Court Certifies Numerous Questions in Dismissal of Skilled Worker Class Action [Updated – Federal Court of Appeal Dismisses Appeal]

27th Apr 2013 Comments Off on Court Certifies Numerous Questions in Dismissal of Skilled Worker Class Action [Updated – Federal Court of Appeal Dismisses Appeal]

In Tabingo c. Canada (Citizenship and Immigration), 2013 FC 377, the Federal Court (the “Court“) certified three questions when it dismissed the class action lawsuit launched by people whose permanent residence applications were terminated by Bill C-38, the Jobs Growth and Long-term Prosperity Act (“Bill C-38“).  Bill C-38 introduced a new s. 87.4(1) (“Section 87.4(1)“)to the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA“) ,which terminated Federal Skilled Worker Class applications made before February 27, 2008 unless an officer had made a selection decision before March 29, 2012.

Section 87.4(1) reads:

87.4 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class.

(2) Subsection (1) does not apply to an application in respect of which a superior court has made a final determination unless the determination is made on or after March 29, 2012.

(3) The fact that an application is terminated under subsection (1) does not constitute a decision not to issue a permanent resident visa.

(4) Any fees paid to the Minister in respect of the application referred to in subsection (1) — including for the acquisition of permanent resident status — must be returned, without interest, to the person who paid them. The amounts payable may be paid out of the Consolidated Revenue Fund.

(5) No person has a right of recourse or indemnity against Her Majesty in connection with an application that is terminated under subsection (1).

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Educational Credential Assessments

18th Apr 2013 Comments Off on Educational Credential Assessments

Last updated on February 3rd, 2019

An Educational Credential Assessment is a report by a designated company company that evaluates an individual’s foreign education and compares it to a Canadian equivalent. It is necessary to be eligible for the Federal Skilled Worker Program, to get education points in Express Entry and for certain provincial nomination programs.

The designated organizations are:

The Medical Council of Canada has been designated only for those applicants who intend to apply with “specialist physician” or “general practitioner/family physician” as their primary occupation in their application.

I have browsed the websites of each of the above agencies, and produced the table below.  Getting educational credentials assessed is going to be a very time consuming process.  Right now the World Education Services website strongly suggests that it is faster, cheaper, and less document heavy than the other two organizations.  However, I would not be surprised if competition forces the other two organizations to change, and applicants are advised to check all websites to determine which one agency would be best for them.

Immigration, Refugees and Citizenship Canada (“IRCC”) will follow what a designated entity states in its Educational Credential Assessment (an “ECA”).  In Ijaz v. Canada (Citizenship and Immigration), 2015 FC 67, the Federal Court of Canada affirmed that that visa officers can simply follow exactly what an ECA,

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Certified Question on Affect of Convictions on a Stay of Removal

15th Apr 2013 Comments Off on Certified Question on Affect of Convictions on a Stay of Removal

The Federal Court in Carran v. Canada (Public Safety and Emergency Preparedness) has certified the following question of general importance:

During a stay of removal order, does subsection 68(4) of the IRPA only apply to convictions for subsection 36(1) offences committed after the beginning of the stay?

The case involved a permanent resident who had several criminal convictions.  On May 13, 2008, a Minister’s delegate referred the permanent resident to an admissibility hearing.  The delegate noted that the individual had 14 convictions, as well as an outstanding criminal charge.  On April 23, 2009, the permanent resident and the Canada Border Services Agency (“CBSA“) made a joint recommendation to the Immigration Appeal Division (the “IAD“) to stay the deportation of the individual for a period of 24 months.  The IAD accepted the joint recommendation, and stayed the deportation.

On December 2, 2010, the permanent resident pled guilty to the outstanding charge, and received a sentence of one day incarceration, and 18 months probation.  The CBSA upon discovering this conviction made an application to cancel the stay of removal, and deport the permanent resident.  The IAD canceled the stay, citing section 68(4) of the Immigration and Refugee Protection Act (the “Act”), which states that:

If the Immigration Appeal Division has stayed a removal order against a permanent resident or a foreign national who was found inadmissible on grounds of serious criminality or criminality, and they are convicted of another offence referred to in subsection 36(1), the stay is cancelled by operation of law and the appeal is terminated.

The permanent resident sought judicial review in Federal Court, and made the following arguments regarding the unresolved issue of whether  the phrase “convicted of another offence”

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Presenting The Customs Enforcement Manual

15th Apr 2013 Comments Off on Presenting The Customs Enforcement Manual

The Canada Border Services Agency is responsible for the detection and prevention of border-related offences such as smuggling, fraud, and wilful non-compliance with immigration, trade, and tax law.  The CBSA Enforcement Manual, also known as the Customs Enforcement Manual, serves as the guide for CBSA officers in the execution of their enforcement related responsibilities.  It has been relied upon in several court challenges.

