Understanding Dual Intent

It is not uncommon for us to meet with clients who when applying for temporary residency are scared to admit anything that could convey a future desire to immigrate to Canada.  However, Citizenship and Immigration Canada (“CIC“) recognizes that having two intents (one temporary and one permanent) is legitimate.  Its policy on this is commonly known as “dual intent.”

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Federal Court Affirms New ESDC Internal Part-Time Recruitment Policy

In January 2015 the Federal Court released its decision in Frankie’s Burgers Lougheed Inc. v. The Minister of Employment and Social Development Canada, 2015 FC 27 (“Frankie’s Burgers“).  Frankie’s Burgers is one of the first Federal Court decisions involving an employer seeking judicial review of a decision of the Ministry of Economic and Social Development Canada (“ESDC“) to not issue a positive Labour Market Impact Assessment (“LMIA“), which was then referred to as a Labour Market Opinion (“LMO“).

Frankie’s Burgers should be read by all representatives and employers who submit LMIAs.  In my opinion, the case shows that the Federal Court seems prepared to show much greater deference to ESDC in its administration of the Temporary Foreign Worker Program (the “TFWP“) than it does to both Citizenship and Immigration Canada and the Immigration and Refugee Board.  Lawyers who were anticipating that the Federal Court would force ESDC to change some of its (often internal and secretive) policies should also take pause.

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The Canada-Korea Free Trade Agreement

On September 22, 2014, Canadian Prime Minister Stephen Harper and South Korean President Park Geun-hye signed the Canada-Korea Free Trade Agreement (“CKFTA“).  Chapter 12 of the CKFTA provides for the facilitation of the temporary entry of business persons.  The CKFTA Final Agreement Summary notes that South Korea’s commitments are the most ambitious the country has ever negotiated in a free trade agreement.  For Canada, the CKFTA’s temporary entry provisions are pretty similar to those contained in the North American Free Trade Agreement (“NAFTA“), although there are differences.

The CKFTA is significant from a Canadian immigration perspective because prospective foreign workers who are eligible for work permits under the CKFTA do not require Labour Market Impact Assessments (“LMIA“).  Indeed, as the CKFTA Final Agreement Summary states:

When it comes to investing and providing services, there is no substitute for being on-site, where clients are located. Investors want to witness their investments, talk to their partners and get a feel for the local environment. Professionals, including architects, management consultants and engineers, need to contact clients on-site in order to fulfil contracts in the South Korean market.

Temporary-entry provisions in the Canada-Korea Free Trade Agreement address barriers that business persons face at the border, particularly by eliminating the need to obtain a labour market opinion and/or economic needs test. The Agreement will establish new preferential access to our respective markets and facilitate greater transparency and predictability for the movement of business persons between Canada and South Korea. The Agreement’s temporary-entry provisions complement commitments taken in the area of services, investment, goods and government procurement.

Any Canadian businesses seeking to hire United States or Mexican nationals will typically begin by determining whether their prospective employees are eligible for work permits under NAFTA, and the same is now true for Koreans.

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Addressing Newfoundland Nurses

On December 15, 2011 the Supreme Court of Canada (“SCC“) issues its decision in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 (“Newfounland Nurses”).  As far as I can tell, the Department of Justice (“DOJ“) has since relied on this decision in almost every immigration judicial review since.

In Newfoundland Nurses, the Supreme Court essentially abolished “adequacy of reasons” as a stand-alone ground for judicial review.  Rather, the SCC stated that an officer’s reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.  The SCC further stated that:

Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., 1973 CanLII 191 (SCC), [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

The fact that there may be an alternative interpretation of the agreement to that provided by the arbitrator does not inevitably lead to the conclusion that the arbitrator’s decision should be set aside if the decision itself is in the realm of reasonable outcomes. Reviewing judges should pay “respectful attention” to the decision-maker’s reasons, and be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fateful.

As one immigration lawyer put it, the DOJ has since argued that under the Newfoundland Nurses reasonableness standard the Federal Court must uphold a tribunal’s decision as long as it falls within the most extremely close to unreasonable range of possibilities that the most extreme officer dictates.  In one case of mine, the DOJ even argued that there could basically be no reasons so long as the Federal Court thought that the decision was a possibly correct one that the tribunal could reach.  But is this really the case?

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Asking the Embassy to Re-Consider an Application

Once a decision has been rendered in relation to an application for a humanitarian and compassionate exemption, is the ability of the decision-maker to reopen or reconsider the application on the basis of further evidence provided by an applicant limited by the doctrine of functus officio?
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Religious Workers and Work Permits

There are generally two types of religious workers who seek entry to Canada to work. The first are clergy (which includes Buddhist monks, Sikh granthis, rabbis, priests, preachers, pastors, etc.) whose employment in Canada will consist mainly of preaching doctrine, presiding at religious functions, or providing spiritual counselling.  Section 186(l) of the Immigration and Refugee Protection Regulations (“R186L”) provides that such people may work in Canada without a work permit.  R186L states:

186. A foreign national may work in Canada without a work permit (l) as a person who is responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties are to preach doctrine, perform functions related to gatherings of the congregation or group or provide spiritual counselling;

Generally, applicants applying to work in Canada without a work permit under R186L need to demonstrate that they have a genuine offer of employment from the religious denomination that seeks to employ them, that the organization employing them can provide for their care and support, and that they are able to minister to a congregation under the auspices of that congregation’s denomination.

