Canada’s Interpretation of Article 1F(b) of the 1951 Refugee Convention

On October 30, 2014, the Supreme Court of Canada (the “SCC“) rendered its decision in Febles v. Canada (Citizenship and Immigration Canada), 2014 SCC 68 (“Febles“).  This was the first time to my knowledge that the SCC has addressed Canada’s interpretation of Article 1F(b) of the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (the “1951 Refugee Convention“), incorporated into s. 98 of the Immigration and Refugee Protection Act (“IRPA“) (other than in obiter).

Febles provides an opportune time to both summarize the principles articulated in it, as well as other significant Federal Court and Federal Court of Appeal (the “FCA“) cases involving Article 1F(b) of the 1951 Refugee Protection.

Continue reading “Canada’s Interpretation of Article 1F(b) of the 1951 Refugee Convention”


Does Refugee Protection Cease when a Convention Refugee Becomes a Canadian Citizen?

The Federal Court in Canada (Public Safety and Emergency Preparedness) v. Zaric, 2015 FC 837, has certified the following question:

Does refugee protection conferred pursuant to s 95(1) of the Immigration and Refugee Protection Act automatically cease by operation of s 108(1)(c) when a Convention refugee becomes a Canadian citizen, thereby preventing the Minister of Public Safety and Emergency Preparedness from applying to the Immigration and Refugee Board pursuant to s 109(1) to vacate the Board’s previous decision to confer refugee protection?

When the Federal Court of Appeal answers the question, it shall be posted here.


Distance Learning and Post-Graduate Work Permits

The media has recently been covering Citizenship and Immigration Canada’s (“CIC“) refusal of most Post-Graduate Work Permit (“PGWP“) applicants from Niagara College who had completed a distance learning program.  As Global News reported:

According to Nicholas Keung of the Toronto Star:

Although the Immigration department states on [Niagara College’s] website that distance learning is ineligible for post-graduation work permits, it does not define what constitutes distance learning. Complaining students said the Niagara College program delivered three-quarters of its course work online, but they had to attend the program in-class at least once a week.

The entirety of CIC’s guidance to officers who process PGWPs is:

Distance learning

Students who complete a program of study by distance learning (from outside or inside Canada) are not eligible for the PGWPP.

CIC’s policy is extremely vague.  What percent of the course can be distance learning before it constitutes “completing a program of study by distance learning?” Is it percentage of courses that were distant learning or percentage of total time? What if one course is online and the rest are in person?

Guidance is definitely needed, and I hope that someone takes the matter forward.


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?
Continue reading →


Administrative Monetary Penalty Regime Coming to Foreign Worker Program

On July 1, 2015, the Government of Canada published regulations in the Canada Gazette that introduce an Administrative Monetary Penalty (“AMP“) regime into the Temporary Foreign Worker Program (“TFWP“) and the International Mobility Program (“IMP“).  Both Citizenship and Immigration Canada (“CIC“) and the Ministry of Employment and Social Development (“ESDC“) will administer the AMP.  In addition, the regulations will replace the exiting two-year ban period for employer non-compliance with 1, 2, 5, 10 year, and permanent bans. 

The amendments will take effect on December 1, 2015. 

The Administrative Monetary Penalty Regime

Under the new AMP regime, employer non-compliance will be divided into three types of violations.  

Type A violations will include where an employer:

  • is unable to demonstrate that any information that it provided in respect of a work permit application was accurate during a period of six years beginning on the first day of the foreign national’s employment;
  • did not retain document(s) that relates to employer compliance with cited conditions during a period of six years, beginning on the first day of the foreign national’s employment
  • did not have sufficient resources to pay a live-in caregiver(s);
  • could not demonstrate that any information that it provided for a Labour Market Impact Assessment (“LMIA“) application was accurate during a period of six years beginning on the first day of the foreign national’s employment;
  • did not report at any time and place specified to answer questions and provide documents during an ESDC audit;
  • did not produce required documents during an ESDC inspection; and
  • did not attend any ESDC inspection, nor give all reasonable assistance to the ESDC officer conducting the inspection.

