Meaning of Dependent Child

I was recently asked whether the lock-in age for dependency is when an application is submitted or when it was assessed. In short, in Hamid v. Canada (Minister of Citizenship and Immigration), [2007] 2 FCR 152, 2006 FCA 217, the Federal Court of Appeal stated:

A child of a federal skilled worker who has applied for a visa, who was 22 years of age or over, and who was considered dependent on the skilled worker at the date of application by virtue of his or her financial dependence and full‑time study, but who does not meet the requirements of a “dependent child” within the meaning of subparagraph 2(b)(ii) of theImmigration and Refugee Protection Regulations, SOR/2002‑227, when the visa application is determined, cannot be included as part of his or her parent’s application for permanent residence in Canada.

In Anata v. Canadathe Federal Court affirmed that there is nothing in the jurisprudence or the Rules or Guidelines relevant to a live-in caregiver application to suggest that “dependent child” in this context should have a different meaning, or should be assessed at the time the application is submitted, and should not take into account what happens between the time of the application and the time of the decision.


The Post-Graduation Work Permit

Canada’s Post-Graduate Work Permit (“PGWP”) program allows international students who have completed certain Canadian post-secondary programs to obtain work permits after graduating.  The work permits are open, meaning that the graduates can work for any employer(s) in any Canadian province(s).  It is a fantastic program that enhances the competitiveness of Canadian post-secondary institutions internationally, and is normally an essential transitory step for international graduates looking to eventually obtain Canadian permanent residency.

However, every year there are many international students who mistakenly think that they will be eligible to participate in the program after graduating only to discover midway through their studies that they cannot.  It is accordingly very important that all international students in Canada understand how the PGWP program works.

Basis in Law

Section 205 of Canada’s Immigration and Refugee Protection Regulations provides the government with the authority to create programs to issue work permits to foreign nationals when it is satisfied that public policy objectives relating to the competiveness of Canada’s economy or academic institutions are met.  The PGWP is one of these programs, and detailed information about it can be found on the Immigration, Refugees and Citizenship Canada (“IRCC“) website here.

As the Federal Court has noted in numerous decisions (such as Osahar v. Canada), immigration officers can determine these requirements to be binding.

Eligibility and Validity

Outside of Quebec, in order for an international graduate to obtain a PGWP after graduating, an international student must:

  • have a valid study permit when applying for their PGWP;
  • have continuously studied full time in Canada, except for the final academic session, where part-time studies are permitted;
  • have completed and passed a program of study that is at least eight months in duration at either a public post-secondary institution, a private post-secondary institution that operates under the same rules and regulations as public institutions, or at a Canadian private institution if the student was enrolled in a program of study which led to a degree; and
  • apply for the work permit within 90 days of receiving written confirmation from their educational institution that they have met the requirements for completing their program of study.

A PGWP’s duration will be equal to the length of the educational program that the international graduate completed, up to a maximum of three years.  Any completed program that is longer than two-years will result in a three-year work permit.  In other words, a two-year diploma and a four-year degree will both result in a three-year work permit.

It is important to note that it is the length of the program of study that is important, and not the actual time that it takes an international student to complete their program. For example, if a student enrolls in a program of study that is normally eight months in duration, but completes it in six months, then the student will be able to obtain an eight-month work permit after graduating. Conversely, an international student who takes two years to complete a one-year program will only receive a one-year PGWP.

There are complicated rules and scenarios for students transferring from one program to another, or completing multiple programs, that are beyond the scope of this article.  However, a particularly common one is that students who obtain a one-year degree or diploma from an eligible institution in Canada after having obtained, with the prior two-years, another diploma or degree from an eligible institution in Canada, may be issued a work permit for up to three years.  For example, if a student obtained a one-year diploma from the University of British Columbia in 2013, and then in 2015 obtained a MBA from the University of Toronto, then he would be able to obtain a three-year PGWP.

Graduates may submit their applications online, or, in certain cases at a Canadian port of entry or at overseas visa offices.  Students who have completed their program of study and who apply for their PGWPs are permitted to work in Canada while IRCC processes their applications, provided that they were indeed full-time students enrolled in eligible programs while they were studying, and that they did not exceed their authorized off-campus work periods while they were students.

