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.



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.


The Global Skills Strategy

On June 12, 2017 Canada launched the Global Skills Strategy. The Global Skills Strategy introduces new work permit programs and work permit exemptions at both Immigration, Refugees and Citizenship Canada (“IRCC”) and the Department of Employment and Social Development Canada (“ESDC”).

Specifically, the Global Skills Strategy includes:

  • ESDC introducing the Global Talent Stream to its Labour Market Impact Assessment (“LMIA”) program;
  • IRCC committing to processing certain work permit applications within 10 days;
  • IRCC introducing a new work permit exemption for short-term work in certain occupations; and
  • IRCC introducing a new work permit exemption for certain researchers.

All employers of prospective foreign workers, and especially those in technology related industries, should familiarize themselves with the Global Skills Strategy.

ESDC’s Global Talent Stream

Employers of foreign workers for positions that are eligible for ESDC’s Global Talent Stream will need to decide whether they want to submit their LMIA application(s) under the normal LMIA streams or under the Global Talent Stream.

There are two main benefits of participating in the Global Talent Stream.  First, ESDC is committing to processing LMIA applications submitted under the Global Talent Stream within 10 business days.  Second, LMIA applications submitted under the Global Talent Stream will not have a minimum recruitment requirement, although employers will still have to list their recruitment efforts.

The Global Talent Stream consists of two eligibility categories.

Category A

A company will be eligible for Category A if they are hiring unique and specialized talent and if that talent has been referred to the Global Talent Stream by one of ESDC’s designated partners. As of June 12, 2017 the designated partners are the:

  • Atlantic Canada Opportunities Agency
  • BC Tech Association
  • Business Development Bank of Canada
  • Communitech Corporation
  • Council of Canadian Innovators
  • Federal Economic Development Agency for Southern Ontario
  • Global Affairs Canada’s Trade Commissioner Service
  • ICT Manitoba (ICTAM)
  • Innovation, Science and Economic Development Canada – Accelerated Growth Service
  • MaRS Discovery District
  • National Research Council – Industrial Research Assistance Program
  • Ontario Ministry of Citizenship and Immigration
  • Ontario Ministry of Economic Growth and Development
  • VENN Innovation

ESDC will consider a prospective foreign worker to have unique and specialized talent if:

  • they have advanced knowledge in the industry;
  • they have an advanced degree in an area of specialization of interest to the employer and/or they have a minimum of five years experience in the field of specialized experience; and
  • the position pays a salary of $80,000.00 or more.

Category B

An employer will be eligible for Category B if they are seeking to hire highly-skilled foreign workers to fill positions in the Global Talent occupations list.

The list of eligible occupations, and, where applicable, the minimum occupation for that occupation, is:

  • NOC 0213 – Computer and information systems managers
  • NOC 2147 – Computer engineers (except software engineers and designers)
  • NOC 2171 – Information systems analysts and consultants
  • NOC 2172 – Database analysts and data administrators
  • NOC 2173 – Software engineers and designers
  • NOC 2174 – Computer programmers and interactive media developers
  • NOC 2175 – Web designers and developers
  • NOC 2241 – Electrical and electronics engineering technologists and technicians (minimum salary $81,000)
  • NOC 2283 – Information systems testing technicians (minimum salary $78,000)
  • NOC 5241 – Digital Media and Design where the position requires a minimum of five years industry experience and specified skills (minimum salary $80,000)

Labour Market Benefits Plan

Employers in the Global Talent Stream must develop a Labour Market Benefits Plan which demonstrates the employer’s commitment to activities that will have a positive impact on the Canadian labour market.  Commitments are divided into mandatory commitments and complementary benefits.

All employers in Category A must commit to creating jobs, either directly or indirectly for Canadians and permanent residents.

All employers in Category B must commit to increasing skills and training investments for Canadians and permanent residents.

Employers in both categories must also commit to achieving a minimum of two complementary benefits with at least one activity for each benefit. The complementary benefit cannot be the same as the mandatory benefit.

Complementary benefits could include, but are not limited to:

  • job creation;
  • investment in skills and training;
  • transferring knowledge to Canadians and permanent residents;
  • enhanced company performance; and
  • implementing best practices or policies as an employer for a company’s workforce.

