Where the Conservative Party of Canada Stands on Immigration

On October 19, 2015, Canada will have a federal election. There are three political parties that may form government. One of them is the Conservative Party of Canada.

The Conservative Party of Canada has made the following election promises regarding immigration:

  • Continue to make the immigration system faster, flexible, and more responsive to the needs of Canada’s economy.
  • Continue to be a world leader in refugee protection.
  • Increase the intake of applications for the parents and grandparents sponsorship program, as the backlog and processing times continue to decrease.
  • Provide increased funding to Citizenship and Immigration Canada to clear the citizenship backlog over a two-year period.

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I previously wrote in Policy Options on how the Conservative Party of Canada completely overhauled Canada’s immigration system.  Looking at their 2015 platform, I guess they’re done.

Below you can find their 2011 commitments, for comparison’s sake.


Continue reading “Where the Conservative Party of Canada Stands on Immigration”

Where the New Democratic Party Stands on Immigration

On October 19, 2015, Canada will have a federal election. There are three political parties that may form government. One of them is the New Democratic Party.

The New Democratic Party has made the following election promises regarding immigration:

  • Remove the cap on parent and grandparent sponsorships imposed by the Conservatives.
  • Reduce wait times by increasing resources to reduce the huge backlogs in processing applications.
  • Put greater priority on family reunification, especially the reunion of children with their parents.
  • Fully restore the Interim Federal Health Care Program for refugees, as ordered by the Federal Court.
  • Reverse the what the NDP calls discriminatory changes to refugee determination and ensure that every refugee claimant receives a fair and unbiased hearing.
  • Make the visitor visa system more transparent and accountable, including by creating an appeal process.
  • Create an ombudsperson for the Department of Citizenship and Immigration to investigate complaints and monitor human rights.
  • In consultation with communities, provinces and territories, introduce a comprehensive action plan to foster immigration to Francophone minority communities across the country.
  • Resettle 10,000 Syrian refugees in Canada by the end of this year.
  • Welcome 9,000 Syrian refugees per year starting in 2016.
  • Create a Syrian Refugee Coordinator to expedite and coordinate the efforts of the government, and eliminate barriers to speedy resettlement.
  • Mandate an independent review of the Temporary Foreign Worker (“TFW“) program to make a determination on whether the program is meeting its goals and to put an end to any and all abuses of the program as part of the reforms. These changes will ensure that all TFWs, current and future, will have the ability to access a path to citizenship.
  • And finally, although it is not in their platform, the NDP have consistently stressed that they would revoke portions of Bill C-24 that revoke citizenship for dual nationals convicted of certain offences.

<a href="http://s3.documentcloud.org/documents/2454378/2015-ndp-platform-en.pdf">https://www.liberal.ca/files/2015/09/A-new-plan-for-Canadian-immigration-and-economic-opportunity.pdf</a>


As I previously wrote in Policy Options, the NDP while in opposition has previously made promises that are completely unfeasible, such as the Once in a Lifetime Act, described in more detail below.  This would have allowed Canadians a one-time opportunity to sponsor any relative who is not a member of the family class to come to Canada.  Unless processing times were massive, it would have either had to have had an application cap or resulted in Canada’s population soaring.

The Once in a Lifetime Act is gone.

The result is a platform that is incredibly similar to the Liberals, with a few key differences.  Unlike the Liberals who will increase the cap on Parents & Grandparents from 5,000 to 10,000, the NDP will have no cap at all.  As well, if I am reading the NDP platform correctly, it seems like they will do away with the designated country of origin system.

For those interested, I have below reproduced what I wrote in 2011 so that you can see how the NDP has evolved.

Continue reading “Where the New Democratic Party Stands on Immigration”

Where the Liberal Party of Canada Stands on Immigration

On October 19, 2015, Canada will have a federal election. There are four political parties that will likely win seats in Canada’s Parliament. One of them is the Liberal Party.