Finally, unlike with international students, the spouses or common-law partners of PGWP holders are not automatically entitled to open work permits.  They will only be eligible if the PGWP holder obtains skilled employment, and can demonstrate this to IRCC by presenting an offer of employment as well as a copy of one or more pay slips.

Ongoing Complications

Students who complete a program of study granted by a non-Canadian institution located in Canada are ineligible to obtain work permits under the PGWP program.  However, students completing a program of study that has, as part of the program, an overseas component, such as an exchange, will be eligible as long as they earn a Canadian educational credential.

There are two further restrictions, or potential restrictions, to obtaining PGWPs that are currently the subject of litigation that potential international students and graduates should understand.

The first is that students participating in distancing learning programs, either abroad or in Canada, are ineligible to obtain PGWPs.  In 2015, this restriction generated considerable media attention, as IRCC refused the PGWP applications of an entire graduating class at a private post-secondary institution after IRCC determined that the institution’s program constituted online learning.  Some of these graduates have sought intervention from the Federal Court of Canada, and one of the questions before the court is whether there is a percentage of online courses threshold that must be met before IRCC can declare a program ineligible.  Until either IRCC or the Federal Court provides clarification on this matter, international students who wish to participate in the PGWP program should understand the possible negative consequences of enrolling in any online courses.

Second, recent graduates applying for PGWPs must ensure that they complete their PGWP applications promptly and properly.  With most work permits applications, if IRCC either refuses or bounces an application for incompleteness, then an applicant can typically apply for restoration of status within 90 days.  It is not clear, however, whether restoration is possible in the case of the PGWP because of the IRCC’s requirement that a recent graduate’s study permit be valid when they apply for their PGWP, although several Federal Court decisions seem to imply that it really is up to the officer.



Borderlines #16 – The History of the Immigration Consultant Profession in Canada

Ron McKay is a past Chair of the Immigration Consultants of Canada Regulatory Council’s (“ICCRC”) Board of Directors. He is a former Immigration Officer who spent ten years at the Canadian Embassy in Tokyo, Japan. He is also a past National President of the Canadian Association of Professional Immigration Consultants.

In this episode we discuss the history of the immigration consultant profession in Vancouver and current issues that it faces.

Topics

3:30 – We discuss the history of immigration consultants in Canada, including an in depth discussion of the Mangat case, in which the Supreme Court of Canada determined that the federal government could allow non-lawyers to practice immigration law. We also discussed the Canadian Society of Immigration Consultants (“CSIC”), the first regulatory body of immigration consultants in Canada.

24:00 – We get into governance issues at regulatory oversight issues at both CSIC and the ICCRC.

38:30 – We talk about ghost consultants and what the immigration consultancy profession can do about it.

50:00 – We discuss how the immigration consulting profession needs to be regulated yet at the same time be independent of the government.

53:00 – Steven asks how the ICCRC determines how many consultants there should be. Are we reaching a saturation point? Should there be limits as to which aspects of immigration law they can practice?

 

 

 


Weeding Out Crooked Immigration Consultants

The following is an article that I wrote for Policy Options.

The first paper that I wrote in law school was about legal ethics. I submitted a seven-page essay arguing that restricting the practice of law to graduates of law school was unethical, given the crisis of access to justice that so many face, and that the free market should instead regulate who can and cannot charge fees to provide legal representation. I got my lowest mark in law school.

The study and practice of law moderated many of my views, and my opinion on who should be able to practise law has been adjusted accordingly. It has become clear to me that those who receive fees in exchange for the provision of legal advice must be regulated, and that in an era of easy Internet marketing, paid-for reviews and fake news, the free market is incapable of performing this role. However, I still believe that access to the ability to practise law should be extended beyond those who have completed three years of law school.

It may not be surprising then that, unlike many immigration lawyers, I do not consider the existence of immigration consultants to be inherently problematic. When I started practising immigration law, a local immigration consultant was an important mentor to me, and some of the most passionate people I know who are advocating for greater justice and fairness in Canada’s immigration system are consultants.

