When Procedural Fairness Requires a Fairness Letter

When Procedural Fairness Requires a Fairness Letter

30th Jul 2010 Comments Off on When Procedural Fairness Requires a Fairness Letter

One of the most complicated topics in immigration law is determining when procedural fairness will require an immigration officer who is assessing an application to seek clarification in the form of a fairness letter or interview.

As the Supreme Court of Canada noted in Baker v. Canada (Minister of Citizenship and Immigration) the the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case. When a visa officer does not rely on third party extrinsic evidence to make a decision it can often appear unclear when exactly it is necessary for an officer to afford an applicant an interview or a right to respond to the officer’s concerns.  However, there will be a right  to respond under certain circumstances.

Requirement to Provide Complete Applications

Visa officers do not have any legal responsibility to advise applicants of incomplete or inadequate applications.

In Kaur v. Canada (Citizenship and Immigration), 2010 FC 758, for example, the Federal Court dismissed a judicial review application of a visa officer’s refusal of an applicant under the Federal Skilled Worker Program. A visa officer determined that the application was deficient as it failed to include required information regarding the applicant’s salary and benefits. The applicant argued that the Canadian embassy should have told the applicant that this information was missing, and given her a chance to provide what was missing. However, the Court noted that there is no duty to advise an applicant of a deficient application. As Justice Mandamin noted, the process is clear. An applicant must provide a complete application.

As such, and to reiterate, visa officers do not have the obligation to notify applicants of inadequacies in their applications nor in the supporting documents.

 » Read more about: When Procedural Fairness Requires a Fairness Letter  »

Read more ›

Espionage and Immigrating to Canada

29th Jul 2010 Comments Off on Espionage and Immigrating to Canada

Last updated on June 9th, 2020

Section 34(1) of Canada’s Immigration and Refugee Protection Act provides, amongst other things, that a foreign national or Canadian permanent resident is inadmissible to Canada for engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests, or being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in espionage against Canada or that is contrary to Canada’s interests.  It is one of the most serious inadmissibilities in Canadian immigration law.

Guidelines

Immigration, Refugees and Citizenship Canada’s (“IRCC”) Enforcement Manual 2 – Inadmissibilities contains the following definitions and guidance to officers regarding how immigration officials are to determine whether someone is inadmisisble to Canada for espionage.

Espionage is defined as a method of information gathering by spying; that is, the gathering of information in a surreptitious manner, secretly seeking out information usually from a hostile country to benefit one’s own country.

Paragraph A34(1)(a) contains two possible allegations that could render a permanent resident or foreign national inadmissible to Canada for acts of espionage:

1. if the act of espionage is against Canada, or

2. if the act of espionage is contrary to Canada’s interests.

Espionage “against Canada” means espionage activities conducted by a foreign state or organization in Canada and/or abroad against any Canadian public or private sector entity on behalf of a foreign government. It may also include activities of a foreign nonstate organization against the Government of Canada, but does not include acts of industrial spying between private entities where no government is involved.

The following is a non-exhaustive list of activities that may constitute espionage that is “contrary to Canada’s interests”:

 Espionage activity committed inside or outside Canada that would have a negative impact on the safety,

 » Read more about: Espionage and Immigrating to Canada  »

Read more ›

Self Employed Class – What Are Cultural and Athletic Activities?

27th Jul 2010 Comments Off on Self Employed Class – What Are Cultural and Athletic Activities?

Last updated on June 5th, 2019

Canada’s Self-Employed Class seeks to attract to Canada individuals who have the intention and ability to become self-employed in Canada. Self-employed persons are required to have either:

  • relevant experience that will make a significant contribution to the cultural or athletic life of Canada or
  • experience in farm management and the intention and ability to purchase and manage a farm in Canada.

The farm management component of the program closed on March 10, 2018.

Eligibility – Athletics and Cultural Experience

The Immigration, Refugees and Citizenship Canada (“IRCC”) website states that to qualify for the Self-Employed Program applicants must show that they:

  • have relevant experience;
  • intend and be able to be self-employed in Canada; and
  • can contribute to Canada’s economy in one of the required areas.

