Advertise in the Mosaic Edition.
Call the ad line 905.650.3499


Guidy Mamann, J.D.

Guidy

July 10 2011

Drunk driving ban under review

It seems that the time has come for Canada to review its ban on foreigners convicted of impaired driving.

Citizenship and Immigration Canada’s website describes our rule rather succinctly. “If you have been convicted of driving while impaired by alcohol or drugs, you will probably be found criminally inadmissible to Canada.”

This rule applies to foreigners coming to visit, work, study, or live in Canada. In other words, if you have been convicted of such an offence, chances are you will not be allowed to step foot in Canada.

Virtually all countries deny entry to foreigners with criminal records. However, most countries don’t consider drunk driving a “crime”. So admission to those countries is not usually a problem for those previously found guilty of such an offence.

However, in Canada, drinking and driving is a full-blown crime found in Canada’s Criminal Code and people convicted of such conduct are viewed as “criminals”. It makes no difference how the offence is viewed in the foreign country. It doesn’t matter if the violation is considered a felony, misdemeanour, traffic violation or characterized otherwise. It doesn’t even matter if the offence doesn’t appear on the individual’s police report or on their criminal record. It also doesn’t matter if this was a first offence or an offence which did not involve any injury or damage to property.

If the elements of the foreign offence, which were proven in the foreign court, can support a conviction of impaired driving in Canada, then the person is deemed to be criminally inadmissible to Canada.

Overcoming criminal inadmissibility to Canada can be overcome in a few ways.

In the case of “minor” crimes, a person can be deemed to be rehabilitated, without having to make any sort of application, if he has not re-offended for at least ten years since the completion of the sentence for the conviction in question. If the person has been convicted of a “serious” crime, then they may apply to the minister of immigration, five years after the completion of the sentence for the offence in question, for a declaration that they have been rehabilitated. If five years has not passed since the completion of the sentence, they will have to apply for a Temporary Resident Permit.

A “TRP” may be issued if an officer determines that:

-the need to enter or remain in Canada is compelling and sufficient to overcome the risk;

-the risk to Canadians or Canadian society is minimal; and

-the need for the individual’s presence in Canada outweighs the risk

While the policy reasons for a ban on drunk drivers are obvious, Canada’s enforcement of this policy has recently come under attack. Documents obtained pursuant to our access-to-information laws reveal that Canada’s tourism industry, especially the sector involving fishing and hunting, is suffering because of the strict application of this law. It was furthermore suggested that border officers were applying the law “arbitrarily” and with a “lack of courtesy”.

While the loss of revenue from sport tourism is not an irrelevant consideration, it is dwarfed by the impact on our economy by the application of this policy on foreign businessmen and women, and in particular American executives.

When Canada denies entry, or is seen to be ready to deny entry, to such individuals, Canadians stand to lose the benefit of the economic stimulus their entry might have brought our economy. In my office, the cases with the greatest potential impact on Canada’s economy are, not those involving investors and entrepreneurs but, those involving senior executives headed to the Canadian branch of a multi-national corporation.

It is always easier for a democratically elected government to avoid controversy and simply banish all those with DUI convictions. However, such a blanket approach will have dramatic and unnecessary consequences for Canadian businesses which stand to benefit greatly by a more measured approach.

No Canadian wants dangerous foreigners entering this country. On the other hand, no Canadian wants to deprive themselves of the economic benefit of those who do not pose a risk to us.

The question to be addressed is how do we achieve this delicate balance.

Guidy Mamann, J.D. practices law in Toronto at Mamann Sandaluk and is certified by the Law Society of Upper Canada as an immigration specialist.

For more information, visit www.migrationlaw.com or email metro@migrationlaw.com.

Conservative party’s immigration record misses the mark

March 7, 2011

By Guidy Mamann, J.D.

In last week’s column I wrote about Canada’s immigration record in the wake of Immigration Minister Jason Kenney’s announcement that his Conservative government had set a 50-year record in 2010 by admitting 280,636 new immigrants to Canada.

While that number is impressive, there are other aspects of the Conservative’s performance that are less impressive.

Before the Tory’s came into power, CIC was processing more permanent residence applications annually than it received and by doing so was slowly making a dent in its huge inventory of backlogged cases. Under Tory leadership, CIC is not keeping up with its workload. It is receiving more applications than it did under the Liberals but is processing fewer applications both in real, and in relative, terms.

When the Tories took power, there were 829,000 applicants waiting for their applications for permanent residence to be processed. Under the Tories that number shot up to 998,000 in 2008 and has dropped only slightly by September 2010 to about 967,000.

