• 06Sep

  Changes to Humanitarian and Compassionate Applications in Canada as of June 29 2010 – Announced September 3 2010

  Uncategorized No Comments

  September 3 2010 was the date on which Canada’s Immigration Department announced changes to all in-Canada humanitarian and compassionate (“H&C”) cases filed on or after June 29 2010.  The changes are designed to reduce the hurdles Canada’s Border Service Agency has faced prior to deporting foreign nationals from Canada.  Some discipline is being added to humanitarian and compassionate applications in Canada that was hitherto found wanting.

  Specifically, it is no longer possible for an applicant to submit more than one H&C application at a time.  I doubt this had occurred  frequently prior to June 29 2010, given that the government fee as of the time of this posting is $550.00 per adult applicant.  However, some creative Canadian immigration lawyers have used more than one H&C application in tandem with federal court stays of removal from Canada with some success (stays of removal allow a person to remain in Canada despite a removal order issued by the CBSA).  I can see the bureaucratic logic of extending this restriction to other applications since in theory this would mean less applications for Canada’s Immigration department to deal with (prior to this change the only other explicit restriction on filing more than one application was in the context of spousal/common law applications).

  The law now states that government fees must be paid to get the benefit of processing.  This was understood as mandatory by experienced immigration lawyers and consultants, and mirrors other parts of Canada’s immigration law dealing with federal skilled workers which also require the fee prior to an application being ‘locked-in’ as of a certain date.

  There is now the ability for the immigration department to waive fees, but I can never see this happening in practice except where there are extremely dire circumstances (something that you would see on the silver screen or Bollywood).  I can envisage such a successful H&C applicant being bandied about by Canada’s immigration department as a poster-boy of how humane the Canadian government is.  I can picture a glowing profile of the H&C applicant on Canada’s Immigration website, along with a photo op of such an H&C candidate with a high-profile politician.  Victimized persons being used as props by the Canadian government are not uncommon.

  A sample of how extraordinary one’s story would have to be before the Minister would justify the waiving of fees is as follows:

  “After being orphaned at the age of five, and subsequently raised by wolves, poor Bobby left his wolf-cave to seek out a good fortune at the ripe age of 12, only to be kidnapped by pirates.  After working in the dark hold of a pirate ship, bobby escaped while at a West African port of call.  While searching for subsistence he was captured by a war lord and enslaved.  Luckily the war lord was captured by a Canadian peacekeeping mission and the boy was rescued.  Watch of video of Bobby arriving in Canada for the first time.  See Bobby doing lay-ups with Prime Minister Stephen Harper.  Given Canada’s commitment to humanitarianism, the Right Honourable Minster of Immigration has directed that Bobby’s $550.00 processing fee has been waived.”

  A significant change includes the separation of H&C applications from Pre-Removal Risk Assessment (‘PRRA’) applications.  From approximately 2006 until the June 29 2010 change, all H&C applications that alleged risk in the country of origin were processed by the Canada Border Service Agency at their PRRA unit.  The consensus among immigration lawyers and consultants was that this was generally the kiss of death to H&C applications as the perception of “undue, undeserved and disproportionate hardship” among CBSA officers was much more stringent as compared to when H&C applications were assessed by the Immigration Department.  In addition the CBSA mandate includes the removal of persons from Canada.  By contrast, the mandate of the Minister of Citizenship & Immigration is to process applications for entry to Canada.

  Thus, there is now more hope for people seeking H&C landing already within Canada.

• 30Aug

  The Revised Canadian Citizenship Test: Easier or Harder?

  Uncategorized 1 Comment

  Canadian citizenship is no doubt very valuable.  Canada’s immigration department is seeking to reinforce this fact by trying to teach the value and practice of Canadian citizenship, to enhance respect for Canadian democratic values, and to emphasize that citizenship in Canada involves both rights and responsibilities.  To this end, a new citizenship study guide was launched on November 12, 2009. The previous guide that it replaced had apparently not been significantly revised since 1995. The new guide has expanded content related to the knowledge requirement for citizenship by discussing Canadian history, values, institutions, etc., and is available on the Canadian government immigration website.