Activities to support mandatory and complementary benefits could include, but are not limited to:

  • increasing the number of Canadians or permanent residents employed full-time and part-time by the firm;
  • establishing educational partnerships with local or regional post-secondary institutes or with other organizations that are supporting skills and  training;
  • paid co-op or internship programs;
  • developing and implementing policies to support the hiring of underrepresented groups;
  • directly training Canadians or permanent residents;
  • directly supervising and mentoring Canadians or permanent residents;
  • increasing growth of revenue, employment or investment; and
  • developing/enhancing partnerships with organizations that assist with the identification of top domestic capital.

ESDC will monitor the progress of an employer’s Labour Market Benefits Plan at regular intervals to allow ESDC to assess the employer’s performance in the Global Talent Stream and to determine an employer’s continuing eligibility.

Two-Week Work Permit Processing

As part of the Global Skills Strategy, IRCC is committing to two-week work permit processing for applicants who:

  • are going to be working in LMIA exempt positions and are (a) applying from outside Canada, (b) are going to be working in a NOC 0 or A position, and (c) have applied online; or
  • have a positive LMIA that was obtained through ESDC’s Global Talent Stream.

New Work Permit Exemption for Short-Term Work

Prospective foreign workers in Canada will no longer need work permits if they will be working in an occupation under National Occupational Classification 0 or A and the worker is coming to either:

  • perform work for 15 consecutive calendar days or less and six months have passed since the first day of work under the previous use of this exemption
  • for 30 days or less (16-30 days) and 12 months have passed since the first day of work under the previous use of this exemption.

Work Permit Exemption for Researchers

Finally, under the Global Skills Strategy researchers will be eligible for a work permit exemption for 120 days if they:

  • are coming to perform work for 120 consecutive calendar days or less and 12 months have passed since the first day of work under the previous use of this exemption;
  • will be engaged primarily in research activities;
  • are coming to work at a publicly funded, degree-granting institution at the college or university level or affiliated research institution; and
  • have a letter from the receiving institution attesting to the details of the work as being primarily research and outlining the period of employment.

More information about the two-week processing standard can be found here.

More information about the short-term work permit exemption can be found here.

More information about researchers can be found here.


Don’t misrepresent: honesty is the best policy when filling out applications

The following is an article that I wrote for The Canadian Immigrant magazine.

Prospective immigrants committing misrepresentation in their applications is becoming an increasingly big problem in Canada. In Vancouver, an individual was recently sentenced to eight years imprisonment for helping around 1,500 people lie in everything from permanent residency applications to permanent resident card renewals, including the use of fake passport stamps.

As well, thousands of Canadians across the country are embroiled in citizenship revocation proceedings.

Meanwhile, increased information sharing between government agencies, and improvements in the collection and analysis of data are resulting in a huge increase in immigration officials detecting everything from little white lies to complex fraud.

What is misrepresentation?

Canadian immigration officials interpret the definition of misrepresentation very broadly as the goal is to help maintain the integrity of Canada’s immigration process. The law is clear that the onus is placed on the prospective immigrant (or visitor, worker or student) to ensure the completeness and accuracy of their application.

Not all misstatements or omissions will result in an individual committing misrepresentation. The lie has to be material. In other words, the misstatement or omissions need to be ones that could affect whether someone is eligible for the immigration program that they are applying to, or whether they are inadmissible to Canada.

For example, even though being charged with a criminal offence that is ultimately dismissed does not typically render one inadmissible to Canada, the failure to disclose a dismissed charge would be considered misrepresentation. Not disclosing the charge prevents officials with the opportunity to confirm if and why the charge was, in fact, dismissed. On the other hand, mistyping a postal code is unlikely to result in an immigration official determining that someone committed misrepresentation.

Third parties at fault?

Misrepresentation includes lies and omissions made by other parties, including immigration consultants, lawyers and employers, even if made without the knowledge of the prospective immigrant.

Indeed, a surprisingly common scenario that can result in misrepresentation occurs when prospective immigrants sign blank forms, trust their immigration representative to complete their application honestly, and then do not review their application before it is sent.

