Canadian Immigration Embassy Interview Strategies and Tips

When visa officers have concerns regarding a completed application, they often convoke interviews. The interview provides the applicants to address these concerns. In this post I hope to convey to applicants the basic procedural fairness rules that they can expect.
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Evaluating the BC PNP Business Program

On February 17, 2015, the Province of British Columbia published the results of the following FOI request:

Specific fields of data, tabulated by year for the past four years, within the Performance Agreements for Business Immigration including: the number of agreements signed, investment amount committed and number of jobs committed as well as the agreements fulfilled, the actual investment amounts and actual number of jobs. Timeframe is 1 January 2011 to 31 December 2014.

The FOI results are embedded below.  There are many things that one can conclude from the data.  What is clear is that except for 2012, the “performance agreement success rate” is around 50%.

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Reliability of CIC Cap Figures

[Note – with the recent confusion over whether the CEC cap has been reached I thought it would be useful to bring this old blog-post to the forefront.]

Many immigration programs, including the newly enacted Federal Skilled Trades Program, contain caps on the number of people who can apply.  Citizenship and Immigration Canada (“CIC“) generally advises people that they should check the CIC website before submitting applications to make sure that the cap has not been exceeded.  Unfortunately, CIC has also (successfully) argued in court that the information on their website is not reliable, and that the CIC website stating that the cap is unfilled does not create a legitimate expectation for applicants that the cap is in fact unfilled.

In Agama v. Canada (Citizenship and Immigration), an applicant was denied a permanent resident visa under the Skilled Workers Class (the “FSWC“). Under the FSWC, CIC considered a maximum of 500 applications in National Occupation Classification 0631 (“NOC 0631“) during the relevant year.

CIC posted the following information on its website regarding how many NOC 0631 applications it had received:

  • September 28, 2011 – 209 applications
  • October 10, 2011 – 229 applications
  • November 3, 2011 – 330 applications
  • November 8, 2011 – 335 applications
  • December 1, 2011 – 458 applications

The applicant filed her application on November 14, 2011. Considering that the CIC website on December 1 reported that the cap stood at 458, she thought that she had made it.

Unfortunately, on January 13, 2012, CIC informed her that her application was rejected because the cap of 500 applications for NOC 0631 had been reached.  Indeed, CIC told her that the quota of 500 had been reached on September 19, 2011.  This of course directly contradicted what was on the CIC website.

I am not going to get into the specific judicial reasoning by which the Federal Court agreed with CIC’s arguments that the CIC website is a guide only, and that the applicant should have known this.  The point of this post is simply to warn applicants that they should not rely on the cap figures posted on the CIC website.  I would also recommend that practitioners specifically warn their clients of this possibility prior to applying, and to even include it as a clause in their retainer agreements.

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The Return of Incomplete Applications [Last Edited September 24, 2014]

One of the most frustrating experiences for people applying for visas is to have an application returned due to incompleteness.  Because of processing delays, it often takes  Citizenship and Immigration Canada (“CIC“) months to return an incomplete application, and applicants have to then start over.  While the practice of returning incomplete applications was originally limited to CIC, on June 20, 2014, the Ministry of Economic and Skills Development Canada (“ESDC“) released a Temporary Foreign Worker Program Bulletin titled “How to Handle Incomplete Applications.”

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The Doctrine of Legitimate Expectations [Updated – July 17, 2014]

The doctrine of legitimate expectations is a procedural doctrine which has its source in the common law. Because the doctrine of legitimate expectations is a common law principle, it does not create substantive rights.
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Language Requirements for Immigration (IR-11)

During the time that I have been writing this blog the most frequently asked question that readers have asked me is whether their IELTS band scores are sufficient for certain immigration programs.  Some people have even offered to book initial consultations with me just so that I would review their IELTS scores.  This has always been somewhat surprising to me given that the Citizenship and Immigration Canada (“CIC”) website publishes each of its program’s respective language requirements in a clear and concise manner.

Indeed, it is not just members of the general public that seem to be confused.  As shown in the exchange below, which I obtained through an Access to Information Act request, some immigration lawyers are unclear of the requirements.  (Please note that what I have reproduced below should not be viewed as legal advice.  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.)

Question – May 21, 2013

Dear Sir/ Madam,

I have been referred to your office, by Karen Flynn, of NHQ-Immigration in Ottawa, her phone number is _______.

I practice immigration law in Toronto, and I have the following question, regarding the Federal Skilled Worker Class, in light of the recent changes, in effect, as of May 4, 2013:

  • the IETLS benchmark is CLB 7, i.e. 6 points, for each ability. If the results of a foreign national are, for example, in 1, or 2, or 3 abilities in the CLB 8 or higher, but 1 ability, or 2, or 3, are at CLB 7level, can I give 5 or more points per ability, for the CLB 8, or higher, and 4 points, for the CLB 7 result, or once one of the results is in the CLB 7 area, all abilities can only receive 6 points, i.e. 16 points.

Basically, can I give points for each ability depending on where the ability is in the CLB range, e.g. 2 abilities are 6.0, and 2 abilities are 6.5, is the assessment 18 points or 16 points?

