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
The Canadian Experience Class
The following is an e-mail exchange between an immigration representative and Immigration, Refugees and Citizenship Canada regarding the Canadian Experience Class (the “CEC“). The Canadian Experience Class allows individuals with one-year skilled work experience in Canada to apply to immigrate. As with any program, questions emerged regarding specific requirements, including whether work in Canada for a foreign employer count towards the one-year requirement. Please note that what I have reproduced below should not be viewed as legal advice. The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. Question – May 28, 2013 Dear Sir / Madam, I was wondering if you might be able to provide some guidance regarding a CEC application. I have a client (foreign worker) who has a valid work permit (initially under C10 and then with supporting LMO) where the employer is a foreign company but does not have any operations in Canada. The foreign employer is hoping to open up an office in ____ but in the meantime, has the foreign worker attending various client business meetings pitching for potential engagements of the foreign company and providing some … Read More
Canada to Track Exits
By the end of 2020 Canada’s system of tracking the exit of people from the country is going to look very different from now. Regulations are expected to come into force by June 2019 for land and June 2020 for air. Current System Under Canada’s immigration and customs laws, all persons seeking to enter the country are required to present themselves at a port of entry and answer all Canada Border Services Agency questions truthfully. Entry information is thus collected on all travellers who lawfully enter the country. However, the Government of Canada currently does not have access to reliable exit information on all persons leaving Canada. As a result, it cannot easily determine who is inside or outside the country at any given time, nor can it easily determine when someone left the country. An exception to this is that since June 2013 the CBSA has exchanged biographic entry records for foreign nationals and permanent residents through an information-sharing arrangement with the United States, such that an entry into one country confirms the departure from the other. However, it does not obtain de-facto exit information on Canadian citizens. The Future People who are exiting Canada will not need to … Read More
The Citizenship Test
All applicants for Canadian citizenship between 18 and 54 years of age are required to take the Citizenship Test. The citizenship test is generally the final step before the citizenship ceremony. Discover Canada The Citizenship Test assess an applicant’s knowledge of Canada and the responsibilities and privileges of Canadian citizenship. All questions are based on Immigration, Refugees and Citizenship Canada’s (“IRCC”) Discover Canada, which can be read on IRCC’s website here. Discover Canada’s Table of Contents shows that it consists of the following chapters: Notice – Third-party citizenship study guides, tests and questions The Oath of Citizenship Message to Our Readers Applying for Citizenship Rights and Responsibilities of Citizenship Who We Are Canada’s History Modern Canada How Canadians Govern Themselves Federal Elections The Justice System Canadian Symbols Canada’s Economy Canada’s Regions Study Questions For More Information and acknowledgements Authorities Memorable Quotes Retesting Applicants who Fail the Citizenship Test Failing the citizenship test does not result in the automatic refusal of a citizenship application. If someone fails the Canadian citizenship test, they will typically be given a second opportunity to retake the test. Citizenship applicants are allowed to retake the test within a few weeks of the initial attempt. If they … Read More
Options to Restore Status
There are many ways that people who come to Canada legally can suddenly find themselves inside Canada without valid status. Some may simply forget to submit applications to extend their status prior to the end of the period of their authorized stay. Others may submit their extension applications on time only to have Immigration, Refugees and Citizenship Canada (“IRCC”) later refuse or reject their applications for being incomplete, leaving them without status in Canada. While Canadian immigration law provides such foreign nationals with some options to regain valid temporary resident status in Canada, it is important that people understand the risks associated with each. Leaving Canada and Re-Entering The first, and arguably the riskiest, way that a foreign national can regain legal status in Canada is to exit Canada and re-enter. Anyone who does this will need to satisfy the Canada Border Services Agency (“CBSA”) that they will leave Canada by the end of their authorized stay, which can sometimes be tricky if the person has previous overstayed. As well, if the foreign national wants to work or study, then they will need to demonstrate to CBSA that they are eligible to do so. Restoration of Status For many, exiting … Read More
Memorandums to the Minister
In this post are various Memorandums to the Minister.
Missing Deadlines
When applying for Canadian immigration, whether it’s for permanent residency, a work permit, or another visa category, one of the most critical aspects of the process is adhering to deadlines set by Immigration, Refugees, and Citizenship Canada (“IRCC“). Missing a deadline can have serious consequences, including delays, application rejections, or even being barred from applying again for a certain period. Here’s why meeting these deadlines is crucial to the success of your immigration application. Avoiding Application Rejections IRCC enforces strict deadlines to ensure that applications move through the process efficiently. Failing to submit required documents or information on time could result in the rejection of your application as incomplete. Once an application is rejected, the entire process must be restarted, which can cost time, money, and opportunity. For example, submitting your proof of funds, police certificates, or medical exams after the deadline may lead to IRCC refusing your application, regardless of how strong your case is otherwise. Even a simple oversight can have significant consequences. Preventing Unnecessary Delays Submitting everything before the deadline ensures that your application progresses without delays. Any delay on your part can cause IRCC to pause your application while waiting for missing information. The Canadian immigration … Read More
Where Should You Apply for a Work Permit
Prospective temporary foreign workers in addition to deciding which work permit program they will apply to also need to decide how they will apply for their work permit. There are generally two options. The first is to apply either online or at a Visa Application Center to Immigration, Refugees and Citizenship Canada (“IRCC”) and wait for it to be approved before travelling to Canada. The second is to submit the application to the Canada Border Services Agency (“CBSA”) when entering Canada. There are advantages and disadvantages to each approach. The Initial Work Permit Foreign nationals who need a temporary resident visa to visit Canada must submit their work permit applications either online or at a Visa Application Center before they travel to Canada. However, those who do not require a temporary resident visa to visit Canada can apply in person at a port of entry. There are many advantages to applying at a port of entry, and it is typically the preferred approach. First, while IRCC’s work permit processing times range from two weeks to several months, the CBSA will process work permits on the spot. Second, many applicants prefer interacting face to face and speaking with the person who … Read More
The “Innocent Mistake” Defence to Misrepresentation
Canadian immigration law provides that a person who makes an application must answer truthfully all questions put to them for the purpose of the examination. One of the most difficult issues to resolve when an individual is immigrating to Canada are allegations from the Government of Canada about misrepresentation. Section 40(1)(a) of Canada’s Immigration and Refugee Protection Act states provides that a permanent resident or a foreign national is inadmissible to Canada for misrepresentation for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of Canadian immigration law. Every visa applicant has a duty of candour to provide complete, honest and truthful information when applying for entry to Canada. Any misrepresentation, whether direct or indirect, that either induces, or could induce, an error by a visa officer in the performance of his or her duties, can result in a person being barred from Canada for five years. Intention A significant issue that often arises is whether or not a misrepresentation has to be intentional. The jurisprudence consistently provides that in order for a finding of misrepresentation to be made an applicant does not have to intend to … Read More