Unfortunately, it is not possible to practise immigration law for long before encountering people who have been the victims of immigration consultants who provided extremely bad representation, ranging from sheer incompetence to fraud. In many other cases, the prospective immigrants were not victims of fraudulent consultants but willing participants in their schemes. What’s more, it is also apparent that many unscrupulous immigration consultants do not fear any consequences from their regulator and seemingly act with impunity.

I do empathize with their regulator, the Immigration Consultants of Canada Regulatory Council (ICCRC). In 2003, the Canadian Society of Immigration Consultants (CSIC) was established as the first independent governing body of the immigration consulting profession. In 2008, the House of Commons Standing Committee on Citizenship and Immigration determined that the CSIC was not providing adequate regulation, and in 2011 the CSIC was replaced by the ICCRC. Now, in June 2017, the same parliamentary committee has determined that the ICCRC is not doing a sufficient job of regulating consultants and protecting the public, and has again recommended that a new regulatory body be created. It is not difficult to envision this cycle repeating itself every five years.

The deficiencies of the ICCRC are constantly contrasted with the strengths of provincial law societies, which hardly seems fair given that most provincial law societies are over a hundred years old, while the ICCRC has existed for only six. Perhaps the best approach that the government could take to the regulation of immigration consultants is to allow the consultants’ regulatory body time to gain experience and mature.

However, until the immigration consulting profession demonstrates that it can be effectively self-regulated, the government must act to protect the public from unscrupulous and incompetent consultants. The people who would benefit most are the many hard-working immigration consultants who constantly see their profession’s reputation dragged through the mud.

The Royal Canadian Mounted Police and the Canada Border Services Agency are both responsible for investigating licensed immigration consultants who engage in fraud. A representative of the CBSA recently told the House of Commons Standing Committee on Citizenship and Immigration:

We have just over 200 criminal investigators across Canada who are responsible for investigating an array of crimes under IRPA [Immigration and Refugee Protection Act], as well as under the Customs Act. As a result, we use a tiered process with respect to issues that involve consultants. Generally, we go after individuals, or investigate individuals, who are the organizers of, let’s say, mass misrepresentation or mass fraud, rather than the one-offs. In terms of how we’re approaching this, we are looking at where the greatest deterrent could occur. We are looking at the big organizers, rather than the individual who may have provided information for profit in one case, and so forth. I do believe that we are using the resources that we have to the best of our ability, based on a risk profile.

It is understandable that the CBSA would want to pursue the most flagrant ethical breaches, such as the misdeeds of a Vancouver “ghost” (unlicensed) consultant who recently went to jail for eight years after putting fraudulent passport stamps in people’s passports. But the cumulative effect of the everyday misrepresentations — including, as recently reported by the CBC, consultants facilitating the illegal charging of fees by employers to employees for jobs — is just as great a threat to the integrity of Canada’s immigration system.

Criminal prosecutions require a high level of proof, and the criminal justice system has limited investigatory and prosecutorial resources. In any case, incompetent (as opposed to fraudulent) representation would not result in criminal charges. So, in seeking ways to protect the public, Immigration, Refugees and Citizenship Canada (IRCC) and the Immigration and Refugee Board (IRB) must look beyond the criminal justice system.

There are several other measures that IRCC and the IRB can take.

First, the government should amend the Immigration and Refugee Protection Regulations to provide IRCC with the power to temporarily refuse to process applications submitted by people represented by consultants whom IRCC has previously determined to be unscrupulous. Prospective immigrants should be advised that the processing of their applications will not continue until they retain new representatives. IRCC should also be allowed to charge fines. IRCC has already implemented both bans and fines to penalize employers who misrepresent themselves in applications to hire foreign workers. These have proven to be excellent deterrents, and the same principles and techniques could be utilized to deter fraud by consultants.

This is not to suggest that IRCC should become a permanent regulatory body for consultants, as some people have suggested. It is crucial that immigration consultants be able to be passionate advocates for their clients, including those accused by the government of being inadmissible to Canada and those who are clearly being deliberately blocked by the bureaucracy even though they are legally qualified to immigrate. If IRCC becomes both the visa adjudicator and the regulator of consultants, many consultants would likely be wary of aggressively challenging it. However, until immigration consultants fear crossing their regulator as much as lawyers fear breaching the rules of their respective law societies, the IRCC should have the ability to refuse to interact with known unscrupulous consultants.