I look forward to your response.

Best regards,

Answer – May 22, 2013

Thank you for your inquiry.

As of May 4, 2013, all applicants under the Federal Skilled Worker Class must demonstrate that they meet the minimum language proficiency threshold of CLB 7 in all four language abilities.

As outlined in section 11.2 of the OP 6C operational manual, officers will award points for first official language proficiency based on the applicant’s demonstrated CLB level per language ability. For example, an applicant who had obtained CLB 7 in two language abilities and CLB 8 in the other two language abilities would be awarded a total of 18 points for first official language proficiency (4 points for each language ability in which their proficiency meets the minimum threshold+ 5 points for each language ability in which their proficiency exceeds the minimum threshold by one benchmark level).

There are three aspects of CIC’s response to the question above that I wish to elaborate on.  The first is where individuals can locate information about a program’s language requirements on the CIC website.  The second is the distinction between the Canadian Language Benchmark (“CLB”) and the IELTS bandscores, and how to calculate equivalence.  Finally, I will also address whether there are language requirements to becoming a temporary foreign worker.

The Languages Manual

The CIC website publishes all of its publicly available program manuals on its website here.  While there are some private manuals that can only be accessed through Access to Information Act requests, they probably only significantly impact to 5 – 10% of people interact with CIC. 

Operational bulletins and manuals - language

As shown in the image above, in order to simply its language requirements, CIC has consolidated its language requirements into a single, online manual on its website.  The languages manual is divided into the following sections:

Except for the language requirements for the Temporary Foreign Worker Program (“TFWP”), which is discussed below, the manuals above comprehensively describe most of the language requirements for CIC’s various programs.

CLB vs. IELTS

It is important that prospective applicants distinguish between their IELTS scores and the CLB.  This can be especially confusing to people considering that the scoring system looks similar.

The CLB is the national standard used in Canada for describing, measuring, and recognizing the English language proficiency of adult immigrants and prospective immigrants for living and working in Canada. It classifies English language ability according to 13 language benchmarks.

The IELTS are one of the language tests that the Respondent has designated as being an acceptable test to asses an applicant’s CLB.  There are nine IELTS band levels, and CIC has produced numerous charts on its website showing equivalencies of the 9 IELTS bands to the 13 CLB levels.

Language test equivalency charts

The distinction is important.  I occasionally meet individuals who did not apply for the Canadian Experience Class (“CEC”) because they were told that they needed a 5.0 in all language abilities.  While this is technically true, the “5.0 requirement” refers to CLB, not IELTS.  As shown above, an IELTS Listening Score of 4.0 is equal to a CLB score of 5.0.  Hence, these individuals erred in assuming that they were not eligible.  As the CEC has application caps, delaying applying to unnecessarily re-write the IELTS can have significant detrimental consequences.

The Temporary Foreign Worker Program

Many people mistakenly assume that the TFWP does not have language requirements.  Work Permit applicants accordingly often question CIC’s authority to request proof of language ability during the Work Permit application process, which is becoming increasingly common.

Section 8.3 of the CIC’s Temporary Foreign Worker Manual states:

 R 200 (3) (a) states that:

“An officer shall not issue a work permit to a foreign national if there are reasonable grounds to believe that the foreign national is unable to perform the work sought.”

Immigration officers should not limit their assessment of language, or other requirements to perform the work sought, solely to those described in the Labour Market Opinion (LMO). However, the language requirement stated in the LMO should be part of the officer’s assessment of the applicant’s ability to perform the specific work sought because it is the employer’s assessment on the language requirement(s) for the job.

Additionally, the officer can consider:

  • the specific work conditions and any arrangements the employer has made or has undertaken to make to accommodate the applicant’s limited ability in English or French and to address potential safety concerns if any; and
  • terms in the actual job offer, in addition to general requirements set out in the National Occupational Classification (NOC) description for the occupation. This is applied in assessing the extent to which weak official language skills could compromise the applicant’s “ability to perform the work sought”

An officer should NOT consider perceived challenges the applicant might face in interacting with the broader community, such as availing him/herself of community services, if this is not relevant to their job performance. Such a consideration is beyond the scope of the current legislation.

The same principles respecting official language capability and the applicant’s ability to perform the work sought apply irrespective of the skill level of the intended occupation. There is no separate standard or criteria for applicants at NOC skill levels C or D.

An applicant’s language ability can be assessed through an interview or official testing such as IELTS/TEF or in-house mission testing practice. In deciding to require proof of language ability, the officer’s notes should refer to the LMO requirements, working conditions as described in the job offer and NOC requirements for the specific occupation, in determining what precise level of language requirement is necessary to perform the work sought. System notes must clearly indicate the officer’s language assessment, and in the case of a refusal, clearly show a detailed analysis on how the applicant failed to satisfy the officer that h/she would be able to perform the work sought.

