Borderlines Podcast Episode 8 – Lobat Sadrehashemi on Citizenship Revocation for Misrepresentation

On the 8th podcast episode, Lobat Sadrehashemi joins Peter Edelmann, Deanna Okun-Nachoff and I to discuss issues in Canada’s citizenship revocation and refugee determination processes.  The recent controversy around Maryam Monsef guides our discussion.

Lobat Sadrehashemi is an Associate Counsel at Embarkation Law Corporation.  She is also the Vice President of the Canadian Association of Refugee Lawyers (“CARL“).

CARL’s reform proposals for Canada’s inland refugee determination system and other aspects of the immigration system, which we recently submitted to the Ministers, their staff, IRCC, and the Immigration and Refugee Board can be found here.

Lobat’s paper on Refugee Reform and Access to Counsel in British Columbia can be found here.

 

 


Work Permits for Camp Counsellors

As of March 1, 2017, camp counsellors going to residential camps during the summer season are exempt from the Labour Market Impact Assessment (“LMIA“) requirement.  They can apply for work permits once their employers submit their online offers of employment into the employer compliance portal.

Religious Camp Counsellors

Religious camp counsellors should note that they should not be indicating in their online offer of employment offers that the LMIA exemption code is religious or charitable work under LMIA exemption code C50.  Immigration, Refugees and Citizenship Canada (“IRCC”) has determined that the normal work of a camp counsellor (whose primary duties consist of supervising children and leading sports, crafts, games and other recreational activities) is not considered religious in nature. Rather, LMIA exemption code C20 should be used.

In the case of a counsellor who is unpaid and who works for a charitable or religious organization, an employer compliance fee fee exemption may apply. To be fee-exempt, the foreign national cannot receive remuneration other than a stipend for living expenses, which, if monetary, should be below the prevailing minimum wage. Otherwise, the foreign national should receive only non-monetary benefits (e.g., accommodation and health care). It is the responsibility of the organization to prove that they are charitable or religious.

More information about this can be found here.


The Canadian Visa Requirement for Mexican Citizens – A Policy which is No Longer Needed

During Canada’s 2015 federal election, the Liberal Party of Canada, led by Justin Trudeau, promised that if they were elected government that Canada would lift its visa requirement on Mexico.  This campaign promise is reflected in now Prime Minister Trudeau’s mandate letter to John McCallum, the Minister of Immigration, Refugees, and Citizenship, which states that one of Minister McCallum’s top priorities will be to lift the visa requirement on Mexico.

The decision by the previous Conservative Government of Canada in 2009 to implement a visa requirement for Mexican citizens was extremely controversial.  It is difficult to determine whether it was a good public policy decision because of the numerous factors involved, each with corresponding benefits and costs.  It is clear, however, that the implementation of the visa requirement did achieve the government’s primary objective, which was to dramatically reduce refugee claims from Mexican citizens in Canada.  However, subsequent changes to Canada’s immigration refugee system, likely mean that the visa requirement is no longer necessary to achieve this objective.

The Visa Requirement

Canada imposed a visa requirement on Mexican citizens on July 14, 2009.  The Canadian government stated that it did so to dramatically reduce the number of unfounded refugee claims made by Mexican nationals due to their visa-free access to Canada.  Mexico was at the time the top source country for asylum claimants in Canada, and had been so since 2005.

The imposition of the visa requirement imposed a significant burden on Mexican citizens wishing to travel to Canada.  Instead of being able to simply board an airplane and travel to Canada, Mexican citizens now prior to travel have to apply for a temporary resident visa at a Canadian consulate, or online.  In addition to completing numerous forms, as of writing Mexican nationals are required to provide proof of financial support, including copies of bank statements for three months, employment verification, and other proof of connections to Mexico. Where a Canadian invitee will be paying for the trip, that individual is required to provide proof of funds.

Many individuals and organizations, including the Canadian government, predicted that the imposition of the visa requirement would result in a dramatic decrease in the number of Mexicans who travelled to Canada.  In 2008, there were over 270,000 entries by Mexican citizens into Canada.  When the Canadian government imposed the visa requirement, it stated that it anticipated that approximately 150,000 Mexican citizens would apply for temporary resident visas annually.  According to the Tourism Industry Association of Canada (the “TIAC”), the number of Mexicans visiting Canada plummeted by 50% after the implementation of the visa requirement, although the number of Mexicans visiting Canada has now reached pre-2009 levels.  The TIAC estimates that an additional 320,000 Mexicans would have visited Canada and spent over $465,000,000.00 from 2009-2014 were it not for the visa requirement.  The impact on trade has been forecasted to be in the billions.

However, if the Government of Canada’s primary objective in imposing the visa requirement was to reduce the number of Mexican refugee claims in Canada, then the decision was a resounding success.  In 2009 there were 7,592 asylum claims from Mexican nationals.  By 2012, this number had fallen to 321.  Mexico during this period went from being the highest source country for asylum claims in Canada to the 22nd highest country in 2012.  At the same time, the percentage of Mexican claims that were approved increased from 11% in 2010 to around 20% in 2013.

CIC data shows:

Year

Intake Finalizations Acceptance Rate (%) Rejection Rate (%) Abandon Rate (%)

Withdrawn / Other Rate (%)

2007

7,162 3,662 11 59 8 23

2008

9,472 5,707 11 60 6 24

2009

7,592 6,097 8 56 7 29

2010

1,202 5,880 11 59 6

24

2011 651 6,099 17 69 5

10

2012 321 3,041 19 71 4

7

2013 (Jan – Jun) 36 682 20 67 5

9

 

mexicof

mexicofa

Indeed, by 2013-2014 Mexico was a minuscule percentage of Canadian refugee claims.

