Employment Reference Letters and Immigration

Many Canadian immigration application streams require that applicants provide employer reference letters.  These letters are often the most important parts of applications.

It is very important that employment reference letters be concise, descriptive, and accurate.

In Iqbal v. Canada (Citizenship and Immigration), the Federal Court upheld a misrepresentation finding where an employer had combined the applicant’s job duties. Instead of saying that the employee had worked as a Customer Service Representative from 2006-2009, and then as a Customer Service Manager from 2009-2011, the employer wrote that from 2006-2011 the employee had been a Customer Service Representative and a Customer Service Manager from 2006-2011.


Innocent Mistakes, Misunderstandings, and Misrepresentation

Flickr photo by Deniz Ozuygur

As I have blogged extensively about how one of the most difficult issues to resolve when an individual is immigrating to Canada are allegations from the Government of Canada about misrepresentation.

Section 40(1)(a) of Canada’s Immigration and Refugee Protection Act states provides that a permanent resident or a foreign national is inadmissible to Canada for misrepresentation for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of Canadian immigration law.

A significant issue that often arises is whether or not a misrepresentation has to be intentional.  The jurisprudence consistently provides that in order for a finding of misrepresentation to be made an applicant doe not have to intend to misrepresent themselves: Chen v. Canada, 2005 FC 678.   IRCC officers do, however, have to be satisfied that the person was subjectively aware of the information that they allegedly misrepresented, and that a party cannot be faulted for failing to impart information which is unknown to him/her: Jean-Jacques v. Canada, 2005 FC 104.

But what about where there is an innocent mistake or misunderstanding?  If an officer is satisfied that an individual has innocently misrepresenting something, can the fact that the misrepresentation was innocently made be an exception to misrepresentation?

In Berlin v. Canada (2011), the Court explored in detail whether such an exception exists.  There, an immigration officer determined that Mr. B had committed misrepresentation because Mr. B failed to declare his relationship as the adoptive father of two children from a previous marriage.  When the immigration officer asked why he did not declare them, Mr. B indicated that he did not believe them to be dependants for the purpose of Canadian immigration purposes.

In analysing the issue of whether innocent mistake was an exception to misrepresentation, the Court first noted that the Citizenship and Immigration Canada Enforcement Manual seemed to provide for such an exception.  The relevant sections include ENF02 s. 9.3, which informs immigration officers that:

It must be recognized that honest errors and misunderstandings sometimes occur in completing application forms and responding to questions. While in many cases it may be argued that a misrepresentation has technically been made, reasonableness and fairness are to be applied in assessing these situations.

As well, ENF02 s. 9.10 states that the following situation would not generally constitute misrepresentation:

It must be recognized that honest errors and misunderstandings sometimes occur in completing application forms and responding to questions. While in many cases it may be argued that a misrepresentation has technically been made, reasonableness and fairness are to be applied in assessing these situations.

The Court also cited numerous other decisions which support the notion of an exception for innocent misrepresentation, including Medel v. Canada (MEI), [1990] 2 FC 345, Baro v. Canada (MCI), 2007 FC 1299, Merion-Borrego v. Canada (MCI), 2010 FC 631, and Koo v. Canada (MCI), 2008 FC 931.

Ultimately, the Court in Berlin affirmed that there is an exception for innocent mistake which may excuse what might otherwise appear to be a deliberate misrepresentation.  As well, in considering whether a misrepresentation is innocent or deliberate, an almost determinative factor will be whether or not the accurate information was presented in either supporting documentation or other forms.  In Berlin, for example, the applicant had included his adoptive children in a Personal Information Form.  The Court held that this strongly suggested that his failure to include it in his application form was indeed an innocent misrepresentation.

 

 

 


Certified Question on the Refugee Appeal Division

The Federal Court has just certified the following question of general importance:

Does the Federal Court have jurisdiction under paragraph 18.1(3)(b) of the Federal Courts Act to issue a direction requiring the Refugee Protection Division to remove from its decision a finding that there is no credible basis for a claim, thereby granting a right of appeal to the Refugee Appeal Division, which would otherwise be precluded by paragraph 110(2)(c) of the Immigration and Refugee Protection Act?

When the Federal Court of Appeal answers I will post it here.



