Roma - Their Story

Never Come Back - by Karl Nerenberg

 

https://www.youtube.com/watch?v=E26XukmkMP8

"Never Come Back" tells the story of the Roma (sometimes called "Gypsies") in Canada. Characters include Tibor Lukacs, from Prague, who founded the FC-Bohemians, a "Roma" soccer team in Canada's steel town, Hamilton; and Tamas Banya, a singer/guitarist from Budapest. After accepting many as refugees, the Canadian government is now rejecting most, arguing that they come from 'democratic countries.' The film travels to the Czech Republic and Hungary where Roma suffer discrimination and face threats of violence. Bela Radics, a Roma an who was returned to Hungary by the Canadian government to Hungary, tells Roma still in Canada: "Never come back!"

 

Lee and Company represented Tamas Banya from Hungary and successfully helped him get his humanitarian and compassionate application approved.

GTEC (Greater Toronto Enforcement Centre) Interviews

GTEC @ 6900 Airport Road, Toronto

When people receive letters to attend at the GTEC (CBSA) they panic and they think that it is over, that they will be removed immediately.  First, you need to be assured, that this is not necessarily the case, despite the letter generally stating that the your Removal Order is now effective and/or  you are removal ready.  There are remedies available to you under these circumstances which shall be discussed in another blog.   However, I want to discuss my experience and give my two cents from an Articling Student’s perspective and how to act to avoid problems.

First of all, be calm! Nothing should happen if you remain calm, even under the worst circumstance and even in the worst circumstance there are remedies which can be discussed once you get back to our office.  Second, listen to me when I am trying to tell you to be calm. You weren’t listening to me before and now you are panicking. Be calm. Nothing will happen if you remain calm.

When a client gets convoked to GTEC – now called EIOD or Enforcement and Intelligence Operations Division. Why? I don’t know. I don’t know what’s so intelligent about it – they feel uneasy to say the least. The client is unsure what will happen next: will they get yelled at profusely? Interrogated in a dark room under bright lights à la Hollywood? Arrested? Deported? Will they lose the ability to work and earn a livelihood? Will they be separated from their children? These are legitimate concerns and are not foreign to counsel. It’s important to always remember the first point and to be calm.

GTEC is not a nice place. There is tension in the air. People who are convoked for an interview at let’s say 9 am, will not get seen until 11, if they are lucky. Sometimes, you see mothers with their strollers and families with their impatient young children, they must wait there and gaze at CBSA officers on the other side of a thick plexiglass window. These officers often do not look friendly: they walk with holstered guns and bullet proof vests towards an annoyingly loud intercom to call other worried souls to their interviews. Upon being called, one, two, or a whole family of grim-faced people will stand up and drag their feet to the designated interview room.

The interview rooms are not nice places. I have seen things that are not pleasant happening there, but remember they tend to happen only if clients do not remain calm and there is a confrontation between the client and the CBSA officer.  I’ve seen interviewees get rolled out on a stretcher by paramedics. The air has a certain noxious smell that is difficult to describe.  It haunts me long after I’ve left the building. There are usually two stools to sit on, but in some rooms there are three. There are always big yellow plaques on the wall warning you that everything you do and say is being recorded on audio and video. In these interview rooms, there is another plexiglass window/wall separating you from the officer.

I describe GTEC for a reason. I don’t blame our clients for not wanting to be there. If I were in their shoes I would not want to be there. Officers sometime look like they do not want to be there. But the important thing to remember is that the Client IS there, which means that they are not running and hiding and that is a good thing.  This is the first step to having an agreeable interview at GTEC, making it clear that the client is not going to run and hide.

The second most important thing is to answer questions truthfully. Be calm, breath, take your time, and answer the questions truthfully. First, listen to the question. Make sure you understand what the question is, and answer it truthfully. Don’t give too many details, don’t give an answer that is not relevant to the question. Don’t think that you can outsmart the officer and give some weird smartalicky answer. These things will not help you at all. Just be calm. Listen. Breathe. And answer truthfully.

