretation of paragraph 5(1)(c) of the Act requires physical presence in Canada for at least 1095 days, went on to conclude that the test in Koo (Re) (presumed to be the dominant test)[5] should nevertheless be the sole standard used to ensure uniformity of the law.

[28] However, it is now clear that Justice Mainville’s attempt to redress the situation has not been successful, for in my view it is simply not one that can be solved by this Court alone. This is especially so when one considers, as Justice Richard Mosley did in Hao, above, the various decisions issued since Takla, above, not to mention those issued since Hao.

[29] The principle of judicial comity is not useful or applicable here given the diversity in the reasoning adopted by my colleagues (including that many comments were obiters) and the fact that after Takla and possibly in response to it, a new Bill to amend the Citizenship Act (Bill C-37) was tabled on June 10, 2010. In its current version, this Bill makes it absolutely clear that a permanent resident must be physically present in Canada during the period set out in paragraph 5(1)(c).[6] Is this a confirmation that this is what Parliament had intended all along?

• Read the full decision: Alinaghizadeh v. Canada (Citizenship and Immigration)

http://www.canlii.org/en/ca/fct/doc/2011/2011fc332/2011fc332.html

Hao v. Canada (Citizenship and Immigration), 2011 FC 46 (CanLII) Decided January 28, 2011, The Honourable Justice Mosley

[1] The issue in this case is whether, in considering an application for Canadian citizenship, the Citizenship Judge erred in applying one of several tests for determining the residency requirements that have been previously approved by this Court. Recently, some judges of this Court have adopted the view that just one of these tests should prevail. This would, undoubtedly, avoid inconsistency in the administration of the statute. Should an appeal from the Citizenship Judge’s decision be granted when the judge chose to apply one test over another and the decision is not otherwise unreasonable?

[50] I agree that it would be preferable to have consistency in the test applied to determine residency but several judges of this Court, including myself, have found that the physical presence interpretation is appropriate on a plain reading of the statute. And this Court, for over 11 years, has deferred to decisions by citizenship judges to choose that interpretation over the alternative as a reasonable exercise of their discretion. While the inconsistent application of the law is unfortunate, it can not be said that every example of that inconsistency in this context is unreasonable. If the situation is “scandalous” as Justice Muldoon suggested many years ago in Harry, it remains for Parliament to correct the problem.

• Read the full decision: Hao v. Canada (Citizenship and Immigration)

http://www.canlii.org/en/ca/fct/doc/2011/2011fc46/2011fc46.html

Ghaedi v. Canada (Citizenship and Immigration), 2011 FC 85 (CanLII) Decided January 25, 2011, The Honourable Justice Barnes

[10] … The inevitable consequence of not having a single test for residency is, however, that similar citizenship cases can be decided differently based upon which one of the recognized legal tests for residency is applied. …

[15] … I agree with counsel for Mr. Ghaedi that the views expressed by Justice O’Reilly and Justice Mainville are compelling and justify departing from the view expressed both in Lam, above, and the cases which have applied it, including several of my own decisions. In my view, the benefits of harmonizing the approach to residency outweigh the concerns expressed in Lam, above, about deferring to the judgment of the Citizenship Court. Deference is not a juridical value that outweighs the need for adjudicative consistency and the predictability of judicial outcomes.

[16] Counsel for Mr. Ghaedi argued that I am bound to follow Takla, above, and the more recent decisions of my judicial colleagues. I do not agree that this is an issue for which judicial comity applies. Notwithstanding the views of any particular judge, there will continue to be two lines of divergent authority on this issue and others may be quite properly disposed to follow Lam, above. Needless to say, if this Court does not over time adopt a common view on this issue, it is unlikely that the Citizenship Court will do so and the only available resolution in that event will be legislative.

•  Read the full decision: http: Ghaedi v. Canada (Citizenship and Immigration)

http://www.canlii.org/en/ca/fct/doc/2011/2011fc85/2011fc85.html