  The current test for Canadian citizenship based on the new guide was revised on March 15, 2010 and is a twenty question, multiple choice exam but with a higher pass mark of 75% as opposed to the pass mark of 60% for the old Canadian citizenship test.  During a transition period of six months, applicants can take the test a second time if they are unsuccessful.

  I have only had one client who failed the citizenship test.  This client was an active business person, who flew back into Canada just for the purpose of writing the citizenship test.  However, he failed to use the study booklet which provides answers to all of the questions posed on the citizenship exam, and as a result, he failed the test.  He hired me to go to the Federal Court to appeal against the citizenship refusal.  However, his answers were too far off from the correct ones to follow through at the Federal Court.

  

  A Visual Representation of Omar Khadr

  The power and prestige of Canadian citizenship can in some instances be muted depending on the holder of that citizenship.  For example, Omar Khadr, yet to be convicted of anything, is the last Western citizen being held at Guantanamo Bay, Cuba.  Credible reports indicate that he was tortured by the US government or its agents,yet the Canadian government is not interested making any effort to repatriate him despite his Canadian citizenship.   Convicted Canadian money launderer Brenda Martin, by contrast, was visited by top level Canadian politicians while serving time in Mexico and was able to use her Canadian citizenship to serve the rest of her criminal sentence in Canada, as opposed to Mexico.

  The immigration department of Canada shall consider how the citizenship revocation process can be improved where citizenship has been acquired fraudulently.   This would ensure the integrity of Canada’s citizenship process.  In the past, only one person has ever been stripped of their Canadian citizenship. In addition Canada’s immigration department is in discussion with the Canada Border Service Agency (CBSA) about the measures and ability to prosecute people committing fraud under IRPA. My discussion of these measures can be seen here.

  
  There is no sign of any legal requirement of renounce the citizenship of another country, even if you are aspiring to political office in Canada. However, perhaps under political pressure, Michaëlle Jean, Canada’s current governor general decided to voluntarily renounce her French citizenship prior to her appointment.  In contrast, John Turner possessed dual citizenship (Canadian and British) when he was briefly Canada’s prime minister in 1984 with no complaints about his loyalty to Canada.  Perhaps dual citizenship is tolerated when the countries in question ostensibly have similar political values.

  By contrast, there could be a legitimate concern about high ranking US government officials holding Israeli citizenship, namely, whether official American interests in the Middle East such as peace and stability can be served given the dual Israeli and American citizenship.  This could be an argument in favour of a requirement for aspiring applicants for Canadian citizenship to renounce the citizenship of their country of origin, particularly if they hold high government positions in Canada.

• 24Aug

  Minister Kenney’s August 18 2010 Press Release: changes to temporary foreign workers, including live-in caregivers – An Analysis

  Uncategorized No Comments

  I previously blogged about proposed changes to Canada’s temporary foreign worker program Here.  As can be seen in the August 18 2010 News Release, those proposed changes are now law.

  A significant change from the previous  law relates to more specific guidelines for a Service Canada officer when assessing the genuineness of a job offer.   The specific criteria for assessing genuineness that is now set out in subsection 200(5) of the proposed amendments as follows:

  • whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made;
  • whether the offer is consistent with the reasonable employment needs of the employer;
  • whether the terms of the offer are terms that the employer is reasonably able to fulfill; and
  • the past compliance of the employer, or any person who recruited the foreign national for the employer, with federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work.

  The new regulations are generally helpful by being more specific than before.  Under the previous law,  Service Canada did  not have clear or detailed guidance on the issue of genuineness.  The consequence was that visa officers overseas would conduct their own assessment of whether the job being offered was genuine – with often unfair results.  Unfair results included failing to contact an employer to confirm details about the place of work, or the job to be performed.  It is hoped that visa officers will now be satisfied with leaving this task to Service Canada officers who work in Canada, and hence are better placed to assess the genuineness (or ‘bona fides’ in lawyer jargon) of a job offer.