Capture

It is important to note that CIC data also shows that 57% of Mexican asylum claims made in the first quarter of 2010-2012 were made by individuals who entered Canada prior to the visa imposition.

Indeed, based on the previous refugee acceptance rates prior to the imposition of the visa requirement for Mexicans, in June 2013 CIC estimated that without the visa requirement, Canada would have received an additional 19,895 asylum claimants from July 2009 through December 14th, 2012, of which 2,493 claims would have been accepted, 12,331 rejected, and 5,081 abandoned or withdrawn.  The cost to Canada would have been immense.

When Minister McCallum lifts Canada’s visa requirement against Mexico there will likely be those who suggest that it was never necessary, or, as the Globe and Mail did in 2014, that it was other changes to Canada’s immigration and refugee system that actually caused the drop in Mexican asylum claims.  These changes, however, happened after the steep decline occurred.  Having said that, while a review of the above data makes it clear that it was the imposition of the visa requirement that led to the steep decline in Mexican refugee claims, the previous government’s subsequent changes will hopefully ensure that the lifting of the visa requirement does not cause the situation to revert back to what it was in 2008.

Changes to the Immigration and Refugee System

After the imposition of the visa requirement the Canadian government made several changes to Canada’s immigration and refugee system which will likely ensure that the number of unfounded asylum claims by Mexicans in Canada does not revert to 2008 levels.  These are the decision to shorten the time that refugee claims make, the prohibition on submitting permanent residence applications based on humanitarian & compassionate grounds within one year of the refusal of a refugee claim, the designation of Mexico as a safe country of origin, and the upcoming implementation of the Electronic Travel Authorization.

On June 28, 2012, Bill C-31, the Protecting Canada’s Immigration Act, received Royal Assent.  Prior to the implementation of Bill C-31, the average Mexican refugee claim that was not withdrawn or abandoned took over eighteen months to process.  During this time the claimants would be allowed to work anywhere in Canada, and if their claim was refused they could submit an application for permanent resident status on humanitarian & compassionate grounds, citing their establishment in Canada as a positive factor in the application.  As a result of Bill C-31, the amount of time that it took was reduced to sixty days. As well, most asylum seekers became prohibited from submitting humanitarian & compassionate permanent residence applications.

Then, on February 13, 2013, the Canadian government designated Mexico as being a safe country of origin. This designation further reduced the amount of time that it takes to process a Mexican refugee claim to 45 days for those who make a refugee claim at a port of entry, and 30 days after referral for those who make a claim at an inland immigration office. As well, Mexican refugee claimants became ineligible to apply for work permits.  (The decision to designate Mexico as being a safe country was also controversial, and the Liberal government may eventually remove Mexico from the designated list.  Prime Minister Trudeau’s mandate letter to Minister McCallum states that he is to “establish an expert human rights panel to help you determine designated countries of origin,” and it may mean that this is a hint that Mexico may soon be removed.)

Finally, as of March 15, 2016, most foreign nationals who are exempt from the requirement to obtain a temporary resident visa to enter Canada will be required to obtain an Electronic Travel Authorization before they travel to Canada by air.  As such, even without the visa requirement, it will no longer be the case that Mexican nationals will simply be able to purchase tickets and board planes to travel to Canada.  Rather, they will be unable to board commercial airlines to Canada unless the airlines first confirm that they have permission to enter Canada.  Having said that, the requirements will be much less onerous than they are currently.

Although it is impossible to be 100% certain, the above changes should prevent a spike in the number of unfounded refugee claims by Mexican nationals in Canada when Canada lifts the visa requirement.

What About Brazil, Romania, and Bulgaria?

If Prime Minister Trudeau fulfils his campaign promise, his decision to lift the visa requirement against Mexico should not turn into a partisan affair.  In fact, the previous Conservative Government of Canada’s 2015 Economic Action Plan, the Conservatives promised that in 2015-16 that Canada would lift the visa requirement against Mexico, Brazil, Romania, and Bulgaria.

Indeed, if Prime Minister only lifts the visa requirement against Mexico, and not against Brazil, Romania, and Bulgaria, the question should be why just Mexico.


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.
Continue reading →


Digital Signatures in the Temporary Foreign Worker Program

One of the more frustrating aspects of the Temporary Foreign Worker Program from an application procedure angle can be determining whether ESDC accepts digital signatures, and whether an individual other than the 3rd party representative can sign for the person named as the third party representatives.

Helpfully, the Temporary Foreign Worker Program Wiki appears to answer that digital signatures are accepted in the TFWP, and that if there is no doubt that an individual works in the same law firm as an authorized third party then it is reasonable to accept that this individual can sign as an authorized representative.

TFWDigitalSignature

 


Foreign Worker Stats – 2004 – 2014

The following are some interesting stats on the number of foreign workers in Canada from 2004 – 2014.

The first chart is for the number of foreign workers in the Temporary Foreign Worker Program from 2004 – 2014. The top four countries where the Philippines, India, the United States of America, and Mexico.

TFWStats

In the International Mobility Program the top 5 countries are very different. There, it is the United States of America, India, China, and France.

The data also shows that from 2004 – 2014 the number of temporary foreign workers in Canada more than doubled from 86,551 to 177,704.  Almost all of this growth was in the Labour Market Impact Assessment Program, with most of it being lower-skilled foreign workers.

There was also considerable growth in the International Mobility Program, with the number of work permit holders going from 110,525 to 390,273 during the period from 2004 – 2014.  Much of the growth came from the introduction of the Post-Graduate Work Permit Program, International Experience Canada, and C-10 applications.


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.