Across the Board Drop in Immigration

Across the Board Drop in Immigration

28th Jul 2011 Comments Off on Across the Board Drop in Immigration

The first quarter of 2011 has witnessed an incredible drop in the number of permanent residence visas compared with the same quarter in 2010.

The following chart is from Citizenship and Immigration Canada, as recently published in the Toronto Star.

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Financial Requirements to Sponsor Family Members

25th Jul 2011 Comments Off on Financial Requirements to Sponsor Family Members

People wishing to sponsor family members to immigrate to Canada generally have to meet numerous requirements.  These include, but are not limited to:

  • Not be subject to a removal order;
  • Not be detained in any penitentiary, jail, reformatory, or prison;
  • Not be in default in respect of any previous undertaking;
  • Not be an undischarged bankrupt;
  • Not be in receipt of social assistance other than for a disability; and
  • Meet the minimum necessary income requirements.

The Minimum Income Requirement

The financial requirement for sponsors is necessary to ensure that sponsors can support their sponsorees for the duration of their sponsorship undertaking.  People sponsoring spouses, common-law partners, conjugal partners, or dependent children are exempted from this requirement.

For all other family sponsorship applications, the sponsor’s income must meet the minimum necessary income requirement as identified annually by Statistics Canada in Low Income Cut Off levels (“LICO”).  The sponsor must meet the cut-off to support all members of a sponsor’s own family, the sponsored person, and the sponsored person’s family members.  This includes non-accompanying family members.

The current LICO rates for 2011 outside of Quebec are:

Size of Family Unit
LICO

1 person (sponsor)
$22,229

2 people
$27,674

3 people
$34,022

4 people
$41,307

5 people
$46,850

6 people
$52,838

7 people
$58,827

Each additional person
$5,989

Excluded from these amounts include, amongst other things, any amounts paid to the sponsor under the Employment Insurance Act, other than special benefits.

The spouse or common-law partner of a sponsor may co-sign an undertaking to help meet income requirements by pooling resources. 

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Translating Errors Lead to Successful Judicial Review

22nd Jul 2011 Comments Off on Translating Errors Lead to Successful Judicial Review

In a previous post I introduced some judicial principles regarding the role of translators in proceedings before the Immigration and Refugee Board.

There, I wrote that:

Section 14 of the Charter of Rights and Freedoms provides that a party or witness to any proceeding who does not understand or speak the language in which the proceeding is conducted or who is deaf has the right to the assistance of an interpreter. This section applies to immigration and other administrative proceedings. (Umubyeyi v. Canada). Accordingly, the IRB and the courts take the right to proper interpretation seriously.

A person appearing before the IRB has a right to an interpretation that is continuous, precise, competent, impartial, and contemporaneous (Mohammadian). An applicant does not have the burden to show that a determinative prejudice arises from a breach of his Charter right to such interpretation.

Singh v Canada (Minister of Citizenship and Immigration), 2010 FC 1161,  provides a more comprehensive summary of the common law principles governing translation.  These principles are that:

a.         The interpretation must be precise, continuous, competent, impartial and contemporaneous.

b.         No proof of actual prejudice is required as a condition of obtaining relief.

c.         The right is to adequate translation not perfect translation. The fundamental value is linguistic understanding.

d.         Waiver of the right results if an objection to the quality of the translation is not raised by a claimant at the first opportunity in those cases where it is reasonable to expect that a complaint be made.

e.         It is a question of fact in each case whether it is reasonable to expect that a complaint be made about the inadequacy of interpretation.

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A Summary of Temporary Foreign Worker Jurisprudence

21st Jul 2011 Comments Off on A Summary of Temporary Foreign Worker Jurisprudence

In a previous blog post I wrote about the court developed principle that immigration officers can not simply look at socio-economic factors when determining whether a temporary foreign worker is likely to leave Canada at the end of his/her authorized period of stay.  The Federal Court recently affirmed this principle in Kindie v. Canada (Citizenship and Immigration), 2011 FC 850.

