Law Commons^™

Teitiota V New Zealand, Climate Migration And Non-Refoulement: A Case Study Of Canada’S Obligations Under The Charter And The Iccpr, Mari Galloway

Dalhousie Law Journal

Climate change is expected to have an unprecedented impact on human migration and displacement over the next decade. Individuals forced to migrate on the basis of climate change or natural disasters remain, however, on the periphery of international and domestic environmental and refugee protections. Teitiota, a landmark decision by the UN Human Rights Committee (the Committee) in 2020 could, however, point the way toward filling these legal gaps by using the principle of non-refoulement under human rights law to prevent the deportation of those whose lives are at risk. As such, this paper seeks to explore the application of Teitiota …

Judgments V Reasons In Federal Court Refugee Claim Judicial Reviews: A Bad Precedent, Sean Rehaag, Pierre-André Thériault

Dalhousie Law Journal

This article offers an empirical examination of policies on the publication of refugee law decisions in Canada’s Federal Court. In 2015, the Court issued a notice describing the Court’s general practice of publishing written reasons in cases that the deciding judge considers as having precedential value and of issuing unpublished judgments in cases that the deciding judge does not view as precedential. In 2018, the Court reversed course and issued a new notice. This time, the Court indicated that all final decisions on the merits will be published.

Drawing on data obtained via automated data scraping processes from thousands of …

Citizenship And The First-Generation Limitation In Canada, Michael Pal, Luka Ryder-Bunting

Dalhousie Law Journal

This article considers the current Canadian regime for citizenship by descent and what is known as the “first-generation limitation.” In 2009, Parliament legislated to limit the transmission of citizenship by descent. Known as the “first-generation limitation,” the new rules mean that a Canadian parent is only entitled to pass on their citizenship to their children born abroad if the parent themselves became a citizen by birth inside Canada or by naturalization. In other words, if an individual acquired Canadian citizenship by descent, they are not entitled to pass on their citizenship to their children unless those children are born in …

Once More Unto The Breach: Confronting The Standard Of Review (Again) And The Imperative Of Correctness Review When Interpreting The Scope Of Refugee Protection, Gerald Heckman, Amar Khoday

Dalhousie Law Journal

The Supreme Court of Canada’s standard of review jurisprudence has been marked by the ascendancy of reasonableness as the presumptive standard of review of decisions involving an administrative tribunal’s interpretation and application of its home statute. To the extent that this approach would lead to the reasonableness review of administrative decision-makers’ interpretation of the scope and meaning of provisions of the Immigration and Refugee Protection Act that implement the basic human rights conferred in international conventions to which Canada is a party, it must be changed. Interpretations of the scope of the Refugee Convention and Convention Against Torture raise questions …

Medical Inadmissibility, And Physically And Mentally Disabled Would-Be Immigrants: Canada’S Story Continues, Constance Macintosh

Dalhousie Law Journal

In April 2018, Canada’s federal government announced that it had decided “to eliminate” the medical inadmissibility policy from our immigration regime.1 This was to bring our practices in line with contemporary Canadian values, and to engender consistency with the that Canada signed in 2007 and rati�� ed in 2010. The �������� requires equality for persons with disabilities, including taking actions to enable full and effective participation and inclusion in society.3 To achieve these obligations, states must adopt legislative or other measures that implement these rights, and must repeal or revise legislation or policies which are inconsistent with the ��������’s obligations.

Canadian Immigration Law In The Face Of A Volatile Politics, Colin Grey, Constance Macintosh, Sarah Marsden

Dalhousie Law Journal

The genesis of this special issue was a conference of Canadian immigration law scholars at the Université du Québec à Montréal in March 2018. Conference participants sought to look back on the many changes made to Canadian immigration law during the near-decade the Stephen Harper-led Conservative government spent in power (2006–2015). Although the Conservatives did not introduce a single, revamped immigration law— the major legislation remains the Immigration and Refugee Protection Act, brought in under the Jean Chrétien-led Liberals (1992–2006) in 2002—they altered parts of the law nearly beyond recognition. In this introduction, we reflect briefly on these changes; on …

The Battle For The Wrong Mistake: Risk Salience In Canadian Refugee Status Decision-Making, Hilary Evans Cameron

Dalhousie Law Journal

Canadian refugee status adjudicators must choose between two opposing bodies of law, one of which resolves doubt in the claimant’s favour and the other at the claimant’s expense. How do they decide which to prefer? How do they decide whether it would be better to risk accepting an unfounded claim or to risk rejecting a well-founded one? This paper explores one potentially relevant factor: the salience of the harms that decision-makers associate with potential risk outcomes. A brief account of recent events in Canadian refugee law history, beginning with the refugee law reforms of former Conservative Immigration Minister Jason Kenney, …

Immigration, Xenophobia And Equality Rights, Donald Galloway

Dalhousie Law Journal

One can readily identify a number of factors that, over the last ten years or so, have combined to reduce and destabilize the legal status and social standing of non-citizens who are seeking to enter or remain in Canada. Particularly conspicuous are the amendments to our refugee and citizenship laws that were introduced by the government that held power from the 2006 election until 2015, especially those harsh measures that were introduced after the government obtained a majority in the legislature in 2011.1 The changes in question were extensive and far-reaching. A shortlist of wellknown examples indicates the scope. Prompted …

