Electronic Travel Authorizations (e-TAs) and HIV

Immigration, Refugees and Citizenship Canada has now confirmed that people who apply for e-TAs do not need to disclose their HIV status.

The e-TA was introduced in Canada in March, 2016.  An e-TA is meant to screen visitors to Canada prior to their arrival at the border and requires visitors to answer a number of questions regarding their admissibility to Canada, such as questions about their health and criminal history. Unlike the temporary resident visa process, the e-TA application process is meant to be quick and efficient. A person simply logs onto an online site ( www.Canada.ca/eTA),  enters their passport information, answers a few questions, and receives confirmation of an e-TA approval electronically usually within minutes. 

The questions for e-TA applicants are intended to be simple and easy to understand. However, the current health screening question on the e-TA is overly simple and confusing. It asks:

 “Do you have a serious health condition for which you are receiving regular and ongoing medical treatment?”

The supporting guide for e-TA applicants provides the following instructions:

“Select YES if you are receiving regular, ongoing medical treatment for any mental or physical condition.”

This has led to a great deal of confusion regarding whether HIV status must be disclosed.  For many years, it has been the official policy of Canada that HIV is not an impediment to visiting Canada and that HIV status does not need to be disclosed on applications for temporary entry. For example, the question on temporary resident visa applications is much more specific:

“a)      Within the past two years, have you or a family member ever had tuberculosis of the lungs or been in close contact with a person with tuberculosis?

b)      Do you have any physical or mental disorder that would require social and/or health services, other than medication, during a stay in Canada?”

By contrast, the e-TA question is broader and more ambiguous, leading to much concern and confusion for people with HIV.

Thankfully, in an email to the Canadian Bar Association’s Immigration Section, IRCC has confirmed that there is no intention to require HIV to be disclosed on e-TA applications, and that the overly broad e-TA question is being re-formulated to reflect this.  The new question will likely refer to specific health conditions.

In the meantime, it is reassuring to have clarity that HIV need not be disclosed in e-TA applications. While simplicity and user-friendly communication is a noble goal, there is always a risk that simplicity can lead to greater confusion.

Dear Americans: Welcome to Canada

http://www.theglobeandmail.com/opinion/dear-americans-welcome-to-canada/article29929270/

Irvin Studin is president of the Institute for 21st Century Questions, and editor-in-chief and publisher of Global Brief magazine.

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Americans of the world, unite! In Canada. We have space still, and we want you.

Like you, we already take the tired, the poor and huddled masses of the world. Now we want your industrialists, your scientists, your men and women of letters. Give us your philanthropists, your musicians and your most brilliant students. We want them all.

I confess to no schadenfreude about the absurdity of some of your current political theatre. Instead, I, like most Canadians, remain a deep admirer of American civilization, American achievement and American chutzpah.

But it is manifestly in the Canadian interest to exploit this opportunity – ruthlessly, in proper American style – to pick off some of the world’s best talent in the service of the Canadian project and a Canadian 21st century. After all, modern Canada was created precisely as the antithesis of some of the more extreme U.S. passions and tendencies.

And what an extreme time this is in the United States. Whatever the current opinion polls, there are plenty of scenarios that could see Donald Trump become your next president. A terrorist attack on U.S. soil before the November elections – no one would wish this, of course, but it is far from impossible – would almost certainly seal the deal. Pogroms would ensue, so disproportionate has been anti-Muslim rhetoric and hysteria in your country over the past 15 years and particularly over the past year.

Canada currently accepts fewer than 10,000 American permanent residents per year, slightly more than from the United Kingdom or France. This is unacceptably low, especially given that we are your closest neighbours and that you integrate almost seamlessly into Canadian society. Many of your forebears were critical in building this great country, including major cities such as Toronto.

So why have so few of you, in relative terms, made the permanent move up north in recent years? Alas, the fault is largely ours. We have been too passive in our pitches and insufficiently imaginative and decisive in seizing the moment when it arises. We have, in some ways, been insufficiently American in wooing you. This must change.