  One cause for concern is the issue of the past compliance of an employer with applicable federal or provincial laws.  On the face of it, compliance with the law should be a welcomed and obvious criterion to use when figuring out if a job offer is genuine.  However, employers would consequently have to tread very carefully when seeking out a foreign worker for temporary employment, as some mistakes may ultimately end of as evidence of a lack of past compliance.  This would be a good opportunity to emphasize the usefulness of a representative like a Canadian Immigration Lawyer when considering a foreign worker.

  A registry of these non-compliant employers will be  effect (on immigration Canada’s website).  Thus, the entire reputation of a business can be in jeopardy if a labour market opinion application is bungled.  Picture someone googling “ABC company” and finding one hit for said company on immigration Canada’s website showing non compliance with the law.

  Employers can also end up on this public blacklist of sorts for providing “significantly different” wages, working conditions or job duties.  I’m not too worried about this provision; given that the Federal Court would be governed by what is ‘reasonable’,  I would interpret the term ‘significantly’ to be one that would shield employers from spurious findings or frivolous accusations.  The downside is that the phrase “significantly different” would likely have to be litigated before some consensus on its meaning is obtained.

  It is also logical for the government to impose a four year cap on the availability of these work permits.  Specifically, it is proposed that a maximum cumulative duration of four years of work, followed by a period of at least six years not working in Canada would be required, with exemptions under certain circumstances.  The exceptions appear to be people whose work permit was issued to on the basis of conferring a ‘significant benefit’ (Regulation 205 (a)), and a permit issued under an international agreements (Reg. 204 a)) and seasonal agricultural workers.  All others, such as low skilled workers and those under LMOs, or other Reg. 205 workers (such as reciprocal employment, or spouses of workers and students) would be subject to this four year cap.  I understand the cap applying to low skilled workers, but can see that spouses of work permit holders and spouses of study permit holders (who obtain a work permit) may get caught under this provision with no corresponding enforcement benefit to Canada such as the protection of foreign workers or maintaining of Canadian wages.

  Minister Kenney’s August 18 2010 Press Release: changes to temporary foreign workers, including live-in caregivers – An Analysis

  I previously blogged about proposed changes to Canada’s temporary foreign worker program Here. As can be seen in the August 18 2010 News Release, those proposed changes are now law.

  A significant change from the previous law relates to more specific guidelines for a Service Canada officer when assessing the genuineness of a job offer. The specific criteria for assessing genuineness that is now set out in subsection 200(5) of the proposed amendments as follows:

  § whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made;

  § whether the offer is consistent with the reasonable employment needs of the employer;

  § whether the terms of the offer are terms that the employer is reasonably able to fulfill; and

  § the past compliance of the employer, or any person who recruited the foreign national for the employer, with federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work.

  The new regulations are generally helpful by being more specific than before. Under the previous law, Service Canada did not have clear or detailed guidance on the issue of genuineness. The consequence was that visa officers overseas would conduct their own assessment of whether the job being offered was genuine – with often unfair results. Unfair results included failing to contact an employer to confirm details about the place of work, or the job to be performed. It is hoped that visa officers will now be satisfied with leaving this task to Service Canada officers who work in Canada, and hence are better placed to assess the genuineness (or ‘bona fides’ in lawyer jargon) of a job offer.

  One cause for concern is the issue of the past compliance of an employer with applicable federal or provincial laws. On the face of it, compliance with the law should be a welcomed and obvious criterion to use when figuring out if a job offer is genuine. However, employers would consequently have to tread very carefully when seeking out a foreign worker for temporary employment, as some mistakes may ultimately end of as evidence of a lack of past compliance. This would be a good opportunity to emphasize the usefulness of a representative like a Canadian Immigration Lawyer when considering a foreign worker.