The types of applicants the Tories are selecting are considerably different than under the Liberals. For instance, The Tories are allowing many more immigrants to be selected by the provinces in which they intend to live. This is good since the provinces are more in tune with the kinds of immigrants they need than Ottawa might be. Before the Tories came into power, only 13,000 immigrants were being nominated by the provinces. That number has almost tripled to 36,000 under the Tories.

While it is commendable that a new breed of immigrant is being allowed into Canada, it is unfortunate that it is at the expense of other types of immigrants that are also important to our country.

Even though our population is growing, we are bringing in fewer spouses and partners, fewer sons and daughters, and fewer parents and grandparents. Although our collective “family values” clearly have eroded, presumably in favour of greater economic aspirations, interestingly, we are also receiving fewer investors, entrepreneurs and self-employed applicants under our federal Business Immigration Program and our Federal Skilled Worker program.

We are definitely not as charitable as we were under the Liberals who accepted 35,776 refugees in 2005. In 2010, the Tories landed only 24,693 refugees but didn’t hesitate in giving the nation the impression we were being overrun by refugees when the Ocean Lady and Sun Sea vessels arrived off the shores of British Columbia. These arrivals were used as justification for the introduction of a bill which would create a new refugee regime which would, amongst other things, include the detention of certain refugee claimants for one year.

In November 2007, the Tories announced the creation of the Canadian Experience Class which initially was envisioned to include about 25,000 new immigrants who would graduate from a Canadian college or university or who would accumulate two years of Canadian work experience. Although the Tories later promised to bring in only 10,000-12,000 in 2008 the fact is that not a single applicant was landed under this category in that year and only 1,775 were landed in 2009 and another 2,532 in 2010 were accepted.

Although there are more permanent residents applying now to become citizens of Canada, far fewer are being approved. When the Liberals were in power, approximately 199,000 permanent residents became citizens of Canada in 2005 representing an approval rate of about 91% of the applications received in that year. In sharp contrast, the approval rate plummeted in 2009 to about 67% yielding only 156,000 new citizens. The acceptance rate for 2010 may prove to be even lower than that.

As for processing times, nothing seems to have changed. It seems that everything is just as slow, or slower, than it ever was even though more money seems to be going from each federal budget to CIC for the “modernization” of its processing operations. The Tories managed to convince Parliament that the immigration minister needed unprecedented powers to “issue instructions” to his officers which would allow him to change the rules of the game, without notice, so that he can respond quickly to economic and other trends. In reality, these powers have not resulted in any real improvements in the time it takes to bring needed skills to our workforce.

Immigration policy is not necessarily “good” when we bring in more people or “bad” when we bring in fewer numbers. It must make sense in the context of the social, economic, and demographic facts on the ground. In other words, it must make sense.

Improved efficiencies, economic advantages, the fulfillment of political commitments, and the adherence to core Canadian values must be our prime considerations. It is against these standards that I rate the Tories’ performance in the last five years as being sorely lacking.

Guidy Mamann, J.D. practices law in Toronto at Mamann, Frankel, Sandaluk LLP and is certified by the Law Society of Upper Canada as an immigration specialist. For more information, visit www.migrationlaw.com or email metro@migrationlaw.com.

February 28, 2011

Banner year doesn’t make a “pro-immigrant” government

By Guidy Mamann, J.D.

Who is more “pro-immigrant” – the Liberals or the Conservatives?

Let’s look at the overall numbers.

For the past 20 years, Canada has received an average of about 234,000 new permanent residents per year.

Between 2001 and 2005, the Liberals brought in an average of 240,000 permanent residents per year.

When the Conservatives came to power in 2006 they averaged about 247,000 per year.

Two weeks ago, the Tories surprised the nation when they announced that they had set a fifty-year record by landing a whopping 280,636 new immigrants in 2010.

Interestingly, the Tories had previously reported to Parliament that they were only planning to bring in 240,000-265,000 immigrants for 2010. So, how is it possible that the Tories overshot this very carefully managed inventory of immigrant visas? After all, weren’t we in an economic downturn?

When announcing this record influx of newcomers to Canada immigration minister Jason Kenney announced “While other Western countries cut back on immigration during the recession, our government kept legal immigration levels high”.

Kenney didn’t really explain why he admitted more immigrants last year than the maximum he told Parliament he would admit for 2010. Furthermore, Kenney has no plans to maintain this level as he reported to Parliament that he is only going to admit 240,000-265,000 new immigrants in 2011.

