Intention to Reside and Provincial Nominees

26th Aug 2021 Comments Off on Intention to Reside and Provincial Nominees

Last Updated on August 26, 2021 by Steven Meurrens

Sections 87(1) and (2) of the Immigration and Refugee Protection Regulations provide that:

87 (1) For the purposes of subsection 12(2) of the Act, the provincial nominee class is hereby prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada.

Member of the class

(2) A foreign national is a member of the provincial nominee class if

(a) subject to subsection (5), they are named in a nomination certificate issued by the government of a province under a provincial nomination agreement between that province and the Minister; and

(b) they intend to reside in the province that has nominated them.

In Dhaliwal v. Canada (Citizenship and Immigration), 2016 FC 131, Justice Diner wrote:

The assessment of intention, since it is a highly subjective notion, may take into account all indicia, including past conduct, present circumstances, and future plans, as best as can be ascertained from the available evidence and context. In this case, the Applicant clearly expressed her intention to permanently reside in Brampton, Ontario, as well as her intention to finish her PhD in Quebec, which required continued temporary residence in Quebec. These intentions are not contradictory; rather, they are complementary to one another. As summarized above, she also provided statutory declarations from herself, her parents, and her sister setting out the reasons why she intended to move to Ontario, all in cogent terms, which further buttressed her stated intention to live outside of Quebec.

In Tran v. Canada (Citizenship and Immigration), 2021 FC 721 Justice Ahmed determined that Federal Court of Canada jurisprudence indicates that if a foreign national is nominated by a province under a provincial nomination program that foreign national is presumed to be able to become economically established in Canada.

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Procedural Fairness at the Immigration Appeal Division

20th Aug 2021 Comments Off on Procedural Fairness at the Immigration Appeal Division

Last Updated on August 20, 2021 by Steven Meurrens

One of the leading cases on procedural fairness is Charkaoui v Canada (Minister of Citizenship and Immigration), 2007 SCC 9.  There, the Supreme Court of Canada stated:

Last but not least, a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case. This right is well established in immigration law. The question is whether the procedures “provide an adequate opportunity for [an affected person] to state his case and know the case he has to meet” (Singh, at p. 213). Similarly, in Suresh, the Court held that a person facing deportation to torture under s. 53(1)(b) of the former Immigration Act, R.S.C. 1985, c. I-2, must “[n]ot only . . . be informed of the case to be met . . . [but] also be given an opportunity to challenge the information of the Minister where issues as to its validity arise” (para. 123).

In Therrien v Canada (Attorney General), 2017 FCA 14, the Federal Court of Appeal stated that the the required specificity of the notice provided an affected person is to be determined in light of all of the circumstances including consideration of whether the affected person was in a position to meaningfully respond. Where an interested person is misinformed about the issues, including the statutory provisions in issue, a Court may conclude the interested person was unaware of the case to be met.

In Lv v. Canada (Citizenship and Immigration), stated:

the issue is not so much whether the decision was “correct”, but rather whether,

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C-11 Work Permits

10th Aug 2021 Comments Off on C-11 Work Permits

Last Updated on August 10, 2021 by Steven Meurrens

Immigration, Refugees and Citizenship Canada’s (“IRCC”) International Mobility Program contains Labour Market Impact Assessment (“LMIA”) exemption code C-11, titled Canadian interests – Significant benefit – Entrepreneurs/self-employed candidates seeking to operate a business. The exemption falls under Regulation 205(a) of the Immigration and Refugee Protection Regulations.

According to the IRCC website, the eligibility requirement can be divided into those who seek permanent residence and those who don’t.

For those who seek permanent residence, an applicant must:

  • be an actual or potential provincial nominee undertaking business activities or be a Quebec-destined entrepreneur or self-employed person issued a Quebec Selection Certificate (a “CSQ”); and
  • have a letter of support from the province or territory (this letter of support should count towards evidence that their admission to Canada to operate a business may create significant economic, social or cultural benefit to Canada) or a request from the Ministère de l’Immigration, de la Diversité et de l’Inclusion (MIDI) requesting early entry.

For those who do not seek permanent residence, an applicant must:

  • demonstrate that their admission to Canada to operate their business would generate significant economic, social or cultural benefits or opportunities for Canadian citizens or permanent residents.  Benefits to Canadian clients of a self-employed worker may be considered in this case, particularly if the worker is providing a unique service.;
  • satisfy an officer that they have the ability and willingness to leave Canada at the end of the temporary period authorized; and
  • will have the incentive to depart Canada when their work is complete or the business closes.

Some of the factors in determining whether there will be a significant benefit include:

  • Is the work likely to create a viable business that will benefit Canadian or permanent resident workers or provide economic stimulus?

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H&C Third Country

8th Aug 2021 Comments Off on H&C Third Country

Last Updated on August 8, 2021 by Steven Meurrens

Several Federal Court of Canada decisions affirm that a visa officer’s assessment of humanitarian & compassionate considerations will be unreasonable if the officer assesses hardship on the basis that a foreign national will reside in a country other than their country of citizenship.

In Hermann v. Canada (Citizenship and Immigration), 2014 FC 266, Justice Zinn stated:

I have very serious doubt that in making an H&C assessment an officer can assess hardship on the premise that the applicant relocate to a country other than his country of nationality, regardless of any mobility agreements between countries. If an applicant is in Canada without authorization and is to be removed, Canada cannot remove him to a country other than his country of nationality. Why then should Canada consider any other country when examining hardship to the applicant in a H&C application?

In Abdullah v. Canada (Citizenship and Immigration), 2019 FC 954, Justice McAffie stated:

This Court has held that assessing an H&C application with reference to a country where the applicant has no legal status is an error that renders a decision unreasonable. In Joe (Litigation guardian of) v Canada (Citizenship and Immigration), 2009 FC 116 [Joe], the minor applicant was a citizen of New Zealand, although she had resided in China with her parents, who were Chinese citizens, before coming to Canada. In assessing the H&C application, the immigration officer concluded that the applicant was a Chinese citizen and assessed the hardship that would be faced by her returning to China.

Justice Maurice E. Lagacé found that the applicant did not have legal status in China and that the officer therefore erred in basing his decision on China as the country of reference rather than New Zealand.

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