The Liberal Party has made the following election promises regarding immigration:

  • Expand Canada’s intake to 25,000 refugees from Syria and Iraq through immediate, direct sponsorship by the government of Canada. We will also work with private sponsors to intake even more.
  • Invest an additional $200 million over this fiscal year and next to increase – without reducing health and safety standards – refugee processing, as well as sponsorship and settlement services capacity in Canada.
  • Provide an immediate $100 million new contribution to the United Nations High Commission for Refugees to support the critical relief activities in the region.
  • Fully restoring the Interim Federal Health Program.
  • Establishing an Expert Human Rights Panel for determination of designated countries of origin and to provide a right to appeal refugee decisions for citizens from these countries. This panel will include representatives from international human rights groups.
  • Ending the practice of appointing individuals without subject matter expertise to the Immigration and Refugee Board of Canada.
  • Nearly doubling the budget for family class immigration processing, in order to restore processing times to the levels achieved before the Harper decade.
  • Doubling the number of new applications allowed each year, for parents and grandparents, from 5,000 to 10,000.
  • Providing greater access to applicants with Canadian siblings, by granting additional points under the Express Entry system. We will also conduct a review of the program, ensuring that processing times are efficient.
  • Restoring the maximum age for dependents to 22 instead of 19, allowing Canadians – often live-in caregivers – to bring their children to Canada.
  • Granting immediate permanent residency to new spouses entering Canada, rather than imposing a two-year conditional status that puts spouses – often women – in a position of extreme vulnerability.
  • Repeal the unfair elements of Bill C-24 that create second-class citizens and the elements that make it more difficult for hard-working immigrants to become Canadian citizens. Restore the residency time credit for foreign students and other temporary residents applying to become Canadian citizens.
  • We will make changes to the Canadian Experience Class to reduce the barriers to immigration that have been imposed on international students.
  • Eliminate the $1,000 Labour Market Impact Assessment fee for families seeking caregivers to care for family members with physical or mental disabilities.
  • We will reverse the roadblocks that the Harper Conservatives have needlessly added to the immigration system – roadblocks that have created unnecessary inconveniences and costs for Canadians and Canadian businesses. This will include removing the new visa requirement imposed on Mexico, and studying the implications of phasing out new visa requirements for several other countries as well.
  • Will work with the provinces and territories to develop a system of regulated companies to hire caregivers on behalf of families.



As I previously wrote in Policy Options, “if it is true that the Liberals are essentially a party of de facto public servants who eschew an ideological agenda in favour of public policy rooted in facts and analysis, then they are unlikely as government to completely undo the Conservative legislative changes of the past decade, which, for the most part, appear to be popular among the public and civil service.”

I feel like the above promises substantiate this.  There is nothing in the Liberal platform which suggests that they will do away with Ministerial Instructions, or go back to admitting people to Canada as permanent residents immediately instead of granting them admittance as foreign workers and then transitioning them to permanent residence.

As well, the Liberals appear to have completely embraced an immigration system that features application intake management systems, which did not exist when they were previously in power.  While it is true that the Liberals will double the number of applications admitted to the Parents & Grandparents Sponsorship Program from 5,000 to 10,000, however, the bigger story is that there is even a cap.

As one journalist just stated to me, she was shocked that the Liberals are even keeping the designated country of origin concept in the refugee system.

This is not to say that there are no substantial changes.  Reducing the age of dependency is big, as is ending conditional permanent residency.  I still think though, that, at least as far as the Immigration and Refugee Protection Act is concerned, there is no reason why the Conservatives and Liberals could not work together on all of the above.

Finally, it is worth noting that the Liberal immigration platform is much more detailed than in 2011.  I have reproduced what I wrote in 2011 below.

Oh. And absolute silence on the foreign worker program.

Continue reading “Where the Liberal Party of Canada Stands on Immigration”

Labour Market Impact Assessments – Recruitment Requirements

Employers wishing to apply for Labour Market Impact Assessments are required to conduct recruitment efforts to hire Canadian citizens and permanent residents.  The Ministry of Economic and Social Development (“ESDC” or “Service Canada“) is very stringent in its recruitment requirements, many of which are not publicly available.  In this blog post I seek to provide a comprehensive overview of Service Canada’s recruitment requirements, including providing a summary of the publicly available information on the Service Canada website, as well as summarizing and reproducing internal ESDC directives.

I would like to thank Jacobus Kriek, an immigration consultant with Matrixvisa Inc., for providing me copies of the internal Service Canada directives and e-mails that he has obtained.

Please note that what I have reproduced below should not be viewed as legal advice by ESDC or Service Canada.  The reproduction of the material below has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. As well, given the nature of relying on internal documents, some of the information may be out of date.

Continue reading “Labour Market Impact Assessments – Recruitment Requirements”

Mandamus Orders

Photo by Travis Nep Smith.
Photo by Travis Nep Smith.

In a previous post I touched upon mandamus orders, and have since gotten numerous e-mails inquiring as to whether or not their case warranted the filing of an Application for a Mandamus Order.

