Immediate Measures Are Needed to Help International Graduates Stay in Canada

John McCallum, Canada’s Minister of Immigration, Refugees and Citizenship Canada (“IRCC”), has spent much of the summer conducting a speaking tour about upcoming changes to Canada’s immigration system.  He has particularly focused on how he wants to welcome more international students as permanent residents.

This will be a welcome development, because so far Minister McCallum’s tenure as immigration minister has been a disaster for international graduates whose post graduate work permits have already or are soon expiring.   Mr. McCallum’s March 2016 cuts to Canada’s economic immigration levels have resulted in IRCC’s Comprehensive Ranking System’s points requirement for foreign nationals to receive an Invitation to Apply for Canadian permanent residency remaining out of reach for most international graduates.

Minister McCallum has promised that improvements are coming in the fall, although the details are vague. Given that the Minister recognises that the current situation is untenable, it is incomprehensible why he has not introduced temporary measures to alleviate the frustration and dashed dreams that many international graduates living in Canada are experiencing, if they have not already had to return home. Mr. McCallum’s decision to not introduce temporary measures is especially galling given how simple and easy to implement they could have been.

Express Entry

In 2015, the previous Conservative Government of Canada introduced Express Entry, an application intake management system to reduce the number of people who could apply for permanent residency to Canada.

Under Express Entry prospective immigrants to Canada can no longer immediately apply to economic immigration programs for which they qualify.  Rather, people who wish to apply for Canadian permanent residency first have to enter a pool of potential applicants.

Applicants in this Express Entry pool are ranked according to a Comprehensive Ranking System that ranks people using an algorithm that factors age, language ability, education, experience, and whether potential applicants have qualifying job offers. About once every two weeks IRCC announces what the minimum points threshold is that day to apply for permanent residency, and invites people who have the requisite number of points to apply for permanent residency.

Because prospective immigrants are ranked according to, amongst other things, work experience and education, Express Entry when it was introduced disadvantaged recent international graduates, especially those who had graduated from undergraduate programs.  Such international graduates typically had between 350-450 points in the Express Entry pool, and throughout 2015 the points threshold to apply for permanent residency stubbornly refused to drop below 451.

However, had the Government of Canada’s 2016 economic immigration levels plan remained similar to what it had been in 2015, then the points threshold would have dropped in 2016.  The reason for this is because in 2015 IRCC had to process both Express Entry applications as well as a considerable backlog of pre-Express Entry economic immigration files. Because of the need to process this backlog, IRCC was unable to invite as many people to apply for permanent residency as it would have liked.  IRCC consistently, however, told stakeholders that the Department’s goal and expectation was that the points threshold to apply for permanent residency would drop to around 350 in 2016.

The Reduction in Immigration Levels

Unfortunately for international graduates, on March 8, 2016, Minister McCallum announced that Canada would in 2016 accept between 54,000 to 58,400 immigrants in its federal economic immigration programs. This represented a significant reduction from the 68,000 to 74,000 economic immigrants targeted for 2015.

The consequence of Minister McCallum’s reduction in economic immigration levels was immediately apparent in Express Entry.  As the following chart shows, the number of foreign nationals who were issued Invitations to Apply fell sharply after Minister McCallum’s announcement, and the number of points required has remained out of reach for most international graduates.

Date of Invitation to Apply Number of People Invited Points Threshold
Jan-15-15 779 886
Feb-15 779 818
Feb-20 849 808
Feb-27 1187 735
Mar-20 1620 481
Mar-27 1637 453
Apr-10 925 469
Apr-17 715 453
May-22 1361 755
Jun-12 1501 482
Jun-26 1575 469
Jul-10 1516 463
Jul-17 1581 451
Aug-07 1402 471
Aug-21 1523 456
Sep-08 1517 459
Sep-18 1545 450
Oct-02 1530 450
Oct-23 1502 489
Nov-13 1506 484
Nov-28 1559 472
Dec-04 1451 461
Dec-18 1503 460
Jan-06-16 1463 461
Jan-13 1518 453
Jan-27 1468 457
Feb-10 1505 459
Feb-24 1484 453
Mar-09 1013 473
Mar-23 1014 470
Apr-06 954 470
Apr-20 1018 468
May-06 799 534
May-18 763 484
Jun-01 762 483
Jun-15 752 488
Jun-29 773 482
Jul-13 747 482
Jul-27 755 488
Aug-10 754 490
Aug-26 750 538

A reduction of about 50% in the number of Invitations to Apply being issued and an increase in the points threshold from around 450 to 480+ may seem small, but considering that the points threshold would have decreased had the number of invitations not increased as IRCC previously planned, the effect has been that thousands of international graduates have been left in a limbo that often ends with them having to leave Canada.

