Section 63(2) of the Immigration and Refugee Protection Act (“IRPA“) provides that: A foreign national who holds a permanent resident visa may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing. The jurisprudence around this section has seemingly been to narrow it. Jurisprudence Ismail v. Canada On June 5, 2015, the appellants in Elham Fathy Elsayed Ismail et al v. Minister of Citizenship and Immigration, A-203-15, discontinued their appeal of the Federal Court’s decision in Ismail v. Canada (Citizenship and Immigration), 2015 FC 338 (“Ismail“). That question was: For the purposes of determining its jurisdiction to hear an appeal pursuant to subsection 63(2) of the IRPA, shall the validity of the permanent resident visa be assessed by the IAD at the time of arrival in Canada or at the time the exclusion order is made? The question is important because it addresses a growing tendency of the Canada Border Services Agency (“CBSA“) to defer the examination of foreign nationals possessing permanent resident visas seeking to become permanent residents where CBSA suspects that the foreign nationals may not be admissible to Canada, rather than preparing an inadmissibility report. During … Read More
Working without a work permit: what jobs can a visitor do in Canada?
The following is an article that I recent wrote for The Canadian Immigrant: It is generally understood that visitors to Canada cannot work without work permits. The consequences for doing so can include removal from Canada, being unable to apply for work permits for six months, year-long prohibitions on returning to Canada and even possible criminal sanctions for employers. Canadian immigration legislation defines “work” broadly. It includes any activities for which wages are paid or commission is earned, and any activity that competes directly with the activities of Canadian citizens or permanent residents in the Canadian labour market. Because of this, volunteer work, unpaid internships and practicums may also require work permits. However, while the definition of what constitutes work is broad, there are many activities that people would generally consider work that do not require work permits. Remote work In our increasingly globalized and digitized world, perhaps the most important work permit exemption is for remote work. Canada’s immigration department allows visitors to Canada to perform long-distance (by telephone or internet) work if their employer is outside Canada and they are remunerated from outside Canada. As such, many people who work remotely for companies abroad are able to reside … Read More
Inadmissible for Crimes Against Humanity
Section 35 of the Immigration and Refugee Protection Act (the “IRPA“) provides that: Human or international rights violations 35 (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for (a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act; (b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act; or (c) being a person, other than a permanent resident, whose entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a country against which Canada has imposed or has agreed to impose sanctions in concert with that organization or association. Internal Guideline Immigration, Refugees and Citizenship Canada (“IRCC“) has produced a useful internal document … Read More
The Parent & Grandparent Sponsorship Program
Under the Parent & Grandparent Sponsorship Program (the “PGP“), Canadian citizens and permanent residents can sponsor their foreign national parents and grandparents. Sponsors must sign an undertaking with the Minister of Citizenship and Immigration (“IRCC“) or with the Ministère de l’Immigration, de la Diversité et de l’Inclusion for those in Quebec. The undertaking ensures that the sponsored individuals and their family members do not have to apply for social assistance. The length of undertaking in the PGP is 20 years. As per the IRCC website, sponsors must: be 18 years of age or older; be a Canadian citizen, Registered Indian or permanent resident; be sponsoring their parents or grandparents; live in Canada; sign an undertaking promising to provide for the basic requirements of the person being sponsored; sign an agreement with the person theyare sponsoring; and prove that they have sufficient income. Co-signers are permissible. Exclusions A Canadian citizen or permanent resident cannot be a sponsor if they: are in receipt of social assistance for a reason other than disability; are in default of an undertaking, an immigration loan, a performance bond, or family support payments; are an undischarged bankrupt; were convicted of an offence of a sexual nature, a violent criminal offence, an … Read More
Inadmissibility for Being a Danger to Canada
Section 34(1)(d) of the Immigration and Refugee Protection Act (the “IRPA”) provides that a permanent resident or a foreign national is inadmissible on security grounds for being a danger to the security of Canada. Standard of Proof Section 33 of the IRPA provides that the facts which can give rise to an inadmissibility under IRPA s. 34(1)(d) include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. In Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, the Supreme Court of Canada stated that the “reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities and that reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information. Requirements In Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, the Supreme Court stated: While the phrase “danger to the security of Canada” must be interpreted flexibly, and while courts need not insist on direct proof that the danger targets Canada specifically, … Read More
Maintained (Implied) Status – What It is, and What Changed Recently
Maintained (previously known as implied) status is perhaps one of the most misunderstood concepts of Canada’s immigration system. Many mistakenly question its legality. Others fail to appreciate its unique requirements, and abruptly find themselves without status. Recent procedural changes and court decisions in Canada have only added to the confusion. Implied Status Regulations 183(5), 186(u), and 189 of the Immigration and Refugee Protection Regulations (“IRPR”) provide the legal basis for implied status. In brief, if a foreign worker, international student, or visitor files an application to extend his (or her) status in Canada, then he may remain in Canada on the terms of his original status until Immigration, Refugees and Citizenship Canada (“IRCC”) makes a decision on his extension application. Accordingly, a foreign worker can continue to work, an international student can continue to study, and a visitor can continue to reside in Canada during IRCC’s processing of the extension application. Considering that as of writing visitor, worker, and student extension applications took IRCC 75, 60, and 42 days respectively to process, the extra time that implied status can allow an individual to carry on with his life in Canada can be significant. In order to take advantage of maintained … Read More
Responsibility for Missed E-mail Communication
Who bears the risks when e-mail notices are sent by a visa officer but are not received by the applicant’s agent?
The National Occupational Classification System
Canada’s immigration system heavily relies on the National Occupational Classification (“NOC”) system, managed by Service Canada. For applicants in the economic class, a deep understanding of the NOC system is crucial. The success of their immigration applications often hinges on proving they have qualifying experience or pre-arranged employment in specific NOC categories. Employers submitting Labour Market Impact Assessment (“LMIAs”) applications to the Ministry of Economic and Social Development Canada (“ESDC“) need to know which NOCs their positions fall under because this will determine the respective prevailing wage and recruitment requirements. Moreover, international graduates should be mindful of the NOC classification of their first job after completing post-secondary education. Experience in certain NOCs is essential for it to count towards immigration eligibility.
The Super Visa
Parents and grandparents of Canadian citizens and permanent residents can apply for two types of Temporary Resident Visas to visit their relatives in Canada. The first is a standard, multiple-entry visa. The second is what is known as a Super Visa. A normal Temporary Resident Visa generally is a multiple entry-visa valid for the duration of an applicant’s passport, or 10 years, whichever is shorter. Unless the Canada Border Services Agency authorizes indicates, it allows applicants to stay in Canada for up to six months without having to apply to extend their temporary resident status. A Super Visa is also valid for up to 10 years, or the duration of the applicant’s passport, whichever is shorter. It allows parents and grandparents to stay in Canada for up to two years without having to renew their status. Parents and grandparents who are from visa-exempt countries can also apply for Super Visas in order to receive Letters of Introduction that will allow them to stay in Canada for up to two years without having to renew their status. It is important to note that the two year entry only applies to the initial stay. A parents or grandparent is eligible for a Super … Read More
The Start-Up Business Class
On April 11, 2018, regulations for the Start-Up Business Class (the “Start-Up Business Class”) came into effect. The regulations slightly modify the program that has been in effect since April 1, 2013. Both applicants as well as designated entities should be aware of the changes.