As per the Supreme Court of Canada decision in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61, an applicant for relief under s. 25 of the Immigration and Refugee Act must establish humanitarian & compassionate circumstances (“H&C”) that “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another.” In assessing whether such circumstances exist in any given case, it is important to keep in mind that s. 25 was enacted to address situations in which the consequences of deportation “might fall with much more force on some persons … than on others, because of their particular circumstances …” Consequently, it is not sufficient to simply establish the existence or likely existence of misfortunes, relative to Canadian citizens and permanent residents of Canada. Rather, it is incumbent upon applicants for the exceptional relief contemplated by s. 25 to demonstrate the existence of misfortunes or other circumstances that, taken as a whole, resonate with materially greater force, “relative to those of other applicants who apply for permanent residence from within Canada or abroad. In assessing whether an applicant has established sufficient H&C considerations to warrant a favourable exercise of discretion under s. 25 of … Read More
The Safe Third Country Agreement
Section 103(2) of the Immigration and Refugee Protection Act (the “IRPA”) states that the Government of Canada can designate countries that it determines comply with international standards relating to the treatment of refugees as safe third countries. Section 101(1)(e) further states that refugee claimaints coming to Canada from these designated safe third countries cannot have their asylum claims heard in Canada. Regulation 159.3 of the Immigration and Refugee Protection Regulations (the (“IRPR”) designates the United States as being a safe third party. The Safe Third Country Concept Under the safe third country concept in refugee law, claims for asylum may be rejected on the basis that the claimant should have sought protection in a country other than where the claim was made. An underlying objective of this concept is to deter asylum shopping. The Safe Third Country Agreement The Agreement between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries (the “Safe Third Country Agreement”) came into effect on December 29, 2004. The Safe Third Country Agreement contains several objectives, including the orderly handling of asylum applications, ehanced burden sharing and avoiding the direct or indirect … Read More
IRCC Increasing Processing Fees
Immigration, Refugees and Citizenship Canada is increasing processing fees. Starting in 2020-21, permanent resident processing fees for Economic class applicants increase as follows: Fees for principal applicants of the Economic business class (including self-employed, start-up visa, Quebec investor, Quebec entrepreneur, and Quebec self-employed) will increase from $1,050 to $1,575 (an increase of 50%). Fees for principal applicants of the Economic non-business class will go from $550 to $825 (an increase of 50%). Note: this increase will not apply to fees for principal applicants and their families in the Caregivers programs, which will remain unchanged. Fees for spouses or common-law partners of all Economic classes will go from $550 to $825 (an increase of 50%). Fees for dependent children of all Economic classes will go from $150 to $225 (an increase of 50%). The right of permanent resident fee will increase from $490 to $500 (an increase of 2%). Starting in 2022-2023, on the day of the two-year anniversary of the coming into force of these Regulations and every two years thereafter, selected permanent resident processing fees will be increased every two years by the applicable Consumer Price Index (CPI) increase, rounded to the nearest $5. The approximation assumption being that … Read More
Home Child-Care Provider Pilot and Home Support Worker Pilot
On June 18, 2019 Canada launched the Home Child-Care Provider Pilot and Home Support Worker Pilot. The Home Child-Care Provider Pilot and Home Support Worker Pilot are 2 economic pilot programs targeted to foreign national caregivers who: have a job offer or Canadian work experience in an eligible caregiver occupation; and meet minimum education and language proficiency requirements. The ability to be a foreign caregiver in Canada has largely been restricted to these two programs as the Department of Employment and Social Development Canada has issued Ministerial Instructions refusing to process Labour Market Impact Assessments for caregivers. Application Caps A maximum of 2,750 complete applications will be processed per year in each pilot. Applicants with 24 Months or more of Eligible Experience Applicants with 24 months or more of eligible Canadian work experience must satisfy the following criteria: meet the minimum language requirements of Canadian Language Benchmark 5 in Listening, Reading, Speaking and Writing; meet the minimum education requirements of having either a Canadian one-year post secondary (or higher) educational credential or a foreign educational credential that is equivalent to a completed one-year Canadian post-secondary (or higher) educational credential; meet the work experience requirement; and be admissible to Canada. Eligible … Read More
The Student Direct Stream (SDS)
On May 2, 2019 Immigration, Refugees and Citizenship Canada (“IRCC”) unveiled the Student Direct Stream (the “SDS”), an expedited study permit processing program initially available to legal residents of India, China, Philippines and Vietnam. Eligibility Before May 2023 To be eligible for the SDS, an applicant must: be a legal resident of India, China, Philippines and Vietnam; provide proof of a valid language test result, completed within 2 years of the date of the SDS application, showing an IELTS score of 6.0 or higher in each language skill, or a TEF score that is equivalent to Canadian Language Benchmark 7; provide proof of a Guaranteed Investment Certificate “GIC” of CAN $10,000.00 or more issued from any bank that is insured by the Canadian Deposit Insurance Corporation (“CDIC”) or any bank listed on the IRCC SDS webpage; provide proof of full payment of tuition for their first year of study; provide a letter of acceptance to a Designated Learning Institute (a “DLI”); complete an upfront medical exam. The GIC must meet the following criteria: when the GIC has been purchased, the bank provides a letter of attestation, the GIC certificate, the Investment Directions Confirmation or the Investment Balance Confirmation to the … Read More