I insist on listening, breathing, and staying calm because the opposite – being nervous, not breathing, getting excited, crying, not answering, yelling – will result in the worst case scenario, which is an arrest followed by detention. Please remember if the officer thinks you will panic and run they can arrest you because they have the right to detain under the law if they think you will not show up when convoked by CBSA or CIC. So always remember my first point: be calm. Nothing will happen if you remain calm. Then listen. Breathe. And answer truthfully.

Next, remember that counsel (I) am there to help and make sure that the officer does not ask irrelevant questions, and does not act in a way that would lead to a breach of the law, or in general that things do not escalate or get complicated without reason. That is all I am there for. I am not there to answer the questions for you. I am not there to trick the officer. I am not there to give some brilliant speech that will leave the CBSA officer flabbergasted. None of this can happen, and even if it could happen, it would not help. I am there to make sure nothing gets out of hand. I am there to make sure you remember to breath, and stay calm. I might gently put my hand on your shoulder if I notice that you are becoming agitated. I will remind the officer that you are nervous because of the nature of the interview itself, because the client is being interviewed by a person with authority, and no other reason. The only time I will answer questions is if they are technical, such as when the officers ask questions such as whether or not you “made an application for landing.” 

I have done my job when I walk out with you from the interview, calmly walking towards the parking lot.

Patrick Simon

Articling Student, 2013-2014

 

Restoration of Status

Restoration of status

Every now and then we receive a panic telephone call from a client who has forgotten or has otherwise been unable to extend his  temporary resident status in Canada [Temporary Residents are people who are in Canada as visitors, on work permits, or study  permits]. Fortunately, the law allows for Restoration of Temporary Resident status.

 

Relevant Legislation

The relevant provisions of the Immigration and Refugee Protection Regulations state:

 

Restoration of Temporary Resident Status

182. On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay, has not failed to comply with any other conditions imposed and is not the subject of a declaration made under subsection 22.1(1) of the Act.  SOR/2013-210, s. 2.

To put it simply if you are a Temporary Resident, and your status has expired, you have 90 days to restore it.

Our firm has challenged the interpretation of this section early on and in a reported decision rendered by the Honourable Justice Kelen of the Federal Court, the court states:

10 Pursuant to section 182 of the Regulations, an immigration officer is required to restore an applicant’s temporary resident status if he meets the initial requirements for his stay and if he has not failed to comply with any other conditions imposed. Section 179 sets out the initial requirements for the issuance of a temporary resident visa. Among other things, the applicant must have properly applied as either a visitor, worker or student and it must be established by the immigration officer that the applicant will leave Canada by the end of his authorized stay. In determining whether an applicant will leave Canada at the end of his stay, an officer will usually consider the applicant’s purpose for wanting to be in Canada. This permits an officer to gauge whether it is likely that the applicant has a temporary reason for being here, and thus, whether it is likely that he will leave when required. [emphasis added]

 

Radics v. Canada (Minister of Citizenship and Immigration), 2004 FC 1590; 262 F.T.R. 211

 

The phrase “an immigration officer is required to restore an applicant’s temporary resident status if he meets the initial requirements” has been underlined for it established that the restoration should not be some sort of extraordinary or special relief, but relatively routine, if you have otherwise complied with the requirements of the Act.

However, the view of CIC, as expressed in their Manuals IP 6 Processing Temporary Resident Extensions, which guides officers is more complicated;

 

5.8.Restoration(Includes instructions found in OB 130)

 

If a visitor, worker or student has lost their status, they may apply to reinstate or restore their status in accordance with R182. This regulation only applies if the temporary resident has not been out of status for more than 90 days, and they have not failed to comply with the specified conditions. If an applicant applies to renew their visitor status, or their work or study permit after their temporary resident status has expired, but within the 90-day restoration period, CPC -Vegreville will  inform them that they must  also apply for restoration of their status, if they have not already done so.

The applicant will then have 90 days from the date of notification to submit their restoration application and the corresponding fee, which is presently $200 [R306]. Restoration of status cannot be granted at the POE. Individuals who have failed to comply with the conditions imposed under R185 need to apply in Canada for restoration of their status. If they leave Canada, they will be deemed to be seeking a new entry on their return.

