The Government of Canada has released its budget for 2013 (“Budget 2013″). Budget 2013 contains several announcements of changes to immigration programs which the Government of Canada will introduce this year, including (my editorial comments in maroon): Providing $42-million in funding to support enhanced program capacity within the Temporary Resident program, and giving the Minister of Citizenship and Immigration Canada (the “Minister“) the ability to set fees in a timely and efficient manner. (Budget 2013 actually refers to the Minister of Citizenship and Immigration Canada as the Minister of Citizenship, Immigration and Multiculturalism. I’m not sure if this means that the Department is about to change its name or if it is a typo.) Providing $44-million in funding over two years to improve the processing of Citizenship applications, and allowing the Minister to set fees in a timely and efficient manner. (This is fantastic. Processing times have ballooned to more than four years in many cases.) Amend the Immigration and Refugee Protection Regulations to restrict the identification of non-official languages as job requirements when hiring through the Temporary Foreign Worker process. (Not sure about this.. in a global economy some positions require fluency in languages other than English or French.) Introduce processing fees for Labour Market … Read More
Understanding the Three Levels of Customs Infractions
When a person has goods (as distinguished from monetary instruments and conveyances seized at customs, the Canada Border Services Agency (“CBSA“) has established three “levels” or “degrees” of breach for the purpose of determining the penalty. These levels are described in Part 5 Chapter 2 of the Customs Enforcement Manual. Level 1 Level 1 applies to violations of lesser culpability. It will be applied where a person’s efforts to hide something from CBSA were initial and effectual. It is generally applied to offences of omission rather than commission. In the context of Non-Report and Inaccurate Information, Level 1 will be applied when: goods are not reported to CBSA or goods are reported to CBSA but inaccurate information is given concerning acquisition, entitlements, or description; the goods are not concealed; and a full disclosure of the true facts concerning the goods is made at the time of discovery. In the context of Undervaluation, Level 1 is applied when: goods are reported for a value less than their actual transaction value but no falsified documents were presented; and full disclosure is made prior to the discovery of documentary evidence. Level 2 Level 2 applies to violations where the circumstances demonstrate that the individual actively attempted to … Read More
Service Canada Regional Reference #6 – Lodge Owners
The document below is Service Canada Regional Reference Material – Reference #6 – Lodge Owners, released on November 14, 2012 (“Reference #6“). Reference #6 provides guidance to Service Canada officers regarding the processing of Labour Market Opinions for partial Owner/Operator Labour Market Opinions where the business is a hunting, fishing, or leisure lodge, camp, or resort. It recommends that officers approve applications where the employment of the partial Owner / Operator results in job creation for Canadians and permanent residents. However, where the employment of the partial Owner / Operator does not result in job creation for Canadians and permanent residents, it recommends refusal. Please note that Reference #6 is a copy of an official work by the Government of Canada which was obtained through an Access to Information and Privacy Act Request, and to my knowledge is not otherwise publicly available. While I believe that Regional Reference #6 is still current, I cannot be assured of this. The reproduction of this document has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.
CBSA Arresting People without a Warrant
On March 15, 2013, the Canada Border Services Agency (“CBSA“) conducted a raid on a construction site in Vancouver. Much of the media attention has focused on the fact that a reality television crew apparently followed the CBSA officers onto the premise. Many have also commented on how surprised they were that the CBSA apparently arrested many foreign nationals without warrants, and wondered whether this was legal. It is. Section 55(2) of the Immigration and Refugee Protection Act (the “Act“) states that: An officer may, without a warrant, arrest and detain a foreign national, other than a protected person, (a) who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); or (b) if the officer is not satisfied of the identity of the foreign national in the course of any procedure under this Act. A foreign national in Canada may be inadmissible for numerous reasons, including if they have remained in Canada beyond the period authorized by their visa, or if they have worked without … Read More
CIC Operational Bulletin 503 – Volunteering on a Farm
Citizenship and Immigration Canada (“CIC“) has released Operational Bulletin 503 – Clarification of Volunteering in Relation to Farm Work (“OB-503“). The Temporary Foreign Worker Manual provides that if a tourist wishes to stay on a family farm and work part time just for room and board for a short period then this is not considered work, and a work permit is not required. Work on a farm that is expected to last beyond four weeks, however, requires a work permit. OB-503 elaborates on this. It specifies that the volunteering on the farm must be incidental to the reason the individual seeks to enter Canada. Farm work cannot be the main reason for entering Canada. An individual must have other plans for the majority of their time in Canada (such as tourism, visiting family, visiting friends, etc.) It also specifies that if the foreign national seeks to volunteer at a commercial farm, than a work permit is required. A commercial farm is a commercial venture undertaken with the expectation of profit. A non-commercial farm generally means a farm where the farm family provides much of the capital and labour for the farm, and where the production of agricultural products is to provide for … Read More
