IRPA Data - part 7
Request ID
IRPA00000001401
Item
OP 12-7.10 R221 admissibility
Category
SELECTION: Economic (Skilled Worker, Temporary Workers, Students, Provincial Nominees)
Question
A foreign national's student permit expired on November 30, 2001. The foreign national did not extend his student permit on
or before November 30, 2001. He continued his studies following the expiry of his permit. He applied on April 30, 2002, four
months following the expiry of his status, for an extension of his student permit. Please advise how regulation 221, 6 month
ban applies in this case. Further, If the FN waited six months following the expiry of his status to apply for the extension of
his student authorization who would regulation 221 affect his eligibility for an extension of the student permit.?
Solution Details
In this case there is no "six-month ban", because R221(b) applies as the FN engaged in unauthorized study in Canada in the
sense that the unauthorized study was "unauthorized" only because the FN stayed longer than his authorized stay (R185(a))
and studied for a longer period than his SP permitted (R185(c)(iv)). Non compliance by the FN with these specific
conditions does not call for the "six-month ban" prior to the issuance of a SP (see R221(b)).Nevertheless, from the
information presented here, the FN is out of status. A SP could be restored if the FN satisfied the requirements for a SP and
had applied within the 90 day after the loss of his TR status. But since 5 months elapsed he cannot get restoration of status.
He doesn't meet the requierements for a renewal of SP either (as per R217).The FN may be able to apply for a new SP
from within Canada if he meets one of the conditions in R215, but from the information presented here, this doesn't seem to
be the case. So although no six month ban applies, it seems that the FN must leave Canada (out of status) and apply for an SP
from abroad (if he cannot satisfy R215).
October 15, 2004Page 601 of 779
Request ID
IRPA00000001402
Item
IP 02-5.35 Withdrawal of undertaking
Category
SELECTION: Social (H&C, Family Class, LCP, TRP)
Question
How is R126 to be applied - 'A decision shall not be made on an application for Permanent Residence by a Foreign National
.... if the spouse withdraws their sponsorship'? Procedures of IP5 and IP2 conflict with each other on the issue of
sponsorship withdrawal and undermine R126.
Solution Details
SSG Update to Response: 23/07/2003The question refers to two different types of applications. R126 refers specifically to
the Spouse or common-law partner in Canada class, which requires that to be a member, the applicant be the subject of a
sponsorship application. R126 provides that 'a decision shall not be made on an application for permanent residence by a
foreign national as a member of the spouse or common-in-law partner in Canada class if the sponsor withdraws their
sponsorship application'. Therefore under the Spouse or Common-in-law Partner in Canada class, if the sponsor withdraws
their sponsorship, the application can no longer be considered under that class. However, A25(1) allows the Minister
(delegate) to consider humanitarian and compassionate considerations for applications made by foreign nationals who are
inadmissible or who do not meet the requirements of the Act. Therefore, if the sponsorship is withdrawn and the
Minister's delegate turns their mind to H&C considerations then the application has ceased to be an application in the Spouse
or common-law partner in Canada class. The application becomes an application under Humanitarian and compassionate
considerations R68 and is assessed based on the requirements for these applications. Any communication with the applicant
should ensure that the applicant is aware that two decisions were taken on their application:The decision with respect to
their application in the Spouse or common-law partner in Canada class and The decision with respect to the assessment
under Humanitarian and compassionate considerations
Request ID
IRPA00000001403
Item
ENF 02-3.20 Convicted in or outside Canada/Committing an offence
Category
ENFORCEMENT: Inadmissibilities, Bonds, Removal Orders, Hearings
Question
Does A36(3)(a) require that an inadmissibility under A36(1) and A36(2) be equated as an indictable offence if it was
prosecuted by way of summary? My case involves a US FN who was convicted in the US of being 'Absent without Leave'
(US Army) and received a sentence of 35 days imprisonment.
Solution Details
A36(3)(a) states that hybrid offences (those that can be punished summarily or by way of indictment) are deemed to be
indictable offences even if they were prosecuted summarily.
