The Alberta Immigrant Nominee Program (“AINP“) currently has three streams.

  1. Employer Driven Stream
  2. Strategic Recruitment Stream
  3. Self-Employed Farmer Stream

Employer Driven Stream

The AINP Employer-Driven Stream is for:

  • Alberta Employers who want to retain a foreign worker on a permanent, full-time basis where there is a challenge finding Albertans/Canadians to fill the position; and
  • Foreign workers with a permanent, full-time job offer from an Alberta Employer who intend to live and work in Alberta permanently.

It includes the following substreams:

Please note that individuals in the following circumstances are not eligible under the Strategic Recruitment Stream:

  • Refugee claimants, or individuals involved in a federal appeal or removal process;
  • Live-in caregivers currently living in Canada;
  • Temporary foreign workers working and residing in a province other than Alberta; and
  • International students studying in Canada and doing co-op work placements or internships as part of their study program

Skilled Worker Category

In order to be eligible under the Skilled Worker Category, the employer must:

  • Be incorporated or registered as a business in Alberta by or under an act of the legislature of a province or the Parliament of Canada and operating as a business that has an established production capability, plant or place of business in Alberta;
  • Provide a job offer to the Candidate for permanent, full-time employment in a skilled occupation;
  • Provide a job offer to the Candidate that meets Alberta’s employment and wage standards and does not conflict with existing collective bargaining agreements;

 » Read more about: The Alberta Immigration Nominee Program (Last updated January 16, 2017)  »

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The Honourable Alan S. Diner is a judge with the Federal Court of Canada.   Prior to his appointment, Justice Diner headed Baker & McKenzie LLP’s immigration practice.  He was also involved with managing the establishment and implementation of Ontario’s Provincial Nominee Program for the Ministry of Citizenship and Immigration.

We are grateful to Justice Diner for the time that he took in preparing for this podcast about tips and best practices in appearing before the Federal Court of Canada, including in providing a customised powerpoint, which can be found on our website at http://www.borderlines.ca.  As Justice Diner notes, many of the tips and strategies contained in this episode are applicable beyond judicial review, and will be beneficial to anyone preparing written submissions or making oral presentations.

A review of what we discussed is as follows:

1:18 – Justice Diner describes his history going from being an immigrant in Canada to leading a corporate immigration law practice to becoming a judge with the Federal Court of Canada.

14:30 – We discuss how the practice of immigration law is changing as larger firms and global accounting firms enter the practice area.

18:30 – Justice Diner provides his first three tips to lawyers appearing  in Federal Court, which are to treat everyone with respect, to prepare your case and arguments properly, and to respect timelines.

23:10 – Peter asks Justice Diner whether immigration representatives should consider preparing visa applications with possible litigation in mind and how long judicial review applicant records should be.

28:00 – How many arguments should someone make in a judicial review application?  If one thinks that an immigration officer made 10 mistakes, should the lawyer in a judicial review application list all 10?

 » Read more about: Borderlines Episode #12 – Tips on making written and oral arguments in court, with Justice Alan Diner  »

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Last updated on May 17th, 2019

Where a visa application has been refused and an applicant is convinced that the decision is unreasonable then it may be advisable to file an Application for Leave to Commence Judicial Review with the Federal Court of Canada (the “Federal Court” or the “Court”).

The Federal Court has the jurisdiction to review the decisions of visa officers. The Court will determine whether an immigration officer committed any reviewable errors that should result in the decision being set aside.  Reviewable errors include errors of fact, law, or breaches of procedural fairness.  If an applicant succeeds in Federal Court, then the Court will order that the immigration officer’s decision be set aside, and typically that the application be reconsidered by a different officer.

Usually, a successful judicial review will ultimately result in a positive decision from the second visa officer.  However, this is not always the case. Furthermore, as the Federal Court of Appeal determined in Lee v. Canada (Minister of Citizenship and Immigration), there is no obligation on the second immigration to specifically refer to the order of the Court and provide reasons as to how and why the second decision differs from the first.

In deciding whether to submit a judicial review application it is important to note that the Federal Court will not review or accept new evidence, but, rather, determine if an officer made an error based on the information that was before them.

As well, pursuant to the Federal Court of Appeal decision in Maple Lodge Farms Ltd. v Canada (Food Inspection Agency), 2017 FCA 45, even where a visa officer or tribunal makes a mistake a judicial review may still not succeed if ordering a redetermination would be an exercise in futility.

 » Read more about: Understanding Judicial Review  »

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As of writing, there have now been two published judicial reviews of British Columbia Provincial Nomination Program (“BC PNP“) refusals.  In each case the judicial review was dismissed.

While both cases were very fact specific, some of the key passages were as follows.

Chaudan v. British Columbia (Ministry of Jobs, Tourism and Skills Training), 2016 BCSC 2142

 

This case essentially stands for the proposition that officers can look beyond an offer of employment to determine whether a proposed job offer meets BC PNP program requirements. Justice Bowden wrote:

In determining whether an applicant met the criterion of PNP, if a decision maker relied only upon a future offer of employment, that might well be unreasonable. Not only would that ignore the factor of past employment over a nine month period but also an offer of employment in the future is not an assurance that the criterion will be met.

Raturi v. British Columbia, 2017 BCSC 9

 

In this case Madam Justice E.A. Arnold-Bailey provided a useful summary of existing jurisprudence on provincial nomination judicial reviews. She wrote:

Moving from more general statements of principle to specific cases more closely aligned to the present case, I note that among the cases referred to by the Respondent are Jiang and Baba. Both these cases deal with provincial nominee programs in other provinces, Manitoba and New Brunswick respectively. In neither case was the denied applicant successful.

