Canadian work experience that is volunteer does not typically count towards immigration. Regulation 73(2) of the Immigration and Refugee Protection Regulations states that for the purposes of this Division, work means an activity for which wages are paid or commission is earned. The Division includes the Federal Skilled Worker Class, the Canadian Experience Class, the Federal Skilled Trades Class and the Provincial Nominee Class. The reason is that economic classes are designed to determine whether an applicant can become economically established.
Renouncing Permanent Resident Status
Prior to November 21, 2014, there was no formal way for permanent residents to voluntarily renounce their permanent resident status in Canada. Incredibly, permanent residents who wanted to voluntarily relinquish their status had to generally first be declared inadmissible to Canada by Immigration, Refugees and Citizenship Canada (“IRCC”). This changed in 2014, and the ability to formally relinquish permanent resident status will benefit numerous individuals. As the IRCC website states: In some cases, permanent residents know that they failed to meet the residency obligation and have no desire to remain in Canada as permanent residents, but they wish to visit Canada without being reported for non-compliance with respect to their residency requirements. In other cases, individuals may be required to provide proof that they have given up Canadian permanent resident status in order to obtain benefits from their country of origin or a third country, such as accepting a diplomatic posting, renewing civil documents (national identity cards, health or pension coverage, etc.) or entering military service.
Res Judicata
Res judicata is a legal principle which means “a matter already judged.” Pursuant to the Supreme Court of Canada’s decision in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, there is a three part test for determining whether res judicata applies, as follows: the same question has been decided earlier in the proceedings; the prior decision that is said to create the estoppen must have been final; and the parties (or their representatives) to the prior decision must be the same as the parties to the proceedings in which the doctrine of issue estoppel is being raised. In Penner v Niagara (Regional Police Services Board), 2013 SCC 19, the Supreme Court further held that even if the pre-conditions are met there is a residual discretion to not apply the doctrine where it is in the interests of justice to deal with the matter on its merits as well as where there is decisive new evidence that was not previously available. When stating the test it is important to note that issue estoppel is trigerred when the same issue is being re-litigated regardless of whether or not the same facts are before the decision-maker. New evidence is relevant to the second step … Read More
Labour Market Impact Assessments – Recruitment Requirements
Employers wishing to apply for Labour Market Impact Assessments are required to conduct recruitment efforts to hire Canadian citizens and permanent residents. The Department of Economic and Social Development (“ESDC” or “Service Canada“) is very stringent in its recruitment requirements, many of which are not publicly available. In this blog post I seek to provide a comprehensive overview of Service Canada’s recruitment requirements, including providing a summary of the publicly available information on the Service Canada website, as well as summarizing and reproducing internal ESDC directives. I would like to thank Jacobus Kriek, an immigration consultant with Matrixvisa Inc., for providing me copies of the internal Service Canada directives and e-mails that he has obtained. Please note that what I have reproduced below should not be viewed as legal advice by ESDC or Service Canada. The reproduction of the material below has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. As well, given the nature of relying on internal documents, some of the information may be out of date.
Applications for Extension of Authorization to Remain in Canada as a Temporary Resident
Regulation 181(1) of the Immigration and Refugee Protection Regulations provides that a foreign national may apply for an extension of their authorization to remain in Canada as a temporary resident if: the application is made by the end of the period authorized for their stay; and they ahve complied with conditions imposed on their entry to Canada. Regulation 181(2) further states that an officer shall extend the foreign national’s authorization to remain in Canada as a temporary resident if it is established that the foreign national will leave Canada by the end of the period authorized for their stay, holds a passport and is not inadmissible to Canada. Factors There are many factors that immigration officers will consider in assessing whether to extend someone’s status in Canada. These include: What is the individual doing in Canada? How long has the individual been in Canada? How long is the extension request for? Do they have a valid job offer? If so, are they able to perform the work? What activities has the individual done during their time in Canada? Are they earning enough to support themselves? Can someone else provide adequate support? Does the individual have the means and ability to either … Read More
Genuineness and Primary Purpose – The Disjunctive Test – Section 4(1) of the Regulations
Regulation 4(1) of the Immigration and Refugee Protection Regulations (“IRPR“) state that: 4. (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership (a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or (b) is not genuine. The primary purpose test and the genuineness test are determined with respect to different time-frames. As the Federal Court noted in Idrizi v. Canada (Citizenship and Immigration), 2019 FC 1187 The relevant time for the primary purpose test is in the past (i.e. the time of the marriage); the relevant time for the genuineness test is the present (i.e. the time of the decision). Evidence that a marriage is not genuine can support the inference that it was entered into primarily for an immigration purpose. The converse is also true. these determinations can be exceedingly difficult. Officers must “proceed cautiously and carefully, ever aware of the need to facilitate family reunification, while at the same time safeguarding the integrity of the immigration process” (at 1944). There will rarely be direct evidence of an improper purpose. Instead, normally … Read More
Temporary Resident Permits (Pre June 28, 2019)
People who do not meet the requirements of the Immigration and Refugee Protection Act (the “IRPA“), and most commonly people who are criminally inadmissible to Canada and who are not eligible to apply for rehabilitation, require Temporary Resident Permits (“TRPs“) in order to enter or remain in Canada.