What is a Mandamus Order?

mandamus order is a judicial command to a government body to do or forbear from doing a specific act which it is obligated in law to do.

The Federal Court’s decision in Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159, is probably the most cited case in the immigration context for setting forth the test for when a mandamus order will be given.  There, Justice Snider stated:

The equitable remedy of mandamus lies to compel the performance of a public legal duty that a public authority refuses or neglects to carry out when called upon to do so. Mandamus can be used to control procedural delays (Blencoe v. British Columbia (Human Rights Commission) [2000] 2 S.C.R. 307 at para. 149). The test for mandamus is set out in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.), aff’d [1994] 3 S.C.R. 1100 (and, more recently, discussed in the immigration context in Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189 (T.D.), aff’d [2003] F.C.J. No. 813, 2003 FCA 233,). The eight factors are:

(i)  There must be a public legal duty to act;

(ii)  The duty must be owed to the Applicants;

(iii)  There must be a clear right to the performance of that duty, meaning that:

a.  The Applicants have satisfied all conditions precedent; and

b.  There must have been:

I.  A prior demand for performance;

II.  A reasonable time to comply with the demand, unless there was outright refusal; and

III. An express refusal, or an implied refusal through unreasonable delay;

(iv)  No other adequate remedy is available to the Applicants;

(v)  The Order sought must be of some practical value or effect;

(vi)  There is no equitable bar to the relief sought;

(vii)  On a balance of convenience, mandamus should lie.

Generally, all eight of the above factors must be met before a court will issue an order mandamus.  Prior to filing one of our last mandamus application, we made three written requests for the performance of what we considered to be the legal duty of the Canada Border Services Agency to act immediately.  We also filed a lengthy memorandum of law articulating what the legal duty was, why it was owed, and that the balance of convenience favored our client.  The Canada Border Services Agency ultimately performed that duty after being recommended to do so by their lawyer prior to us proceeding to a full hearing.

Mandamus in Permanent Resident Applications

In the Vaziri decision, recently affirmed in  Abdalla v. Canada (Citizenship and Immigration), 2011 FC 988, the Federal Court noted that mandamus would generally not be issued to process permanent residence applications because of the alternative remedy of the applicant obtaining a visitor visa.  The court stated that:

The Applicants contend that the only way for them to have “secure immigration status” is to have their applications finalized. The Respondent argues that the Applicants may take advantage of Temporary Resident Visas (TRVs) in order to reunite family members while the PR assessment process continues. These visas (often referred to as visitor visas) are obtained quickly and easily, they can be valid for fixed periods of time and they may be renewed. Our Court has found in past cases that temporary resident status, or its analogue under the repealed Immigration Act, can fulfil the objective of IRPA to reunite families (see Gupta v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1099 at para. 11 (T.D.) (QL); Zhang v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 529, 2005 FC 427, at para. 8).

As evidenced by the affidavits filed by the Applicants, the Applicants appear to premise their arguments on the desire to be reunited after many years apart. Through the use of TRVs, the father and son have at least one other way of being united. While the PR applications are being assessed, TRVs may provide interim relief

While I appreciate that the Applicants live with uncertainty while the PR applications are being resolved, and that TRVs do not provide the same security or rights as permanent resident status, the use of TRVs is an alternative that is adequate — albeit not perfect. There is no pressing need in this case that the rights vested by PR status be acquired as soon as possible.

(There are of course exceptions to the above which are beyond the scope of this post.)

Lengthy Wait Times and Queue Jumping

Another, and probably the most significant, reason for mandamus applications being rejected is because of how accepted long wait-times are in immigration law.  Hence my previous post titled “A Two Year Delay will Not Necessarily Result in an Order Mandamus.”

As well, as recently confirmed by the Federal Court in Mersad v. Canada (Citizenship and Immigration), 2014 FC 543, mandamus will generally not be ordered where the effect of such an order would be to simply favour one application over others.

Nonetheless, while mandamus should never be used as a first resort, it is an extremely effective last one, and when used properly can be very effective at moving a file along.

Specific Results

It is also important to note that an application for mandamus is to require that the administrative tribunal make a decision.  As the Federal Court of Appeal noted in Dass v. Canada (Minister of Employment and Immigration), it is not the purpose of mandamus “to require a specific decision but rather to require that a decision be taken.”  For example, if there is an unreasonable CIC delay in processing an application, the Federal Court will not order that CIC process and approve the application, only that they process it.

