To qualify for the Self-Employed Class in Canada, applicants must demonstrate at least two years of relevant experience in cultural activities, athletics, or farm management (for applications submitted before March 10, 2018). This experience must fall within the five-year period prior to the application date and extend until a final decision is made on the application for permanent residency. Eligible experience includes either two one-year periods of self-employment in cultural activities, two one-year periods of participation at a world-class level in cultural activities, or a combination of both. Similarly, for athletics, the required experience can be met by either two one-year periods of self-employment in athletics, two one-year periods of participation at a world-class level in athletics, or a combination of both. What is Self-Employment? The Self-Employed Class section of the Immigration, Refugees and Citizenship Canada (“IRCC“) website does not describe what self-employment is. However, the Canadian Experience Class section of the website provides the following: Determining an applicant’s employment status Applicants under the CEC must satisfy a CIC officer that they meet all program requirements [R87.1]. Any period of self-employment shall not be included in calculating the period of qualifying work experience under the CEC [R87.1(3)(b)]. As such, the … Read More
Court Certifies Question on Judicial Review of 117(9)(d) Refusals
The Federal Court (the “Court“) in Habtenkiel v. Canada (Citizenship and Immigration), has certified a question that if answered in the affirmative would seem to pretty much shut the door on humanitarian & compassionate (“H&C“) appeals of s. 117(9)(d) refusals. The certified question is: In light of sections 72(2)(a), 63(1) and 65 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and the case of Somodi v. Canada (Minister of Citizenship and Immigration), 2009 FCA 288 (CanLII), [2010] 4 F.C.R. 26 (F.C.A.), where the applicant has made a family class sponsorship application and requested humanitarian and compassionate considerations within the application, is the applicant precluded from seeking judicial review by the Federal Court before exhausting their right of appeal to the Immigration Appeal Division where the right of appeal is limited pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227? That question is long and confusing, but lets break it down.
C-11 Work Permits
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 … Read More
What Happens After a Judicial Review
The Federal Court of Canada (the “Federal Court“) has the jurisdiction to review immigration decisions, including those of Immigration, Refugees and Citizenship Canada (“IRCC“) and the Canada Border Services Agency (“CBSA“). The Federal Court will not order a specific result. Rather, the Federal Court will order that the application be sent back for re-determination by a different officer. Many people often wonder how that process works. Jurisprudence In Canada (Commissioner of Competition) v. Superior Propane Inc. (C.A.), 2003 FCA 53, the Federal Court of Appeal stated: The principle of stare decisis is, of course, well known to lawyers and judges. Lower courts must follow the law as interpreted by a higher co-ordinate court. They cannot refuse to follow it: Canada Temperance Act (The), Re, 1939 CanLII 58 (ON CA), [1939] O.R. 570 (C.A.), at page 581, affd 1946 CanLII 351 (UK JCPC), [1946] 2 D.L.R. 1 (P.C.); Woods v. The King, 1951 CanLII 36 (SCC), [1951] S.C.R. 504, at page 515. This principle applies equally to tribunals having to follow the directions of a higher court as in this case. On redetermination, the duty of a tribunal is to follow the directions of the reviewing court. In Canada (Citizenship and … Read More
Visiting Canada? How to fill out a successful temporary visa application
In recent years, more than one million people annually have been applying for visitor visas to visit Canada. Several hundred thousand more apply for work permits or study permits each year. Immigration, Refugees and Citizenship Canada will refuse around 20 per cent of these applications, sending a generic refusal letter, providing vague reasons off a checklist. What most refused applicants don’t realize is that behind these decisions are additional, often very detailed reasons that aren’t provided in the refusal letter. These internal reasons can range from a few short sentences, to sometimes even more than a page of reasoning that IRCC does not share with the applicant. It is important for refused applicants to apply for and obtain the full internal reasons for IRCC’s refusal of their application before they try to reapply. (Learn how at canadianimmigrant.ca/immigrate “Application refused? What CIC states in refusal letters is not the whole story.”) It is also important to understand the numerous factors that visa officers consider when assessing temporary residency applications to determine whether someone will leave Canada by the end of their authorized stay. By knowing what these factors are, applicants can maximize the likelihood of successfully assembling a strong visa application. … Read More
Open Spousal Work Permits
In a previous blog post I wrote about how Immigration, Refugees and Citizenship Canada (“IRCC”) was increasingly focusing on genuineness in open spousal work permits. On September 27, 2021 IRCC updated its webpage to reform the open spousal work permit program.