Owner Operator LMIAs

One of the less understood recruitment exemptions in the Labour Market Impact Assessment stream is the exemption for Owner / Operators of a business.  The Employment and Social Development Canada website states:

Category: Owners/Operators
Description: The owner/operator must demonstrate that he is integral to the day-to-day operation of the business and will be actively involved in business processes/service delivery in Canada. In such instances, greater consideration should be given to demonstration by the applicant (owner/operator) that such temporary entry will result in the creation or retention of employment opportunities for Canadians and permanent residents and/or skills transfer to Canadians and permanent residents.

Variation: No advertising or recruitment is required.

Applicability: All Provinces

The Temporary Foreign Worker Program Manual previously stated:

The ESDC wiki currently states:

The wiki makes it clear that the following key conditions apply to Owner / Operator LMIAs:

  1. ESDC must be satisfied that the foreign national is or will be a principal owner or co-owner of the business in Canada.
  2. The company must prove the foreign natinoal’s shareholdings.
  3. [redacted]
  4. When assessing labour market factors, the focus is on job creation/retention and/or skills transfer. For co-owners, the focus is on job creation / retention and/or skills transfer.
  5. For High-Wage Owner-operator applications, Transition Plans apply.
  6. For Low-Wage, the caps apply.
  7. Confirmations can be for one year or less.

The wiki goes on to address whether start-up companies can do owner-operator LMIAs, including where the company does not exist.

While the amount of redactions are frustrating, regardless of what the ESDC website and the Temporary Foreign Worker Program Manual / wiki states, the reality is that this is a very rarely used exemption.  The website, and especially the Temporary Foreign Worker Program Manual (which is internal and so of course cannot give rise to a legitimate expectation) are merely guides in the application of this highly discretionary process. While it is highly discretionary, I have always found that ESDC officers exercise this discretion fairly.


Borderlines Podcast Episode 2 – Jennifer Bond on Refugee Resettlement and Ensuring that Legislation is Charter Compliant

In the 2nd episode of Borderlines, Jennifer Bond joined Peter Edelmann and I to discuss refugee resettlement and ensuring that legislation is Charter compliant.

Jennifer Bond is a professor at the University of Ottawa’s Faculty of Law, and is also a Special Advisor to Minister of Immigration, Refugees, and Citizenship.  Jennifer sat on the founding national executive of the Canadian Association of Refugee Lawyers and is founder and current co-director of the University of Ottawa’s Refugee Assistance Project, a multi-year, national initiative aimed at mitigating and researching the access to justice implications of Canada’s new refugee legislation. She is also the Faculty Coordinator of the University of Ottawa’s Refugee Hub, supervisor of the Refugee Law Research Team, and a member of the Public Law Group.

00:26 – 21:31- We discuss international refugee resettlement law. Specific topics include whether countries are obligated to resettle refugees, Canada’s commitment to resettle 25,000 Syrian refugees, and the role private sponsorship programs in the global refugee resettlement effort.  Jennifer also explained the security screening that Canada undertakes when it resettles refugees, and how this security process compares to Canada’s other immigration streams.  Finally, we asked Jennifer for her take on what we discussed last week, which is whether in the wake of the BREXIT vote and the United Kingdom leaving the European Union, the aslyum crisis in Europe, the potential rise of protectionism and isolationism in the United States with the election of Donald Trump, and now the recently failed coup in Turkey, Canada can continue to buck global trends and remain a nation that loudly and publicly announces its intentions to continue to welcome a record number of immigrants and refugees.

21:31 – 35:50 – We discuss Jennifer’s 2014 paper titled “Failure to Report: The Manifestly Unconstitutional Nature of the Human Smugglers Act,” as well as the ongoing case involving the whistleblower Edgar Schmidt, who sued the Department of Justice for allegedly failing to report to Parliament whether new laws might be so inconsistent with the Charter of Rights and Freedoms they would trigger constitutional challenges.  Mr. Schmidt’s website can be found here.  The Federal Court recently dismissed Mr. Schmidt’s lawsuit, and the decision can be found here.

 

 

35:50 – 39:47 – Peter and I discuss the Standing Committee on Citizenship and Immigration’s current exploration of
Immigration Measures for the Protection of Vulnerable Groups.  I pose the question of how history will judge us if, in the interests of not being seen to favour one group of refugee claimants over others, that group faces a similar result to the Jewish people during World War 2.