What’s to be done? Consider this letter a call for the Canadian government to begin immediate, explicit and active communications about our sincere interest in having you immigrate to Canada – in considerably larger numbers. Our federal and provincial ministers should make this plain during their frequent working visits to your cities.

Most importantly, and this is unfortunately not a very Canadian way of doing business, our public and private leaders should be personally contacting you, by phone and even in person, regularly and relentlessly – especially those of you who are the leading lights of U.S. enterprise, culture and science – to make the case for moving to the Great White North.

Our top companies and universities should be working hand-in-hand with our governments to prepare targeted packages that would make your move to Canada irresistible and smooth at a time when your country’s politics are (to put it lightly) increasingly uncivil, and the future of your social peace increasingly unhappy. After all, this is exactly how the United States landed multiple future Nobel laureates from struggling countries over the course of the past century.

Toronto may be approaching capacity population, but much of the rest of Canada, especially in the Prairies and in the Atlantic provinces, is still a huge growth proposition and will profit greatly from your talents. You will be welcomed wherever you go. Bring with you your incorrigible optimism, your dreams, your risk taking, your lack of complexes and your macro thinking. Leave your guns at the border.

You may, at the last moment, be tempted to stay put and fight the good fight for a brighter American future. This temptation should be resisted. In exchange, we can assure you that, by all comparative appearances, you will be coming to live in the world’s best country.

Gratitude

It’s always great to get positive feedback from clients. Today I received this message:

“I am feeling so great and would like to inform you that my parents got visa and they coming to Canada. I am very happy and excited to see my parents. I am really appreciate you and your team from my heart. Its all because of you and your team hard work. You and your team did really good job for me.

Michael, in future if I need any legal help I will straight come to you. I know so many people need a good lawyer like you but can’t find out and I promise any of my known need help I will recommend you.”

The accidental union of immigration law and family law

One of the most significant trends in the legal profession over the last few decades is the prominence of specialization within law firms. A focus on one practice area brings many advantages, such as establishing expertise and increasing efficiency. However one of the significant disadvantages is providing clients with a narrower range of services and needing to refer clients to other firms in order to ensure they obtain the assistance they require.

Jordan Battista LLP was formed through the friendship of its partners rather than the confluence of its main practice areas, immigration and family law. However it did not take long before the overlap between Canadian immigration and family law was recognized by the firm’s lawyers. Clients began seeking us out for our unique ability to provide them with answers to questions that spanned both areas of law. Exploring and expanding our expertise in the areas in which the practices overlapped became an accidental benefit of working together, creating a niche legal practice in itself.

Michael and Kelly are proud to be releasing Canada’s first legal text on the intersection between Canadian immigration and family law. The book answers questions related to how the best interest of children is interpreted and applied in both practice areas, the impact of family sponsorship arrangements on entitlement to support in family law, and international adoptions. We also made it a point to address constitutional and international law dimensions of the practice areas.

As stated in the introduction to our book, newcomers to Canada share the same interests in establishing, maintaining, amending and dissolving their family relationships. We hope that legal professionals with an interest in both areas of law will find the book useful.

http://www.carswell.com/product-detail/canadian-family-and-immigration-law-intersections-developments-and-conflicts/

Change to requirement of sex reassignment surgery for Canadian citizenship

Citizenship and Immigration Canada (CIC) recently signalled that it will be remove the requirement for proof of sex reassignment surgery (SRS) to change one’s sex designation on a citizenship certificate.

This move is strongly welcomed by advocates in the transgender and legal community which have been calling for the removal of this discriminatory requirement.