Justice Rennie”s judgment provides an extremely useful summary of the common law principles guiding visa officers when assessing temporary foreign worker applications.

These principles are:

  1. An officer shall issue the visa if all other conditions are met (such as eligibility to perform the job, not being inadmissible, etc.) if it is established that the foreign national will leave Canada at the end of the authorized period of stay in the visa.
  2. The decisions are highly discretionary and the findings of fact are entitled to deference.
  3. There is an onus on the foreign national seeking to enter Canada to rebut the presumption that they are entering as an immigrant.
  4. The degree of procedural fairness that is required in the context of a work permit application from abroad falls at the low end of the spectrum.
  5. There is no obligation to provide lengthy reasons to the applicant.
  6. For the purpose of determining reasonableness, the officers notes do form part of the reasons for decision.
  7. Simply because an officer’s reasons indicate factors which the officers considers determinative does not mean that other evidence was ignored.
  8. The weight to be assigned to each factor is a matter for the officer’s discretion.
  9. In a judicial review, an officer cannot, through an affidavit, fill in the gaps in the reasoning by identifying further factors or considerations.

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Missing the Forest Through the Trees

20th Jul 2011 Comments Off on Missing the Forest Through the Trees

To examine core evidence in a case, piecemeal, each part out of context, not as part of an entirety, is as if a decision-maker examined a forest by looking at each tree and omitted to see the forest as a whole, thus missing the big picture. Where uncontradicted evidence, declared credible, is shredded, piecemeal, said evidence lacks understanding.

It is no different than dissecting a narrative, considered credible, to such a degree that it loses its overall cohesiveness and no part separately then resembles its origin as part of the whole. All of which leads to unreasonable conclusions.

So begins Justice Shore’s analysis in Warnakulasooriy v. Canada (Citizenship and Immigration), 2011 FC 830.

The case involved a refugee claimant from Sri Lanka.  The Refugee Protection Division found the claimant to be credible.  Specifically, the tribunal accepted that:

  • In 1992 the claimant was attacked with a sword, causing damage to four of his fingers;
  • In 1994, the Sri Lankan Freedom Party United Front’s supporters filed 11 false claims against the applicant;
  • In 1997, the claimant was again arrested on false allegations;
  • In 2003, the claimant was arrested and detained for 100 days, and only released on the condition that he report once a month.  He was eventually acquitted;
  • In 2008, the claimant began receiving anonymous threats; and
  • In 2009, the claimant was told that if he worked on election day, he would be killed.  Two shots were fired at him.

In determining that the claimant did not face persecution, Justice Shore found that the tribunal analyzed each incident piecemeal, instead of considering the cumulative effect of the alleged persecution as a whole.

The Court also found that the Tribunal erred when it found that the claimant would be able to obtain adequate state protection against the threats while at the same time noting that the degree of protection afforded was at the “whim of the government”.

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Amalgamating Years of Study Under the Federal Skilled Workers Program

19th Jul 2011 Comments Off on Amalgamating Years of Study Under the Federal Skilled Workers Program

Under the Federal Skilled Workers Program, an eligible applicant is required to accumulate 67 points in order to meet the requirements of the program. Points are awarded according to a variety of factors, including age, education, adaptability, and experience.

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Illegal Immigrants Do Not Have a Charter Right to Health Care

17th Jul 2011 Comments Off on Illegal Immigrants Do Not Have a Charter Right to Health Care

In a case that has generated media publicity, the Federal Court of Appeal has ruled that illegal immigrants do not have a Charter right to health care.  The facts in Toussaint v. Canada, 2011 FCA 213, were simple.  In 1999, the appellant entered Canada as a visitor.  She never left, and never attempted to normalize her status.  In 2006, her health began to deteriorate.  In 2009, she applied to Citizenship and Immigration Canada for medical coverage under the Interim Federal Health Program (the “IFHP”).  Her request was denied, as the IFHP is limited to refugee claimants, resettled refugees, persons detained under the Immigration and Refugee Protection Act, and Victims of Trafficking in Persons.