39:47 – 42:50 – Peter Edelmann and I discuss the recent misrepresentation decision in Lamsen v. Canada (Citizenship and Immigration).  There, the Federal Court affirmed that a visa application must be considered in its totality and that applications cannot be compartmentalized, particularly when making a finding of misrepresentation carries such serious consequences.

42:50 – 46:20 – The Government of Canada is currently proposing changes to NEXUS eligibility and what will lead to the cancellation of a NEXUS card. After providing an overview of the changes, we discuss how Canadians may soon be privileged travellers domestically within the United States.

46:20 – 49:30 – We wrap up by discussing the recent Supreme Court of Canada decision in Wilson v. Atomic Energy of Canada Ltd., and what it means for the ongoing standard of review debate.


Can the Federal Court Order Continued Detention

The Federal Court in Canada (Public Safety and Emergency Preparedness) v. Lunyamila has certified the following question of general importance:

Does the Federal Court have jurisdiction to usurp the jurisdiction of the Immigration Division of the Immigration and Refugee Board of Canada to order the release of the detainee pursuant to the Immigration and Refugee Protection Act, SC 2001, c 27, by ordering that the detainee shall remain in detention until further Court order?

The timeline giving rise to the question was as follows:

5 January 2016 Mr. Lunyamila is ordered released from detention. The very same day the Minister applied for leave and judicial review under docket number IMM-63-16 and obtained an interim stay from Madam Justice Simpson.
8 January 2016 Mr. Justice Shore extended the interim stay to 19 January as a transcript of the hearing was not yet available.
20 January 2016 Mr. Justice Shore granted an interlocutory stay. While he noted that there would be another 30-day review upcoming and that the case might possibly be heard on an expedited basis he stayed the release “until the application for leave and judicial review is determined on the merits.”
2 February 2016 Mr. Lunyamila was again ordered released by the IRB. The Minister again was able to file an application for leave and judicial review that day under IMM-502-16 and obtain an interim stay of release from Mr. Justice Mosley, in effect until 16 February.
16 February 2016 Mr. Justice Simon Noël set a timetable with respect to both the January and February decisions, leading to the applications for leave to be heard on 3 March 2016, and if granted, immediately followed by a hearing on judicial review. His order in both docket numbers provides, “the interim stay of the release is extended until a final determination…”
1 March 2016 Mr. Lunyamila was again ordered released and again the Minister applied for leave and for judicial review. He also applied for a stay of the release which normally would have gone to the ROTA judge in Vancouver. However, as I was already in Vancouver on other matters, and assigned to hear the applications for leave and judicial review on 3 March, it was I who reviewed the matter and granted an interim stay of the release. The docket number in question is IMM-913-16.
3 March 2016 I granted leave to judicially review the January and February decisions and then granted the applications, with reasons to follow. I simply stayed proceedings with respect to the March decision.

As Justice Harrington noted:

I find it somewhat disconcerting that an individual who has been held in detention for more than two years as being a danger to the public can be ordered released with immediate effect. This lead to a mad scramble on the part of the Department of Justice, which fortunately was able to obtain an ex parte interim stay of that release. While the liberty of the individual is most important, so too is the safety of the public. Surely it would be better to delay the release, even if only for 24 hours, in order to allow the Minister to assemble a more complete record.

Fortunately the Minister was able to repeat the same process with respect to the February decision. However, it is always possible that there be a slip up and that the detainee be released before the Minister is able to obtain a stay. In that case what is the jailer to do? On the one hand the IRB has ordered his release; on the other hand this Court has ordered that his release be stayed. It of course can be argued that the January decision had become moot. However, a decision in that regard is to be made by this Court, not by the IRB, and not by the jailer. If I were the jailer and released someone like Mr. Lunyamila, I would be concerned that I would be brought before the Court to show cause why I should not be held in contempt of court.

There is no clear statement in this judgment that the Immigration Division of the IRB can trump an order of this Court. It seems to me it would be far better if one were to order the release in a subsequent detention review subject to the outcome of the judicial review in which this Court had already granted a stay of release. It would then fall upon the detainee, not the Minister, to move the Court to have the earlier stay set aside in accordance with section 50 of the Federal Courts Act.

I shall post the Federal Court of Appeal’s answer once it is available.