When is a removal order issued?

[jakklondon]

Here is an interesting article and excerpts from Shaheen Afzal, Applicant v The Minister of Citizenship and Immigration, Respondent.
It was held (for reasons spelled out) that Afzal had no right to be granted citizenship, and his certificate was cancelled as a result (even though the error was committed by the Judge and Respondent, with no fraud or misrepresentation committed by Afzal). See below:

31 In sum, section 26(3) of the Regulations is authorized by section 27(j) and (k) of the Act. Regulation 26(3) is neither inconsistent with, nor a derogation from, any right created by the Actitself; rather section 26(3) implements, administratively, the intent of Parliament as reflected in sections 12(3) and 27(j) and (k) of the Act. This interpretation also ensures that the privilege of Canadian Citizenship is granted only as intended by Parliament.

35 In any event, even if there was a breach of procedural fairness, I would withhold relief. Relief under section 18.1 of the Federal Courts Act is equitable and discretionary and can be withheld where setting aside the decision would not affect the ultimate result; Mobil Oil Canada Ltd. v Canada-Newfoundland Offshore Petroleum Board, [1994] 1 SCR 202, at paras 51, 52. In this case, the applicant failed both of the mandatory requirements established by statute. To set aside the decision would serve no purpose, as the applicant would still be ineligible for citizenship. Remedies that serve no purpose will not be granted.

JUDGMENT

THIS COURT ORDERS that the application for judicial review is dismissed with costs.

LINK: https://www.lexology.com/library/detail.aspx?g=fcd0650c-a8c4-4b7d-9734-360543e21cbe

 

[CaBeaver]

Hi friends, I have come up with a strange question regarding removal orders. (It hasn't happened to me, nor do I know anyone in this situation, but given the unpredictable behavior of IRCC, I fear that eventually, this situation may come up somehow.)

I have read that when a PR tries to enter Canada, he/she cannot be stopped from doing so, but an officer at the border may check RO. And if the officer thinks RO is not met, a report will be sent to the minister. If the minister agrees with the report, a removal order will be issued. So it seems that the removal order is not immediately issued at the border. Is that indeed the case? Is there a gap between the report and the removal order? How long is that gap?

The reason that I am asking is:

I read that if a PR is under a removal order, he/she cannot become a citizen. Now imagine this situation: a PR submits a citizenship application with the hope that it can be processed in a year. He/she then leaves Canada, and unluckily, IRCC delayed the application for years (which is not impossible). By the time of Decision Made, this person still meets RO, but by the time he/she receives oath invite, another, say, 5 years passed...

This person hasn't traveled back to Canada in these 5 years, so no one checked RO, and PR is not lost. Now right before the oath date, this person tries to enter Canada in a private vehicle for the oath. If the removal order is immediate, this plan would not work, because the order comes before oath for sure; but if it is not, then he/she can enter Canada, become a citizen, and when the minister sees and approves the report, theoretically no removal order can be issued since he/she is already a citizen.

I know this sounds very bizarre and looks like a way to sneak past the regulation, but if an action is not prohibited, then one should not get legally penalized for it.

If someone is reported, it will appear on the system, even if a final decision is not made regarding the PR status. The most likely scenario is that they would hold your citizenship application until a decision is made on your PR status. I don't think they would schedule you the oath while you are being reported for breaching PR RO. This point you raised makes me think if IRCC played this card by delaying some applications to those who they suspected they are not well-established in Canada, so they leave or stay outside Canada long enough to breach their PR RO, and then find a good reason to just drop their citizenship application, because otherwise, they have no legal reason to drop it if all other requirements are met at the time of submitting the application

 

[hungtington]

Here is an interesting article and excerpts from Shaheen Afzal, Applicant v The Minister of Citizenship and Immigration, Respondent.
It was held (for reasons spelled out) that Afzal had no right to be granted citizenship, and his certificate was cancelled as a result (even though the error was committed by the Judge and Respondent, with no fraud or misrepresentation committed by Afzal). See below:

31 In sum, section 26(3) of the Regulations is authorized by section 27(j) and (k) of the Act. Regulation 26(3) is neither inconsistent with, nor a derogation from, any right created by the Actitself; rather section 26(3) implements, administratively, the intent of Parliament as reflected in sections 12(3) and 27(j) and (k) of the Act. This interpretation also ensures that the privilege of Canadian Citizenship is granted only as intended by Parliament.

35 In any event, even if there was a breach of procedural fairness, I would withhold relief. Relief under section 18.1 of the Federal Courts Act is equitable and discretionary and can be withheld where setting aside the decision would not affect the ultimate result; Mobil Oil Canada Ltd. v Canada-Newfoundland Offshore Petroleum Board, [1994] 1 SCR 202, at paras 51, 52. In this case, the applicant failed both of the mandatory requirements established by statute. To set aside the decision would serve no purpose, as the applicant would still be ineligible for citizenship. Remedies that serve no purpose will not be granted.