The phrase “initial requirements for their stay” should not be read too literally when it is being
applied in the context of a restoration application, and the requirements of  R179 should not be applied rigidly in that regard. The preferred interpretation in this context would be that the person seeking restoration must meet the requirements of the class under which they are currently applying to be restored as a temporary resident. The desired approach to the restoration provision of R182 is to be facilitative and consistent with the current approach to extension applications of the provision in R181, since the two provisions are similar in nature and R181actually refers specifically to the requirements of R179.

Three possible scenarios which fall under the purview of restoration of status can be described as

follows:
 

1.     A foreign student who is still in status can apply in Canada for a work permit under certain conditions. By inference, the foreign student can apply for a work permit when restoring status.

 

2.     A temporary foreign worker who is still in status can apply in Canada for a study permit if they meet certain conditions. By inference, they can also apply for a study permit when restoring status.

 

3.     A temporary resident who is eligible to apply in Canada for a work or study permit would be allowed to do so when restoring their status.

 

Clearly, while restorations are available to Temporary Residents, seeking counsel is always prudent.

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Losing Permanent Resident Status

When does a Permanent Resident Cease to be a Permanent Resident?

Often, people confuse not having a Permanent Residence Card with no longer being a permanent resident of Canada. Not having a Permanent Resident Card does not mean you are no longer a permanent resident.

Currently, section 46 of the Immigration and Refugee Protection Act (IRPA) lists 4 ways for a person to lose permanent resident status.

46. (1) A person loses permanent resident status

(a) when they become a Canadian citizen;

(b) on a final determination of a decision made outside of Canada that they have failed to comply with the residency obligation under section 28;

(c) when a removal order made against them comes into force;

(d) (c.1) on a final determination under subsection 108(2) that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a) to (d); or

(e) on a final determination under section 109 to vacate a decision to allow their claim for refugee protection or a final determination to vacate a decision to allow their application for protection.

So what does this mean for most permanent residents of Canada?

s.46 (1) (a) is clear, when you become a Canadian citizen you cease to be a permanent resident.

s.46 (1)(b) may seem less clear, but it simply means, that if you are outside of Canada and you apply for a Permanent Resident Travel document (a document issued to permanent residents who are outside of Canada without PR cards) and it is refused, and you do not appeal the decision; or you appeal but the appeal is not allowed, you cease to be a permanent resident (final determination).

For Permanent Residents who are in Canada, 46(1)(c) applies. The process for losing status is more complicated, and it does not mean that a permanent resident card is not issued, while during the application for a new card, your compliance with your residency obligations under S. 28 of the Act will be examined, they still must issue you a PR card until a removal order made against you comes into force.


How does a Removal Order come into force under these circumstances? 

Well, first a Report must be written against you, usually either at the port of entry or as a result of your application to renew the PR card. Then this Report gets forwarded for a Minister’s Delegate to review for a hearing, then at a hearing a Removal Order gets issued. Now if you do not appeal, within the period prescribed by law, the Removal order comes into force, and you cease to be a permanent resident. However, if you appeal then you only cease to be a permanent resident, when and if, you lose the appeal. Of course, it has to be understood that winning the appeal is NOT easy, but you have to know that they can be won, particularly if you have good counsel.

Another issue that comes up in relation to the loss of permanent resident status is the issue of relinquishment/renouncement of permanent resident status. To be quite blunt, while this is accepted by Canada Immigration authorities, there is no such provision in Canadian law at present. How one complies or fails to comply (and therefore may lose) the permanent resident status is clearly prescribed in s. 28 of the IRPA; renouncement is not one of them. What we have seen is that Visa Posts have clients sign statements that they are relinquishing their status, and then make “decisions” that they are no longer permanent residents and advise the clients of their appeal rights, once the time period for filing has expired, immigration state that the clients are no longer permanent residents. To say the least this practise is dubious, and we have found solutions even in these scenarios where the clients have sought to regain their PR status. There is however proposed legislation to allow for renouncement. The proposed legislation reads:

46(1)(e) on approval by officer of their application to renounce their permanent resident status;

46(1.1) Effect of renunciation – A person who loses their permanent resident status under paragraph (1)(e) becomes a temporary resident for a period of six months unless they make their application to renounce their permanent resident status at a port of entry or are not physically present in Canada on the day on which their application is approved.

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