Cynics might think, quite rightly perhaps, that Kenney’s banner year has something to do with the fact that Canadians are facing a federal election this spring. How better to draw the “ethnic” or “multicultural” vote than to announce a record intake of new immigrants?

If this is so, the Liberals are in no position to complain. They pulled the exact same stunt in 2005 when they admitted 262,000 immigrants just as they were about to go to the polls. This was a sharp increase over 2004 when they admitted 235,825 newcomers and an even greater increase over the year before which saw only 221,348 immigrants.

If it’s just about numbers, it’s clear that the Conservatives have brought in more immigrants in the last five years than their Liberal counterparts did in the previous five-year period.

However, being “pro-immigrant” is not just about numbers.

The Tories have created, and are continuing to create, havoc with many aspects of our immigration program. For example, they are in the midst of a full-frontal assault on the rights of Canadians to bring their parents and grandparents to Canada. Also, they are about to seriously impede the ability of refugees to make out their case before our Immigration and Refugee Board.

In the past five years, the Tories have made promises which they didn’t keep and have made blunders which could have been avoided by listening to others.

Next week, I will review some of the less “pro-immigrant” aspects of the Tory immigration record.

Guidy Mamann, J.D. practices law in Toronto at Mamann, Frankel, Sandaluk LLP and is certified by the Law Society of Upper Canada as an immigration specialist. For more information, visit www.migrationlaw.com or email metro@migrationlaw.com.

Lifting of visas on Taiwanese good move for Canada

November 29, 2010

Last week, Canada’s immigration minister, Jason Kenney, announced that travellers from Taiwan will no longer need visitor’s visas to travel to Canada. How does our immigration department decide which countries will be exempted from our visa requirements and which won’t? First, there are the objective immigration criteria.

In the case of Taiwan, Citizenship and Immigration Canada reports that, in 2009, the Canadian Trade Office in Taipei approved 99% of the more than 25,500 visitor visa applications it received. In the same year, 51,000 travellers from Taiwan came to Canada on some form of temporary status. Canada’s periodic review of its visa requirements found that there were low numbers of immigration violations by Taiwanese nationals and few removals from Canada to Taiwan. In fact, between 2007 and 2009, only 23 Taiwanese nationals sought asylum here.

The lifting of the visa requirement does not guarantee Taiwanese nationals entry to Canada. It simply means that they will be screened here at the port-of-entry rather than at a Canadian visa post abroad. Upon arrival at a Canadian port-of-entry, and like all other travellers to Canada, they will have to persuade the inspecting customs officer that they are coming here for a lawful and temporary purpose and that they are not otherwise inadmissible to enter Canada.

These measures are expected to encourage tourist and business travel between the two countries. As long as these numbers don’t change much we can expect these measures to stay in place indefinitely.

In the event, unlikely I think, that these measure are abused we could see the reversal of this policy. For example in April 1996, Canada lifted the visa requirements on nationals of the Czech Republic. This policy opened the door for 1,500 Czechs to make refugee claims here. So in October 1997, the visa requirement was re-imposed. After the Czech Republic joined the European Union, Canada faced increasing international pressure to lift the visa requirements again. It did so in October, 2007. Once again, the refugee claims started pouring in and, in July, 2009 the requirement was re-imposed and still remains in place.

In general, the richer and more politically stable a country is, the more likely it will be declared visa-exempt. The reason for this is that foreigners who choose to overstay their welcome in Canada often do so because they can enjoy a better standard of living here than they can in their own country and/or because they feel safer here than they do back home. In the case of Taiwan, it is a relatively prosperous country and one that is not facing any immediate threat of civil unrest and so it is a natural candidate for visa-exempt status.

A second major consideration for Canada in reaching such decisions is politics, especially in the case of Taiwan.

One can argue quite fairly that this measure is long overdue and that Taiwan was deserving of this preferred status long ago. However, China considers Taiwan’s territory as its own and doesn’t recognize Taiwan as an independent state. Accordingly, Canada has had a “one-China policy” for many years and still does not recognize Taiwan as a sovereign state and still does not maintain official government-to-government relations with Taipei (i.e. Canada’s visa post in Taipei is not an embassy but a “trade office”). This policy was reiterated by Canada in a formal Canada-China Joint Statement in Beijing in December 2009.

Canada has, until now, avoided favouring Taiwan and offending the Chinese who do need a visa to travel to Canada. After all, Canada exported $11.2 billion worth of goods to China in 2009. At the same time it could not continue to ignore the interests of Taiwan, which is also an important and reliable trading partner and to whom it exported over $1.1 billion of goods in the same year.