To demonstrate this, officers may request the following documents:

  • Certificate of Incorporation of the employer;
  • Proof of registration as a charity or non-profit;
  • Statement from the religious organization showing:
    • the date and place of founding of the religious organization;
    • length of time in continuous operation in the province or territory of destination;
    • description of the structure of the organization;
    • copies of relevant corporate and society documents;
    • financial statements;
    • copy of residential lease if a residence is not supplied to the foreign national; and
    • other documents which establish the relationship between the religious denomination and the religious worker.

The second type of religious workers are people who are entering Canada to perform charitable or religious work.  Depending on the circumstances, such individuals may be exempt from the Labour Market Impact Assessment (“LMIA“) process if they are carrying out duties for a Canadian religious or charitable organization and the duties themselves are of a charitable or religious nature (e.g., teachers assistants supplied by a charitable organization to a school because funds were not available to the school to hire).  These individuals can apply for a work permit pursuant to s. 205(d) of the Immigration and Refugee Protection Regulations (“R205D“), which provides that:

205. A work permit may be issued under section 200 to a foreign national who intends to perform work that (d) is of a religious or charitable nature.

The Temporary Foreign Worker Guidelines (“TFWG“) provide that an individual may be considered to be engaging in charitable or religious work if they meet the following conditions:

  • the duties performed by the individual must be of a charitable or religious nature that help to relieve poverty, or benefit the community, educational or religious institutions;
  • the organization or institution which is sponsoring the foreign worker will not, itself, receive direct remuneration from any source on behalf of, or for, the services rendered by the foreign worker; and
  • the work goes above and beyond normal work in the labour market, whether remunerated in some manner or not, for example: organizations which gather volunteer workers to paint or repair the houses of the poor may qualify, provided that the work would not otherwise be done, i.e. if the recipients of this work are not able to hire a professional or do the work themselves. L’Arche, which relies on people to live full-time in a group home with people who have developmental disabilities; (workers in the homes are remunerated, but they are committed to taking care of the disabled people on almost a 24-hour basis.) persons who are giving their time to community or religious organizations in a position which would not represent a real employment opportunity for Canadians or permanent residents. (Such work would entail a requirement to be part of, or share the beliefs of, the particular religious community in which they are working.)

It is important to note that a non-profit organization is not necessarily a charitable one.  A charitable organization has a mandate to relieve poverty, or benefit the community, educational, or religious institutions.  While most of these cases are linked to registered charities, being a registered charity with the Canada Revenue Agency is not a mandatory requirement.  Such organizations will face greater scrutiny, however, in determining whether their mandate is to help relieve poverty, benefit the community, educational, or religious institutions.

Of course, foreign nationals seeking to enter Canada to perform religious work may also apply for a Labour Market Opinion if they do not meet one of the above two requirements. Tips The following are 6 useful tips for foreign nationals who are considering entering Canada to perform religious work.

  • When you are applying make it clear that you are applying under either R186L or under R205D.  Even if you are eligible for Permit A, but you request Permit B, then Citizenship and Immigration Canada is not under any duty to provide you with Permit A: Sharma v. Canada (Citizenship and Immigration), 2014 FC 786
  • While religious workers from visa-exempt foreign countries do not need to apply for a visa from outside Canada to work in Canada without a work permit under R186L, they do need to satisfy Port of Entry officers that they meet the requirements of R186L.
  • One of the larger issues that applicants face is whether the employer can support them in Canada.  If the religious organization is small, it is not uncommon for officers to request supporting financial documents.
  • Even if you are eligible to work in Canada without a work permit pursuant to R186L you may want to obtain one nonetheless.  Some advantages of having a work permit include the possibility of open work permits for spouses and children, access to provincial health care, dependent children being exempted from having to obtain a study permits, and more.
  • There are several documents which can be useful to show the genuineness of the job offer, including a certificate of incorporation, proof of registration as a charity under the Income Tax Act, copies of the Constitution, financial statements, and proof of ordination.
  • I always recommend that people at least provide a letter from the Canadian religious organization.  Statements from the religious organization should mention the date and place of founding of the religious organization, the length of time in continuous operation in the province, a description of the structure of the organization, the size of the adult congreation, the number of clery employed, the address of the regularl emeting place, schedule fo worship

Excessive Demand on Health and Social Services

People applying for a Canadian permanent resident visa are regarded to undergo medical examinations. Many people with certain conditions are understandably apprehensive about how these examinations will impact their ability to immigrate. In this post, I hope to provide an overview about the issue of “excessive demand on health or social services,” which is probably the medical evaluation component that causes the most misconceptions.
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Express Entry

On January 1 2015, Citizenship and Immigration Canada (“CIC“) is expected to overhaul its economic immigration programs with the launch of Express Entry.  On December 1, 2014, the Government of Canada released detailed Ministerial Instructions regarding Express Entry.  In this post I hope to provide an easy to read overview of the new program.

Express Entry will significantly alter every economic immigration program, including the Federal Skilled Worker Program (“FSWP“), the Canadian Experience Class (“CEC“), the Federal Skilled Trades Program (“FSTP“), and the Provincial Nominee Program (“PNP“).

Rather than first in, first processed for permanent residence applications Express Entry will feature a “selection” of candidates who the Government of Canada believes is most likely to succeed in Canada.

Express Entry will consist of two steps for potential applicants:

  1. Completing an Online Express Entry Profile
  2. Receiving a Letter of Invitation

CIC is touting that Express Entry is not a new immigration per se, but rather a way for CIC to manage economic immigration applications online.  However, a quick review of Express Entry suggests that who will be eligible to immigrate to Canada under Express Entry will fundamentally change.

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