“Relevant experience” under the Self-Employed Program means at least two years of experience during the period starting five years before a person applies for permanent residence and ending by the time the visa is issued. The experience must be:

  • for cultural activities:
    1. two one-year periods being self-employed in cultural activities, or
    2. two one-year periods participating at a world-class level in cultural activities, or
    3. a combination of a one-year period described in (1.) above, and a one-year period described in (2.) above.
  • for athletics:
    1. two one-year periods being self-employed in athletics, or
    2. two one-year periods participating at a world class level in athletics, or
    3. a combination of a one-year period described in (1.) above, and a one-year period described in (2.) above.

What Are Cultural Activities? 

 » Read more about: Self Employed Class – What Are Cultural and Athletic Activities?  »

Read more ›

Student Partnership Program Expands to China : 中加學生合作計劃

23rd Jul 2010 Comments Off on Student Partnership Program Expands to China : 中加學生合作計劃

The Canadian embassy in Beijing has expanded the Student Partnership Program originally launched in India to China.

The program creates a special processing channel at the Beijing visa office for students destined to member institutions of the Association of Canadian Community Colleges, whose membership includes Camosun College, Douglas College, Kwantlen Polytechnic University, and Vancouver Community College.  Students using the program will experience a far shorter wait time than normal applicants, in some cases less than two weeks.

The application form can be viewed here: http://www.canadainternational.gc.ca/china-chine/assets/pdfs/immigration/beijing/documents/SPP_Application_Kit_2010_07_EN.pdf

This story broke in today’s Ming Pao, both as a front page story, and as a small story with my comments here:

在技術移民難度顯著增加的情況下,加國駐中國大使館新推出的中加學生合作計劃,有望成為中國一般社會人士移民加拿大的新途徑。

移 民律師辛湉王(Steven Meurrens)指出,先到本地學院習得一技之長,又有實習經驗的留學生勢必更受加國移民部歡迎,只要符合規定,無論通過聯邦經驗類(CEC),還是省 提名類別(PNP)移民均更易成功,因為加國非常需要這些能夠通過技術服務社會、能有效融入本地的青壯年,他認為SPP有望成為一個新的移民增長點。

留 學顧問丁方方表示,通過留學移民的途徑日漸熱門,許多私立學校亦以此招攬生源,但實際上這些學校良莠不齊,其課程更可能完全不符合移民政策的要求,因此 SPP計劃中的公立學院是好得多的選擇,它們提供多種多樣的文憑或證書課程,比大學更注重職業性和實際操作,兼有帶薪實習課程(Co-op),有利於就 業。她認為,這對於有意移民的普通人,SPP計劃可能是個比技術移民或投資移民更可行的選擇。

 » Read more about: Student Partnership Program Expands to China : 中加學生合作計劃  »

Read more ›

Wait Times for PR Card Renewal Dramatically Increase : 申請人及律師炮轟 中國新移民遭歧視

16th Jul 2010 Comments Off on Wait Times for PR Card Renewal Dramatically Increase : 申請人及律師炮轟 中國新移民遭歧視

The processing time for PR Card renewals has ballooned from roughly 42 days to 171.  There are several reasons for this, including personnel reductions at Case Processing Centre  Sydney, a higher than expected number of permanent residences wanting to renew their permanent resident card instead of applying for citizenship, and increased complexity of some of the files.

I was quoted on this matter in yesterday’s Ming Pao:

不增人手 問題更惡化

移民律師辛湉王(Steven Meurrens)則說,移民部完全錯估了楓葉卡第一次5年到期後、仍未累積夠居住時間而須再更換楓葉卡的人數。他指出,2002年楓葉卡推出5年 後,2007年開始接受換卡,今年才是接受換卡的第3年,人數已多到令現有人力無法負擔的程度,如果再不加人手,問題只會更惡化。

辛湉王 說,楓葉卡更換的過程比想像中複雜,例如被派到國外加拿大公司工作的永久居民,必須盡可能繳足所有證明在當地居住的文件,由於之前有個案造假,移民部對派 駐海外工作永久居民的楓葉卡更換申請,調查特嚴格,如此均拖慢所有的申請進度。

Yesterday I also recommended to an individual who is a frequent flyer and whose PR card was set to expire in February that he start the application process now. He replied that this would cause great difficulties because he would have to turn in his existing, still valid, PR Card.

This is not the case.