Second, the IRB should be given the power to refuse to allow certain consultants to appear before it. An IRB official recently told the Standing Committee on Citizenship and Immigration:

Board members use a kind of compensatory mechanism in a hearing room. If they’re dealing with a consultant who is not able to present the client’s case, they get drawn into the arena and they have to start eliciting the evidence. It’s not something a lot of members like to do, but sometimes they feel they have to do that in order for the case to go ahead that day and for there not to be a miscarriage of justice.

This is a tremendous waste of scarce resources. The Immigration and Refugee Board should be able to simply refuse to allow incompetent consultants to represent clients before it. The IRB should work with the regulator to develop appropriate standards and testing that any consultants who wish to appear before it must pass.

Third, a significant obstacle to combatting fraud by consultants is that prospective immigrants who learn that they committed misrepresentation in an application because of poor advice fear lodging complaints against their representatives; they believe, often accurately, that they may be considered complicit in misrepresentation and could be removed from Canada or barred from entering. IRCC should allow such persons to correct their applications without fear of being barred from Canada for five years, which is the current penalty for any misrepresentation. While granting entry to someone who misstated a fact in an application may leave a bad taste in IRCC’s mouth, making progress against fraud by consultants should provide some satisfaction in compensation.

Finally, one of the principal reasons that people hire third-party representatives is language barriers. Most applicants in Canada’s economic-immigration programs must demonstrate a certain level of fluency in English or French, but this is not the case in Canada’s family reunification programs. People applying to immigrate under family reunification who do not speak either language are especially vulnerable to receiving bad advice, because they often do not understand the forms they must fill out. IRCC should provide as many of its forms as possible in the greatest number of languages possible. Any online forms should be able to connect to free translating services like Google Translate. When applicants can communicate with IRCC in their own language, unscrupulous consultants will be much less able to provide information on forms that does not reflect what their clients told them, and applicants will be less able to claim that they did not know what an immigration consultant wrote on their behalf.

In my experience, the majority of immigration consultants are ethical and provide very valuable services. It is they, frankly, who have been let down by both the government and their regulator. They deserve better, and well-considered actions are needed to remove the bad individuals who are ruining their profession’s reputation.



The Bill of Rights and Canadian Immigration

The Canadian Bill of Rights, S.C. 1960, c. 44 (the “Bill of Rights“) is a Canadian federal statute that was enacted in August 1960. It is quasi-constitutional in nature. As it is an Act of Parliament it applies only to federal law. It also predates the Charter of Rights and Freedoms, which has largely superseded the Bill of Rights in importance.

However, not all of the provisions of the Bill of Rights were reproduced in the Charter of Rights and Freedoms.

Section 2(e) of the Bill of Rights provides:

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to […]

(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.

In Canadian National Railway Company, the Federal Court established that four basic conditions must be met in order for paragraph 2(e) of the Bill of Rights to be engaged:

  1. The applicant must be a “person” within the meaning of paragraph 2(e);
  2. The arbitration process must constitute a “hearing […] for the determination of [the applicant’s] rights and obligations”;
  3. The arbitration process must be found to violate “the principles of fundamental justice”; and
  4. The alleged defect in the arbitration process must arise as a result of a “law of Canada” which has not been expressly declared to operate notwithstanding the Canadian Bill of Rights.

Hassouna v. Canada

In Hassouna v. Canada (Citizenship and Immigration), the Federal Court addressed whether the citizenship revocation procedures for misrepresentation contained in Stephen Harper’s Conservative Government of Canada’s Bill C-24 constituted a hearing for the determination of the applicant’s rights and obligations.  In determining that it did, the Court also ruled that while acquiring Canadian citizenship is a privilege, once a person becomes a citizen their citizenship is a right.

The Federal Court also found that in order for Canada’s citizenship revocation process to be procedurally fair, people need to be entitled to: (1) an oral hearing before a court, or before an independent administrative tribunal, where there is a serious issue of credibility; (2) a fair opportunity to state the case and know the case to be met, (3) the right to an impartial and independent decision-maker, and (4) that all factors of their case, including humanitarian & compassionate considerations, be considered.