Although it is impossible to know whether IRCC’s predictions that the points threshold in 2016 would fall to 350 would have come true, desperate international graduates can only wonder what would have been had Minister McCallum not cut economic immigration levels.

The Temporary Measures That Could Have Been

I understand that Minister McCallum faced difficult decisions in balancing the levels of Canada’s various immigration programs, which include economic, family, protected persons, and others, and that this was made especially hard because of his determined and laudable effort to resettle a large amount of Syrian refugees this year.

What I don’t understand is the following.

Mr. McCallum has throughout the spring and summer stated that he recognizes that the current situation is untenable, and that changes are coming to help international students.  Why then, has he not immediately implemented temporary measures to help international graduates who are suffering under the current situation that he recognizes is dysfunctional?

The solution would have been, and continues to be, simple.  Minister McCallum can by simply issuing a Program Delivery Update through the IRCC website let post-graduate work permit holders who are in Canada and who are in the Express Entry pool obtain bridging work permits to bridge the gap between the expiry between their current status and when whatever changes the Minister plans on bringing take affect.  To do this all that would have been required was a simple update to the IRCC website.   I cannot think of what the downside to offering such relief to international graduates would have been.

Most international graduates understand that Canada needs to set its immigration targets and manage its permanent residence intake as the government best sees fit. What I have observed, however, is that international graduates are becoming extremely exasperated with a government that is promising sunny ways and relief for them, but only in a few months.


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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When an Administrative Delay is an Abuse of Process

The subject of an unreasonable delay often arises in the immigration context.  In one case that I am involved with, an individual was in Canada for 11-years before the Canada Border Services Agency expressed concerns that the might be inadmissible to Canada for previous involvement in a group accused of terrorism.  In another case, an individual who had been in and out of Canada numerous times was suddenly denied entry to Canada because of a criminal conviction that occurred eight years ago.  In both cases, the client asked whether the delay amounted to an abuse of process.

Blencoe

The leading court decision on this issue is Blencoe v. British Columbia (Supreme Court of Canada, 2000).  There, three women filed complaints of sexual harassment to the British Columbia Human Rights Council.  Due to delays the tribunal hearings were not resolved for 30 months after the first filing.  The Cabinet Minister challenged that the 30 month delay was an abuse of process, an argument which the Supreme Court of Canada ultimately rejected and that the Charter was not engaged.  Importantly, the Court found that a state caused delay, without more, does not warrant a stay as an abuse of process at common law, and that there must be significant prejudice.

The following principles emerged from that decision:

  • The administrative process must be conducted in a manner entirely consistent with the principles of natural justice and procedural fairness.
  • Unreasonable delay is a possible basis on which to raise questions of natural justice, procedural fairness, abuse of process and abuse of discretion.
  • Delay, without more, will not warrant a stay of proceedings as an abuse of process.
  • Administrative delay may impugn the validity of the proceedings where it impairs a party’s ability to answer the complaint against him or her – where memories have faded, essential witnesses are unavailable, or evidence has been lost.
  • Where the fairness of the hearing has not been compromised, delay may nevertheless amount to an abuse of process, but few lengthy delays will meet this threshold.
  • The court must be satisfied that, “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted.
  • If the delay has directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the [administrative] system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process.
  • Determination of whether the delay is unreasonable is, in part, a relative exercise in which one compares the length of delay in the case at bar with the length of time normally taken for processing in the same jurisdiction and in other jurisdictions in Canada.

The Immigration Context

Beltran v. Canada (2011 FC 516) provides an example of the application of Blencoe in the immigration context.  There, the Canadian Security Intelligence Services had determined that an individual was not a threat to Canada’s national interest.  Fourteen years later, without any explanation, and without any explanation, a new individual expressed concerns, causing delays.  The court also found that a new investigation caused undue prejudice to Mr. Blencoe.  The Court was also critical of the government’s decision not to reveal certain information that it had kept confidential for twenty years, only to use it later.

S. 11(b) of the Charter

Section 11 of the Canadian Charter of Rights and Freedoms provides that any person charged with an offence has the right to be tried within a reasonable time. The Federal Court has ruled, however, that this does not apply to immigration proceedings, and in Montoya v. Canada even ruled that it does not apply to citizenship revocation.


Borderlines Podcast Episode 4 – Jenny Kwan

On the fourth episode of the Borderlines Podcast our guest is Jenny Kwan. Ms. Kwan is the Member of Parliament for Vancouver East and is the New Democratic Party of Canada’s Immigration Critic.  Prior to being elected a Member of Parliament, Ms. Kwan was a Member of the Legislative Assembly (MLA) of British Columbia for the riding of Vancouver-Mount Pleasant, and a senior member of the provincial caucus of the New Democratic Party.