While there is an “innocent misrepresentation” exception, it applies only to truly extraordinary circumstances in which a prospective immigrant honestly and reasonably believes that they were not misrepresenting a material fact and that the knowledge of it was beyond their control. An example would be where someone does not declare a child that they did not know about.

Severe consequences

The consequences for an individual caught committing misrepresentation are severe. In addition to losing their status in Canada, permanent residents and foreign nationals are both subject to five-year bans on entering Canada. During the duration of this ban, they are prohibited from submitting a new permanent residence application.

In addition to being severe, the consequences can also appear unjust. Consider the case of Nelly Cedana, a former live-in caregiver whose 2016 judicial review application of a removal order against her was unsuccessful. Cedana had come to Canada in 2009 to work as a live-in caregiver. In 2010, her employers, a teacher and a lawyer, terminated her employment. For unknown reasons, her former employers suggested to her that she continue to live with them and that she pay them $1,000 in cash per month. In exchange, they would issue her a cheque for the same amount and they would pretend that she still worked for them. They even issued fake T4 slips to her, claiming the recycled cash as employment income paid to her.

When the fraud was discovered, the Canada Border Services Agency successfully sought to have Cedana removed from Canada for misrepresentation. Her counsel desperately argued that she was a vulnerable person who had been victimized and exploited by her employers, but was unsuccessful. The Federal Court noted that while it was the employers who proposed the illegal route to immigration, Cedana had chosen to accept it.

After her decision, Madam Justice Elliot noted that it would shake public confidence in the administration of Canada’s immigration system if Nelly was removed from Canada yet the government took no actions against her employers, and that the consequences for violating Canada’s immigration laws should not fall solely upon those who lack Canadian citizenship while professionals occupying positions of trust are spared any scrutiny of their actions.

However, anyone who spends a considerable amount of time talking with prospective immigrants, especially those in vulnerable circumstances, will know that the brunt force of the enforcement of Canada’s immigration laws will typically fall on the prospective immigrant, while the consequences for unscrupulous employers or consultants will be minimal, if any.

As unjust as this seems, the reality is that everyone completing an immigration application typically knows what is true and what isn’t. As such, no matter how tempting it is to lie or how powerful the person who is recommending misrepresentation may be, honesty is always the best policy.

As well, it should also reassure many that immigration officials typically provide an applicant the chance to respond to the allegation that they have committed misrepresentation.  Obviously, applicants who have been truthful should take advantage of this opportunity.  Applicants who simply made a mistake should also respond and explain the mistake.  Immigration officers are humans, too, and they often understand that mistakes and misunderstandings can occur.


Information Sharing Between Canadian Immigration Authorities and Other Countries

The Five Country Conference (the “FCC“), commonly referred to as the “Five Eyes” is a forum for cooperation and information sharing between the border and immigration agencies of Canada, Australia, New Zealand, the United Kingdom, and the United States.

Under the FCC, Canada participates in manual case-by-case and automatic information exchanges with other FCC partners.

In 2009, Canada began manually running a small number of fingerprint-based immigration checks with each FCC partner as part of the High Value Data Sharing Protocol, an immigration information-sharing arrangement that was introduced as a pilot for automated information sharing.

In 2011, the members of the FCC agreed to expand and automate the manual, low volume, and case-by-case exchanges.

Since 2013, under the Beyond the Before Initiative, Canada has been automatically sharing immigration information with the United States.  Perhaps the most visible consequence of this information is the dramatically increased number of people who are determined to be inadmissible to Canada for not disclosing their United States visa applications, especially refusals.

In May, 2017, the Trudeau government expanded upon the Harper government’s initiative, and introduced regulatory amendments to the Immigration and Refugee Protection Regulations to allow for the automatic sharing of immigration information with Australia, New Zealand, and the United Kingdom.

Perhaps the most immediate consequence of the new information sharing agreements will be the automatic sharing of information regarding inland asylum claimants, overseas refugee resettlement applicants, and on visa applications for individuals from certain countries that the government has deemed high risk (including Colombia, Iran, and several other Middle Eastern countries that Canada collects biometrics from).