To the best of my knowledge, the CBSA Enforcement Manual is not publicly available.  However, we have obtained a copy of it through an Access to Information and Privacy Act request and have made it available for purchase on this blog.   The price for this document, which is a massive 1,274 pages, is $4.95.  Our goal in providing the CBSA Enforcement Manual is to help you save valuable research time, and to provide you with a comprehensive understanding of how the CBSA operates.

We have provided as a free preview the first page of the CBSA Enforcement Manual.  We have also provided an outline of all of the information, policies, and guides which are found in it.

The Customs Enforcement Manual is divided into parts as outlined below.

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Immigration Related Resolutions at the NDP Convention

12th Apr 2013 Comments Off on Immigration Related Resolutions at the NDP Convention

In 2011 I wrote about a resolution at the Conservative Party Convention to strip the citizenship of people who take up arms against Canadian soldiers or other types of treason.  Fast forward to 2013, and it seems like the government may adopt a similar policy.

So with the New Democratic Party, the Official Opposition in Canada, about to have their Policy Convention in Montreal, I thought it would be prudent to state the resolutions of theirs directly related to immigration (as opposed to resolutions which would indirectly influence immigration by impacting Canada’s standard of living).

3-16-13 Resolution on Equal Access to Employment Insurance Benefits for Temporary Foreign Workers

Submitted by UFCW Canada, UFCW Canada Local 1518, UFCW Canada Local 1000A

WHEREAS An estimated 800,000 temporary foreign workers in Canada pay full premiums with employers into the Employment Insurance (EI) program but are not eligible for the primary benefit when laid off and return home due to residency regulations implemented by the federal government; and

WHEREAS Temporary foreign workers were eligible for the secondary benefits under the EI program for Parental and Maternal benefit;

and THEREFORE, BE IT RESOLVED That the NDP call on the Harper Government to repeal this regulation and restore access to these secondary benefits for all foreign workers; and

THEREFORE, BE IT FURTHER RESOLVED That an NDP Government would repeal the residency requirement and allow full universal access to EI benefits to all those who contribute into the system.

4-13-13 Resolution on Temporary Foreign Workers

Submitted by Toronto—Danforth

BE IT RESOLVED THAT the following clause be added to Section 4.3 of the policy book:

Resolutions // 72


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Explanation of the H&C Bars

11th Apr 2013 Comments Off on Explanation of the H&C Bars

The purpose of this blog post is to provide an overview of the changes to Humanitarian & Compassionate Applications (“H&C“) resulting from the Balanced Refugee Reform Act and the Protecting Canada’s Immigration System Act which are now in effect.  In brief, there are now several restrictions on when H&C applications can be made.

Permanent Residence Applications Only

Perhaps most importantly, section 25 of the Immigration and Refugee Protection Act now states:

Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible or does not meet the requirements of this Act, and may, on request of a foreign national outside Canada who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

[Emphasis Added]

As such, officers cannot consider H&C factors in temporary resident applications, including work permits, study permits, and visitor records.

One Year Bar (and Five Year Bar)

The following table explains how Citizenship and Immigration Canada will process H&C applications in certain scenarios.


CIC receives the H&C application on or after June 29, 2010, and the applicant has a pending H&C application (this could include an H&C request made in the context of another type of PR application)…
the H&C application will NOT be examined, fee and application will be returned.

the application is received on or after June 28,  » Read more about: Explanation of the H&C Bars  »

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The Cost of Detaining “Illegal Immigrants”

10th Apr 2013 Comments Off on The Cost of Detaining “Illegal Immigrants”

When the Canada Border Services Agency began dramatically increasing enforcement operations, many wondered where the Department was going to detain individuals. The provinces, especially Ontario, has indicated for many years that they do not want to be in the “detention business.”  The internal document below shows that at one point the Department went so far as to approach the Department of National Defence to host some immigration detainees, particularly in the case of mass arrivals and security certificate cases.  Ultimately, as the document below also indicates, the Department of National Defence was not interested.

Neither the provinces nor DND appear to be interested in using their facilities to detain “illegal immigrants.”  Given this, I am always surprised when a few CBSA officers (certainly not all, or even most) decide to detain people as a matter of course, only to have them be released only a few days later by the Immigration Division.

Please note that the document below was obtained through an Access to Information and Privacy Act Request, and to my knowledge is not otherwise publicly available.  The reproduction of this document has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.

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Temporary Foreign Workers to Canada by Year and Job

8th Apr 2013 Comments Off on Temporary Foreign Workers to Canada by Year and Job

The debate over temporary foreign workers is back in the news.  I have received a copy of the results of an Access to Information and Privacy Act request which shows the breakdown of admittance of foreign worker by year and occupation.  (I am not publishing this document on my blog, however, if you want a copy feel free to e-mail me.)