From Immigration Canada’s website:

If you are applying to renew your present card and:

  • your card has expired, you should return it with the completed application for a new card or
  • your card is still valid, you may hold on to it and return it to a CIC officer when you pick-up your new card at a local CIC office.

If you are applying to replace your damaged card, you should return your card with your application.

Individuals who are deciding whether or not to apply early to renew their PR Card should thus not worry about having to turn their existing card in.

 » Read more about: Wait Times for PR Card Renewal Dramatically Increase : 申請人及律師炮轟 中國新移民遭歧視  »

Read more ›

Espionage, Secret Evidence, and Immigrating to Canada

13th Jul 2010 Comments Off on Espionage, Secret Evidence, and Immigrating to Canada

Afanasyev v. Canada (Citizenship and Immigration), 2010 FC 737, is a gold-mine of information regarding IRPA 34 inadmissibility.  The decision involves claims of cold war espionage, secret evidence, and abuse of authority.

The applicant was a citizen of the Ukraine. He applied for permanent resident status in July, 2000. During his interview, he explained that he had completed compulsory military service in the Soviet Army from 1985 to 1987. He said that he was responsible for telecommunications and intercepts, and denied any affiliation to the Russian or Ukrainian intelligence services. According to a CSIS brief, he was also responsible for listening to English language communications coming from US bases in West Germany, debriefing various frequencies and telegraph codes, and receiving training in NATO telegraphic code.

On April 14, 2008, the Immigration Officer informed the applicant that he might be inadmissible under sections 34(1)(a) and (f) of the Immigration and Refugee Protection Act. These sections provide that:

Security

34. (1) A permanent resident or a foreign national is inadmissible on security grounds for

(a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;

(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c).

On June 13, 2008, the applicant made extensive submissions denying that he was encompassed by this section. He also requested that, in the alternative, he be granted ministerial relief pursuant to s. 34(2) of IRPA, which states that:

Exception

(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.

 » Read more about: Espionage, Secret Evidence, and Immigrating to Canada  »

Read more ›

US War Deserters – Immigrating to Canada

12th Jul 2010 Comments Off on US War Deserters – Immigrating to Canada

Being a war deserter does not in of itself mean that either a refugee claim or an application for permanent residency based on humanitarian & compassionate (“H&C“) grounds will succeed.

On July 6, 2010,the Federal Court of Appeal (the “FCA“) released its decision in Hinzman v. Canada (Citizenship and Immigration), 2010 FCA 177 (“Hinzman“)

Hinzman involved an American soldier who for moral and religious beliefs was against “all participation in war.”  In 2004, upon learning that his unit would be deployed to Iraq, Mr. Hinzman fled the United States for Canada. He was AWOL from the US army since his arrival in Canada.  He originally claimed refugee status, a claim which was unsuccessful.

Mr. Hinzman then filed a Pre-Removal Risk Assessment (“PRRA“) and an application for permanent residence based on H&C grounds.

A Citizenship and Immigration Canada officer (the “Officer“) rejected the PRRA.  She found that:

[t]he possibility of prosecution under a law of general application is not, in and of itself, sufficient evidence that an applicant has a well-founded fear of persecution. The PRRA application is not an avenue to circumvent lawful and legitimate prosecutions commenced by a democratic country.

Mr. Hinzman did not seek leave to apply for judicial review of the PRRA decision.

The Officer also rejected the H&C application.  Mr. Hinzman sought leave to appeal of this decision.  The Federal Court upheld the Appellant’s decision. However, it certified the following question:

Can punishment under a law of general application for desertion, when the desertion was motivated by a sincere an deeply held moral, political and/or religious objection to a particular war, amount to unusual, undeserved or disproportionate hardship in the context of an application for permanent residence on humanitarian and compassionate grounds?

 » Read more about: US War Deserters – Immigrating to Canada  »

Read more ›

Does Party Affiliation Affect Views on Immigration?

7th Jul 2010 Comments Off on Does Party Affiliation Affect Views on Immigration?

Recently, the Conference Board of Canada published a series of articles relating to immigration. One of them, written by Nick Nanos, talks about extensive polling on Canadian opinions regarding immigration. It has been widely quoted in the media that while Canadians approve of immigration, they generally want the numbers to stay the same.

