Peter Scarrow, a former lawyer at Larlee Rosenberg and now the General Manager, TMF Group – Hong Kong, recently published an article in The Advocate.

Peter has kindly given me permission to re-publish his article on my blog.

In brief, the article summarizes the unique issues that high net worth mainland Chinese nationals face when immigrating to Canada.  It contains blunt information that you won’t find in many other publications, and is well worth the read.

 » Read more about: Red China Immigration Blues  »

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On January 1, 2013, the Canadian work experience requirement of the Canadian Experience Class (“CEC“) is being reduced from 24 months to 12.  Applicants who have 12 months work experience in the 36 months preceding an application will now be eligible to apply to the program. Only applicants with National Occupational Classification 0, A or B work experience will continue to qualify for the CEC.

As well, a minimum language threshold will be required in each of the four abilities for applicants to the CEC. As with the new Federal Skilled Worker Class, the Minister shall have the authority to set the language threshold. Initially, it is anticipated that the threshold would be set at CLB/NCLC 7 for NOC 0 and A applicants and CLB/NCLC 5, or in each ability for NOC B applicants.

The new CEC regulations are:

87.1 (1) For the purposes of subsection 12(2) of the Act, the Canadian experience class is prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada, their experience in Canada, and their intention to reside in a province other than the Province of Quebec.
Member of the class

(2) A foreign national is a member of the Canadian experience class if

(a) they have acquired in Canada, within the three years before the date on which their application for permanent residence is made, at least one year of full-time work experience, or the equivalent in part-time work experience, in one or more occupations that are listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix, exclusive of restricted occupations; and

(b) during that period of employment they performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the National Occupational Classification;

 » Read more about: Canadian Experience Class Going to One Year  »

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New Skilled Trades Class

On August 17, 2012, Citizenship and Immigration Canada (“CIC”) announced that it would be introducing the Federal Skilled Trades Class (“FSTC”), a new program which will facilitate the immigration of certain skilled tradespersons in Canada.

The program is expected to be introduced on January 1, 2013.

The FSTC will be open to individuals with experience in the following National Occupation Classification (“NOC“) B occupational areas:

  • Industrial, Electrical and Construction Trades;
  • Maintenance and Equipment Operation Trades;
  • Supervisors and Technical Occupations in Natural Resources, Agriculture and Related Production;
  • Processing, Manufacturing and Utilities Supervisors and Central Control Operators;
  • Chefs and Cooks; and
  • Bakers and Butchers.

Applicants to the FSTC will be required to meet the following four minimum requirements:

  1. Be working in Canada, or possess a LMO-supported offer of employment from up to two employers in Canada of at least one year duration, or possess a Certificate of Qualification from a provincial or territorial Apprenticeship Authority;
  2. Meet the same minimum language threshold as required by the concurrently to be introduced new Federal Skilled Worker Class, namely a 7.0 on every language ability;
  3. Have twenty-four months of work experience (after qualification/certification in the country where the work was performed, where applicable) in the same skilled trade as which they are applying under in the last five years; and
  4. Have qualifications that satisfy employment requirements as described by the NOC, except for certification and licensing requirements.

 » Read more about: New Skilled Trades Class  »

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Yesterday, Citizenship and Immigration Canada (“CIC“) began retroactively closing existing Pre-Removal Risk Assessment (“PRRA“) applications for which Bill C-31’s 12-month bar applies.

Bill C-31 amended the Immigration and Refugee Protection Act’s (“IRPA“) provisions regarding who was ineligible to apply for a PRRA.  IRPA now provides that:

112(2) .. a person may not apply for [a PRRA] if

(b.1) subject to subsection (2.1), less than 12 months have passed since their claim for refugee protection was last rejected — unless it was deemed to be rejected under subsection 109(3) or was rejected on the basis of section E or F of Article 1 of the Refugee Convention — or determined to be withdrawn or abandoned by the Refugee Protection Division or the Refugee Appeal Division;

[or]

(c) less than 12 months have passed since their last application for [a PRRA] was rejected or determined to be withdrawn or abandoned by the Refugee Protection Division or the Minister.

CIC will be closing PRRA and subsequent PRRA applications that are currently in its inventory for which a previous Immigration and Refugee Board (“IRB“) or PRRA decision (rejected, abandoned or withdrawn) has been made within the last 12 months (August 15, 2011 to August 14, 2012) and for which a country exemption does not apply.

The countries that are currently exempted from the 12-month PRRA bar are the following: Central African Republic, Egypt, Guinea-Bissau, Libya, Mali, Somalia, Sudan, and Syria.

However, the list of countries that are exempt from the 12-month bar applies only to cases for which an IRB or PRRA decision (rejected, withdrawn or abandoned) was rendered between August 15, 2011 and August 14,

 » Read more about: Retroactive PRRA Termination Begins  »

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Almost two years ago I did a post on whether a disabled adult who is dependent on his parents can be considered a child for the “best interest of the child” analysis in H&C applications.  At the time, I wrote that:

[Saporsantos Leobrera v. Canada (Citizenship and Immigration), 2010 FC 587] holds that an adult with a disability remains an adult with a disability, and ought not to be deemed a “child” for the purposes of the Convention on the Rights of the Child, or section 25 of the Immigration and Refugee Protection Act.

It is important to note that this is only the most recent case in a string of decisions on this issue. Given the conflicting preceding decisions on the matter, the issue is by no means settled.

It took longer for this issue to re-emerge in the jurisprudence than I thought it would, but the issue of what the definition of a “child” is for the “best interest of the child” analysis was front and centre in the recent decision of Dugly Medina Moya v. The Minister of Citizenship and Immigration, 2012 FC 971.