The Federal Court of Appeal found that the appellant met none of these conditions, and that the IFHP could not have been intended to pay for the medical expenses of those who arrive as visitors but remain illegally in Canada.

A significant portion of the judgment related to Charter arguments regarding whether denying illegal immigrants access to the IFHP breached the right to life and security of the person (s. 7 of the Charter) or the right to equality (s. 15 of the Charter).

The Right to Life and Security of the Person Challenge

Section 7 of Canada’s Charter of Rights and Freedoms states that:

Life, liberty and security of person

7. 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.

The Federal Court of Appeal did not disagree with the appellant’s assertion that the denial of health care coverage expose her to significant risk to life and health,

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Provincial Nomination Does not Guarantee Permanent Residence

16th Jul 2011 Comments Off on Provincial Nomination Does not Guarantee Permanent Residence

Applicants who have been nominated by a province under the Provincial Nomination Program are not guaranteed permanent residence.

According to statistics from a Citizenship and Immigration Canada CD that is distributed to practitioners, the total acceptance rate for Applications for Permanent Residence as a Member of the Provincial Nominee Class is 97%.  Almost all embassies show acceptance rates of above 95%.  The exceptions to this are Beijing (87%), Colombo (89%), Islamabad (92%), Seoul (94%), Berlin (93%), Kiev (94%), Moscow (92%), Rome (80%), Warsaw (91%), Mexico City (92%), and Sao Paulo (94%).

The reasons for the rejections vary from criminal inadmissibility to medical issues.  The issue of fraud is also becoming an increasing concern.

According to information obtained by an Access to Information Request and published in Lexbase, in 2009 the vast majority of refusals were for misrepresentation.  The misrepresentations were discovered as a result of field investigations and/or telephone verifications that uncovered fraud related to one of the requirements under a Provincial Nomination Program.  82% of such fraud cases related to employment, 9% related to education, and 6% related to financial statements.

Interestingly, the embassy noted that a significant number of cases that were previously refused for misrepresentation were nominated again by the same province after the two-year inadmissibility ban expired.

In any event, and perhaps most importantly for applicants to the Beijing embassy, Provincial Nominee applications are now the most time consuming cases in the economic class for that embassy.

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MI-3 Suspends the Entrepreneur Program

15th Jul 2011 Comments Off on MI-3 Suspends the Entrepreneur Program

On July 1, 2011, a temporary moratorium on accepting new applications in the federal Entrepreneur program came into force.

Given the processing times below it is not hard to see why:

Cairo – 7 years, 7 months

Damascus – 7 years

Beijing – 3 years, 7 months

Manila – 5 years, 4 months

New Delhi – 6 years, 10 months

Seoul – 3 years, 10 months

Berlin – 3 years, 9 months

London – 4 years, 6 months

Paris – 7 years, 10 months

Buffalo – 6 years, 6 months

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MI-3 Introduces Caps to the Federal Investor Program

14th Jul 2011 Comments Off on MI-3 Introduces Caps to the Federal Investor Program

On July 1, 2011, the third set of Ministerial Instructions came into affect. Dubbed M-3, the changes introduced have certainly grabbed the attention of what one immigration lawyer calls the oligarchy of overseas consultancy firms that specialize exclusively in investor applications.

Under the changes, a maximum of 700 new federal Immigrant Investor applications will be considered for processing each year. Assuming that success rates remain constant, this means that around just over 600 applications will be accepted each year.

All applications are to be sent to the Centralized Intake Office in Sydney, Nova Scotia.

The cap began on July 1, 2011. It was full by July 5, 2011, as numerous overseas facilitators and consultants rushed applications. Given the speed with which the applications were filed, I cannot think of any way that an individual can apply to permanent residency under the Immigrant Investor Program without the assistance of an extremely skilled facilitator or representative.

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