Migrant Workers, Rights, And The Rule Of Law: Responding To The Justice Gap, Sarah Marsden

Dalhousie Law Journal

Migrant agricultural workers provide an essential and longstanding contribution to food security in Canada. Exploitation and rights shortfalls for these workers are welldocumented. On paper, they have rights on par with Canadian workers, but these rights do little to address the structure and dynamics underpinning their subordination in Canadian society. In this article, I argue that law creates a “justice gap” in the case of these workers. Law gives rights to these workers on an individual basis but also creates structural vulnerability which renders them unlikely to make use of individual remedies or compliance-based systems. Rights and protection discourse does …

Quand Voyager Mène Au Renvoi: Analyse Critique De La Législation Canadienne Sur La Perte Du Statut De Résident Permanent Liée À La Perte De L’Asile, Hélène Mayrand

Dalhousie Law Journal

This paper provides a critical analysis of section 46(1)(c.1) of the Immigration and Refugee Protection Act (IRPA) adopted in 2012. The application of this section results in the loss of permanent resident status for protected persons who lose their refugee status under section 108 of IRPA, for example by renewing their passport and travelling to their country of origin, even for a short period of time. The combined effect of sections 46(1)(c.1) and 108 of IRPA pose major issues to Canadian protected persons. As a result, this paper explains the conditions for the application of section 46(1)(c.1) of IRPA and, …

The Mv Sun Sea: A Case Study On The Need For Greater Accountability Mechanisms At Canada Border Services Agency, Lobat Sadrehashemi

Dalhousie Law Journal

In the summer of 2010, the human rights record of Sri Lanka in the aftermath of its civil war remained dismal.1 In Canada, the Immigration and Refugee Board’s acceptance rates for refugee claims made by Tamils �� eeing Sri Lanka was at approximately 84 percent.2 On 13 August 2010, a cargo ship, the MV Sun Sea (Sun Sea), arrived off the coast of British Columbia carrying 492 Tamil men, women, and children who were �� eeing Sri Lanka. Their voyage took just over two months, under horrible conditions. One passenger had died at sea. Most, if not all, had paid …

Do The Means Change The Ends? Express Entry And Economic Immigration In Canada, Asha Kaushal

Dalhousie Law Journal

The relationship between economy and community is a constitutive tension in the Canadian immigration state. With the rise of the knowledge economy, Canada mediated this tension through the concept of human capital, internalized in the points system. Introduced in 2015, Express Entry transformed the landscape of economic immigration in Canada. Express Entry is an online permanent residence application system. In this article, I argue that Express Entry is more than a change in form and process; it is a change in substance that shifts Canada’s skilled immigration regime toward a neo-corporatist model. By shifting partial decision-making authority to the provinces …

Dna, Donor Offspring And Derivative Citizenship: Redefining Parentage Under The Citizenship Act, Stefanie Carsley

Dalhousie Law Journal

Under Canada's Citizenship Act, children born outside Canada acquire derivative citizenship-that is, citizenship through descent or parentage-if at least one of their parents is Canadian. However according to Citizenship and Immigration Canada, in order to qualify for derivative citizenship a child must have a genetic link to a Canadian citizen. Canadians who use donated sperm or eggs to conceive-including women who give birth using donated eggs-are therefore not considered parents for citizenship purposes. According to the Federal Court of Appeal, Canadian donors may also pass on their citizenship to their genetic offspring. This article argues that current interpretations of the …

Remedies For Non-Citizens Under Provincial Nominee Programs: Judicial Review And Fiduciary Relationships, Delphine Nakache, Catherine Blanchard

Dalhousie Law Journal

In Canada, more and more people get permanent residency under Provincial and Territorial Nominee Programs (PTNPs). Despite this new reality, there is today no detailed examination of the consequences of PTNPs for immigrants' rights and protections. In this paper, we seek to fill this gap. As we show, PTNPs have no statutory basis and officials who administer these programs do not exercise statutory authority of any kind. An alternative would be that these programs become "law"; then the decisions made under them would bejudicially reviewable for conformity with that law. However, it is unlikely to happen because "flexibility" is seen …

Application Of Non-Implemented International Law By The Federal Court Of Appeal: Towards A Symbolic Effect Of S. 3(3)(F) Of The Irpa?, France Houle, Noura Karazivan

Dalhousie Law Journal

Since 1999, the Supreme Court has explored the linkages between domestic statutes and international norms and values and has slowly developed the basic principles underlying a new mechanism of relevancy that the authors call harmonization of domestic law with international law The authors analyze this development in PartI of the present article. In Part II, they study the application of this harmonization mechanism in the field of Canadian immigration law Of, particular importance in the Immigration and Refugee Protection Act is s. 3(3)(f), for it directs judges to construe and apply the IRPA in a manner that "complies with international …

The Constitution And Immigration: The Impact Of The Proposed Changes To The Immigration Power Under The Constitution Act, 1867, Davies Bagambiire

Dalhousie Law Journal

This article examines the impact that the suggested changes would have on the immigration power as presently set forth in sections 95 and 91(25) of the Constitution Act, 1867, and on Canadian immigration policy generally. First, it discusses how the present immigration power is allocated as between the federal government and the provinces, how it has been exercised or attempted to be exercisedby the two levels of government and how it has evolved and been interpreted by the Courts. Secondly, it looks at the problems that could arise as a result of the federal government transferring some of its immigration …