Prior to this change, CIC’s official policy stated that a change in gender for the purposes of citizenship documents was only available to persons who have undergone sex reassignment surgery.[1] 

Under the former policy, in order to establish that there has been a change of gender for the purposes of a grant of citizenship under the Citizenship Act, CIC required: (1) a statement from the surgeon confirming the surgical procedure and (2) a statement from another person to the effect that they knew the client prior to the surgery and that the client is one and the same person.[2]

CIC’s former policy did not comply with the Canadian Charter of Rights and Freedoms nor Ontario jurisprudence that states that requiring SRS contravenes the Ontario Human Rights Code.

The case of XY v. Ontario (Government and Consumer Services) before the Human Rights Tribunal of Ontario found the requiring sex-reassignment surgery before being able to change a sex designation on an identity document was discriminatory.[3]

An individual who applies to amend their sex designation on their citizenship certificate or other immigration document should not be required to undergo sex-reassignment surgery. Our firm’s transgender clients welcome this positive policy change.

For recent media coverage on CIC’s policy change, please see: http://news.nationalpost.com/news/canada/federal-government-quietly-eases-requirements-for-canadians-seeking-to-change-gender-on-citizen-certificate.

 


[1]Citizenship Policy (CP3)- “Establishing Applicant’s Identity”, http://www.cic.gc.ca/english/resources/manuals/cp/cp03-eng.pdf

[2] Ibid, Section 6.5

[3]XY v. Ontario (Government and Consumer Services), 2012 HRTO 726. See also: http://www.ohrc.on.ca/en/book/export/html/11169#sthash.fOxLXZjE.dpuf

How can I speed up the processing of my immigration or citizenship application?

In recent years, the processing time for applications submitted to Citizenship and Immigration Canada (CIC) have increased considerably. In particular, the average processing time for citizenship applications currently takes between 24 to 36 months.

The delays in the processing of citizenship applications continues to be a source of frustration for permanent residents in Canada, given that little explanation has been provided about why routine application with limited international travel are taking years to process. In 2008, citizenship applications took approximately 12 to 15 months to process. By 2012, the wait time was extended to 21 months.

In July 2014, the Toronto Star profiled the case of a professor from the University of Toronto who had been waiting for three years for his citizenship application to be processed. This applicant applied in February 2011, was required to fill out a residency questionnaire with detailed information and supporting documents to demonstrate his physical presence in Canada, and was given no explanation as to why this level of information was required. Unfortunately, this experience may sound all too familiar to many applicants who continue to wait for their citizenship despite having diligently complied with CIC’s requirements.

(see:http://www.thestar.com/news/immigration/2014/06/30/u_of_t_prof_still_waiting_for_citizenship_after_three_years.html).

Although CIC offers urgent processing for citizenship applications, this procedure is only available if there is an emergency that requires that Canadian citizenship be granted immediately. For example, if an applicant would lose their job if they did not secure citizenship, if they could not attend school, or if there is a death or serious illness in their family that requires travel abroad, then a request for urgent processing can be made. In my experience, this remains a limited option for applicants who must meet strict requirements for urgent processing. In one exceptional case that I acted as counsel, citizenship was granted within 24 hours.

For the vast majority of citizenship applicants, the seemingly only available option is to wait for a decision. However there is a judicial remedy called a “writ of mandamus” that is available if an applicant meets the legal requirements. The purpose of this remedy is to compel CIC to make a decision on the application, including both immigration and citizenship files.

The starting point to determine if an applicant should use the remedy of mandamus is to look at whether the processing of their application exceeds the average processing time for similar applications. The Court will also look at whether an applicant has made inquiries into the delay in the processing of the application and whether CIC has provided a reasonable justification for the delay. The decision whether to pursue a mandamus depends on the unique facts of each application and must be assessed accordingly.

The reality is that many citizenship applications have been stalled for years with no reasonable explanation. The remedy of mandamus is an effective legal option for applicants who have been waiting to have their citizenship or other immigration applications processed and who meet the requirements. In my experience, this has been an extremely powerful and effective legal tool in speeding up the processing of citizenship applications that have surpassed the average processing time. In many of my routine mandamus cases, a decision is made on the application within a short period of commencing the litigation, depending on whether settlement is appropriate.

