Blog – Page 2 – Steven Meurrens

What Happens at CBSA – The Port of Entry

A main purpose of the Canada Border Services Agency (the “CBSA“) is to determine whether people are inadmissible to Canada and, if they are, next steps.

Section 15(1) of Canada’s Immigration and Refugee Protection Act (the “IRPA“), read in conjunction with r. 28(b) of Canada’s Immigration and Refugee Protection Regulations (the “IRPA”) authorizes Border Services Officers (“BSOs“) to examine people who are entering Canada to determine their admissibility. As well, IRPA s. 18(1) provides that every person seeking to enter Canada must appear for an examination at CBSA to determine whether that person has a right to enter Canada or is or may become authorized to enter and remain in Canada.

This post is a summary of the training manual from the CBSA’s Officer Induction Training Program. A full copy can be found at the bottom of the post.

Examination Timeline

Regulation 37 of the IRPR define when a CBSA examination at a port of entry (a “POE“) ends. It states that an examination ends once one of the following occurs:

A final determination is made that the person has a right to enter Canada, or is authorized to enter Canada, and leaves the port of entry. It is important to note that an examination is not over simply because a passport is stamped. Rather, the decision to admit an individual may be revisited as long as the person has not left the controlled area of the port of entry.
A person in transit departs Canada.
The person is allowed to leave Canada and an officer verifies their departure from Canada. In this situation, a BSO may determine that someone is inadmissible. Rather than formally removing them (and banning them) the BSO may instead allow them to withdraw their application to enter Canada.

IRCC Questions and Answers

Immigration lawyers and consultants are able to e-mail Immigration, Refugees and Citizenship Canada (“IRCC“) to ask general questions about how programs work. In 2018 we submitted an Access to Information Act request for many of the questions that were submitted in the first half of 2018. I have uploaded the results of our request here. You can see a list of most of the questions that are answered below.

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A Canadian Bachelor degree was obtained in two years as the person has used some credits from a previous bachelor degree obtained in a foreign country. The curriculum grid for this Canadian Bachelor Degree is 11 quarters with a total of 180 credits. This same person has also a 1-year diploma from a private institution in Canada. Under the CRS points for Express Entry, could we consider that this person could claim points for having two or more degrees, diplomas or certificates only considering the Canadian credentials? As there is the information that one of the credentials must be at least 3 years, I was wondering if IRCC would consider the length of study or the length of the program if was not accredited due to credit transferring? What should we inform at the Education field “Complete/full academic years” for the Canadian Bachelor Degree as described above?

My client received the attached WES assessment. Although the actual program he completedw as over one year long, they indicated “completion of college-level certificate (one semester)”. When entering his education information in his express entry profile, should we be selecting that his highest level of education was secondary school or 1 year of post-secondary studies?

In a Family Class application is a record of solemnization or marriage license acceptable instead of a marriage certificate?

The Federal Skilled Worker Program

The Federal Skilled Workers Program (the “FSWP“) has traditionally been one of Canada’s most popular immigration programs. It is currently one of the three programs that is managed through Immigration, Refugees and Citizenship Canada’s (“IRCC“) Express Entry program.

To be eligible for the FSWP, applicants must meet minimum eligibility criteria, and also get a minimum of 67 out of 100 points in a selection grid.

Minimum Eligibility Criteria

The minimum eligibility criteria to the FSWP are that applicants must:

Within the 10 years preceding the date of the application for a permanent resident visa, have at least one year of continuous full-time employment experience or the equivalent in continuous part-time employment in one or more occupations that are listed in National Occupational Classification (“NOC“) 0, A or B;

During that period of employment performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the NOC;

During that period of employment performed a substantial number of the main duties of the occupation as set out in the occupational descriptions of the National Occupational Classification, including all of the essential duties.

have completed a language test from a designated testing agency and obtained a minimum of Canadian Language Benchmark 7 in all abilities;

if they do not have Canadian education credentials, have submitted an “equivalency assessment” relevant to their occupation establishing that they have the equivalent of the minimum education credential required to practice this occupation in Canada.

Definition of “Continuous”

Many people have questions regarding what constitutes “continuous” full-time experience for the purpose of the FSWP. Essentially, the work experience must be:

at least one year (1,560 hours total / 30 hours per week),

Sponsoring a Common-Law Partner

Canadian immigration law allows Canadian citizens and permanent residents to sponsor their common-law partners.

It requires that:

people in relationships who have not married to have cohabited together for at least one year in a conjugal relationship;
that the cohabitation during that year be continuous rather than intermittent cohabitation adding up to one year;
that the relationship be genuine; and
that the relationship not be entered into to acquire an immigration benefit.