October 15, 2004Page 602 of 779
Request ID
IRPA00000001404
Item
ENF 04-8.00 Secondary examinations
Category
ENFORCEMENT: Examinations, Seizure and Transportation
Question
I recently came across form IMM 5059 B, Port of Entry / Secondary Examination Record. It appears to be a new IRPA
form. When is this form to be used and what is the reference in the manuals?Is it be used in conjunction with Highlight
forms IMM 5051 POE and IMM 5084 Inland ?
Solution Details
The IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has never been answered
nor approved by the appropriate Service Line.Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals
on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.
Request ID
IRPA00000001405
Item
PP 01-8.00 Claims for refugee protection
Category
REFUGEE: Asylum: Making a Claim
Question
I read with great interest your answer to ticket number 1356. In particular, the reference to there not being a provision in
IRPA to allow Canadian citizens or permanent residents in Canada to make a claim for refugee protection caught my
attention. There does not appear to be anything in either the Act or the Regulations that would prevent either a Canadian
citizen or permanent resident from putting forward a claim under IRPA. Under the former Act, this issue was addressed by
policy, but the policy only prevented Canadian citizens from making a claim. The rational being that they already enjoyed
the protection of Canadian citizenship and the accompanying benefit of the unqualified right to remain in Canada.
Permanent residents, however, were still allowed to make a claim as their right to remain in Canada was not unqualified, as
they could be subject to removal under A27(1). Permanent residents often made refugee claims at inquiry, when they were
facing the prospect of removal from Canada. Has this changed under IRPA? Permanent residents still only enjoy a
qualified right to remain in Canada under IRPA [see A27(1)]. Since they may still face removal, unlike Canadian citizens,
can they not put forward a claim for refugee protection if they fear that removal to their country of citizenship will subject
them to persecution on one of the 5 grounds in the definition of a Convention refugee?
Solution Details
Refer to Manual PP1 - Section 7.2 - Posted7.While protected persons may apply for permanent residence, those persons
described under A112(3) whose PRRA is approved will only be granted a reviewable stay of execution of their removal
order. Claims for refugee protection 7.2Who can make a claim for refugee protection?Foreign nationals and
permanent residents can make claims for protection. As a matter of policy, Canadian citizens cannot. Canadian citizens
already enjoy the protection of Canadian citizenship and the accompanying benefit of the unqualified right to remain in
Canada.
October 15, 2004Page 603 of 779
Request ID
IRPA00000001406
Item
OP 12-5.16 Minor children
Category
SELECTION: Economic (Skilled Worker, Temporary Workers, Students, Provincial Nominees)
Question
How long are minor students authorized to study without a permit in Canada before they become an immigrant without a
visa? Does a minor child who studies longer than six months require a permit?
Solution Details
Minor students are authorized to study in Canada without a SP as long as all of the following apply as per A30(2):-they are
minors( note that legal age varies from one province to another, the age of majority being 18 in: Alberta, Manitoba, Ontario,
PEI, Quebec, Saskatchewan, and the age of majority being 19 in: BC, NB, NF, NS, NWT, Nunavut, Yukon)-they are in
Canada-they are not children of a temporary resident who is not authorized to work or study -they are studying at the
pre-school, primary or secondary level.As long as these criteria are met, A30(2) applies regardless minor`s status in
Canada and regardless of the length of time the minor is in Canada. It is important to make the distinction between an
authorization to study without a SP and an authorized period of stay. With A30(2) it is possible for a minor to Study while
being unauthorized to be in Canada.
Request ID
IRPA00000001407
Item
OP 06-6.1 National Occupation Classification (NOC)
Category
SELECTION: Economic (Skilled Worker, Temporary Workers, Students, Provincial Nominees)
Question
Under the skilled worker category, how does a member of the clergy get awarded points for a work permit and HRDC
validation if they are documented on a visitor record?Under the NOC a minister does qualify as a skilled worker.