I made summaries of four of the seven questions that Mr. Nanos asked respondents. In making the following tables, I merged “% agree” and “% somewhat agree” into one category. I did the same for disagree.

The results are as follows:

Question 1. Immigration is a key positive feature of Canada as a country?

Voter Profile
% Agree
% Disagree

Liberal
87.8
10.5

Conservative
79.6
18.4

NDP
86.9
10.0

Bloc
77.1
22.9

Green
90.5
9.5

Undecided
73.9
21.1

Question 2. In 2008, Canada admitted 247,202 permanent immigrants. Do you think Canada should increase, decrease, or keep the same number of new permanent immigrants each year?

Voter Profile
% Increase Numbers
% Keep Same
% Decrease

Liberal
21.7
40.0
31.6

Conservative
19.1
38.4
36.3

NDP
29.5
41.4
23.5

Bloc
17.3
47.8
31.1

Green
29.3
45.3
23.5

Undecided
18.6
33.2
36.1

What these two tables indicate is that Liberals and NDP voters are 10% more likely than Conservative voters to support immigration, and are also more likely to support increasing the level of immigrants admitted to Canada. However, the difference does not appear to be great enough to say that this is a key difference between supporters of the three parties. As well, it is worth noting that the “Undecided Vote” seems to be much less enthusiastic about immigration than any of the parties’ supporters.

Question 7. A Canadian citizen should be allowed to have another citizenship

Voter Profile
% Agree
% Disagree

Liberal
72.5
24

Conservative
65.4
28.2

NDP
74.7
24.8

Bloc
66.7
32.3

Green
77.8
20.8

Undecided
72.4
22

The issue of multiple citizenship is a topic that is dear to many immigrants who do not wish to lose their original citizenship. 

 » Read more about: Does Party Affiliation Affect Views on Immigration?  »

Read more ›

Decline in Chinese Immigration to British Columbia : 渥京改政策 省推薦名額增

1st Jul 2010 Comments Off on Decline in Chinese Immigration to British Columbia : 渥京改政策 省推薦名額增

On Tuesday, June 29th, I was quoted in Ming Pao, Vancouver’s largest Chinese daily newspaper.

另一本地移民律師辛湉王(Steven Meurrens)則認為,技術移民及新推出的加拿大經驗類別(Canadian Experience)移民均甚多限制,有意申請人士最好另走他途,他認為PNP仍是移民最快增長點,但許多人對PNP仍認識不夠。

辛湉王 續稱,雖然近日投資移民的投資額及資產額都提高了一倍,但聯邦及省府均有充分信心,認為投資移民金額提高一倍不會影響申請人數,這是政府迅速增加收入的有 效途徑。

My comments were a response to recent Chinese immigration trends to British Columbia.

The interviewer wanted to know my response to the following statistics compiled by BC Stats:

PRC LANDINGS TO BC

Family
Refugee
FSWP
PNP
LIC
Entrepreneur
Investor
Other
Total

2009
2,269
59
1,702
872
73
101
3,977
322
9,375

2008
1,957
43
3,235
654
32
120
3,712
161
9,914

2007
2,387
90
2,872
369
6
222
2,162
151
8,259

2006
2,412
147
4,795
229
8
259
2,894
186
10,930

2005
2,065
210
7,749
52
3
209
3,306
94
13,688

It is clear that in the 2005 to 2009 period there has been a decline in PRC immigrants to British Columbia. This certainly runs counter to popular myth.

Second, that decline can be largely explained in the near collapse of immigrants under the Federal Skilled Worker Program (“FSWP“).  This decline has occurred across Canada, and is not limited to China.

Third, there has been a huge increase in the amount of immigrants under the Provincial Nominee Program.

I was also asked whether I thought that there was a deliberate effort on the part of Citizenship and Immigration Canada to keep Chinese people out. I think that the answer is clear that except for the FSWP the amount of Chinese immigrants in the other categories remain steady.  Some have speculated that this is due to Chinese people failing to meet the language requirements. In my opinion, if this were the case, then there would have ALWAYS been a low acceptance rate. Surely the amount of Chinese people that are proficient in English is equal to,

 » Read more about: Decline in Chinese Immigration to British Columbia : 渥京改政策 省推薦名額增  »

Read more ›