  A registry of these non-compliant employers will be effect (on immigration Canada’s website). Thus, the entire reputation of a business can be in jeopardy if a labour market opinion application is bungled. Picture someone googling “ABC company” and finding one hit for said company on immigration Canada’s website showing non compliance with the law.

  Employers can also end up on this public blacklist of sorts for providing “significantly different” wages, working conditions or job duties. I’m not too worried about this provision; given that the Federal Court would be governed by what is ‘reasonable’, I would interpret the term ‘significantly’ to be one that would shield employers from spurious findings or frivolous accusations. The downside is that the phrase “significantly different” would likely have to be litigated before some consensus on its meaning is obtained.

  It is also logical for the government to impose a four year cap on the availability of these work permits. Specifically, it is proposed that a maximum cumulative duration of four years of work, followed by a period of at least six years not working in Canada would be required, with exemptions under certain circumstances. The exceptions appear to be people whose work permit was issued to on the basis of conferring a ‘significant benefit’ (Regulation 205 (a)), and a permit issued under an international agreements (Reg. 204 a)) and seasonal agricultural workers. All others, such as low skilled workers and those under LMOs, or other Reg. 205 workers (such as reciprocal employment, or spouses of workers and students) would be subject to this four year cap. I understand the cap applying to low skilled workers, but can see that spouses of work permit holders and spouses of study permit holders (who obtain a work permit) may get caught under this provision with no corresponding enforcement benefit to Canada such as the protection of foreign workers or maintaining of Canadian wages.

• 16Aug

  Arranged Employment Opinions – Crackdown by Canadian Immigration Department

  Uncategorized No Comments

  Canada’s visa offices around the world are cracking down on the point given to candidates for immigration to Canada under the federal  skilled worker program. The AEOs – arranged employment opinions  are essential for applicants for immigration to Canada who either are short on the required 67 points, and/or do not possess work experience in one of the 29 occupations announced by the immigration department on June 26 2010.

  The crackdown is happening in a few ways.  For example, some Canadian visa offices are contacting the employer offering the job, inquiring about the nature of the employer’s place of work (e.g. number of employees, how the employer recruited the would-be immigrant, and what the would-be immigrant would be doing).  If the visa officer is of the view that the company would not need the employee then the visa office can refuse to count the 15 points that normally arise from arranged employment, thus refusing the immigration application.

  A newer tactic is the visa office following up with the immigrant shortly  after they have become an landed immigrant in Canada to inquire if  they are indeed working at the job offered in the AEO.  If the immigrant is not working under the auspices of the AEO, then misrepresentation can be alleged by the immigration department, leading to deportation proceedings.

  It is rumoured that Service Canada (or HRSDC) is going to actively look into the issue of follow-up of AEOs after an immigrant is landed in Canada.  This makes sense, given that Service Canada is better placed than visa offices  to make such inquiries on employers who have obtained AEOs.  There is a credible rumour that Canada’s immigration department is is refusing all permanent resident  applications which include AEOs obtained by one Canadian law firm in particular, because CIC believes that the AEOs will not result in real employment in Canada.  CIC has also reportedly said that it is contacting all employers used by the law firm to assist in AEOs.

  I periodically receive email inquiries by foreigners who seek immigration to Canada, but want me to obtain the job offer for them (I’m sure this blog post will generate even more). As I am not a job placement agency (but rather, a Canadian Immigration Law firm), I instruct them to look at the Canadian government job bank  to see if they can secure a job offer (although I  know the prospects of  getting a job offer this way is not likely).

  The resulting efforts by the immigration department will inevitably lead to some changes in the law, such as cancelling the 15 points that result from the AEO, or an additional stipulation that the immigrant must work in accordance with the AEO sought by the Canadian employer for a year or two (which is the condition imposed by the Australian immigration authorities).

• 09Aug

  Video Instructions to Assist in Completing Canadian Immigration Forms

  Uncategorized No Comments

  Canada’s immigration website has introduced video instructions to assist in the completion of one form, the “Use of a Representative Form (IMM 5476)” as can be seen here.