Accordingly, effective November 22, individuals holding ordinary Taiwan passports which include personal identification number are exempted from having to obtain what are officially known as a Temporary Resident Visas, or “TRV’s” for short.

This decision is sensible, if not overdue, and should lead to an increase in trade, travel, and cultural interaction between two friendly nations. In other words, this is a good day in Canadian immigration policy-making.

Guidy Mamann, J.D. practices law in Toronto at Mamann, Sandaluk and is certified by the Law Society of Upper Canada as an immigration specialist. For more information, visit www.migrationlaw.com or email metro@migrationlaw.com

Investor program in need of further repair

November 15, 2010

Canada’s Immigrant Investor Program should be treated like the crown jewel of our annual immigration plan… but it’s not.

You would think that Canadians would want at least ten or perhaps fifteen percent of Canada’s newcomers to be chosen for their ability to transfer large amounts of money here for the specific purpose of providing working capital to Canadian businesses.

Unfortunately, this is not the case.

Of the 252,179 immigrants Canada selected in 2009, just 2,872 (i.e. just over 1%) were selected by our federal government for this purpose.

Prior to June of this year, applicants had to demonstrate a personal net worth of $800,000 and had to give$ 400,000 of it as an interest free loan to our government. Basically, our government does whatever it wants with the money and then returns it to the investor interest-free, five years later. Contrary to popular belief, these “investors” don’t actually do any investing themselves...they simply give us a five-year interest free loan and we give them permanent status here.

In fact, much of this money doesn’t actually come from overseas. Our rules allow investor applicants to borrow this money from an approved Canadian financial institution (i.e. BMO, CIBC, RBC, TD, Scotiabank etc.) who will give our government the 5-year interest free loan on behalf of the investor. For their troubles, these banks...called facilitators...require the prospective immigrant to pay upfront the interest that the loan would have generated for 5 years. The applicant cuts a cheque to the lender in the non-refundable amount of about $120,000-130,000 (depending on prevailing interest rates). The facilitator gives our government the $400,000 and collects it back in 5 years. The result is that the “investor” essentially buys Canadian permanent residency status for about $120,000.

In June, the Feds temporarily stopped accepting new applications in this category since they had way too many applications already pending in the pipe and because our immigration minister, Jason Kenney, felt we were short-changing ourselves.

On Wednesday, Kenney announced that, effective December 1, the stakes would be doubled. Applicants under the federal investor category will have to have a minimum net worth of $1,600,000 and give our government a five-year interest free loan of $800,000 either directly or through a facilitator.

The justification behind this move is that Canada is receiving about three times more applications in this category than it is approving. Therefore, we can afford to raise the bar a bit and demand a greater financial commitment from those who can afford it and filter out those who can’t. While this approach is completely sound, it falls short.

The question that needs to be asked is this: Why is a country like Canada, i.e. one of the most developed economies in the world, with vast resources and a population of about 33 million, able to approve only 2,800 investor applications a year? Stated differently, why are only 8,500 potential investors in a global population of almost seven billion people interested in making Canada their permanent home?

There are three main answers.

Firstly, we have the wrong immigration mix. We need to sharply increase the number of immigrants in the investor category that we currently accept. The current number of 2,800 is far too low in real terms and as a percentage of the 250,000 immigrants we accept each year. Secondly, current processing times discourage many investors from even applying here. Government statistics show that most cases take between three to four years to process. Twenty percent of these cases take even longer to finalize. Successful businessmen and women who have made a decision to emigrate from their homeland usually want to act on those plans much more quickly than we are willing to respond to and are rarely willing to wait in our long queues.

Thirdly, our selection criteria and process including i.e. the requirement for recent business experience, full disclosure of assets exceeding the minimum net worth amounts, the endless list of documents requested, and the uncertainty of the process make the process too invasive, risky, and costly without enhancing the program’s ability to attract more dollars to Canada.

Compared to investors, each year Canada receives four times as many refugees, three times as many sponsored parents and grandparents, three times as many humanitarian cases , and over two times as many nannies.

Our Tory government, which prides itself in making decisions that are good for our economy, needs to quickly grow and streamline this program.

Guidy Mamann, J.D. practices law in Toronto at Mamann, Sandaluk and is certified by the Law Society of Upper Canada as an immigration specialist. For more information, visit www.migrationlaw.com or email metro@migrationlaw.com

Captain Schroeder and the Sun Sea Tamils

(October 24, 2010)

Captain Gustav Schroeder was a very courageous and righteous German.

In 1939, he was the captain of the MS St. Louis when it set sail from Hamburg, Germany to the Americas with 937 refugees aboard, all but seven of whom were Jews fleeing death at the hands of the Nazis.