Type B violations will include where an employer:

  • did not comply with federal and provincial laws that regulate employment;
  • did not comply with federal and provincial laws that regulate the recruiting of employees in the province in which the foreign national works;
  • did not provide the foreign national with employment in the same occupation and substantially the same, but not less favourable, wages and working conditions as outlined in the foreign national’s offer of employment;
  • did not ensure that a live-in caregiver resided in a private household in Canada and provided child care, senior home support care or care of a disabled person in that household without supervision
  • did not ensure that the employment of the foreign national would result in direct job creation or retention for Canadian citizens or permanent residents, if that was a factor that led to the issuance of the work permit;
  • did not ensure that the employment of the foreign national would result in the development or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents, if that was a factor that led to the issuance of the work permit
  • did not hire or train Canadian citizens or permanent residents, if that was a factor that led to the issuance of the work permit; and
  • did not make reasonable efforts to hire or train Canadian citizens or permanent residents, if that was a factor that led to the issuance of the work permit.

Type C violations will include where the employer:

  • was not actively engaged in the business in which the offer of employment was made, unless the offer was made for employment as a live-in caregiver;
  • of a live-in caregiver did not provide the foreign national with adequate furnished private accommodation in the household; and
  • did not make reasonable efforts to provide a workplace that was free of abuse.

Once ESDC and/or CIC has determined which type an employer’s violation falls under, it will assign points under the AMP regime based on the employer’s compliance history and the severity of the violation.

Points for the employer’s compliance history will be calculated as follows:

Compliance History
Criteria Points
Type A and B violations, first violation 1
Type A, second or subsequent violation 2
Type B violation, second violation 2
Type C violation, first violation 2
Type B violation, third or subsequent violation 3
Type C violation, second violation 3
Type C violation, third or subsequent violation 4

Points for the severity of the violation will be calculated as follows:

Severity of the Violation
Criteria Points
The employer derived competitive or economic benefit from the violation. 0 – 6
The violation involved abuse of a foreign national. 0 – 10
The violation negatively impacted the Canadian labour market or the Canadian economy. 0 – 6
The employer did not make reasonable efforts to minimize or remediate the effects of the violation. 0 – 3
The employer did not make reasonable efforts to prevent recurrence of the violation. 0 – 3

ESDC and/or CIC will add the number of points based on the employer’s compliance history and the severity of the violation to determine the AMP.  In calculating the AMP, employers will be divided into “large businesses” and “small businesses.”  A “small business” is any business, including affiliated entities, that have fewer than 100 employees or less than $5,000,000 in annual general revenue.

For Type A violations, the size of the AMP will be as follows:

Type A
Points Individual or Small Business ($) Large Business ($)
0 or 1 None None
2 500 750
3 750 1000
4 1000 2000
5 4000 6,000
6 8,000 10,000
7 12,000 20,000
8 20,000 30,000
9 or 10 30,000 45,000
11 or 12 40,000 60,000
13 or 14 50,000 70,000
15 or more 100,000 100,000

For Type B violations, the size of the AMP will be as follows:

Type B
Points Individual or Small Business ($) Large Business ($)
0 or 1 None None
2 750 1,000
3 1,250 2,000
4 3,000 7,000
5 7,000 12,000
6 12,000 20,000
7 20,000 30,000
8 35,000 45,000
9 or 10 50,000 60,000
11 or 12 60,000 70,000
13 or 14 70,000 80,000
15 or more 100,000 100,000

For Type C violations, the size of the AMP will be as follows:

Type C
Points Individual or Small Business ($) Large Business ($)
0 or 1 None None
2 1,000 2,000
3 5,000 10,000
4 10,000 20,000
5 15,000 30,000
6 20,000 40,000
7 35,000 50,000
8 45,000 60,000
9 or 10 60,000 70,000
11 or 12 70,000 80,000
13 or 14 80,000 90,000
15 or more 100,000 100,000

In addition to fines under the AMP, the number of points that an employer receives will determine the ban length as follows:

Total number of Points Type A Violation Type B Violation Type C Violation
0 to 5 None None None
6 None None 1 year
7 None 1 year 2 years
8 1 year 2 years 5 years
9 or 10 2 years 5 years 10 years
11 or 12 5 years 10 years 10 years
13 or 15 10 years 10 years 10 years
15 or more Permanent Permanent Permanent

Where an employer fails to comply with multiple conditions, each unjustified failure to comply will be treated as a separate violation.  As well, violations of a single condition that involve more than one foreign worker will be treated as separate violations for each foreign worker affected. Finally, for conditions that have separate elements, a failure to comply with each element that is not justified will be treated as a separate violations.