  The motivation for this may be to make government services more accessible to the public. . Given this screen-o-centric age, with even larger video screens in homes, public places, and smart phones, it this could be a case of the government catching up to the proliferation of technology.

  On the other hand, it is inevitable that videos such as these will embolden people to submit applications without the assistance of an immigration lawyer knowledgeable in Canadian Immigration Law.  This latter group of people would include those persons who have no credentials other than knowing more English or French than others in their community.  The video instructions will thus provide no assistance for persons who don’t understand one of Canada’s official languages, but may reinforce them as a target for these video-trained, under-credentialed ghost consultants.

  The form that was the subject of the video, the Use of a Representative form, is one of the simplest, most straightforward forms that have to be completed.  The video length explaining this simple form is 3:20 minutes in length.  I cannot conceive of how long the video instructions will be for other forms, such as immigration forms that capture a summary of a spousal relationship, or the past five years of business activity of a person (i.e. forms that are over five pages in length).

  The selection of a Use of a Representative form is an odd one for CIC to start off with, since this form is often associated with persons who already have immigration counsel (and thus could avail themselves of that counsel to assist in the completion of the form).  I suppose if I was lazy, and had a client who was willing to pay me money to point them to a video on a website, I may find this useful.

  The video contains the misleading statement,

  “You are not required to hire a representative. The Government of Canada treats all applicants equally, whether they have a representative or not. If you hire a representative, we will not give your application special attention or process it faster, and you will not get a more favourable outcome.”

  The above statement is true to the extent that no one will put a gun to your head, demanding you hire a Canadian Immigration lawyer.  The above statement is false when it states that the government of Canada treats all applicants equally.  If this were true, then the government of Canada would have 19 visa offices in India, and 19 visa offices in China, rather than three in each of China and India (there are a total of 19 Canadian visa offices in the United States and Europe which means that American and European residents do not suffer seven year delays in processing of immigration cases as occur in China and India).

  The other comments, (“If you hire a representative, we will not give your application special attention or process it faster, and you will not get a more favourable outcome”,) are perhaps premised on the notion that the forms would be filled identically by an educated layperson and by a Canadian immigration lawyer if they were in two separate rooms, and obtained the same information.  Such a theoretical scenario cannot be replicated in real life, where immigration lawyers ask questions, and thus acquire an understanding of a person’s individual circumstances. An experienced Immigration Lawyer is cognizant of the pitfalls that hinder even the most qualified applicants. While it is true that Citizenship and Immigration Canada will not give those applicants with qualified representatives special consideration or a faster processing time, it is no accident that those who do hire experienced representatives enjoy a higher rate of success on their respective applications. By contrast, a video instruction on a form can only provide context to the question on the immigration form.

• 04Aug

  Judicial Review of Skilled Worker Cases at Sydney Nova Scotia

  Uncategorized No Comments

  The gatekeeper to the Federal Skilled Worker program for Canadian immigration is the Centralized Intake Office at Sydney Nova Scotia.  The reputation of the CIO amongst Canadian immigration lawyers is not stellar.  There are complaints to the effect that the CIO’s decisions are not reasonable (e.g. sending back a file for not specifying a specific visa office, or because the duties performed in an occupation are not in extremely close accordance with the National Occupational Classification).  In the case of the latter reason, the CIO at Sydney will send a substantive letter to the effect that the applicant for Canadian immigration has not shown that his work experience contains evidence of one year of employment as an accountant, for example.

  A typical refusal letter from Sydney would be as follows:

  Although the NOC code(s) correspond(s) to the occupations specified in the Instructions, the main duties that you listed do not indicate that you performed the actions described in the lead statement for the occupation, as set out in the occupational descriptions of the NOC or that you performed all of the essential duties and a substantial number of the main duties, as set out in the occupational descriptions of the NOC. As such, I am not satisfied that you are an Accountant (NOC 1111)

  One solution in response to the above would be to simply re-file the application with better evidence.  However, the Canadian immigration department advises its immigration officers to record the reason for refusal.  This would normally entail describing the evidence of work experience submitted, and then giving a rationale as to why the work experience presented did not comply with the in-demand occupation within the National Occupational Classification.