 

 


Biometric Travel Headaches

On December 1, 2013, I noted that Canada has introduced a biometric requirement for nationals of certain countries.  I wrote:

Biometrics is the measurement of unique physical characteristics, such as fingerprints and facial features, for the purpose of verifying identity. Citizenship and Immigration Canada’s (CIC’s) goal in requiring that certain foreign nationals provide biometrics is to make it more difficult for individuals to use another person’s identity, and to prevent criminals, deportees and previous failed refugee claimants from (re-)entering Canada using false identification.

By Dec. 11, citizens of the following countries will be required to give their biometrics (fingerprints and digital photograph) when they apply for a visitor visa, study permit or work permit: Afghanistan, Albania, Algeria, Bangladesh, Burma (Myanmar), Cambodia, Colombia, Democratic Republic of Congo, Egypt, Eritrea, Haiti, Iran, Iraq, Jamaica, Jordan, Laos, Libya, Nigeria, Pakistan, Palestinian Authority, Saudi Arabia, Somalia, South Sudan, Sri Lanka, Sudan, Syria, Tunisia, Vietnam and Yemen.

Applicants from the above-listed countries will be required to go to a Visa Application Centre (VAC) or a visa office (if a VAC is not available) to give their fingerprints and have their photographs taken. Digital copies will be sent to the Royal Canadian Mountain Police and to CIC, who will then check the fingerprints against criminal, refugee and visa application records. When successful applicants arrive at Canadian ports of entry, the Canada Border Services Agency will use the photograph and/or fingerprint to verify the identity of individuals.

Because of the biometrics requirement, it will no longer be possible for people from the above-mentioned countries to submit paper applications directly to a Canadian embassy or consulate. Instead, these individuals will have to apply in person at VACs. Online applicants will also receive instructions to appear at a VAC to provide their fingerprints.

The biometrics fee will be $85 per person. This fee is in addition to the visa/permit application fee. Individuals will need to give their biometrics, and pay the fee, each time they apply for a visa or permit, making the value of multiple-entry visas that much greater.

CIC’s goal is that by 2014 there will be more than 133 VACs in 96 countries with biometric capabilities. Unfortunately, until this goal is realized, people in countries including Afghanistan, Egypt, Iraq, Iran and Vietnam will actually have to leave their country in order to provide their biometrics at a VAC or Canadian Consulate which has biometric capabilities.

Applicants under the age of 14, over the age of 80, diplomats and people who are already in Canada are exempt from the requirement.

Difficulty Obtaining Biometrics

As stated above, many of the countries whose citizens are required to provide biometrics to visit Canada do not actually have CIC-approved biometric collection facilities.  CIC is requiring that such individuals travel abroad to provide their fingerprints at acceptable facilities.  The CIC website has a useful Google Map which shows individuals where the nearest biometric collection facility is.

As shown below, the citizens of some countries will have some serious travelling to do if they want to apply for a visa to visit Canada.  Ironically, they will likely have to apply for visas to visit countries to give fingerprints to apply for a visa to visit Canada.

Country

Biometric Collection Point?

Nearest Biometric Collection Point

Afghanistan

No

Pakistan

Albania

Yes

 

Algeria

Yes

Bangladesh

Yes

Burma (Myanmar)

No

Cambodia

Cambodia

Yes

Colombia

Yes

Democratic Republic of Congo

No

Kenya

Egypt

Yes

Eritrea

No

Saudi Arabia

Haiti

Yes

Iran

No

United Arab Emirates

Iraq

No

Bahrain

Jamaica

Yes

Jordan

Yes

Laos

No

Vietnam

Lebanon

Yes

Libya

Yes

Nigeria

Yes

Pakistan

Yes

Palestinian Authority

No

Israel, Jordan

Saudi Arabia

Yes

Somalia

No

Kenya

South Sudan

No

Kenya

Sri Lanka

Yes

Sudan

No

Egypt

Syria

No

Israel, Turkey

Tunisia

Yes

Vietnam

Yes

Yemen

No

Saudi Arabia

 

Given this, it is difficult to see how many people from Afghanistan is going to be able to travel to Canada for the foreseeable future.  Is Turkey or Israel really going to admit Syrian nationals for the purpose of fingerprint submission? Will Iranians be able to travel to Abu Dhabi?

As well, citizens of the above countries who are currently abroad may find it difficult to submit their biometrics.  For example, I am representing a Pakistani national currently working in Oman.  He will have to travel to the United Arab Emirates to submit his fingerprints to then apply for a visa to visit Canada.  The table below shows how far apart the biometric collection facilities currently are.

Country

Biometric Collection Point?

Nearest Office

Argentina

No

Ecuador

Brazil

No

Guyana

Chile

No

Ecuador

Japan

No

Mongolia

Russia

No

Georgia, Mongolia

Some individuals have quipped that the decision to implement a biometric requirement prior to ensuring that biometric collection facilities were in place is the Government of Canada’s way of indirectly limiting the number of people from these countries who visit Canada.  Others have even written that there may be racial intonations behind the biometric requirement.  While I do not believe that this was the government’s motivation, it is difficult to see how the current situation will result in anything but the door to Canada being closed completely shut on the citizens of certain countries.