If you have any questions about speeding up the processing of your citizenship or immigration application, please contact me to discuss whether a mandamus is an appropriate remedy for your case.

Was the Ottawa gunman a terrorist?

Much controversy has erupted regarding whether Ottawa gunman Michael Zehaf Bibeau was a terrorist.

Whatever the outcome of the debate, the horrendous nature of Bibeau’s actions cannot be denied: killing a soldier guarding a war memorial then threatening the lives of others on Parliament Hill. However a proper classification of Bibeau and his actions is important because of the legal and social policy implications that could potentially flow from a misunderstanding of his acts. Using the term “terrorism” to describe all incidents that make us afraid is not good enough.

The day of the shooting, Prime Minister Harper was clear in his view that Bibeau was a terrorist, stating, “In the days to come, we will learn more about the terrorist and any accomplices he may have had, but this week’s events are a grim reminder that Canada is not immune to the types of terrorist attacks we have seen elsewhere in the world.”  Last week, the Harper government proposed new measures to allow Canadian security agencies to track suspected terror suspects and to charge and prosecute them.

Yesterday, Opposition Leader Thomas Muclair stated that while Bibeau’s acts were clearly criminal, there is not enough evidence to classify them as terrorist acts.  Liberal Leader Justin Trudeau seemed to take a middle ground, stating that because the RCMP classified them as terrorist acts, they should be considered as such.

Our political leaders seem to be unaware that the term “terrorism” was legally defined by the Supreme Court of Canada over a decade ago. In a case named Suresh – in which I represented an intervenor, Amnesty International – the Court examined the difficulty in defining terrorism but nevertheless was able to unanimously agree upon a definition after examining international authorities.  The Court defined terrorism as:

“any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing any act.”

There is no doubt that the first part of the definition is present in Bibeau’s actions: he caused death to someone not taking part in hostilities. There is little evidence however that he intended to intimidate a population or compel any government or organization to do or refrain from doing any act. Much has been reported of Bibeau’s alleged extremist views, however we also know that he was a crack addict with a criminal record and mental health issues. We also know that he was acting alone.

All of this indicates that Mr. Muclair is likely most accurate in labeling Bibeau’s actions as criminal but not terrorist.  The debate should continue as new evidence appears, but we should not neglect the fact that our highest court has contributed to discussion.

 

“A legitimate family project”

The intersection and gaps between Canadian family and immigration law is highlighted by they treatment of children conceived by assisted human reproduction (AHR) in both areas of the law. A recent Federal Court of Appeal decision illustrates the need for consistency between the two areas of law where children born abroad through AHR are concerned.

The Federal Court of Appeal decision in Kandola concerns a situation in which a child was conceived in India through donated sperm and donated eggs. The child was carried and born to a mother married to a Canadian citizen.

Typically, children born abroad to Canadians have an automatic right to Canadian citizenship. However, Canadian law and policy have required a genetic link between the Canadian parent and the child born abroad, regardless of the Canadian’s intent to parent or recognition as a parent in the foreign jurisdiction.  The definition of parent in Canada’s Citizenship Act is silent on the need for a genetic link, which complicates matters.

Kandola was an appeal from a Federal Court Trial Division decision which determined that the Citizenship Act should recognize Canadian citizenship for a child conceived and born through AHR. Two judges of the Federal Court of Appeal disagreed, relying mainly on the French text to determine that a genetic link is required. In dissent, however, Justice Mainville of the Federal Court of Appeal found that the silence of the legislation on the need for a genetic link was determinative of the issue that no genetic link is required.  The intended parents had engaged in “a legitimate family project” in the words of the judge, and Canadian citizenship should follow. To do otherwise would place the family in a very difficult position given that adoption was not possible.