Inadmissibility for Acts of Violence that Would or Might Endanger the Lives or Safety of Persons in Canada
People who immigrate to Canada are typically aware that if they are convicted of certain criminal offences that they could lose their permanent resident status. When immigrants are charged with criminal offences, immigration lawyers and criminal defense counsel will accordingly often work together to do their best to ensure that those charged do not lead to deportations. It is therefore important to note that the Canada Border Services Agency has recently taken an exceptionally strict approach to interpreting Canadian immigration legislation which could fundamentally change the immigration consequences of violent actions in Canada. The issue is now before the Federal Court of Canada. The Consequences of Criminal Records Canadian immigration legislation provides that a permanent resident is inadmissible to Canada on grounds of serious criminality if they have been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least ten years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed. The first thing to note about the above is that a conviction is required. A conviction is a finding by a Canadian court that a … Read More
The Bangladesh Nationalist Party
According to the CBSA, between January 1, 2015 and June 30, 2016 Bangladesh became the top source country for individuals found inadmissible to Canada under IRPA s. 34. The issue involves membership in the Bangladesh Nationalist Party (the “BNP“) or its main political ally, the Jamaat-e-Islami (“Jamaat“). While not designated by Public Safety Canada as terrorist entities, some members of the BNP and Jamaat, through, have, according to CBSA, shown that they qualify as being a member of an organisation that there are reasonable grounds to believe engages, has engaged in or will engage in acts or instigate the subversion by force of a government or terrorism. The BNP According to Wikipedia, the BNP is one of the contemporary political parties of Bangladesh. It was founded on 1 September 1978 by former Bangladesh President Ziaur Rahman after the Presidential election of 1978, with a view to uniting the people with nationalist ideology of the country. The party holds the ideology of Bangladeshi nationalism as its core concept and adopted a 19-point program which declared that “The sovereignty and independence of Bangladesh, golden fruits of the historic liberation struggle, is our sacred trust and inviolable right”. The founding manifesto of the … Read More
LMIAs – Mergers & Acquisitions
Where there is a corporate restructuring, merger or acquisition, the holder of a Labour Market Impact Assessment (an “LMIA”) should contact the Department of Employment and Social Development Canada (“ESDC”) to inform them of the change. Whether a new LMIA will be required will depend on a variety of factors, including whether the corporate restructuring, merger or acquisition impacts the prevailing wage, job description and job duties of a foreign worker. As per the internal ESDC wiki, reproduced below, in cases where employer’s responsibilities are transferred to a different employer through a merger or acquisition, both the original and successor employer must provide details on when the responsibilities of the employer were transferred, and the successor must agree (and acknowledge in writing) to all conditions set out in the original LMIA. Generally, a new LMIA would not be required. A new LMIA would be required if the acquisition resulted in changes to the job duties or description. In addition, if the officer has serious concerns regarding the genuineness of the new employer, they may require the new employer to submit a new LMIA application and pay the required fees. Further guidance can be found here:
LMIA Language Requirements
The application for a Labour Market Impact Assessment (“LMIA”) asks: Employers should generally be counselled against stating that an offer of employment requires the ability to communicate in a language other than English or French.
The IRCC Call Center
Immigration, Refugees and Citizenship Canada (“IRCC“) has a call-center to provide customer service. The information is here: Telephone: 1-888-242-2100 (in Canada only) Automated telephone service (available 24 hours a day, 7 days a week) If you have a touch-tone telephone, you can listen to pre-recorded information about our programs, and check the status of your application. Client Support Centre agents – Monday to Friday, 8 a.m. to 4 p.m., your local time, except for statutory holidays. Services are available in French and English. Agents can help you with general and case specific enquiries. They cannot: make decisions on applications help process applications faster, unless you meet the criteria for urgent processing Relying on the Call Center In Ni v. Canada (Citizenship and Immigration), 2014 FC 725, the IRCC call-center instructed an applicant to provide a certain document, and made a representation that this would result in the approval of the application. The applicant did just that, and the application was refused. Justice Brown wrote: … the failure of justice in this case arises solely from the Applicant following CIC’s instructions. Therefore, as between these two parties, responsibility must fall on the party who directed the erroneous course of conduct, which is in this case is CIC … Read More