C-14 Work Permits

13th Sep 2021 Comments Off on C-14 Work Permits

On February 17, 2016, Immigration, Refugees and Citizenship Canada (“IRCC”) introduced a Labour Market Impact Assessment (“LMIA”) exemption for foreign nationals in the television and film industry whose position or occupation is essential to a TV or film production.  On September 13, 2021 IRCC narrowed the LMIA exemption.

The exemption previously read:

(exemption code C14) – Canada.ca”]

The current requirements are that the work that a foreign national is performing must be:

  • essential to a live-action TV or film project in the production stage (filming): Essential positions are those where the physical presence of foreign workers on location in Canada is required to generate the expected benefit;
  • be high wage: Evidence of high-wage work is meant to establish that Canada will reap a significant economic benefit (for example, tax revenue) from hiring a foreign national and to protect the Canadian labour market from wage suppression;
  • unionized: Proof of unionized work demonstrates that the employment of the foreign national is critical to the production occurring in Canada while protecting the direct employment of Canadians.

Occupations that may meet these criteria include, but are not limited to, actors and actresses, directors, stunt persons, lighting specialists and choreographers.

Consideration under this exemption is to be given for the production (filming) stage of live-action television and film projects in Canada, regardless of whether

  • the production is foreign or Canadian;
  • it is filmed entirely or in part in Canada.

IRCC has also clarified that the following situations would not qualify:

  • Pre- or post-production work, for example, storyboarding, visual effects, sound editing or film editing. This work is not considered essential to the on location production stage (filming),

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Borderlines Podcast #60 – Where Canada’s Political Parties Stand on Immigration in 2021, with Chantal Desloges

9th Sep 2021 Comments Off on Borderlines Podcast #60 – Where Canada’s Political Parties Stand on Immigration in 2021, with Chantal Desloges

A discussion of the 2021 immigration platforms of the Liberals, Conservatives, New Democrats, Greens, Bloc Quebecois and the People’s Party of Canada.

Chantal Desloges is the Founder and Senior Partner of Desloges Law Group.

<iframe width=”100%” height=”20″ scrolling=”no” frameborder=”no” allow=”autoplay” src=”https://w.soundcloud.com/player/?url=https%3A//api.soundcloud.com/tracks/1121909068&color=%23ff5500&inverse=false&auto_play=false&show_user=true”></iframe><div style=”font-size: 10px; color: #cccccc;line-break: anywhere;word-break: normal;overflow: hidden;white-space: nowrap;text-overflow: ellipsis; font-family: Interstate,Lucida Grande,Lucida Sans Unicode,Lucida Sans,Garuda,Verdana,Tahoma,sans-serif;font-weight: 100;”><a href=”https://soundcloud.com/borderlinespodcast” title=”Borderlines” target=”_blank” style=”color: #cccccc; text-decoration: none;”>Borderlines</a> · <a href=”https://soundcloud.com/borderlinespodcast/60-where-canadas-political-parties-stand-on-immigration-in-2021-with-chantal-desloges” title=”#60 – Where Canada&#x27;s Political Parties Stand on Immigration in 2021, with Chantal Desloges” target=”_blank” style=”color: #cccccc; text-decoration: none;”>#60 – Where Canada&#x27;s Political Parties Stand on Immigration in 2021, with Chantal Desloges</a></div>

Heading – The Election and Canadian Immigration

On September 20, 2021 Canada will have its 44th Parliamentary election.  There are six main political parties running.  The first is the Liberal Party of Canada, led by Prime Minister Justin Trudeau.  The Liberals are generally regarded as a centrist party and have governed since October 2015.  The second is the Conservative Party of Canada, led by Erin O’Toole.  The Conservatives are a centre-right party that previously governed Canada from 2006-2015 under Stephen Harper.  The third is the New Democratic Party, a left-wing led by Jagmeet Singh.  The fourth is the Green Party of Canada, led by Annamie Paul, a party that is typically known for its environmental platform.  The fifth is the Bloc Québécois, led by Yves Francois Blanchet. The Bloc is a Quebec nationalist party that only runs candidates in Quebec.  Finally, there is the People’s Party of Canada, a right-wing party led by Maxime Bernier.

As of writing, polls suggest that Canada is likely heading to a minority government.  This means that none of the political parties above will win enough seats to govern without the support of another party. 

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Memorandums to the Minister

8th Sep 2021 Comments Off on Memorandums to the Minister

In this post are various Memorandums to the Minister.

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Access to Information Act Exemptions

6th Sep 2021 Comments Off on Access to Information Act Exemptions

The following chart is a helpful summary of the exemptions to disclosure under the Access to Information Act.

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Intention to Reside and Provincial Nominees

26th Aug 2021 Comments Off on Intention to Reside and Provincial Nominees

Sections 87(1) and (2) of the Immigration and Refugee Protection Regulations provide that:

87 (1) For the purposes of subsection 12(2) of the Act, the provincial nominee class is hereby prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada.

Member of the class

(2) A foreign national is a member of the provincial nominee class if

(a) subject to subsection (5), they are named in a nomination certificate issued by the government of a province under a provincial nomination agreement between that province and the Minister; and

(b) they intend to reside in the province that has nominated them.

In Dhaliwal v. Canada (Citizenship and Immigration), 2016 FC 131, Justice Diner wrote:

The assessment of intention, since it is a highly subjective notion, may take into account all indicia, including past conduct, present circumstances, and future plans, as best as can be ascertained from the available evidence and context. In this case, the Applicant clearly expressed her intention to permanently reside in Brampton, Ontario, as well as her intention to finish her PhD in Quebec, which required continued temporary residence in Quebec. These intentions are not contradictory; rather, they are complementary to one another. As summarized above, she also provided statutory declarations from herself, her parents, and her sister setting out the reasons why she intended to move to Ontario, all in cogent terms, which further buttressed her stated intention to live outside of Quebec.