Schroeder was committed to finding his desperate passengers safe haven in any country that would accept them. Intense negotiations with the Cuban government failed to get the refugees asylum on Cuban shores, although 29 passengers did manage to disembark there.

As for the Americans, they had immigration quotas which precluded the landing of the ship off of Florida’s shores. To complicate matters, the Jews had no return addresses which were required by the U.S. of all tourists.

When the ship was repelled by the United States, Canada’s Prime Minister William Lyon Mackenzie was petitioned to let them land in Canada. On June 9th, he bowed to public and political pressure and denied them landing.

Schroeder and his Jews were sent back across the Atlantic towards Nazi Germany where death would have awaited all of his passengers, including, I am sure, Schroeder himself.

Rather than returning to Germany, Schroeder docked at Antwerp, Belgium. There the British agreed to take 288 of the passengers. 224 were accepted by France, 214 by Belgium, and 181 by the Netherlands.

Although the Jews appeared to have reached safety, in 1940 Germany invaded Belgium and France and started gathering their Jews including the survivors of the St. Louis.

Historians estimate that about 250 of the 937 St. Louis refugees later perished in the Holocaust.

Had it not been for Schroeder’s actions, all 937 would have ended up in Nazi concentration camps.

To me, the son-in-law of two holocaust survivors, Schroeder is a hero. Regrettably, I don’t think our immigration minister Jason Kenney sees this historical figure in quite the same light.

Last week, in response to the arrival in August of the Sun Sea off the shores of Vancouver carrying 492 Tamil refugees, Kenney announced the tabling of a bill he is marketing as an “anti-smuggling” bill. In reality, the bill dubbed the “Preventing Human Smugglers from Abusing Canada’s Immigration System Act” is more about punishing refugees simply for seeking our protection in a very public way.

Under our current legislation, a person, like Schroeder, who knowingly organizes ten or more persons to enter Canada without proper documentation faces a fine of $1,000,000 and life imprisonment. Under the new bill, a judge will have to sentence such a person to jail for a minimum of five years if profit is found to be a motive or if people’s safety is found at stake.

As for the refugee claimants who arrive in groups designated by the Minister as an “irregular arrival”, they and their children will be held in detention for at least one year after their arrival unless the Minister agrees to shorten their internment. They will also end up being separated for about 9 years, or more, from the spouses and children they may have left behind. This is because,

-their refugee hearings can take 1-2 years to schedule;

-they will now have to wait another 5 years before they can apply for permanent residence; and

-they will have to wait another 1-2 years while their applications for permanent residence are processed.

There is no doubt that, although 80-90% of Sri Lankan Tamils are accepted here as refugees, their circumstances are not as dire as their Jewish counterparts of WWII who were rounded up and thrown into gas chambers. Also, there is no doubt that modern day smugglers can be motivated by greed more than by the altruism demonstrated by Captain Schroeder. Nonetheless, the legislation proposed by Kenney makes little provision for the possibility of future genocides or allowances for heroism.

That is why this bill is so fundamentally flawed. Kenney says that this is not the “the right way” for refugees to come to Canada. Interestingly, he never states exactly which is “the right way” for a person fleeing persecution to reach our shores in search of our protection. History has been kind to Captain Gustav Schroeder. After the war, he was awarded Germany’s Order of Merit and, in 1993, he was posthumously named by the Yad Vashem Holocaust Memorial as one of the “Righteous Among the Nations”. History will not be so kind to Kenney if these mean-spirited and ill-conceived measures are rushed into law under his watch.

Guidy Mamann, J.D. practices law in Toronto at Mamann, Sandaluk and is certified by the Law Society of Upper Canada as an immigration specialist. For more information, visit www.migrationlaw.com or email

Taxpayer bearing the cost of delays in issuing refugee work permits

(0ctober 17, 2010)

Would you, the Canadian taxpayer, prefer to see refugee claimants in Canada work to support themselves and their family members or go on welfare, at your expense?

Silly question right?

Of course, refugee claimants should, to the extent that they are able, provide for themselves and their families while they are in Canada awaiting a refugee hearing.

For that very reason, our immigration laws specifically allow refugee claimants to apply for a work permit so that they can lawfully work here and avoid having to resort to social assistance for the basic necessities of life.

Obviously, to give this policy maximum effect, it is important for our immigration department to process these work permit applications as quickly as possible so that these claimants can, in turn, get to work quickly and avoid the need to seek out the help of the nearest welfare office. For this reason I was quite surprised to see a letter last week from our immigration department confirming that such applications, which are really not that complicated, can take “16 weeks” to process.