JUDGMENT

THIS COURT ORDERS that the application for judicial review is dismissed with costs.

LINK: https://www.lexology.com/library/detail.aspx?g=fcd0650c-a8c4-4b7d-9734-360543e21cbe

Thank you very much. This article is very interesting and informative.

I noticed three conditions against the applicants though:
1) IRCC tried to revoke the certificate before closing the case entirely, and she did not respond;
2) Revoking it does not render the applicant stateless;
3) She never met the requirements to become a citizen.

Therefore, the applicant that I have imagined might be able to provide a stronger argument than hers

 

[jakklondon]

Thank you very much. This article is very interesting and informative.

I noticed three conditions against the applicants though:
1) IRCC tried to revoke the certificate before closing the case entirely, and she did not respond;
2) Revoking it does not render the applicant stateless;
3) She never met the requirements to become a citizen.

Therefore, the applicant that I have imagined might be able to provide a stronger argument than hers

Giving a definite answer is surely beyond my knowledge on this matter, but it seems to me that Federal Court made emphasis on intent of Parliament (in US they would say "Congressional intent"), and refused to vacate the final decision to cancel her certificate on the grounds that even if that decision was cancelled, the ultimate result would be a loss of citizenship (perhaps, court itself would rule against her), because she was ineligible for the citizenship which she was granted in error.

 

[hungtington]

If someone is reported, it will appear on the system, even if a final decision is not made regarding the PR status. The most likely scenario is that they would hold your citizenship application until a decision is made on your PR status. I don't think they would schedule you the oath while you are being reported for breaching PR RO. This point you raised makes me think if IRCC played this card by delaying some applications to those who they suspected they are not well-established in Canada, so they leave or stay outside Canada long enough to breach their PR RO, and then find a good reason to just drop their citizenship application, because otherwise, they have no legal reason to drop it if all other requirements are met at the time of submitting the application

Indeed, nothing like this could happen if IRCC works as expected. Just imagine this:
An applicant is 18 years old when he applied to become a citizen. At that time, he has lived in Canada for 3 years, attending high school. He gets an offer from MIT, or some university that is better than the best offer he gets within Canada.
It is more than reasonable for him to think: 1) his application cannot be more routine. It will likely take less than 12 months. 2) He will be able to get a better job in Canada after graduation if he goes to MIT.

And, unfortunately, there's a pandemic, followed by the Afghanistan crises. So when he finished his 3rd year of university, he still hasn't gotten citizenship.

RO is under risk, and now he needs to decide between giving up a bachelor's degree from MIT and giving up Canadian citizenship+PR.

That's how IRCC works...

 

[jakklondon]

Indeed, nothing like this could happen if IRCC works as expected. Just imagine this:
An applicant is 18 years old when he applied to become a citizen. At that time, he has lived in Canada for 3 years, attending high school. He gets an offer from MIT, or some university that is better than the best offer he gets within Canada.
It is more than reasonable for him to think: 1) his application cannot be more routine. It will likely take less than 12 months. 2) He will be able to get a better job in Canada after graduation if he goes to MIT.

And, unfortunately, there's a pandemic, followed by the Afghanistan crises. So when he finished his 3rd year of university, he still hasn't gotten citizenship.

RO is under risk, and now he needs to decide between giving up a bachelor's degree from MIT and giving up Canadian citizenship+PR.

That's how IRCC works...

There is similar cultural predicament in the US that I noted in Canada. Although we currently don't have such delays in US Naturalization (to the contrary, record numbers of people get LPR and Citizenship in the US since around 2006. Before that, we had unusual and extreme delays in processing of many categories of applications) , but there is something widely embedded in our culture which manifests itself in giving someone a lot of hard time before granting them something that they badly want. There is an element of hazing in it, like in a college fraternity , which is supposed to build solidarity and make one appreciate what he gets. It is also often seen in various work environments, where it appears as if one who grants something (a job/salary/benefit) feels so resentful of parting with something dear (wages/benefits), that he inflicts pain as a way to compensate for his own sense of deep loss.

Of course, a separate component of it is wide spread incompetence and ineptitude, which is nothing intentional and not due to psychological issues, but an outcome of poor and careless management of affairs with little to no accountability.

Of course, none of it should be happening, and there should be mechanisms to prevent such unfortunate things from occurring. One way to improve things it is to speak up and openly discuss grievances, whenever and wherever they occur, which is what you are doing here, And you are absolutely correct, if things worked as they are supposed there would be less of such Kafkaesque outcomes.