Given how the size of the AMP can soar dramatically depending on the number of foreign workers involved and the number of condition(s) breached, the maximum AMP that ESDC and/or CIC can impose is $1,000,000.00 for a breach.  As well, the total AMPs imposed on a single employer cannot exceed $1,000,000 in the one-year period preceding the date of the final determination. As well, ESDC will allow employers to enter into payment agreements where an employer cannot pay the AMP immediately in one instalment.

There is no limitation on the collections period for AMPs, and new LMIA and work permit applications will not be accepted if an employer has not paid an AMP or is not complying with a payment agreement if one has been entered into.

Justification and Voluntary Disclosure

The Government of Canada’s amendments specify in legislation that the purpose of the new regime is to encourage compliance with the TFWP and IMP, and not to punish employers. As such, non-compliant employers will not face bans or monetary penalties where the non-compliance was the result of good faith or unintentional errors in interpretation, accounting, or administration.

As well, if the employer voluntarily discloses non-compliance, then ESDC, at an officer’s discretion, may reduce the number of points, depending on the circumstances.

Best Practices

The Government of Canada’s amendments state that the AMP and new fine regime will not apply to non-compliance that occurred before December 1, 2015.  ESDC has also published an Employer Compliance Guide which contains best practices for complying with the TFWP.  All employers of foreign workers in both the TWFP and the IMP should read this guide.

The Employer Compliance Guide is for the most part a summary of existing policy.  However, it does clarify for the first time when raises to foreign workers will result in non-compliance.  In brief, pay increases resulting from good performance or pay increments that are greater than 2% or the rate of inflation will only be acceptable if this was advertised as part of the employer’s recruitment efforts and the increases apply to all employees working in the same occupation.

More information about the new AMP and ban regime can be found here.

The Employer Compliance Guide can be found here.

We have reproduced the internal ESDC Inspections Manual here:

Please contact us if you have any questions or concerns about these changes.


Business Expertise Consultants and Fettering Discretion

In the increasingly growing area of Labour Market Impact Assessment judicial review the question of whether officers are fettering their discretion by overly relying on operational guidelines is arising. To me a more interesting question is whether officers being told that they cannot make decisions without first consulting Business Expertise Consultants is more interesting.  Consider the situation below, as obtained through an Access to Information Act request.

It is clear that in this case the officer wanted to approve the Transition Plan exemption request. However, the Business Expertise Consultant recommended that the officer refrain from doing so.  In the fettering of discretion scenario, the following questions need to be asked:

  1. If a program officer went against the recommendation of a Team Leader and a Business Expertise Consultant, what would be the consequences?
  2. If program officers are administrative tribunals who are purportedly experts in the administration of their home statute, then why do they need to defer to Business Expertise Consultants and Team Leaders?
  3. How often do program officers ignore the recommendations of Team Leaders and Business Expertise Consultants?
  4. What other areas in an LMIA application do program officers have to rely on Team Leaders and Business Expertise Consultants for?

 



The Constitutionality of the PRRA Bar

The Federal Court has certified numerous questions regarding the constitutionality of  s. 112(2)(b.1) of the Immigration and Refugee Protection Act, which in essence provides that a person may not apply for a Pre-Removal Risk Assessment (“PRRA”) if they were previously a refugee claimant until 12 months have passed since their refugee hearing, or 36 months in the case of people from designated countries of origin.

In Peter v. Canada (Public Safety and Emergency Preparedness), 2014 FC 1073, Justice Annis certified the following two questions:

Does the prohibition contained in section 112(2)(b.1) of the Immigration and Refugee Protection Act against bringing a Pre-Removal Risk Assessment application until 12 months have passed since the claim for refugee protection was last rejected infringe section 7 of the Charter?

If not, does the present removals process, employed within 12 months of a refugee claim being last rejected, when determining whether to defer removal at the request of an unsuccessful refugee claimant for the purpose of permitting a Pre-Removal Risk Assessment application to be advanced, infringe section 7 of the Charter?

In  Atawnah v. Canada (Public Safety and Emergency Preparedness), 2015 FC 774, Madam Justice Mactavish certified the following additional question:

Does the prohibition contained in section 112(2)(b.1) of the Immigration and Refugee Protection Act against bringing a Pre-Removal Risk Assessment application until 36 months have passed since the claim for refugee protection was abandoned, violate section 7 of the Charter?

Section 7 of the Canadian Charter of Rights and Freedoms, s. 7, Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 states that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In both instances the Federal Court found that it does not.  As soon as the Federal Court of Appeal decides on the matter, I shall post its decision here.