  Such a set of reasons, recorded in the officer`s CAIPS notes, would likely have an adverse affect on any future application, including refusing a subsequent re-filed application.  Can you take a Sydney refusal to the Federal Court?

  The Immigration Refugee Protection Act at 87.3(5) is an attempt to say that a refusal from Sydney, like the one described above, is  not a refusal and cannot be taken to Federal Court:

  (5) The fact that an application or request is retained, returned or otherwise disposed of does not constitute a decision not to issue the visa or other document, or grant the status or exemption, in relation to which the application or request is made.

  There does not appear to be any Federal Court cases where an applicant has asserted that a rejection from Sydney Nova Scotia is a `decision` upon which a federal Court case can be launched.  To the extent that the sample decision I cited above is substantially the same as many decisions that are already taken to the Federal Court, I`d assert that one can take their refused skilled worker application from Sydney to the Federal Court.

• 26Jul

  Mandatory Language Testing Imposed by Canada’s Immigration Department is Illegal

  Uncategorized No Comments

  The Toronto Star reported that the June 26 2010 instructions from Canada’s Immigration Minister for potential skilled workers included mandatory language testing through the International English Language Testing System (IELTS) and Test d’évaluation de français (TEF).

  The reader comments to the article were highly polarized, owing to the inherently controversial nature of (mostly) visible minorities immigrating to wealthy countries dominated by European or British descendants.  It also didn’t help that the would-be immigrant selected to complain about the testing was a Harvard graduate and a practicing lawyer named Dodi Robbins.  The privileged circumstances of Ms. Robbins elicited no sympathy from any commenters who were of the view that she could afford to take the test and, since she is fluent in English, taking the test is not that big a deal.

  Other comments were to the effect that Canada is mostly an English speaking country and testing should be required either for economic reasons, or to preserve the English-based identity of Canada.  One commenter correctly acknowledged that the mandatory testing was only for skilled workers (and not persons sponsored as spouses or parents). Thereupon, he or she demanded all immigrants of this class pass an English test.

  Sensitive readers of the comments may be of the view that Canadian xenophobes can be more open about their views if a news item deals with tightening immigration to Canada; restrictions of any sort on  Canada’s immigration system would in their eyes be an improvement, even if it is the result of the arbitrary exercise of government power.

  Skilled workers would presumably need some degree in one of Canada’s official languages, depending on the job being performed in Canada; an Indian chef in an Indian restaurant would need a minimal amount, while a marketing consultant who is targeting Fortune 500 companies would have to have mastery over reading, writing, speaking and analyzing abstract concepts in the English and/or French language.

  Some comments talk about how many Canadian-born citizens would fail the English test, one comment even calling for such Canadian born citizens to be deported to Sweden. This misses the point; much of case law indicates that immigration to Canada is a privilege, and the skilled worker program is one manifestation of the section 3(1)(c) of the Immigration and Refugee Protection Act (“IRPA”) : “to support the development of a strong and prosperous Canadian economy.”

  The main issue is whether or not mandatory language testing is illegal.  A plain reading of the law indicates that it is.  The option of an applicant for Canadian immigration to demonstrate language ability by means other than a language test is clearly set out in the Immigration Refugee Protection Regulations (r. 79(1(c)):

  79. (1) A skilled worker must…

  (a) have their proficiency in those languages assessed by an organization or

  institution designated under subsection (3); or

  (b) provide other evidence in writing of their proficiency in those languages. [Emphasis Added]

  The authority for the Minister to issue instructions for immigration to Canada is set by s. 87.3(3) of IRPA, and it is related to the mundane task of efficient processing of immigration applications (e.g. processing priorities, quotas and what to do with disposed files).  This is apparent below:

  87.3 (3) For the purposes of subsection (2), the Minister may give instructions with respect to the processing of applications and requests, including instructions

  (a) establishing categories of applications or requests to which the instructions apply;

  (b) establishing an order, by category or otherwise, for the processing of applications or requests;

  (c) setting the number of applications or requests, by category or otherwise, to be processed in any year; and

  (d) providing for the disposition of applications and requests, including those made subsequent to the first application or request.

