Extensions of Time and Judicial Review

29th Jan 2021 Comments Off on Extensions of Time and Judicial Review

Last Updated on January 29, 2021 by Steven Meurrens

Section 72(2)(b) of the Immigration and Refugee Protection Act provides that a judicial review shall be filed within 15 days of a matter arising in Canada and 60 days on a matter arising outside of Canada.

Rule 6(2) of the Citizenship, Immigration and Refugee Protection Rules, S.O.R./93‑22 provides that a request for an extension of time shall be determined at the same time, and on the same materials, as the application for leave.

In Singh v. Canada (Citizenship and Immigration), 2021 FC 93, Justice Bell affirmed that extension request determinations should not be left to the judicial review but rather addressed at leave.  He further noted:

Having expressed my opinion regarding the approach to be employed, I will, nonetheless, decide the question of the extension of time. Time limits have a purpose. One of their clear purposes is to ensure evidence does not go stale. Another is undoubtedly, to ensure defendants or respondents can know with some degree of certainty the extent of potential claims outstanding against them. Given these and other considerations, the Courts have developed an objective and balanced approach to when motions for extensions of time will be granted. Generally, the moving party must demonstrate: a) a continuing intention to pursue the application; b) that the application has some merit; c) that no prejudice arises from the delay; and d) that a reasonable explanation for the delay exists. The underlying principle is that justice, according to law, must be done: Grewal v. Canada (Minister of Employment and Immigration), [1985] 2 FC 263 (FCA), 63 N.R. 106; Patel v. Canada (MCI), 2011 FC 670, [2011] F.C.J.

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Refusal to Process a Labour Market Impact Assessment

24th Jan 2021 Comments Off on Refusal to Process a Labour Market Impact Assessment

Last Updated on January 24, 2021 by Steven Meurrens

A Labour Market Impact Assessment (a “LMIA“) is an assessment by the Department of Employment and Social Development Canada (“ESDC“) that the hiring of a foreign worker will have a positive, neutral or negative impact on Canada’s labour market.

An LMIA is often a requirement to hire a foreign worker.

There are certain situations in which ESDC will refuse to issue a LMIA. This effectively precludes employers from utilizing the Temporary Foreign Worker Program (the “TFWP“).

The Sex Industry 

Regulations 183(b.1) and 196.1 of the Immigration and Refugee Protection Regulations (the “IRPR”) provides that temporary residents are prohibited from entering into an employment agreement, or extending the term of an employment agreement, with an employer who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages.

Regulation 200(3)(g.1) of the IRPR further provides that work permits cannot be issued to workers who intend to work for employers who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages.

Because of this, ESDC will not issue LMIAs to employers who regularly offer services in the sex industry (striptease, erotic dance, escort services or erotic massage).

Ineligilibity List

Employers who hire temporary workers may be inspected to make sure  they meet their responsibilities as an employer under the Temporary Foreign Worker Program or International Mobility Program. If an employer is found non-compliant, they can receive either a monetary penalty or a ban from hiring temporary workers for a specified period of time.

As such, ESDC will not issue LMIAs to employers who are on the Immigration, Refugees and Citizenship Canada ineligibility list which includes employers who:

  • have been found non-compliant as result of an employer compliance review
  • have been banned from the Temporary Foreign Worker Program because non-compliance was discovered during an inspection
  • are in default of payment of an administrative monetary penalty.

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Joint Submissions at the Immigration Appeal Division

13th Jan 2021 Comments Off on Joint Submissions at the Immigration Appeal Division

Last updated on September 15th, 2021

Last Updated on September 15, 2021 by Steven Meurrens

It is not uncommon for the Canada Border Services Agency (“CBSA“) to consent to an Immigration Appeal Division (the “IAD”) appeal, and for the applicant and CBSA to make joint submissions.

On occassion, the IAD will not accept the joint submissions.

There are also occassions where the IAD may signal, either expressly or impliedly that a certain matter is not at issue, while it in fact may be or become an issue.

The jurisprudence on this is as follows.

In Velauthar v Canada (Minister of Employment and Immigration), [1992] FCJ No 425 (CA), a panel advised counsel before submissions that the only issue was whether the persecution the claimant feared was based on a Convention ground. This implied that credibility was not in issue, so the parties did not address credibility in their submissions. The Federal Court of Appeal found it to be a “gross denial of natural justice” for the panel to then make an adverse determination on grounds of credibility.”  The Federal Court of Canada has applied Velauthar in cases where a tribunal directly or by implication gave the misleading impression that a matter or issue was resolved.

At the same time, the Federal Court of Canada in Fong v Canada (Public Safety and Emergency Preparedness), 2010 FC 1134, ruled that the IAD is entitled to reject a joint submission so long as it provides reasons for so doing and if hte process was procedurally fair.  However, the IAD must give serious consideration to the joint submission.  Several Federal Court decisions have compared joint submissions at the IAD with joint submissions in criminal sentencing.

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LMIA Working Conditions

12th Jan 2021 Comments Off on LMIA Working Conditions

Last Updated on January 12, 2021 by Steven Meurrens

The Temporary Foreign Worker Manual states the following about working conditions.

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Returning Applications During COVID-19

7th Jan 2021 Comments Off on Returning Applications During COVID-19

Last Updated on January 7, 2021 by Steven Meurrens

During the COVID-19 pandemic Immigration, Refugees and Citizenship Canada (“IRCC”) has implemented numerous policies to try to process applications as normally as possible and also provide applicants who are unable to provide certain documents or meet deadlines with flexibility.  Applicants should know that while IRCC is providing more flexibility than it normally does to incomplete applications that it is still returning applications that are technically incomplete where applicants do not provide an explanation.  The return of these applications sometimes takes months due to pandemic related intake delays at IRCC, and it is very important that applicants submit complete applications.

IRCC’s COVID-19 Policy with Regard to Missing Documentation

Canada’s Immigration and Refugee Protection Regulations provides that IRCC can return applications that are missing mandatory information or documents.

During COVID-19, IRCC’s policies are that new, complete applications will be processed as normally possible.

If a new application is missing supporting documentation or information, then an applicant must include an explanation with their application that they are affected by a service disruption as a result of COVID-19.  IRCC will then essentially put the application aside, and wait for the document to be provided.

If a new application is missing supporting documentation or information, and an applicant has not provided an explanation, or if the reason why the document or information is missing is not related to a disruption of services caused by COVID-19, then IRCC will return the application for being incomplete.

IRCC’s Public Messaging vs. Reality

IRCC officials have stated in public that during COVID-19 they have not returned incomplete applications, but rather contacted applicants to remedy the situation.  On November 25, 2020,

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