2:30 – 16:13 – We talk about Bill C-6, the Liberal Government of Canada’s reforms to Canada’s Citizenship Act. Ms. Kwan both talked about what she likes and dislikes about Bill C-6.  A specific concern that she has includes the procedural fairness afforded to those facing citizenship revocation due to misrepresentation.  The current process, which is the subject of numerous court challenges, is that an individual’s Canadian citizenship can be revoked by a bureaucrat if the bureaucrat determines that the Canadian citizen obtained their citizenship as a result of fraud. Humanitarian & compassionate concerns are not considered, and the only recourse that a former citizen has once their citizenship is stripped is to seek judicial review in Federal Court.   During this portion of the discussion we also briefly discuss the topic of language testing requirements for grants of citizenship, which Ms. Kwan believes is too stringent.

16:13 – 31:48 – Ms. Kwan explains that one thing that she hopes is urgently changed in Canadian immigration law is the current situation involving the cessation of refugee status. Ms. Kwan has introduced into Parliament Bill C-294, which calls on the government to end the automatic loss of permanent resident status when a refugee’s status as a protected person is revoked.

31:48 – 40:37 – Another topic that Ms. Kwan is passionate about is whether the Canadian government should let American war resisters / dodgers / conscientious objectors remain in Canada. Jenny believes that they should. A specific question that I asked Jenny was whether she is concerned that Canada being too accepting of war resisters in this regard would open the floodgates such that anyone from Russia, South Korea, Taiwan, etc. where the draft exists, could come to Canada and get permanent resident status as a way to avoid serving in their country’s military.

40:37 – 55:23 – As a member of the House of Commons Standing Committee of Citizenship and Immigration, Ms. Kwan shared her thoughts on whether certain vulnerable groups should be given immediate, and some would say preferential, access to refugee resettlement in Canada. Jenny proposed five actions that she believes Canada can immediately take. The first is to work with organisations that deal with the world’s most vulnerable people and give them a pathway to resettlement in Canada. The second is to work with the LGBTQI community to help resettle members of that community in Canada. The third suggestion was to help immediately resettle individuals from northern Iraq using the UNHCR to process these cases. The fourth was to look at reintroducing the source country of origin class completely, and in particular for the LGBTQI community. Finally, the fifth was increase humanitarian aid to vulnerable groups.

55:23 –   1:03:08 – Peter and I discuss about Ouedraogo v. Canada (Public Safety and Emergency Preparedness), 2016 FC 810. In this case the Federal Court determined that an individual can be removed from Canada both during the 90 day restoration period and that they could be removed even after they have applied for restoration. The court’s approach is even stricter than current CBSA policy on the matter, which I have reproduced below.

restoration

1:03:08 – 1:05:51 – Peter briefly mentions the BC Supreme Court decision in R v. Nuttal, 2016 BCSC 1404, and mentions that we plan on having Marilyn Sandford, counsel for John Stuart Nuttall on in a future podcast. For those who do not know, this case involves a stay of proceedings being ordered after the court determined that police had entrapped two individuals into attempting to bomb the BC legislature.

1:04:41 – Finally, we wrap up by briefly talking about Pokemon Go.

 




Suspending Citizenship Applications Due to Cessation Hearings

As previously noted on this blog, the Government of Canada has adopted a very aggressive approach regarding the initiation of cessation applications against permanent residents who are protected persons. The reason is because since 2012 people who lose their protected person status for any of the following reasons also lose their permanent resident status:

  1. the person has voluntarily re-availed himself or herself of the protection of their country of nationality;
  2. the person has voluntarily reacquired their nationality;
  3. the person has acquired a new nationality and enjoys the protection of that new nationality; and
  4. the person has voluntarily become re-established in the country that the person left before claiming refugee status in Canada.

Several permanent residents with citizenship applications in processing have been affected by cessation applications, and in Godinez Ovalle v. Canada (Citizenship and Immigration), the Federal Court rather bluntly told both Citizenship and Immigration Canada (“CIC”) and the Canada Border Services Agency (“CBSA”) that they were out of line, and even called their approach “inhumane.”

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Complicity in Article 1FA Cases

In 2013, the Supreme Court of Canada in Ezokola v. Canada (Citizenship and Immigration) created a new test for determining Article 1F(a) exclusions.

Article 1F(a) of the 1951 Refugee Convention provides that:

The provisions of this Convention shall not apply to any person with respect to whom there  are serious reasons for considering that:

(a)  He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

The issue that Ezokola addressed is how broad Article 1F(a) is.  It if it interpreted too narrowly, then Canada risks creating safe havens for perpetrators of international crimes.  If it is read too broadly, then the humanitarian aims of the 1951 Refugee Convention would be imperilled.

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