Blog – Page 2 – Steven Meurrens

Work Permits Under The North American Free Trade Agreement

(the following is largely paraphrased from the IRCC website)

The North American Free Trade Agreement (“NAFTA“) is a free trade agreement between Canada, the United States and Mexico. It facilities the temporary entry of individuals, including providing certain Americans and Mexicans with the ability to work in Canada without first requiring Labour Market Impact Assessments (“LMIAs“).

NAFTA does not assist permanent admission, does not apply to permanent residents of the United States and Mexico and does not remove the need for Americans and Mexicans to undergo security screening before entering Canada.

The categories are:

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

Business Visitors

To qualify as a business visitor, an American or Mexican citizen must be entering Canada to conduct activities that are international in scope, have no intention to enter the Canadian labour market, have their primary source of remuneration be outside of Canada and their principal place of business remain outside of Canada.

For example, business visitors engage in international business activities related to research and design; growth, manufacture and production; marketing; sales; distribution; after-sales service; and general service. Typical examples of business activities include, but are not limited to, consultation, negotiation, discussion, research, participation in educational, professional or business conventions or meetings and soliciting business.

Marketing includes trade fair and promotional personnel attending a trade convention.

Sales representatives and agents taking orders or negotiating contracts for goods or services for an enterprise located in the U.S. or Mexico qualify for entry as Business Visitors, however, they cannot deliver goods or providing services. The seller may only take orders for the goods or enter into contracts for the services.

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.

I recently obtained through a Proactive Disclosure a copy an Access to Information Act request that somebody else submitted which provides insight to these questions. The request stated:

Please send me all information that you have on how your institution responds to orders from the Federal Court or the Federal Court of Appeals to re-evaluate refused Temporary Resident Visa (TRV) applications, including, but not limited to: – any penalties or other actions that your institution imposes on visa officers refuse TRV applications that the Federal Court ordered to be re-evaluated, including, but not limited to penalties, reductions in salaries, reductions in employment rank, retraining, termination of employment, notes in performance evaluations, verbal warnings, written warnings, etc. – any changes to training materials, procedures, etc. Please also send me information on whether your institution keeps track, at a visa officer level, of the number of visa applications that each visa officer evaluates, the number that the visa officer refuses, and the number of refused applications that the Federal Court has ordered to be re-evaluated. If your institution keeps track of this information for each visa officer, then please send me this information, along with information you have about each visa officer, including but not limited to: dates and places of employment as a visa officer, gender, date of birth, nationality, citizenship, performance evaluations, etc.

What Happens After a JR

While individual IRCC office procedures vary,

The Student Direct Stream (SDS)

On May 2, 2019 Immigration, Refugees and Citizenship Canada unveiled the Student Direct Stream (the “SDS”), an expedited study permit processing program available to legal residents of India, China, Philippines and Vietnam.

Eligibility

To be eligible for the SDS, an applicant must:

be a legal resident of India, China, Philippines and Vietnam;
provide proof of a valid language test result, completed within 2 years of the date of the SDS application, showing an IELTS score of 6.0 or higher in each language skill, or a TEF score that is equivalent to Canadian Language Benchmark 7;
provide proof of a Guaranteed Investment Certificate “GIC” of CAN $10,000.00 or more issued from any bank that is insured by the Canadian Deposit Insurance Corporation (“CDIC”) or any bank listed on the IRCC SDS webpage;
provide proof of full payment of tuition for their first year of study;
provide a letter of acceptance to a Designated Learning Institute (a “DLI”);
complete an upfront medical exam.

The GIC must meet the following criteria:

when the GIC has been purchased, the bank provides a letter of attestation, the GIC certificate, the Investment Directions Confirmation or the Investment Balance Confirmation to the applicant;
the bank holds the funds in an investment account or a student account that is inaccessible for release to the applicant until the applicant’s arrival in Canada;
upon entry to Canada, the bank must validate the client’s identity before releasing funds to the study permit holder; and
the applicant receives an initial disbursement upon identifying themselves, and the remaining funds are disbursed in monthly or bi-monthly installments over a period of 10 to 12 months.

Missing Deadlines

As per the Federal Court of Canada decision in Haile v. Canada (Citizenship and Immigration), 2019 FC 538, it is a breach of procedural fairness to set aside the principle of audi alteram partem on the basis of a short delay in the delivery of the written submissions.

» Read more about: Missing Deadlines »

Functus Officio

» Read more about: Functus Officio »

Refugee Claimants from China

China is one of the top source countries for temporary resident visa applications to China. In 2016, the number of people who applied for temporary resident visas was 492,370. Of the people who were granted visas, 822 declared refugee status. The number is unbelievably small, and represents what Immigration, Refugees and Citizenship Canada calls a risk ratio of 0.16%.

I have reproduced an internal IRCC report titled 2016 Annual Refugee Claim Trend Analysis Summary report below.

A201769568_2019-01-11_15-48-15

Misrepresentation

Section 40 of the Immigration and Refugee Protection Act provides that a permanent resident or foreign national is inadmissible to Canada 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 Canada’s immigration laws.

The general consequence of misrepresenting is a five-year ban from entering Canada.

Canada is very strict on misrepresentation. In Bundhel v. Canada (Citizenship and Immigration), 2014 FC 1147, for example, Mr. Bundhel had been charged and convicted with an offence, which had been overturned on appeal. Mr. Bundhel would accordingly not have been criminally inadmissible to Canada. Because of this, he put on his immigration forms that he had never been charged or arrested. When it discovered thathehad been previously charged, Citizenship and Immigration Canada wrote to him and provided him with an opportunity to explain why he misrepresented. After the immigration officer reviewed the Mr. Bundhel’s explanation that it was an innocent mistake, the officer refused the application, and declared the person inadmissible to Canada for misrepresentation. The Court wrote (citations removed):

Mr. Bundhel’s complaint that the Officer should have considered the fact that he owned-up to the problem at the first available opportunity is also unjustified. Mr. Bundhel only acknowledged the true facts when he was confronted with them. This is not equivalent to a situation where an applicant owns-up to a mistake before it is brought to light or where the file already contains the correct information. In such a case, a favourable inference is more likely to be drawn because it is suggestive of an innocent mistake and not a wilful omission. The same point is made in Uppal v Canada (Minister of Citizenship and Immigration),

» Read more about: Misrepresentation »

Work Permits Under The North American Free Trade Agreement

What Happens After a Judicial Review

The Student Direct Stream (SDS)

Missing Deadlines

Functus Officio

Refugee Claimants from China

Misrepresentation

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