 

[SecularFirst]

Indeed, nothing like this could happen if IRCC works as expected. Just imagine this:
An applicant is 18 years old when he applied to become a citizen. At that time, he has lived in Canada for 3 years, attending high school. He gets an offer from MIT, or some university that is better than the best offer he gets within Canada.
It is more than reasonable for him to think: 1) his application cannot be more routine. It will likely take less than 12 months. 2) He will be able to get a better job in Canada after graduation if he goes to MIT.

And, unfortunately, there's a pandemic, followed by the Afghanistan crises. So when he finished his 3rd year of university, he still hasn't gotten citizenship.

RO is under risk, and now he needs to decide between giving up a bachelor's degree from MIT and giving up Canadian citizenship+PR.

That's how IRCC works...

Something like this has happened with me, no entirely though. I spent 4 years in Canada before I went outside for school in the US. I was a PR when I went out. I returned after 3.5 years, after finishing school and some additional training and was sent to secondary. The officer wasn’t happy. Fortunately they didnt report me for RO but I can clearly see how being a PR restrict someone from getting education from outside Canada. They should put in exception for education. Now I cant leave Canada until I finish 730 days inside Canada and renew my PR card first, to which I am very close. Now people will say getting education outside Canada should not be considered as exception to maintaining RO. I dont know what to say to them.
I mean Canada makes so much effort to bring educated, skilled people here and if a PR wants to go out for education or enhance skill, they dont like that.

For example, Its very hard to get in medical residency in Canada and lets say if a PR holder got into medical residency in US (which is recognized in Canada) and want to return to canada after 3-4 years of speciality training, they will say no, you didn’t maintain RO, deport yourself. Or subject them to appeals and court stuff, wasting everyone’s time in unnecessary paperwork. This is really regressive.

 

[jakklondon]

Something like this has happened with me, no entirely though. I spent 4 years in Canada before I went outside for school in the US. I was a PR when I went out. I returned after 3.5 years, after finishing school and some additional training and was sent to secondary. The officer wasn’t happy. Fortunately they didnt report me for RO but I can clearly see how being a PR restrict someone from getting education from outside Canada. They should put in exception for education. Now I cant leave Canada until I finish 730 days inside Canada and renew my PR card first, to which I am very close. Now people will say getting education outside Canada should not be considered as exception to maintaining RO. I dont know what to say to them.
I mean Canada makes so much effort to bring educated, skilled people here and if a PR wants to go out for education or enhance skill, they dont like that.

For example, Its very hard to get in medical residency in Canada and lets say if a PR holder got into medical residency in US (which is recognized in Canada) and want to return to canada after 3-4 years of speciality training, they will say no, you didn’t maintain RO, deport yourself. Or subject them to appeals and court stuff, wasting everyone’s time in unnecessary paperwork. This is really regressive.

How dare you say such horrible lies! Such things never happen in Canada and no one is ordered to self deport for wanting to be a doctor. Canada loves educated people who go to school and get more education. Obviously you have a hidden agenda (perhaps a member of Taliban or a local gangster) , and you just make all this nonsense up because of Freddy Krueger syndrome.

 

[CaBeaver]

Something like this has happened with me, no entirely though. I spent 4 years in Canada before I went outside for school in the US. I was a PR when I went out. I returned after 3.5 years, after finishing school and some additional training and was sent to secondary. The officer wasn’t happy. Fortunately they didnt report me for RO but I can clearly see how being a PR restrict someone from getting education from outside Canada. They should put in exception for education. Now I cant leave Canada until I finish 730 days inside Canada and renew my PR card first, to which I am very close. Now people will say getting education outside Canada should not be considered as exception to maintaining RO. I dont know what to say to them.
I mean Canada makes so much effort to bring educated, skilled people here and if a PR wants to go out for education or enhance skill, they dont like that.

For example, Its very hard to get in medical residency in Canada and lets say if a PR holder got into medical residency in US (which is recognized in Canada) and want to return to canada after 3-4 years of speciality training, they will say no, you didn’t maintain RO, deport yourself. Or subject them to appeals and court stuff, wasting everyone’s time in unnecessary paperwork. This is really regressive.

I vaguely remember you said somewhere you applied for citizenship. Is that right? If yes, is your file progressing normally? Or you waiting to be compliant with PR RO?

 

[hungtington]

Something like this has happened with me, no entirely though. I spent 4 years in Canada before I went outside for school in the US. I was a PR when I went out. I returned after 3.5 years, after finishing school and some additional training and was sent to secondary. The officer wasn’t happy. Fortunately they didnt report me for RO but I can clearly see how being a PR restrict someone from getting education from outside Canada. They should put in exception for education. Now I cant leave Canada until I finish 730 days inside Canada and renew my PR card first, to which I am very close. Now people will say getting education outside Canada should not be considered as exception to maintaining RO. I dont know what to say to them.
I mean Canada makes so much effort to bring educated, skilled people here and if a PR wants to go out for education or enhance skill, they dont like that.