Justice Mainville’s decision takes Canadian law to a place of greater consistency between family law and immigration law. It recognizes the reality of new methods of creating families which does not penalize intended parents based upon infertility. Hopefully this important case will find its way to the Supreme Court for much needed clarification.

In the meantime, situations like the case we represented – referred to as the most famous case involving immigration and human reproduction – will continue to occur.

http://news.nationalpost.com/2014/04/08/na0409-baby/

IRRECONCILABLE DIFFERENCES- MOVE OVER FOR “CONSCIOUS UNCOUPLING”

Gwyneth Paltrow and Chris Martin shocked the public this week by announcing their intention to dissolve their decade-long marriage. What may have been most shocking of all was the use of the term Conscious Uncoupling, that many people had simply never heard before.

While there is arguably more help available to people going through divorce than ever before, including family law lawyers trained in negotiation and/or collaborative practice, etc., the term ‘conscious uncoupling’ is relatively new on the scene.

Divorce is an uncomfortable subject, and many Canadians continue to enter into marriage without really turning their minds to the possibility that the marriage may one day end. If that day does arrive, most people find themselves adrift, and can suffer from a range of emotions, including confusion about how exactly to extricate from the emotional and financial ties that are a marriage, and even to depression as they face one of the most challenging aspects of adulthood. A divorce has often been compared to loss of employment, even a death, in terms of emotional severity and shock that is experienced.

To try and mitigate those feelings, our society has developed laws intended to guide people, and government websites that are intended to educate people as to their rights and obligations upon marriage breakdown.  There are lawyers who are specially trained to aid people during this time, and one tool among many in their toolbox is negotiation. This successfully keeps thousands of potential litigants out of the family law courts each year across Canada.

Conscious Uncoupling actually resembles the practice of negotiated settlement in that the separating spouses are working together, even collaboratively, to end their marriage without some of the things that can derail a low-stress decoupling, such as not assigning blame to the other for the breakdown of the marriage, working positively to move forward toward resolution, and considering the other’s viewpoint and feelings throughout.

Where conscious uncoupling begins to chart new territory is by having the participants look within themselves to focus on the relationship with themselves and consider that as a factor in the marriage breakdown. Conscious uncoupling goes further and asks participants to consider that it may not have been ‘natural’ for partners to expect to come together for a lifetime in the first place[1]. It seems that in order to adopt conscious uncoupling, one must be open to the idea that there can be many ‘life’ partners along the way, and that each relationship, though valuable, is not meant to be permanent.

It begs the question then if marriage itself may be irrelevant under the theory of Conscious Uncoupling.

 

Canada’s transitioning

It is tragically appropriate that the presence of transgender people comes last in the acronym LGBT. In the struggle for LGBT equality, the rights of the transgendered community is almost always left behind as an afterthought.

Almost one year ago, Canada passed its first law protecting the transgender community from discrimination at the federal level. While this was a welcome initiative, it came decades after similar protection was extended to the gay and lesbian community. It was also opposed by all but 18 of the Conservative party caucus, including the Prime Minister.

The presence of an anti-discrimination law does not guarantee freedom from discrimination, as illustrated by this week’s detention of a British transgender woman in a male detention facility.

Avery Edison arrived at Toronto’s Pearson airport Monday night and was detained based on a previous immigration violation. In addition to the extreme tactics used to deal with her previous immigration violation, Edison was ordered detained in a male detention facility, despite the fact that her identity documents all indicated her gender as female.

Reportedly, however, Edison’s legal identity didn’t matter; she was told that it was the state of her genitals that would determine the facility to which she would be sent.

After the intervention of the newest member of Jordan Battista’s immigration team, Adrienne Smith, Edison’s partner, and other activists, Edison was transferred to a female facility Tuesday night. Adrienne Smith is appearing at a detention review hearing on this morning to represent Edison.

Although of little consolation to Edison, her treatment illustrates the continuing need for training, policy and legislation designed to understand the discriminatory attitudes faced by the transgender community and to eradicate what is now illegal conduct in Canada.