In Moya, Justice Hughes agreed with and re-printed much of the judgement in Saporsantos Leobrera, writing that:

The courts have a specific role to play in the Canadian system of constitutional supremacy. Acknowledging the roles of the executive branch, the legislative branch and recognizing the judiciary’s role as one of interpretation of the law. It is, thus, incumbent on the Federal Court to follow the interpretation of the legislation in jurisprudence issued by the Federal Court of Appeal and the Supreme Court.

 » Read more about: What is a Child?  »

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The Ontario Labour Relations Board (the “OLRB“) has just released a fascinating decision which involves the interplay between immigration and employment law.  The case involved a German foreign national who entered into an employment agreement with Essar Steel Algoma (the “Employer“) prior to Citizenship and Immigration Canada (“CIC“) issuing him a work permit to work for the company.  Things did not work out between the Employer and the foreign national, and the Employer terminated the relationship.  The United Steelworks of America (the “Union“) filed a grievance, and the issue of when the foreign national became an employee of the Employer arose.

The OLRB decision involved numerous factual determinations involving contested issues of when the foreign national alerted the Employer that he was a foreign national who required a work permit, whether the Employer promised the foreign national that obtaining a Labour Market Opinion (“LMO“) would be easy, and whether the Employer rescinded the foreign worker’s job offer upon the LMO being rejected.

Lurking in the background of these factual disputes was the legal issue of “when does a foreign national become an employee of an employer?”

The Union argued that as a matter of contract law a person becomes an employee of an employer at the instant when he accepts an unconditional offer of employment, even if the offer contemplates that he will not actually commence work for a period of time.  The Union further argued that there was no necessity for the person hired to have actually started work in order to be considered an employee.

The Employer argued that its employment agreement with the foreign national was illegal and unenforceable by reason of the foreign worker’s lack of a valid work permit. It further argued that the foreign national could not have accepted the offer because he did not have a work permit.

 » Read more about: Can People Working Without Status Enforce Contracts?  »

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The Government of Canada has announced regulatory changes regarding reporting requirements for designated foreign nationals.

According to the Regulations, designated foreign nationals must report:

  • in person, not more than 30 days after refugee protection is conferred on the designated foreign national;
  • once a year in each year after the day on which the foreign national first reports to an officer above, on a date fixed by the officer;
  • in person if requested to do so by the officer because of a prescribed concern;
  • any change in (i) their address, not more than 10 working days after the day on which the change occurs, (ii) their employment status, not more than 20 working days after the day on which the change occurs, (iii) any departure from Canada, not less than 10 working days before the day of their departure; and (iv) any return to Canada, not more than 10 working days after the day of their return.

 » Read more about: Reporting Requirements for Designated Foreign Nationals  »

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Bill C-31, also known as the Protecting Canada’s Immigration System Act introduced strict timelines to Canada’s refugee determination process.  The Canadian government has now introduced the Regulations which provide specifics as to the new timelines.

Time limits for scheduling the first-level hearing, for filing and perfecting an appeal and for making a decision on an appeal will be as follows:

  • The Basis of Claim document shall be submitted not later than 15 days after the referral of the claim to the Immigration and Refugee Board, if the claim is made at a Port of Entry. If the claim is made at an inland office, the required documents and information would have to be submitted at the time of the eligibility interview. Port of Entry claimants would be given an extra 15 days to complete the Basis of Claim, which Inland claimants must submit at the time of the eligibility interview.
  • Hearings at the Refugee Protection Division shall be scheduled for a date that is not later than 30 days after the claim is referred for inland Designated Country of Origin claimants, not later than 45 days after the claim is referred for Port of Entry Designated Country of Origin claimants, and not later than 60 days after the claim is referred for non-Designated Country of Origin claimants.
  • In the case of all claims entitled to an appeal to the Refugee Appeal Division, appeals shall be filed and perfected not later than 15 working days after the claimant or the Minister receives the notice of a decision and the reasons for the decision from the Refugee Protection Division.
  • A decision on an appeal shall be made by the Refugee Appeal Division not later than 90 days after the day on which the appeal is perfected.

 » Read more about: C-31 Regulation Released Regarding Timelines  »

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Tom Godfrey of the Toronto Sun recently published an articled titled “Married by video chat? Come to Canada!”  The article has generated alot of attention.  However, people who are criticizing Citizenship and Immigration Canada recognizing telephone (and video) marriage are missing the crucial point that it is not how someone gets married that matters, but rather the marriage is genuine.

The first half of the article states (the entire article can be read here):

Marriages conducted by telephone or webcam that unite Muslim women in Canada with husbands abroad make up a significant number of the immigration sponsorship cases in Pakistan, says a top official.

“Approximately 40% of the caseload involves proxy marriages, some of which were conducted over the phone via internet or webcam,” said Pat O’Brien, an immigration program manager at the High Commission of Canada in Islamabad.

The embassy’s territory includes Pakistan and Afghanistan, two of the most dangerous countries in the world, according to an Environmental Overview Template Islamabad report compiled by O’Brien for Ottawa. It was obtained under an Access of Information request by lawyer Richard Kurland.

The template said many applicants seeking visas for Canada take part in arranged marriages. In many cases, the brides are in Canada while their husbands reside in Pakistan or Afghanistan.

The men are sponsored to Canada by their wives. The cases “involve arranged marriages amongst Muslims, the vast majority of which take place between first cousins,” O’Brien told Ottawa in March 2012.

She said most of the couples getting hitched have never met. They are married by an imam on the phone or webcam with the couples being in different countries.

 » Read more about: Video Marriages  »

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