For example, Its very hard to get in medical residency in Canada and lets say if a PR holder got into medical residency in US (which is recognized in Canada) and want to return to canada after 3-4 years of speciality training, they will say no, you didn’t maintain RO, deport yourself. Or subject them to appeals and court stuff, wasting everyone’s time in unnecessary paperwork. This is really regressive.

Glad to know that you didn't get reported! I agree that education should be an exemption.

I would also argue that the requirement for a citizenship applicant (otherwise eligible) to meet PR RO throughout the processing time is not well motivated.

First of all, the processing time is not guaranteed. IRCC itself says "every file is different", and refuse to promise to process within a bounded amount of time even for routine applicants. So the time that similar applicants need to wait in Canada would be different and therefore hard to justify.

Secondly, RO is different from other requirements like "not commiting a crime". People who are already Canadians have the legal obligation to not commit crimes. But they do not have the obligation to never travel outside Canada for more than 3 years.

Hence, I believe it is hard to justify asking an applicant who meets all standards by time of application to adhere to some rule that Canadians don't need to obey for an unpredictable amount of time.

 

[SecularFirst]

I remember you said you applied for citizenship. Is that right? If yes, is your file progressing normally? Or you waiting to be compliant with PR RO?

I didn’t say I applied for citizenship. I said I cant wait to finish days for citizenship, apply it and move out. I will be applying after 3 years of continues presence in Canada and I dont think they will take 2 years to adjudicate my application, to get me on RO. Even if they take 2.5 years, my RO will be good, 2 years out of last five.

 

[CaBeaver]

I didn’t say I applied for citizenship. I said I cant wait to finish days for citizenship, apply it and move out. I will be applying after 3 years of continues presence in Canada and I dont think they will take 2 years to adjudicate my application, to get me on RO. Even if they take 2.5 years, my RO will be good, 2 years out of last five.

Thanks for clarifying. I thought you said you have already applied. If you did, your case would have been relevant to the question.

 

[CaBeaver]

Glad to know that you didn't get reported! I agree that education should be an exemption.

I would also argue that the requirement for a citizenship applicant (otherwise eligible) to meet PR RO throughout the processing time is not well motivated.

First of all, the processing time is not guaranteed. IRCC itself says "every file is different", and refuse to promise to process within a bounded amount of time even for routine applicants. So the time that similar applicants need to wait in Canada would be different and therefore hard to justify.

Secondly, RO is different from other requirements like "not commiting a crime". People who are already Canadians have the legal obligation to not commit crimes. But they do not have the obligation to never travel outside Canada for more than 3 years.

Hence, I believe it is hard to justify asking an applicant who meets all standards by time of application to adhere to some rule that Canadians don't need to obey for an unpredictable amount of time.

Better to wait after getting the citizenship. It's the safest option. Stephen Harper tried to force those who get the citizenship to stay in Canada for the next 10 years. So, there are some forces that want immigrants to stay in Canada or else lose their immigration status. Fortunately, it's not required anymore, but you never know if it will return with the next Conservative government. I am not framing leaving Canada as taking advantage of Canada, but even in-land born Canadians find themselves in circumstances that they have to leave. It's impossible to predict what will happen with immigrants in Canada before they land. The reality sometimes hits, and one can find himself/herself in a tough position after years of sacrificing. Maybe a job opportunity outside Canada gives one more skills and experience that are needed in Canada when they return.

 

[hungtington]

Better to wait after getting the citizenship. It's the safest option. Stephen Harper tried to force those who get the citizenship to stay in Canada for the next 10 years. So, there are some forces that want immigrants to stay in Canada or lose their immigration status. Fortunately, it's not required anymore, but you never know if it will return with the next Conservative government. I am not framing leaving Canada as taking advantage of Canada, but even in-land born Canadians find themselves in circumstances that they have to leave. It's impossible to predict what will happen with immigrants in Canada before they land. The reality sometimes hits, and one can find himself/herself in a tough position after years of sacrificing.

I think you are replying to SecularFirst?

Yeah I've heard of this Stephen Harper thing ...

 

[CaBeaver]

I think you are replying to SecularFirst?

Yeah I've heard of this Stephen Harper thing ...

I was replying to you. If you have plans, better to postpone until after you get your citizenship instead of entering the maze of PR RO. Even if this is a hypothetical situation, waiting until getting the citizenship is the safest option before leaving Canada.