Humanitarian & Compassionate Applications – The Establishment Factor

Subsection 25(1) of Canada’s Immigration and Refugee Protection Act provides immigration officers with the flexibility to grant on humanitarian and compassionate (“H&C”) exemptions to overcome the requirement of obtaining a permanent residence visa from abroad and/or to overcome class eligibility requirements and/or inadmissibilities.

H&C applications may be based on a number factors, including:

  • establishment in Canada;
  • ties to Canada;
  • the best interests of any children affected by their application;
  • factors in their country of origin (this includes but is not limited to: Medical  inadequacies, discrimination that does not amount to persecution, harassment or  other hardships that are not related to a fear of return based on refugee determination factors;
  • health considerations;
  • family violence considerations;
  • consequences of the separation of relatives;
  • inability to leave Canada has led to establishment; and/or
  • any other relevant factor they wish to have considered not related to a fear of return based on refugee determination factors.

Establishment in Canada

Citizenship and Immigration Canada’s Inland Processing Manual (the “Manual“) provides that the degree of an applicant’s establihsment may be measured with questions such as the following:

  • Does the applicant have a history of stable employment?
  • Is there a pattern of sound financial management?
  • Has the applicant remained in one community or moved around?
  • Has the applicant integrated into the community through involvement in community organizations, voluntary services or other activities?
  • Has the applicant undertaken any professional, linguistic or other studies that show integration into Canadian society?
  • Do the applicant and their family members have a good civil record in Canada? (e.g. no criminal charges or interventions by law enforcement officers or other authorities for domestic violence or child abuse).

It is important to note that neither the legislation nor the courts have established what the threshold for sufficient establishment is.  As the Federal Court noted in Kachi v. Canada (Citizenship and Immigration), it will be unreasonable for visa officers to rule that there is insufficient establishment without first establishing what the benchmark is, especially considering that permanent residents and Canadian citizens are under no obligation to “to attend religious services, to partake in community activities, to volunteer, or to make friendships.”

Establishment and Legal Status in Canada

Being in Canada without status does not automatically lead to the non-application of H&C factors.  For example, remaining in Canada pending the outcome of legal procedures, including after a failed refugee claim, would not necessarily be a negative factor.  However, “flouting the law and ignoring lawful orders to leave the country” will likely result in the establishment factor being negative.

As the Federal Court of Appeal stated in Canada (Minister of Citizenship and Immigration) v. Legault, 2002 FCA 125:

In short, the Immigration Act and the Canadian immigration policy are founded on the idea that whoever comes to Canada with the intention of settling must be of good faith and comply to the letter with the requirements both in form and substance of the Act. Whoever enters Canada illegally contributes to falsifying the immigration plan and policy and gives himself priority over those who do respect the requirements of the Act. The Minister, who is responsible for the application of the policy and the Act, is definitely authorised to refuse the exception requested by a person who has established the existence of humanitarian and compassionate grounds, if he believes, for example, that the circumstances surrounding his entry and stay in Canada discredit him or create a precedent susceptible of encouraging illegal entry in Canada. In this sense, the Minister is at liberty to take into consideration the fact that the humanitarian and compassionate grounds that a person claims are the result of his own actions. (emphasis added)

In Molina v. Canada (Citizenship and Immigration), 2014 FC 530, the Federal Court added that:

When establishment is a function of having deliberately chosen to evade removal, it should not provide an applicant with an advantage over those who have complied with the law.

Circumstances Beyond the Applicant’s Control

The Manual provides guidance to officers in determining whether positive consideration may be warranted where the period of inability to leave Canada were beyond the applicant’s control, and where there is evidence of a significant degree of establishment in Canada such that it would cause the applicant unusual or disproportionate hardship to apply from outside Canada.  It states:

Circumstances beyond the applicant’s control 

If general country conditions are considered unsafe due to war, civil unrest, environmental disaster, etc., the Minister of Public Safety may impose a temporary suspension of removals (TSR) on that country.

If general country conditions are considered unsafe due to war, civil unrest, environmental disaster, etc., the Minister of Public Safety may impose a temporary suspension of removals (TSR) on that country.

Circumstances Not Beyond the Applicant’s Control

An applicant, in Canada for a number of years, is unwilling to sign a passport application or provide particulars for a passport application.

An applicant wilfully loses or destroys their travel document(s).

Applicant goes “underground” and remains in Canada illegally.