I have checked with others in my office and with other experienced lawyers who confirm that the processing time of these applications has been steadily increasing over the last few years and that a delay of four months is now quite common.

Many refugee claimants have a strong work ethic and do not like sitting at home for four months waiting for a work permit to show up in the mail. They would rather work to support themselves than await a government handout.

At present our immigration department cannot issue a work permit to a refugee claimant until he/she has undergone a medical examination and the department has cleared the results. This procedure is designed to ensure that refugee claimants do not take work where the protection of the public health is required i.e. work in hospitals, child/senior care, restaurants, etc.

However, there are many jobs that refugee claimants can do that don’t require the protection of the public health i.e. factory work, maintenance, construction, etc.

Our department should be authorized to issue restricted work permits to refugee claimants as soon as they make a claim for protection. The restriction on their ability to work in occupations involving the protection of public health can be lifted once the medicals are completed and the results analysed. Such a policy change can save upwards of four months of welfare for every one of the 20,000 to 30,000 refugee claimants Canada receives every year.

The savings to the Canadian taxpayer could be significant in the short term and enormous in the long term if we can prevent the initial access to welfare which can later turn into a chronic, expensive, and long-term habit.

Guidy Mamann, J.D. practices law in Toronto at Mamann, Sandaluk and is certified by the Law Society of Upper Canada as an immigration specialist. For more information, visit www.migrationlaw.com or email metro@migrationlaw.com

Debating new anti-immigrant group would be good for Canada

(October 11, 2010)

I have often heard it said that if you saw how hot dogs were made you would probably never eat another one again. That’s why sausage manufacturers are not prone to inviting the public to witness the inner workings of their meat processing plants. The business, I am told, can be a bit ... unappetizing.

Same goes with the formulation of immigration policy, especially in a country like Canada. Like religion and politics, immigration is a hot-button topic sure to inflame passions and expose deep prejudices. There are powerful emotions that can easily, and inadvertently, be unleashed with even a hint of a minor policy change.

There are plenty of examples. Should we permit strippers to stay in Canada while they are being sponsored by their husbands (à la Strippergate)? Approve more refugees ...or less? Welcome the boats off of Vancouver’s shores... or turn them back? Attract more French-speaking immigrants for Quebec ...or more engineers for Alberta? Force immigrants to populate our small towns ...or let them settle in our crowded cities? Deport permanent residents who have grown up here ...or dump them elsewhere because we can? Bring low-skilled workers to work our farms ... or recruit professionals who may end up behind the wheel of a cab? Sponsor our aging parents and grandparents... or make room for entrepreneurs and investors? Deport illegals en masse ...or grant them amnesty?

It is no wonder that governments, like our own, shy away from comprehensive and principled immigration reform in favour of band-aid solutions hastily formed in response to some perceived immigration crisis. When forced to act, our elected officials would rather serve up a plate of immigration policy long after it has been conceived, drafted, and packaged for market than to involve the public and experts at the formative stages. In fact, our politicians, Liberal and Conservative alike, are so reluctant to undertake immigration reform that when they do they take cover behind the civil servants they prop up in front of the public charged with the responsibility of delivering the policy message. If the proposed amendments reach our Parliament’s standing committee, they are already virtually cast in stone, and little time or opportunity for comment is given to those who can analyse the offerings critically. Rarely are meaningful amendments entertained or made.

If governments who are thinking of pursuing a particular immigration policy were to hold advance public hearings, town hall meetings, and meaningful consultations to discuss their proposals they might discover good reason to depart from the original plan that they rallied their troops around. This can be somewhat politically embarrassing for them. Furthermore, a government who is forced to take a stand on any public controversy is certain to lose the votes of up to half of those who are invested in the debate.

Governments of the day do not want the public involved in the formation of immigration policy. Governments simply don’t like to think out loud. They want all of the debating done behind closed doors and out of the public eye. They don’t want the downside of their policy objectives to attract attention and possibly become the focus of an effective body of opposition. They don’t want to risk the public exposure of misjudgement.

And so, for the past few decades, the bulk of the official immigration debate has pretty much disappeared from the public eye.

More recently, in 2002, when our current legislation was presented to Parliament, it contained virtually no details of what was to be Canada’s selection criteria. The draft legislation stated that the authority to set immigration standards was effectively being taken off of the debating floor of Parliament and being transferred to the private meeting rooms of our federal cabinet. This effectively ended our federal government’s obligation to publicly debate proposed immigration policy changes.