When an Administrative Delay is an Abuse of Process
The subject unreasonable delays often arise in the immigration context. In one case that I was previously involved with, an individual was in Canada for 11-years before the Canada Border Services Agency expressed concerns that he might be inadmissible to Canada for previous involvement in a group accused of terrorism. In another case, an individual who had been in and out of Canada numerous times was suddenly denied entry to Canada because of a criminal conviction that occurred eight years ago. In both cases, the client asked whether the delay amounted to an abuse of process, and if so, what the remedy was. As the Federal Court of Appeal noted in Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, the Federal Court of Canada has the jurisdiction to issue a permanent stay of proceedings, and less drastic measures, as a result of an abuse of process. It is less clear whether the Immigration and Refugee Board can issue stays of proceeding for delays. In Canada (Public Safety and Emergency Preparedness) v. Najafi, 2019 FC 594, Associate Chief Justice Gagné held that it does, but certified the following question: Do the Immigration Division and the Immigration Appeal Division of the Immigration and Refugee … Read More
Suspending Citizenship Applications Due to Cessation Hearings
Until recently, the Government of Canada adopted a very aggressive approach regarding the initiation of cessation applications against permanent residents who are protected persons. The reason is because since 2012 people who lose their protected person status for any of the following reasons also lose their permanent resident status: the person has voluntarily re-availed himself or herself of the protection of their country of nationality; the person has voluntarily reacquired their nationality; the person has acquired a new nationality and enjoys the protection of that new nationality; and the person has voluntarily become re-established in the country that the person left before claiming refugee status in Canada. Several permanent residents with citizenship applications in processing have been affected by cessation applications. In Godinez Ovalle v. Canada (Citizenship and Immigration), the Federal Court rather bluntly told both Immigration, Refugees and Citizenship Canada (“IRCC“) and the Canada Border Services Agency (“CBSA“) that they were out of line, and even called their approach “inhumane.” Ultimately, however, the Federal Court of Appeal in 2017 determined that IRCC can indeed suspend the processing of citizenship applications while cessation proceedings are underway.
Borderlines Podcast #29 – Immigration Detention and Habeas Corpus, with Molly Joeck and Erica Olmstead
Molly Joeck and Erica Olmstead are lawyers with Edelmann & Co. They, along with Peter Edelmann, acted for the Canadian Council for Refugees as interveners before the Supreme Court of Canada in Canada (Public Safety and Emergency Preparedness) v. Chhina. In Chhina the issue before the Supreme Court was whether immigrant detainees have access to habeas corpus. We discuss Chhina, how immigration detention works in Canada, habeas corpus and issues going forward. 2:20 – Why would someone be detained in Canada for immigration reasons? 3:50 – In the federal detention review system who decides if an immigrant should be detained? What is the Immigration Division? 4:30 – How often would an immigrant who is detained have their detention reviewed? 5:30 – What are some issues arising with long term detention? 12:20 – Is there a difference in the issues that arise in long term detention in Ontario as opposed to British Columbia? 18:00 – Is an immigrant refusing to assist with removal by not getting a passport grounds for detention? 24:30 – What is habeas corpus? 27:30 – Why would someone in immigration detention want access to habeas corpus? 30:30 – Why is habeas corpus an alternative to federal court … Read More