While cohabitation means living together continuously, short periods of separation due to work, business travel, family obligations, etc., are permitted.

After the one-year period of cohabitation has been established, the partners may live apart for periods of time without legally breaking the cohabitation, provided that there is evidence that both parties are continuing the relationship. In Chantladze v. Canada (Citizenship and Immigration), 2018 FC 771, Justice Fothergill stated that it was a reviewable error for an officer to consider the reasons why a couple had lived apart after they had previously lived together for one year continuously.

As the Immigration, Refugees and Citizenship Canada guidelines note:

“According to case law, the definition of a common-law partner should be read as “an individual who is (ordinarily) cohabiting.” After the one year period of cohabitation has been established, the partners may live apart for periods of time while still maintaining a common-law relationship. For example, a couple may have been separated due to illness or death of a family member, adverse country conditions (e.g. war, political unrest), or employment or education-related reasons, and therefore are not cohabiting at the time an application is submitted. Despite the break in cohabitation, a common-law relationship exists if the couple has cohabited continuously in a conjugal relationship in the past for at least one year and intend to do so again as soon as possible.

Actively Pursuing Studies

Regulation 220.1(1) of the Immigration and Refugee Protection Regulations provides that the holder of a study permit in Canada (a) shall enroll at a designated learning institution and remain enrolled at a designated learning institution until they complete their studies and (b) shall actively pursue their course or program of study.

Non-compliance with this requirement can, subject to certain exceptions that are beyond the scope of this post, result in a person being barred from Canada for one year.

The Immigration, Refugees and Citizenship Canada (“IRCC“) website contains guidelines (the “Guidelines”) on interpreting these requirements.

The guidelines are divided into the following sections:

I have reproduced or paraphrased much of the Guidelines below.

A. Full-time and part-time studies

The Guidelines state that at a minimum, students must have part-time status with their institution to be considered to be actively pursuing their studies.

The definition of full-time or part-time varies depending on the educational institution.

Furthermore, the province of Quebec requires students to maintain full-time status with their institution to be considered to be actively pursuing their studies.

Work Permits Under the CPTPP

On December 30, 2018 the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (the “CPTPP“) came into effect. The CPTPP will result in it being easier for citizens of countries that have ratified the CPTPP to work in Canada. As of writing, these countries include Australia, Japan, Mexico, New Zealand, Singapore and Vietnam.

The benefits are not the same, however, for all countries.

The categories are:

Business Visitors;
After – Sales Services;
Investors;
Intra-Corporate Transferees; and
Professionals.

Business Visitors

The Business Visitors category applies to all countries that have ratified the CPTPP. As well, permanent residents of Australia and permanent residents of New Zealand may also qualify under this category.

Activities that Business Visitors may perform include:

After-Sales Service

The CPTPP’s After-Sales Service provisions apply to citizens of Australia, Mexico and New Zealand.

Personnel who possess specialized knowledge essential to a seller’s or lessor’s contractual obligation (such as installers, repairers and maintenance personnel, and supervisors) may enter Canada for the purpose of performing services and training workers to perform services pursuant to a warranty (during the life of the warranty) or other service contract incidentals (during the life of the service agreement)

These activities come from the sale or lease of commercial or industrial equipment or machinery (including computer software) that has been purchased or leased from an enterprise located in a party other than Canada.

Unclear Forms and Checklists

Given the frequency with which Immigration, Refugees and Citizenship Canada (“IRCC“) updates its checklists, forms and website
it is not surprising that people often find some of IRCC’s content to be
unclear.

The Federal Court of Canada, citing rule of law principles, has stated that where IRCC content is objectively unclear that flexibility is required. In Lim v. Canada (Minister of Citizenship and Immigration), 2005 FC 657, Justice von Finkenstein stated that:

The actions of CIC in this instance lack common sense. As Muldoon J. so aptly put it in Taei v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 293 (dealing with a refugee claim rather than a live-in caregiver) “(t)he rule of law does not require that statutes be read and interpreted in a robotic mindless manner. Common sense has not been abolished either by the Charter or by statute”. It is also useful to recall the admonition of Jerome A.C.J. in Thakorlal Hajariwala v. M.E.I. [1989] 2 F.C. 79 that ” the purpose of the statute [then the Immigration Act which is now the Immigration and Refugee Protection Act] is to permit immigration, not to prevent it.”

In Jalota v. Canada (Citizenship and Immigration), 2013 FC 1176, Justice Phelan criticized IRCC for refusing a restoration of student status application because the applicant did not provide financial documents, even though the checklist did not mention such a requirement. Justice Phelan stated:

The Respondent’s own checklist does not ask for any financial information per se as part of a restoration application, although it is listed as a requirement for study permit applications. For restoration applications,