The Federal Court also determined, however, that there is no expertise threshold required for a tribunal to determine whether a person’s citizenship should be revoked.


When an Administrative Delay is an Abuse of Process

The subject of an unreasonable delay often arises in the immigration context.  In one case that I was previously involved with, an individual was in Canada for 11-years before the Canada Border Services Agency expressed concerns that he might be inadmissible to Canada for previous involvement in a group accused of terrorism.  In another case, an individual who had been in and out of Canada numerous times was suddenly denied entry to Canada because of a criminal conviction that occurred eight years ago.  In both cases, the client asked whether the delay amounted to an abuse of process.

Blencoe v. British Columbia

The leading Supreme Court of Canada decision on this issue is Blencoe v. British Columbia, 2000 SCC 44.  There, three women filed complaints of sexual harassment to the British Columbia Human Rights Council.  Due to delays the tribunal hearings were not resolved for 30 months after the first filing.  The accused challenged that the 30 month delay was an abuse of process, an argument which the Supreme Court of Canada ultimately rejected, and also found that the Charter was not engaged.  Importantly, the Supreme Court found that a state caused delay, without more, does not warrant a stay as an abuse of process at common law, and that there must be significant prejudice to the individual as a result of the delay.

The following principles emerged from Blencoe:

  • The administrative process must be conducted in a manner entirely consistent with the principles of natural justice and procedural fairness.
  • Unreasonable delay is a possible basis on which to raise questions of natural justice, procedural fairness, abuse of process and abuse of discretion.
  • Delay, without more, will not warrant a stay of proceedings as an abuse of process.
  • Administrative delay may impugn the validity of the proceedings where it impairs a party’s ability to answer the complaint against him or her – where memories have faded, essential witnesses are unavailable, or evidence has been lost.
  • Where the fairness of the hearing has not been compromised, delay may nevertheless amount to an abuse of process, but few lengthy delays will meet this threshold.
  • The court must be satisfied that, “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted.
  • If the delay has directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the [administrative] system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process.
  • Determination of whether the delay is unreasonable is, in part, a relative exercise in which one compares the length of delay in the case at bar with the length of time normally taken for processing in the same jurisdiction and in other jurisdictions in Canada.

Unreasonable Delays Immigration Context

Beltran v. Canada (2011 FC 516) provides an example of the application of Blencoe in the immigration context.  There, the Canadian Security Intelligence Services determined that an individual was not a threat to Canada’s national interest.  Fourteen years later, without any explanation, and without any explanation, a new security officer expressed concerns, causing further delays in inadmissibility proceedings being commenced.  The court also found that a new investigation caused undue prejudice to Mr. Blencoe.  The Court was also critical of the government’s decision not to reveal certain information that it had kept confidential for twenty years, only to use it later.

In Torre v Canada ( Citizenship and Immigration), 2015 FC 591, the applicant was a permanent resident in Canada, arrested for drug trafficking in 1996. Seventeen years later, in 2013, two inadmissibility reports were prepared and referred to the Immigration Division for an admissibility hearing, which could lead to his removal. The Immigration Division refused to hear the applicant’s motion for a stay of proceedings for unreasonable delay, holding that it lacked jurisdiction to do so.

Upon judicial review, the Federal Court found that the Immigration Division has little discretion to determine whether there was an abuse of process because the Immigration and Refugee Protection Act and jurisprudence provide that the Immigration Division hold an admissibility hearing quickly, and if it finds the person inadmissible, it must make a removal order.

In Hassouna v. Canada (Citizenship and Immigration), 2017 FC 473 the Federal Court determined that when applying Blencoe to citizenship revocation courts should consider (1) the time taken compared to inherent time requirements, (2) the causes of the delay beyond the inherent time requirements of a matter, and (3) the impact of the delay, including prejudice and other harms.  There, the strain on resources that a 700% increase in citizenship revocation proceedings caused resulted in a delay not being an abuse of process.

S. 11(b) of the Charter

Section 11 of the Canadian Charter of Rights and Freedoms provides that any person charged with an offence has the right to be tried within a reasonable time. The Federal Court has ruled, however, that this does not apply to immigration proceedings, and in Montoya v. Canada even ruled that it does not apply to citizenship revocation.