  Nothing in the above section can accommodate the authority to impose mandatory language testing given Regulation at 79.(1) (cited above). I thus predict that the requirement for mandatory testing will be deemed illegal by the Federal Court when this issue inevitably gets placed before it. In the meantime, however, I predict that many will simply grumble and take the test – the advantages to the individual applicant in becoming the test case leading to the legal precedent being few and far between.
• 19Jul

  Quota of 1000 on the Post June 26 2010 Occupation List for Skilled Workers to Canada and the Skilled Worker / Investor Cases received after June 26 2010.

  Uncategorized No Comments

  Fears that the one thousand (1000) applicant cap on each occupation listed by the Minister of Immigration would be filled immediately are likely untrue (the cap being imposed by Canada’s Immigration Minister on June 26 2010).  It is very true that 1000 applicants constitutes a relatively small number given the fact that the number of skilled worker applicants admitted to Canada in the past four years was in the range of 40,000 to 52,000.

  However, the immigration processing office in Sydney Nova Scotia will now require virtually every document at the beginning of the process.  This is in contrast to the practice of the immigration department between November 2008 and June 25, 2010 where only the application forms and the government fee where required at Sydney for a federal skilled worker application.

  The significance of requiring all the documents before the case is lodged at Sydney Nova Scotia is that it is difficult to obtain all documents such as police records where a skilled worker has lived for more than six (6) months, completing a language test no matter what the person’s level of skill in the English language, and providing all work experience documents, among other things.  As a consequence, there is a higher probability that the Sydney Nova Scotia Visa office will return files which are missing documents, thus creating a longer timeframe before the 1000 cap per occupation is reached.

  Skilled Worker Cases and Investor Cases received after June 26 2010

  On June 26th the Ministerial Instructions (MIs) were updated and changes were brought in which affected processing of Federal Skilled Worker applications and Federal Immigrant Investor Class applications among others.

  In the case of Federal Skilled Worker applications, the changes (including the occupations on the demand list) applied to applications received by the Centralized Intake Office in Sydney on or after June 26, 2010.

  In the case of Federal Immigrant Investor class applications, the changes applied to all applications unless they were post-marked or received by the designated CIC office before June 26, 2010.  In other words, disparate treatment is given to skill worker cases, resulting in rejected applications where the job duties were not on the post-June 26 occupation list.   By contrast, investor applications that were postmarked before June 26, 2010 shall still be assessed under the previous iteration of investor criteria.

  Does the above constitute unfair treatment for skilled worker applicants?  It does.  Is this unfair treatment legal?  Unfortunately, the case law seems to indicate that this treatment by the Minister is completely legal.

  The case of Sanghe v. Canada (Minister of Employment and Immigration) (1987), 2 Imm. L.R. (2d) 75, concluded that an application for permanent residence was made when the documents were received.  Similarly, the recent case of Katherine Salahova  v. M.C.I, (IMM-1525-09 2010 FC 352 March 31, 2010) also states that an application is made not when it is simply mailed, but rather, when it was received:

  […] Ms. Salahova’s position is that she “made” the application when she mailed it on February 25. […][I]t was only received on March 3. The question then is whether the application was “made on or after February 27, 2008” […], within the meaning of Bill C-50. […][Her] application was not “made” within time. […][She] argued in the alternative that the result was procedurally unfair. […] Parliament was constitutionally empowered to do what it did, as was the Minister under Section 87.3 of IRPA. […] The doctrine of legitimate expectations is a procedural doctrine which has its source in common law. As such it does not create substantive rights and cannot be used to counter Parliament’s clearly expressed intent.