In June, 2008 it got even worse. Unprecedented legislative changes allowed the immigration minister of the day to change government policy on immigration by unilaterally issuing “ministerial instructions” to his officials. The possibility of meaningful public debate on immigration was now not only dead but buried.

The lack of an effective forum for the debate of immigration policy is the reason why I welcomed the news of the recent formation of the Centre for Immigration Policy Reform (www.immigrationreform.ca) even though it has been dubbed an “anti-immigrant” group. Members of the organizations advisory board claim that they have “a great deal of knowledge about the subject” and are not irrational ... (or emotional” about immigration. They are simply trying to acquaint Canadians with the facts. It seems that they will be trying to do so without anyone in their organization who seems to think that more immigration is a good idea.

I deeply believe that immigration has been good for Canada and that the controversy that would be generated by a public debate between “pro” and “anti-immigrant” groups can only serve to educate the public about the work that is need to be done to improve our national immigration plans.

I have no doubt, that the majority of Canadians will agree with what I believe; namely, that the Canadian landscape, our cities, our economy, our culture, our national identity and our international reputation would be a shadow of themselves without the immeasurable and tangible contributions made by our immigrant communities.

I am dying for an opportunity to share a stage with those at the Centre for Immigration Policy Reform who believe that Canada’s current immigration levels should be curtailed. Without necessarily agreeing with everything about our current laws and policies, I have no doubt that the case for a generous immigration program far outweighs the argument in favour of the thickening of our borders.

In fact, as soon as I am done writing this column I will send a copy of it to my differently-minded counterparts at the Centre in the hopes that they will take up the challenge to debate the benefits of a generous Canadian immigration policy. I am anxious to finally get the long-overdue public immigration debate restarted.

Believe me...it will be good for all of us.

Guidy Mamann, J.D. practices law in Toronto at Mamann, Sandaluk and is certified by the Law Society of Upper Canada as an immigration specialist. For more information, visit www.migrationlaw.com or email metro@migrationlaw.com

Drunk driving conviction could derail cystic fibrosis research

According to the Cystic Fibrosis Foundation of Canada, cystic fibrosis (CF) is a very complex disease and is the most common, fatal genetic disease affecting Canadian children and young adults. There is no cure for it. A thick build-up of mucus affects the lungs and digestive systems of our children and makes it difficult for them to breath and digest food.

Dr. Hyun Joo Park is here, in Canada, to change all of that.

She obtained a Ph.D. in 1996 from the University of Southern California and has been a post-doctoral fellow at the research institute at the Hospital for Sick Children and is currently “working on novel approaches to the rescue of mutated CFTR, the primary defect in cystic fibrosis”.

Her husband, Dr. Hong-Yeop Song is no slouch either. He also holds a Ph.D. from USC and spent a year as a research professor at the University of Waterloo’s Department of Electrical and Computer Engineering and is currently a professor at the Yonsei University in Seoul.

In April 2008, Dr. Park applied for permanent residence in Canada for herself, her husband, and their 18 and 12-year-old daughters. In August 2009 that application was refused by the Canadian consulate in New York on the grounds that she is inadmissible to Canada because her husband is inadmissible to Canada on criminal grounds.

About 6 months prior to filing her application, Dr. Park’s husband encountered a police road block in Seoul and was found to have 65 milligrams of alcohol in 100 millilitres of blood. He didn’t contest a charge of “drunken driving” and paid a fine in Korean currency equivalent to about $646.00 Canadian. The visa officer had no evidence of the degree of Dr. Song’s impairment, or of any erratic behaviour, or of the failure of any physical tests for sobriety.

Although Dr. Song “blew” less than the Canadian legal limit of 80 milligrams, the visa officer nonetheless found that he was inadmissible here because the Korean offence of “drunken driving” is equivalent to the Canadian offence of “impaired driving” which can support a conviction even where the concentration of alcohol in the blood is not proven.

The refusal letter made it clear that Dr. Song was inadmissible to Canada not only as a permanent resident but also as a visitor.

On July 27th Mr. Justice Mosley of the Federal Court found no error in the visa officer’s approach holding that as long as the evidence establishes a “slight” degree of impairment, the equivalent to the Canadian offence of “impaired driving” is proven. It is clear that the judge was sympathetic to this couple’s plight. Justice Mosley found that “There is no question that Dr. Park is a highly educated and capable scientist who would be an asset to Canada as a permanent resident.” He noted that in December 2012, her husband can apply to our minister of immigration for a finding that he has been rehabilitated. The judge went on to state “In the interim, this may be a suitable case for the exercise of the Minister’s discretion” meaning that the Minister should consider giving Dr. Song a temporary resident permit to overcome his inadmissibility.