In Tran v. Canada (Citizenship and Immigration), 2021 FC 721 Justice Ahmed determined that Federal Court of Canada jurisprudence indicates that if a foreign national is nominated by a province under a provincial nomination program that foreign national is presumed to be able to become economically established in Canada.

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Procedural Fairness at the Immigration Appeal Division

20th Aug 2021 Comments Off on Procedural Fairness at the Immigration Appeal Division

One of the leading cases on procedural fairness is Charkaoui v Canada (Minister of Citizenship and Immigration), 2007 SCC 9.  There, the Supreme Court of Canada stated:

Last but not least, a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case. This right is well established in immigration law. The question is whether the procedures “provide an adequate opportunity for [an affected person] to state his case and know the case he has to meet” (Singh, at p. 213). Similarly, in Suresh, the Court held that a person facing deportation to torture under s. 53(1)(b) of the former Immigration Act, R.S.C. 1985, c. I-2, must “[n]ot only . . . be informed of the case to be met . . . [but] also be given an opportunity to challenge the information of the Minister where issues as to its validity arise” (para. 123).

In Therrien v Canada (Attorney General), 2017 FCA 14, the Federal Court of Appeal stated that the the required specificity of the notice provided an affected person is to be determined in light of all of the circumstances including consideration of whether the affected person was in a position to meaningfully respond. Where an interested person is misinformed about the issues, including the statutory provisions in issue, a Court may conclude the interested person was unaware of the case to be met.

In Lv v. Canada (Citizenship and Immigration), stated:

the issue is not so much whether the decision was “correct”, but rather whether, taking into account the particular context and circumstances at issue, the process followed by the decision-maker was fair and offered to the affected parties a right to be heard and the opportunity to know and respond to the case against them.

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C-11 Work Permits

10th Aug 2021 Comments Off on 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 be considered in this case, particularly if the worker is providing a unique service.;
  • satisfy an officer that they have the ability and willingness to leave Canada at the end of the temporary period authorized; and
  • will have the incentive to depart Canada when their work is complete or the business closes.

Some of the factors in determining whether there will be a significant benefit include:

  • Is the work likely to create a viable business that will benefit Canadian or permanent resident workers or provide economic stimulus?

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H&C Third Country

8th Aug 2021 Comments Off on H&C Third Country

Several Federal Court of Canada decisions affirm that a visa officer’s assessment of humanitarian & compassionate considerations will be unreasonable if the officer assesses hardship on the basis that a foreign national will reside in a country other than their country of citizenship.

In Hermann v. Canada (Citizenship and Immigration), 2014 FC 266, Justice Zinn stated:

I have very serious doubt that in making an H&C assessment an officer can assess hardship on the premise that the applicant relocate to a country other than his country of nationality, regardless of any mobility agreements between countries. If an applicant is in Canada without authorization and is to be removed, Canada cannot remove him to a country other than his country of nationality. Why then should Canada consider any other country when examining hardship to the applicant in a H&C application?

In Abdullah v. Canada (Citizenship and Immigration), 2019 FC 954, Justice McAffie stated:

This Court has held that assessing an H&C application with reference to a country where the applicant has no legal status is an error that renders a decision unreasonable. In Joe (Litigation guardian of) v Canada (Citizenship and Immigration), 2009 FC 116 [Joe], the minor applicant was a citizen of New Zealand, although she had resided in China with her parents, who were Chinese citizens, before coming to Canada. In assessing the H&C application, the immigration officer concluded that the applicant was a Chinese citizen and assessed the hardship that would be faced by her returning to China.

Justice Maurice E. Lagacé found that the applicant did not have legal status in China and that the officer therefore erred in basing his decision on China as the country of reference rather than New Zealand.

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CBSA National Security Screening

21st Jul 2021 Comments Off on CBSA National Security Screening

According to its website, the Canada Border Services Agency (“CBSA“) screens all visitors, immigrants and refugee claimants to keep Canada safe and secure. Inadmissible persons such as criminals or persons considered security risks are not allowed to enter or remain in Canada.

The following PDF contains a detailed breakdown of how this works and efforts to reduce backlogs.

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No Expectation on Applicants to ATIP

18th Jul 2021 Comments Off on No Expectation on Applicants to ATIP

Garcia Balarezo v. Canada (Citizenship and Immigration) is an interesting case which stands for the principle that it is unreasonable for IRCC to expect applicants to submit ATIP requests to learn the internal status of their file and what submissions they might need to make. The Court noted:

The officer recognized that both the May 2012 and June 2015 work permits were issued by IRCC in error. However, the officer asserted that Ms. Garcia’s May 2012 and October 2012 work permits “had clear notes on them that PA [principal applicant] was not part of the LC program.” This appears to have been very important in the officer’s thinking, as they repeated the point both in responding to one of Ms. Garcia’s submissions, and again in their conclusion, stating:

The errors made on CIC’s part (including issuing first work permit with med instructions to work in childcare field and adding the incorrect remarks to clients third work permit in 2015) have been taken into consideration and there is still insufficient evidence of H&C grounds to warrant exemptions. PA’s rep stated that PA and her employers were aware of Section 112 of the Immigration and Refugee Protection Regulations and were aware that the initial work permit had to be assessed and issued from outside of Canada and that an immigration medical needed to be completed in order to be eligible to apply for permanent residence. PA could have inquired through the Call Centre as PA’s first 2 work permits had very clear notes on them that PA was not part of the LC program.

[Emphasis added.]

The “very clear notes” in question were not, however, notes visible on the face of the work permits issued to Ms. Garcia or in any other document sent to Ms.

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