  Applicants interested in the investor category may wish to file an application with the Québec immigration department as soon as possible, as their criteria may soon match the proposed Federal investor criteria, as early as September 2010.  Skilled worker applicant’s whose applications were based on the pre-June 26 2010 criteria and received after June 26 2010 are out of luck.

• 13Jul

  Criminal Records Legislation Changes Coming into Force before July 5 2010

  Uncategorized No Comments

  Some persons seeking immigration to Canada have had a criminal conviction while  in Canada.  For such people, a pardon may be the appropriate remedy.  Guest blogger Lesley Atkinson of Canadian Pardon Service describes the recent legislative developments related to  Pardons under Canadian law.

  On June 17, federal MP’s voted to pass a portion of a bill that will amend the part of the criminal records legislation regarding the granting of pardons. These amendments are intended to make it more difficult for individuals with criminal records to obtain a pardon. Some of the major clauses in the new criminal records legislation are:

  1. The National Parole Board will be given the power to reject a pardon application if granting the pardon would bring the administration of justice into disrepute
  2. Individuals convicted of ‘serious, violent crimes’ will now be required to complete a conviction free period of at least ten years before they can become eligible to apply for a pardon
  3. The term ‘pardon’ will remain unchanged for the near future

  These amendments to the criminal records act were rushed through the parliamentary system because the government unofficially made it a goal to prevent Karla Homolka from becoming eligible to apply for a pardon on July 5, 2010. In order to achieve this, the Conservatives were forced to split the original criminal records bill into two portions; thus a portion of bill C-23 became C-23A (the bill that was passed on June 17) and the remainder of the original bill became C-23B. Bill C-23B has been given to the Committee for Public Safety and National Security, where an in depth evaluation of each clause will take place by experts before a report is created for parliament when it reconvenes in September.

  What are the Immediate Effects of the Amendments to the Criminal Records  Legislation?

  As soon as this bill receives Royal Assent by the Governor General, it will become law. This will immediately give the National Parole Board more discretionary power, and increase eligibility time frames for those convicted of serious crimes. On June 17, 2010, bill C-23A was given to the Senate and is expected to be passed to the Governor General within days or weeks, soon after which it will become law.

  Tags: criminal record immigration, federal mp, toronto immigration lawyer

• 07Jul

  Pardons Under Canadian Law

  Uncategorized No Comments

  Some persons seeking immigration to Canada have had a checkered history in Canada, characterized by a criminal record.  For these people, a pardon may be the appropriate remedy.  Guest blogger Lesley Atkinson of Canadian Pardon Service describes the concept of a Pardon under Canadian law.

  Some General Pardons Information

  Pardons are government documents that are granted to individuals with criminal records by the National Parole Board of Canada. Once a pardon is granted, that individual’s criminal record will be removed from federal databases and sealed permanently (with some exceptions). Many people with criminal records decide to get pardons because they will remove barriers in employment, education, volunteering, and even in child custody cases and adoption.

  Recognition of Pardons by the United States

  It is important to note that pardons do not guarantee an individual will be legally permitted to enter the United States. Once an individual has a criminal record and the United States is aware of this fact (through sharing programs with government databases), depending on their criminal conviction(s) they may never be permitted to cross the border. When deciding whether someone should be allowed to enter the country, US Customs will consult their ‘List of Moral Turpitude’, a document that lists a number of convictions for which an individual will be deemed inadmissible for entry (such as convictions for murder, rape, forgery, bribery, and prostitution). Less ‘serious’ crimes, such as DUI, breaking and entering, and simple assault are not classified as crimes of Moral Turpitude, and individuals with these convictions will still be allowed to enter the US. It is important to note that even if individuals have pardons, if they were convicted of a crime of moral turpitude, they will need to apply for a US entry waiver entitled “Form I-192, Application for Advance Permission to Enter as a Non-Immigrant”. Once this entry waiver has been granted, individuals may freely visit the United States for a specified time period (generally 1-5 years).

« Previous Entries