Solution Details
The IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered and/or
approved by the appropriate Service Line. The CIC Legal Services Unit has not yet vetted the final version of this answer.
Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your
Local/Regional Subject Matter Expert for an appropriate action.The Service Line Answer is:A clergy does not get
adaptability points for Canadian work experience if they do not have a work permit. If they enter Canada on a visitor
record, then they do not meet the requirements of R83(4).
October 15, 2004Page 604 of 779
Request ID
IRPA00000001408
Item
ENF 05- 8.8 Reports on persons claiming refugee protection
Category
ENFORCEMENT: Inadmissibilities, Bonds, Removal Orders, Hearings
Question
ENF5 8.8 instructs that reports on persons claiming refugee protection be reported A41(a), A20(1)(a) 'to become a PR that
they hold the visa or other document required under the regulations and have come to Canada in order to establish
permanent residence'. Under the former Act, reports required an allegation for no permanent resident visa and no passport.
Why are we not directed to report for both, A41(a), A20(1)(a), R50?
Solution Details
R228(c)(iii) provides that the Minister may issue an exclusion order against a foreign national for failing to establish they
hold the visa or other document as required under section 20 of the Act. A person without a passport should be reported for
section 20(1)(a) of the Act and reference can be made to reg 50 in the narrative. This approach to coding the inadmissibility
was taken to ensure that the Minister retains jurisdiction under 228 to issue a removal order.
Request ID
IRPA00000001409
Item
IR 05-4.0 Fee Changes
Category
Other
Question
The applicant is a spouse who was under 19 at the time the undertaking was received at CPC Mississauga, before June 28.
Since the applicant was under 19, she was exempt from paying the ROLF. The case is now ready for finalization. Under
IRPA, a spouse who is the principal applicant is now required to pay the RPR, whatever the age. Shall the applicant be
governed by the IRPA requirement and pay the RPR, according to section 190 of the new Act? I cannot locate anything in
the Transition Rules, the IR manual nor any OMs covering this situation.
Solution Details
Under the IR-5 Fact Sheet (pg.1) there is a statement "all completed applications received by COB June 27, 2002 will for the
purposes of cost recovery fees, be deemed as fully paid under the Immigration Act Fee Regs. Clients will not be required to
pay any differential in fees between the IAFR and the IRP fee schedules. No refunds of processing fees will be made for
dependent children where a lower processing fee applies under the new Act." However the criteria for payment of the
ROLF/RPRF are not the same as cost recovery application fees. Since the RPRF is a rights fee payable before the immigrant
visa can be issued - and must be refunded if the person doesn't acquire PR status in Canada - the same rule doesn't apply.
There are transitional regulations under 357 to define the people who will receive a refund of ROLF if they paid it pre-IRPA
and meet the necessary criteria. These are dependent children over 19 who are now exempt from paying the RPRF. For the
applicant in question, the RPRF is payable by principal applicants (with some exceptions**) and accompanying spouses,
common law partners. As the spouse will not meet the criteria for exceptions, she will have to pay. Please note that in
family class cases, CPC-M will take the payment, not the mission.** R303(2)(b) "a principal applicant who is a foreign
national referred to in any of paragraphs 117(1)(b) or (e) to (g)".
October 15, 2004Page 605 of 779
Request ID
IRPA00000001410
Item
IR 08- 2.0 Release Notes -FOSS
Category
Other
Question
When the DM issues a Conditional Departure Order on FOSS - the default wording reads: "...pursuant to the IMMIGRATION
AND REFUGEE PROTECTION ACT AND REGULATIONS, 2001" - Should this not read 2002?
Solution Details
The system is correct - the wording should read 2001 as that is when it received royal assent. The previous Act is referred to
as the 1976 Act but it came into force in 1978.