Study Permit Financial Sufficiency
The Immigration, Refugees and Citizenship Canada Guidelines state: Students are required to demonstrate financial sufficiency for only the first year of studies, regardless of the duration of the course or program of studies in which they are enrolled. In other words, a single student entering a four-year degree program with an annual tuition fee of $15,000 must demonstrate funds of $15,000 to satisfy the requirements, and not the full $60,000 which would be required for four years. Officers should be satisfied however that the probability of funding for future years does exist (i.e., parents are employed); scholarship is for more than one year. Applications for extensions made to CPC-E must also meet this requirement. In assessing the adequacy of a student’s financial resources, officers may exercise discretion in the documentation they request from applicants. In situations where student applicants generally pose a very low risk regarding funds, officers may choose to limit or waive routine requirements for documentary evidence. Low-risk applicants are more likely to be exempted from the requirement to obtain a temporary resident visa. Based on the known incidence of indigent and non-bona fide applicants, reliability of financial documentation, and so forth, individual visa offices are best placed … Read More
Buying a Business that Has Foreign Workers
As an increasing number of Canadian employers employ foreign workers, and the Government of Canada is taking an increasingly strict approach in enforcing the rules regulating the employment of foreign workers, the issue of how companies can protect themselves when they buy companies that employ foreign workers is becoming increasingly significant. As well, as explained in detail on the Immigration, Refugees and Citizenship Canada (“IRCC”) website, corporate restructurings, mergers and acquisitions may themselves trigger work permit-related issues for employer compliance. It is accordingly important for all companies that are considering merging with or acquiring another company to consider whether (a) the transaction will result in the need for new work permits for existing employees and (b) whether the company that will be employing these foreign workers will become liable for any non-compliance of the previous entity. Understanding the “Successor in Interest” Concept While the IRCC website is clear that employers become responsible for compliance post restructuring, merger or acquisition, the issue of whether the new employers become liable for previous non-compliance is more nuanced, and depends on whether the new employer has become the “successor in interest” for the portion of the organization where the temporary foreign workers were employed. … Read More
Addressing Newfoundland Nurses
On December 15, 2011 the Supreme Court of Canada (“Supreme Court“) issues its decision in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 (“Newfounland Nurses“). In Newfoundland Nurses, the Supreme Court essentially abolished “adequacy of reasons” as a stand-alone ground for judicial review. Rather, the Supreme Court stated that an officer’s reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. The Supreme Court further stated that (citations removed for ease of reading): Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion. In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. The fact that there may be an alternative interpretation of the agreement to that provided by … Read More
Flagpoling
“Flagpoling,” also known as “sidedooring,” are terms which describe the process of individuals who are inside Canada travelling briefly to the United States and then upon re-entry to Canada submitting an application at a Canadian port of entry (“POE“). For most individuals who are eligible to flag-pole it is the preferred method to obtain study permits, work permits, and to have their Confirmations of Permanent Residence signed. The reason is because it typically takes a Canada Border Services Agency (“CBSA“) officer less than 30 minutes to process an application, whereas it can take Immigration, Refugees and Citizenship Canada (“IRCC“) weeks or months to either process an application or schedule a landing interview. Who Can Flag-Pole (Work Permits) In the work permit context, regulation 198 of the Immigration and Refugee Protection Regulations (“IRPR”) provides that: (1) Subject to subsection (2), a foreign national may apply for a work permit when entering Canada if the foreign national is exempt under Division 5 of Part 9 from the requirement to obtain a temporary resident visa. Exceptions (2) A foreign national may not apply for a work permit when entering Canada if (a) a determination under section 203 is required, unless (i) the Department of Employment and … Read More