Certified Question on the Standard of Review for Visa Officers Interpreting The Law (Updated March 25, 2013)
The Federal Court has certified what might be the most important (and least discussed) issue in Canadian immigration law. In Qin v. Canada, the Court asked: What standard of review is applicable to a visa officer’s interpretation of the Immigration and Refugee Protection Regulations, SOR/2002-227 and to the officer’s assessment of an application under the Immigration and Refugee Protection Regulations, SOR/2002-227? The answer to this question will have profound implications regarding the certainty applicants can have when they submit applications, and when counsel provide immigration advice. If the answer is the correctness standard, then a visa officer’s interpretation of the law will either be correct or not. If the answer is the reasonableness standard, then the courts will show considerable deference to how individual visa officers interpret the law, and it is possible that many different, acceptable interpretations of the same law will emerge. I have previously blogged on the difficulty that citizenship applicants face when determining what constitutes “residency” for the purpose of meeting the “three years out of four” rule. If the Federal Court of Appeal answers that the reasonableness standard applies to a visa officer’s interpretation of the Regulations, then it is possible that this confusion will spread to other area … Read More
Applying for a Stay of Removal in Superior Court
Generally, if an applicant in Canada whose request to the Canada Border Services Agency to defer removal is unsuccessful, and the individual then wants to obtain a judicial stay of removal, the appropriate forum is the Federal Court of Canada. In Anthonipillai v. Minister of Public Safety and Emergency Preparedness, 2013 ONSC 1231, the appellant unsuccessfully sought a stay of removal in Federal Court. He then took the rather novel approaching of trying again in Ontario Superior Court (the “ONSJ“). In dismissing the application, the ONSJ noted that the Supreme Court of Canada has declared that Canada’s Parliament has created a “comprehensive scheme for the review of immigration matters, with the Federal Court as an effective and appropriate forum.” Justice Goldstein also found that Federal Court judges are better equipped than provincial court justices to deal with the complex area of immigration law, as Federal Court judges deal with immigration issues on a daily basis. As such, unless an applicant raises a constitutional matter, the Federal Court has the exclusive jurisdiction to issue remedies regarding the decisions of visa and border officers. Even where there is a constitutional issue, a provincial or superior court is unlikely to rule favourably with an … Read More
Supreme Court Clarifies Elements of Conspiracy
On March 1, 2013, the Supreme Court of Canada (the “SCC“) in R v. J.F., clarified the elements of the offence of conspiracy. The decision has immigration implications because people who have been convicted of conspiracy may be inadmissible to Canada. Section 465 of Canada’s Criminal Code criminalizes the offence of conspiracy. Conspiracy is a form of inchoate liability. In other words, the actual result of the conspiracy need not occur for someone to be convicted under s. 465. For example, a person can be convicted of “conspiracy to commit murder” even if the murder does not occur. Furthermore, members in a conspiracy need not personally commit, or intend to commit, the offence which each has agreed should be committed. Any degree of assistance in the furtherance of the unlawful object can lead to a finding of membership as long as agreement to a common plan can be inferred and the requisite mental state has been established. Aiding or abetting the formation of an agreement between conspirators amounts to aiding or abetting the principals in the commission of the conspiracy. Party liability is limited, however, to cases where the accused aids or abets the initial formation of the agreement, or aids or abets a new … Read More
New 2013 Federal Skilled Worker Class (Updated – April 18, 2013)
(On August 17, 2012, Citizenship and Immigration Canada (“CIC”) announced that it would be overhauling Canada’s Federal Skilled Worker Class (“FSWC”). Numerous program announcements have been introduced since then. Each time we have revised and updated this blog post. The most recent update was on April 18, 2013.) In brief, the FSWC will now focus on youth and language fluency. It will also require foreigners to have their educational credentials assessed by designated agencies. The Arranged Employment Opinion process is being abolished. The program will continue to feature limits on the number of occupations which can apply, and there will be caps. The revised program will begin accepting applications on May 4, 2013. Eligible Occupations List For those not applying under the Arranged Employment stream or the PhD Stream, applicants must have at least one year of continuous work experience in one of 24 occupations (the “Eligible Occupations Stream”). The Eligible Occupations are: 0211 Engineering managers 1112 Financial and investment analysts 2113 Geoscientists and oceanographers 2131 Civil engineers 2132 Mechanical engineers 2134 Chemical engineers 2143 Mining engineers 2144 Geological engineers 2145 Petroleum engineers 2146 Aerospace engineers 2147 Computer engineers (except software engineers/designers) 2154 Land surveyors 2174 Computer programmers and interactive media … Read More
Spot the Difference
For the past several days the Citizenship and Immigration Canada homepage has featured the following happy trio. These guys are certainly doing well for themselves in Canada. As Stephen Fogarty, a Montreal based Canadian immigration lawyer, noted, they’ve even appeared on dentist advertisements in Quebec.