Request ID
IRPA00000001411
Item
OP 19-5.0 Departmental policy
Category
ENFORCEMENT: Inadmissibilities, Bonds, Removal Orders, Hearings
Question
This is follow up to question #148. Client is U.S. citizen and wants to visit Canada. As a U.S. citizen, he is does not require
TRV so there is no need to apply for one. He is coming only as a visitor, he is not working or studying. There is a criminality
issue that the client wants dealt with before coming to POE. This is something that client would qualify for deemed rehab.
The question is, how does the client apply to Seattle for that? Do they just write a letter and send in attached documents, or
do they use Rehab application kit with a letter explaining they should be considered for deemed rehab and do not include any
fees. (No fee for deemed rehab) The client is concerned that if they come to POE (a long drive) and they are not deemed
then there is a possibility they will be directed to leave. As call centre agents, we do not want to advise people to come to
POE and then have them refused. We advise them to contact the Consulate or Embassy before they come. The problem is
we cannot advise any further as to what/how they apply for deemed rehabilitation outside of Canada. Is there a specific
application form/kit?
Solution Details
The IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has never been answered
nor approved by the appropriate Service Line.Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals
on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate action.
October 15, 2004Page 606 of 779
Request ID
IRPA00000001413
Item
OP 02-5.38 Appeals
Category
SELECTION: Social (H&C, Family Class, LCP, TRP)
Question
When an application is refused R117(9)(d), do the sponsors have appeal rights or is the decision turned back by IAD because
of lack of jurisdiction? My case involves an FC1. The sponsor did not declare his dependents on landing and a 27 report was
written with no direction. Since the applicants did not complete their stat requirements until now, pursuant to A40 the sponsor
is inadmissible for two years. This will put the applicant in an 'excluded relationship' R117(9)(d).
Solution Details
The IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered and/or
approved by the appropriate Service Line. The CIC Legal Services Unit has not yet vetted the final version of this answer.
Therefore, the IRPA Helpdesk is suggesting you to go back to your manuals on the matter or bring it forward to your
Local/Regional Subject Matter Expert for an appropriate action.The Service Line Answer is:A63(1) describes who has
the right to appeal a refusal of a family class case. If the sponsorship application was filed in accordance with R10 and R11,
then the sponsor has appeal rights. A64 lists exceptions to a sponsor having appeal rights. In a case where the refusal is
issued because the applicant is not a member of the family class, if the IAD determines that the applicant is not a member
of the family class or that their sponsor is not a sponsor within the meaning of the Regulations, it cannot exercise its equitable
jurisdiction to consider humanitarian and compassionate factors [A65].
Request ID
IRPA00000001414
Item
ENF 14-16.00 Procedure: Calculation of the start date of the 5-or 10-year period
Category
ENFORCEMENT: Investigations, Stays and Removals
Question
What is the procedure for calculating the 5 or 10 - year criteria for granting rehabilitation. In my case the FN was on
probation for one year - will this change the calculation?
Solution Details
The IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered by the
Helpdesk but was never approved by the appropriate Service Line. Therefore, the IRPA Helpdesk is suggesting you to go
back to your manuals on the matter or bring it forward to your Local/Regional Subject Matter Expert for an appropriate
action.The Helpdesk Answer is:ENF14 16 provides the procedure for calculating the start date of the 5 or 10 year period.
For Probation 'the date of the end of the sentence, even if probation, and terms and conditions were imposed' is the
calculation. Probation is not considered part of the sentence or conviction (Rehabilitation Kit 'Eligibility' page 7).
October 15, 2004Page 607 of 779
Request ID
IRPA00000001415
Item
IP 03-41 One-year window of opportunity program (OYW)
Category
SELECTION: Social (H&C, Family Class, LCP, TRP)
Question
Government Assistance Refugees (RS1s) can declare their non-accompanying dependents within one year.. If they do not
declare. in the past, they would apply under the FC Class. Given R117(9)(d) is this still possible or are these dependents also
permanently inadmissible?
Solution Details
The IRPA Helpdesk will be finalizing all Q's & A's activities on March 1st, 2004. This question has been answered and/or
approved by the appropriate Service Line. The CIC Legal Services Unit has not yet vetted the final version of this answer.