The Federal Court in Yu v. Canada has certified the following question of general importance:
Does the one-child policy, when, in fact, executed by a State qualify as one of “persecution” as interpreted by the Refugee Convention, if, and when, a couple would want to have, have conceived, or have more than one child?
If the Federal Court of Appeal answers in the affirmative, the implications for refugee claimants from the People’s Republic of China will be significant.
Read more ›
The Federal Court in Y.Z. and the Canadian Association of Refugee Lawyers v. The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, 2015 FC 892 (“Y.Z.“) has certified the following two questions:
Does paragraph 110(2)(d.1) of the Immigration and Refugee Protection Act (“IRPA“) comply with subsection 15(1) of the Charter?
If not, is paragraph 110(2)(d.1) of the IRPA a reasonable limit on Charter rights that is prescribed by law and can be demonstrably justified under section 1 of the Charter?
The Court also announced that effective immediately refugee claimants from designated countries of origin can access the Refugee Appeal Division (the “RAD“).Read more ›
The Federal Court in Canada (Public Safety and Emergency Preparedness) v. Zaric, 2015 FC 837, has certified the following question:
Does refugee protection conferred pursuant to s 95(1) of the Immigration and Refugee Protection Act automatically cease by operation of s 108(1)(c) when a Convention refugee becomes a Canadian citizen, thereby preventing the Minister of Public Safety and Emergency Preparedness from applying to the Immigration and Refugee Board pursuant to s 109(1) to vacate the Board’s previous decision to confer refugee protection?
When the Federal Court of Appeal answers the question, it shall be posted here.Read more ›
In the increasingly growing area of Labour Market Impact Assessment judicial review the question of whether officers are fettering their discretion by overly relying on operational guidelines is arising. To me a more interesting question is whether officers being told that they cannot make decisions without first consulting Business Expertise Consultants is more interesting. Consider the situation below, as obtained through an Access to Information Act request.
It is clear that in this case the officer wanted to approve the Transition Plan exemption request. However, the Business Expertise Consultant recommended that the officer refrain from doing so. In the fettering of discretion scenario, the following questions need to be asked:
- If a program officer went against the recommendation of a Team Leader and a Business Expertise Consultant, what would be the consequences?
- If program officers are administrative tribunals who are purportedly experts in the administration of their home statute, then why do they need to defer to Business Expertise Consultants and Team Leaders?
- How often do program officers ignore the recommendations of Team Leaders and Business Expertise Consultants?
- What other areas in an LMIA application do program officers have to rely on Team Leaders and Business Expertise Consultants for?
Read more ›
On July 1, 2015, the Government of Canada published regulations in the Canada Gazette that introduce an Administrative Monetary Penalty (“AMP“) regime into the Temporary Foreign Worker Program (“TFWP“) and the International Mobility Program (“IMP“). Both Citizenship and Immigration Canada (“CIC“) and the Ministry of Employment and Social Development (“ESDC“) will administer the AMP. In addition, the regulations will replace the exiting two-year ban period for employer non-compliance with 1, 2, 5, 10 year, and permanent bans.
The amendments will take effect on December 1, 2015.
The Administrative Monetary Penalty Regime
Under the new AMP regime, employer non-compliance will be divided into three types of violations.
Type A violations will include where an employer:
- is unable to demonstrate that any information that it provided in respect of a work permit application was accurate during a period of six years beginning on the first day of the foreign national’s employment;
- did not retain document(s) that relates to employer compliance with cited conditions during a period of six years, beginning on the first day of the foreign national’s employment
- did not have sufficient resources to pay a live-in caregiver(s);
- could not demonstrate that any information that it provided for a Labour Market Impact Assessment (“LMIA“) application was accurate during a period of six years beginning on the first day of the foreign national’s employment;
- did not report at any time and place specified to answer questions and provide documents during an ESDC audit;
- did not produce required documents during an ESDC inspection; and
- did not attend any ESDC inspection, nor give all reasonable assistance to the ESDC officer conducting the inspection.
Type B violations will include where an employer:
- did not comply with federal and provincial laws that regulate employment;
The following article appeared in the July edition of The Canadian Immigrant.Read more ›
The Federal Court has certified numerous questions regarding the constitutionality of s. 112(2)(b.1) of the Immigration and Refugee Protection Act, which in essence provides that a person may not apply for a Pre-Removal Risk Assessment (“PRRA”) if they were previously a refugee claimant until 12 months have passed since their refugee hearing, or 36 months in the case of people from designated countries of origin.
In Peter v. Canada (Public Safety and Emergency Preparedness), 2014 FC 1073, Justice Annis certified the following two questions:
Does the prohibition contained in section 112(2)(b.1) of the Immigration and Refugee Protection Act against bringing a Pre-Removal Risk Assessment application until 12 months have passed since the claim for refugee protection was last rejected infringe section 7 of the Charter?
If not, does the present removals process, employed within 12 months of a refugee claim being last rejected, when determining whether to defer removal at the request of an unsuccessful refugee claimant for the purpose of permitting a Pre-Removal Risk Assessment application to be advanced, infringe section 7 of the Charter?
In Atawnah v. Canada (Public Safety and Emergency Preparedness), 2015 FC 774, Madam Justice Mactavish certified the following additional question:
Does the prohibition contained in section 112(2)(b.1) of the Immigration and Refugee Protection Act against bringing a Pre-Removal Risk Assessment application until 36 months have passed since the claim for refugee protection was abandoned, violate section 7 of the Charter?
Section 7 of the Canadian Charter of Rights and Freedoms, s. 7, Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 states that:
Everyone has the right to life,Read more ›
A few weeks ago we received through an Access to Information Act request several copies of internal policy guidance. I’ve reproduced what I found to be the most surprising one below.
The fact that employers are needing to recruit foreign workers because the permanent residents and/or Canadian citizens who are applying don’t speak either English or French is rather troubling, to say the least.
Read more ›
On July 2, 2015, the British Columbia Provincial Nomination Program (“BC PNP“) re-launched with new program requirements and processes. The BC PNP remains divided into the Skills Immigration stream and the Entrepreneur Immigration stream.
The most significant changes to the BC PNP include:
- Introducing an online application process with an electronic payment system;
- Streamlining the Business Skills and Regional Business programs into one Entrepreneur Immigration stream based on an expression of interest model similar to Citizenship and Immigration Canada’s (“CIC”) Express Entry program;
- Capping the intake in the Skills Immigration program to 200 new applications in 2015 (Express Entry BC, the Health Care Professionals Stream, and the North East Pilot Project are excluded from this cap); and
- Requiring in the Skilled Immigration Stream that applicants with job offers in National Occupational Classification (“NOC”) B positions pass an English language test.
Skills Immigration and Express Entry BC
The Skills Immigration is divided into the following substreams:
- Skilled Worker
- Health Care Professionals
- International Graduates
- International Post-Graduates
- Entry Level and Semi-Skilled
- North East Pilot Project
As well, the Express Entry BC stream is divided into the following substreams:
- Skilled Worker
- Health Care Professional
- International Graduate
- International Post-Graduate
Most of the requirements to the Skills Immigration streams and sub-streams remain largely unchanged. However, in addition to requiring that applicants apply online, the following are new program requirements:
- In the Skilled Worker substream the BC PNP has clarified that “several years of directly related work experience” means two or more years;
- The “Market Rate” for a position is based on an applicant’s employment and educational experience.