Jiang was an appeal from an order of the application judge refusing to quash a decision of the Manitoba Provincial Nominee Program for Business (the “Program”). The appellant,

 » Read more about: Judicial Reviews of BC PNP Decisions  »

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Big decision.

The Federal Court has ruled that owning the majority of shares in a company and being president can count as self-employment.

http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/214532/index.do

 » Read more about: Self Employment and the Canadian Experience Class  »

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Last updated on May 25th, 2019

Section 7 of the Canadian Charter of Rights and Freedoms (the “Charter“) provides that:

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.

There have been several Supreme Court of Canada (the “Supreme Court“) and Federal Court of Appeal decisions involving s. 7 of the Charter and Canadian immigration law.

 » Read more about: Section 7 of the Charter and Canadian Immigration Law  »

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The word “continuously” appears in several immigration requirements.  It is not often not defined, and its interpretation has largely been left to immigration officers and the courts.

 

Definitions

Black’s Law Dictionary defines the word “continuously” to mean:

Uninterruptedly; in unbroken sequence; without intermission or cessation; without intervening time; with continuity or continuation.”

The Oxford English Dictionary defines the word “continuously” as being:

“in a continuous manner; uninterruptedly, without a break”.

The Canadian Oxford Dictionary defines “continuous” as meaning “unbroken, uninterrupted.”

Webster’s Third New International Dictionary defines “continuously” as being “in a continuous manner” and “continuous” as “characterized by uninterrupted extension in time or sequence.”

 

Dependent Child Jurisprudence

Much of the jurisprudence on the matter involves the definition of “dependent child” before the Conservative Government of Canada changes in 2014.

Previously, a “dependent child” was defined as:

“dependent child”, in respect of a parent, means a child who

(a) has one of the following relationships with the parent, namely,

(i) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent, or

(ii) is the adopted child of the parent; and

(b) is in one of the following situations of dependency, namely,

(i) is less than 22 years of age and not a spouse or common-law partner,

(ii) has depended substantially on the financial support of the parent since before the age of 22 — or if the child became a spouse or common-law partner before the age of 22, since becoming a spouse or common-law partner — and,

 » Read more about: Was not Continuously Engaged  »

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Towards the end of 2016 the Canadian government made many changes to Canada’s immigration programs.  The parents and grandparents sponsorship program went from being first-come, first-serve to a lottery system, arranged employment through a Labour Market Impact Assessment went from guaranteeing someone an invitation to apply for Canadian permanent residency to only being a factor slightly more significant than the newly introduced factor of Canadian post-secondary education, and Canada lifted the visa requirement against Mexican nationals.

The rate of change will continue to be fast in 2017.  Already, the government has announced that it will lift the visa requirement against Brazil, Bulgaria, and Romania, that it would introduce a work permit program for highly skilled foreign workers, that having relatives in Canada will increase one’s chances of being issued an invitation to apply for permanent residency, and that Canada will ratify the Comprehensive Economic Trade Agreement between Canada and the European Union, which will make it easier for Europeans to work in Canada.

At the same time that the rate of the pace of changes is increasing, the Canadian government has also expanded the number of ways in which it publicizes these announcements.  Many have been introduced through legislative amendments.  Others are simply posted on the Immigration, Refugees and Citizenship Canada (“IRCC”) website, where changes and updates are frequently posted as Program Delivery Updates, Operational Bulletins, Notices, and the IRCC website’s ever growing Help Section.   Often times, there is no formal announcement of a change. Rather, a page on the IRCC website is simply updated.

Given the simultaneous increase in the number of changes and the increase in the ways in which these changes are disseminated to the public, it is perhaps not surprising that on occasion visa officers make decisions which contradict the IRCC website.

 » Read more about: When Visa Officers Contradict the Immigration Website  »

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This is a companion post to my post on excessive demand here. It is more geared to lawyers and other readers of jurisprudence.

 » Read more about: Excessive Demand Jurisprudence  »

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Lorne Sossin is the Dean of Osgoode Hall Law School.   Prior to his appointment, he was a Professor with the Faculty of Law at the University of Toronto. Dean Sossin also serves on the Boards of the National Judicial Institute and the Law Commission of Ontario. He has also acted as Research Director for the Law Society of Upper Canada’s Task Force on the Independence of the Bar.

We discuss three topics. The first is the oversight of CBSA and immigration officers in Canada. How do we ensure that there is political oversight and accountability without politicising the day to day operations and decisions of individual officers? The second topic is a discussion of Charter rights and Charter values in the immigration context.  Finally, we discuss whether it is OK that in Canada individual immigration officers can create an apply their own standards of the law.

A review of what we discussed is as follows:

00:00 – Introduction

00:51 – Steve Meurrens says what one of his favorite things about law school is.

01:14 – Overview of topics

02:55 – The role of federalism in police oversight.

06:30 – Is criminal law local or is it national?

09:09 – What are the mechanisms which limit executive oversight and police accountability in Canada and how can this be balanced for the need to avoid political interference in day-to-day police activity. Who decides on the operational day to day activities of police?

13:30 – Can a cabinet minister issue an edict directing police not to arrest people? For example, the Trudeau government wants to legalize marijuana, so can they just issue an edict stating that arrests should stop.

 » Read more about: Borderlines Episode #11 – Dean Sossin on the tension between ensuring political oversight without politicising officer decision making.  »

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