The table below shows the breakdown in 2005 (the last year that the Liberal Party of Canada was in government) and 2011 (the most recent year available).  That I have chosen these years of course has limitations in terms of detecting trends (who knows if an occupation had an “on” or “off” year?).  However, the data is nonetheless interesting, and shows an explosion in the number of people in certain occupations.




Percentage Change

Legislator and Senior Management




Administrative Service Managers




Managers in Financial and Business Services




Managers in Communication (Except Broadcasting)




Managers in Engineering, Architecture, Science and Information Systems




Managers in Health, Education, Social and Community Services




Managers in Public Administration




Managers in Art, Culture, Recreation, and Sport




Sales, Marketing, and Advertising Managers




Managers in Retail Trade




Managers in Food Service and Accommodation




Managers in Other Services




Managers in Construction and Transportation




Facility Operation and Maintenance Managers




Managers in Primary Production (Except Agriculture)




Managers in Manufacturing and Utilities




Auditors,  » Read more about: Temporary Foreign Workers to Canada by Year and Job  »

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Which Members of Parliament are Getting the TRPs?

5th Apr 2013 Comments Off on Which Members of Parliament are Getting the TRPs?

The media is reporting today that Citizenship and Immigration Canada (“CIC“) is unsure over whether individuals who received Temporary Resident Permits (“TRPs”) which were issued at the requests of Members of Parliament (“MPs”) ever left Canada.  I have received a copy of the results of an Access to Information and Privacy Act request which shows the breakdown of TRPs issued by MP.  (I am not publishing this document on my blog, however, if you want a copy feel free to e-mail me.)

The table below shows which MPs, presumably through their respective constituency offices,  successfully requested TRPs since around January 2009.  I have included only current sitting MPs.  That I have done so means that any conclusions reached about partisanship in the granting of TRPs would be based on incomplete information.  The reason that I am posting this is that it does show that MP requests for TRPs are frequently granted, and that constituents should not feel shy about approaching their MPs.

The list is:


Member of Parliament




Bob Deschert




Wayne Martson

Hamilton East—Stoney Creek



John Baird

Ottawa West – Nepean



Jason Kenney

Calgary Southeast



Nina Grewal

Fleetwood – Port Kells



Dean Del Mastro




Devinder Shory

Calgary Northeast



David Sweet




Andrew Scheer




Tim Uppal

Edmonton – Sherwood Park



Rod Broinooge

Winnipeg South



Paul Calandra

Oak Ridges—Markham



Maurizio Bevilacqua




Lois Brown

Newmarket – Aurora



Patrick Brown




Dennis Coderre




Don Davies

Vancouver Kingsway



Randy Kamp

Pitt Meadows—Maple Ridge—Mission




Edmonton – Mill Woods – Beaumont



Rob Nicholson

Niagara Falls



David Tilson

Dufferin – Caledon



Vic Toews




Alice Wong




Alex Atamanenko

British Columbia Southern Interior



Peter Braid

Kitchener – Waterloo



Scott Brison

Kings – Hants



Tony Clement

Parry Sound—Muskoka



Libby Davies

Vancouver East



Ken Dryden

York Centre



Rick Dystra


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Duress and Inadmissibility to Canada

3rd Apr 2013 Comments Off on Duress and Inadmissibility to Canada

Last updated on October 12th, 2019

The Supreme Court of Canada has “clarified” the elements of the duress defence.  The defence is important because it can affect admissibility.

For example, in Guerra Diaz v. Canada (Citizenship and Immigration), 2013 FC 88, the Federal Court of Court determined that the Immigration and Refugee Board improperly applied the test of whether duress applied, and ordered a new hearing by a different member.

Duress and Inadmissibility 

It is basically trite law that where there is duress, then a person does not have the mens rea do either commit a crime or be a member in a group that renders the individual inadmissible to Canada.  In Jalloh v. Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 317, the Federal Court stated that:

In my view, it is preferable to consider the evidence of membership along with the evidence of coercion in determining whether there are reasonable grounds to believe the person genuinely was a member of the group. One way of looking at this issue is to regard evidence of duress as defeating the mens rea of membership (Thiyagarajah v Canada (Minister of Citizenship and Immigration), 2011 FC 339). Accordingly, evidence relating to duress must be considered along with the evidence relating to membership in deciding whether the person really was a member of the group or, rather, was motivated by self-preservation.

In sum, a person cannot be considered to be a member of a group when his or her involvement with it is based on duress. At a minimum, a member is someone who intentionally carries out acts in furtherance of the group’s goals.

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