This case illustrates quite clearly that, contrary to what may be popular belief, our immigration laws have little tolerance for criminal misadventure, whether domestic or foreign, and that our courts are quick to uphold such laws even if the results go against the judge’s inclinations and our Canadian interests.

Our immigration laws relating to inadmissibility are not intended as further punishment of the foreigner but are intended to protect the public from those who could endanger us here.

In suggesting that Dr. Song be allowed into Canada on an interim and temporary basis, the judge clearly did not believe him to be a danger to Canadian society.

That being the case, immigration minister Jason Kenney should be quick to accept the judge’s invitation to action and allow Dr. Song into Canada so that his wife can concentrate on her work. There are thousands of Canadian children and young adults suffering from cystic fibrosis who depend on Dr. Park, and other researchers like her, to find a cure to a terrible and life-ending disease.

Without minimizing the seriousness of impaired driving, the strict application of over-reaching legislation should not be allowed to stand as a barrier.

Guidy Mamann, J.D. practices law in Toronto at Mamann, Sandaluk and is certified by the Law Society of Upper Canada as an immigration specialist. For more information, visit www.migrationlaw.com or email metro@migrationlaw.com

 

Last minute marriages can spell disaster

Weddings and marriages are supposed to be joyous occasions.

However, in the immigration context, they can spell heaps of trouble and the end of an immigrant’s Canadian dream.

Sarah (not her real name) is from a country that has had its fair share of unrest, poverty and misery. Sarah was sponsored to Canada by her Canadian father. The paperwork took time but was eventually gathered and submitted. It also too time for the visa to finally be issued. When the flight was booked, Sarah and her dad couldn’t wait for their reunion on Canadian soil, far from the turmoil of their country of birth.

When she arrived here, she was asked a few routine questions by a border officer which she answered truthfully. She couldn’t stop thinking of her father who was waiting to embrace her on the other side of the arrivals area. She was asked if there have been any changes in her circumstances since her visa was issued. She readily answered that after her visa was issued, and just before her departure for Canada, she married a young man back home who she plans to sponsor to Canada.

She was right to tell the truth. The law requires it. But the truth spelled enormous trouble for her.

As a Canadian, her father had the right to sponsor his “dependent child” which includes a child who is less than 22 years of age and who does not have a spouse or common law partner.

Sarah was less than 22 when she was sponsored and so her age was “locked in” for immigration purposes on the date that her application for permanent residence was received. Even if, during the processing of her application, she surpassed the age of 22 she would still be considered ok for the purposes of her age. However, her marital status cannot be locked in. To qualify as a “dependent child” she must continue to be single not only at the time of visa issuance but also at the time that she appears at a Canadian port-of-entry to become a permanent resident.

The bottom line is that now that she is married, her sponsorship is completely dead.

But that’s not the worst of it.

When she signed her application for permanent residence she signed a declaration stating that all the information she provided in the form was true. It was. However, buried in the fine print (i.e. in teeny tiny letters similar to those you might find in a car rental agreement and which you might never actually read) was another declaration stating “I will immediately inform the Canadian visa office where I submitted my application if any of the information or the answers provided in my application forms change”.

When her marital status changed, she was required to “immediately” inform the visa post that was processing her application of this change.

The fact that she didn’t immediately do so likely renders her “inadmissible” to Canada for “withholding material facts relating to a relevant matter that induces or could induce an error in the administration” of our immigration laws.

Sarah, who never lied to immigration officials, now faces a one-year exclusion order from Canada for “misrepresentation” and the prospect that, following her removal, she may never get a visitor’s visa to visit her father here.

It is very common for young people who are about to leave their country and culture behind to become nervous about their marriage prospects in a strange and unfamiliar land. This may lead them to decide, at the last minute, to commit to a person back home who they are familiar with rather than to take a chance with romance here Canadian-style.

Such marriages, whether inspired by the dependent child’s genuine love, their uncertainty about the future, or by their parents, must be disclosed immediately to the visa post in question or disaster is sure to strike.

It is clear from the number of people I see who fall into this trap that our immigration forms should be enhanced to specifically inform all such applicants that marriages, and common law relations which exceed one year, can render them ineligible for sponsorship and to expressly remind them of this again when their visas are issued.

After all, marriages should be about building futures…not destroying them.

Guidy Mamann, J.D. practices law in Toronto at Mamann, Sandaluk and is certified by the Law Society of Upper Canada as an immigration specialist. For more information, visit www.migrationlaw.com or email metro@migrationlaw.com

Mosaic Edition

fifthanniversary