In the increasingly growing area of Labour Market Impact Assessment judicial review the question of whether officers are fettering their discretion by overly relying on operational guidelines is arising. To me a more interesting question is whether officers being told that they cannot make decisions without first consulting Business Expertise Consultants is more interesting. Consider the situation below, as obtained through an Access to Information Act request. It is clear that in this case the officer wanted to approve the Transition Plan exemption request. However, the Business Expertise Consultant recommended that the officer refrain from doing so. In the fettering of discretion scenario, the following questions need to be asked: If a program officer went against the recommendation of a Team Leader and a Business Expertise Consultant, what would be the consequences? If program officers are administrative tribunals who are purportedly experts in the administration of their home statute, then why do they need to defer to Business Expertise Consultants and Team Leaders? How often do program officers ignore the recommendations of Team Leaders and Business Expertise Consultants? What other areas in an LMIA application do program officers have to rely on Team Leaders and Business Expertise Consultants for?
Application refused? What CIC states in refusal letters is not the whole story
The following article appeared in the July edition of The Canadian Immigrant.
ESDC Refuses LMIA where no English Speaking Canadians Applied
A few weeks ago we received through an Access to Information Act request several copies of internal policy guidance. I’ve reproduced what I found to be the most surprising one below. The fact that employers are needing to recruit foreign workers because the permanent residents and/or Canadian citizens who are applying don’t speak either English or French is rather troubling, to say the least.
Bill C-690: The Live-in Caregiver Access, Respect and Employment Act
On June 11, 2015, John McCallum, the Member of Parliament for Markham — Unionville, and a member of the Liberal caucus, introduced Bill C-690, An Act to amend the Immigration and Refugee Protection Act (live-in caregiver). Its short form is the Live-in Caregiver Access, Respect and Employment Act. Considering how close Mr. McCallum introduced Bill C-690 prior to the upcoming federal election, Bill C-690’s provisions will presumably form part of the Liberal Party of Canada‘s election platform. Bill C-690 is short, and its substantive portion would introduce a new s. 32(d.11) into the Immigration and Refugee Protection Act (“IRPA”) so that s. 32 of IRPA would read: Regulations 32. The regulations may provide for any matter relating to the application of sections 27 to 31, may define, for the purposes of this Act, the terms used in those sections, and may include provisions respecting (d) the conditions that must or may be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals, including conditions respecting work or study; (d.1) the conditions that must or may be imposed, individually or by class, on individuals and entities — including employers and educational institutions — in respect of permanent residents and foreign nationals, or that must or may be … Read More
Bill C-60, The Removal of Serious Foreign Criminals Act
On May 13, 2015, the Minister of Public Safety and Emergency Preparedness introduced Bill C-60, An Act to amend the Criminal Records Act, the Corrections and Conditional Release Act, the Immigration and Refugee Protection Act and the International Transfer of Offenders Act, also known as the Removal of Serious Foreign Criminals Act (“Bill C-60Removal of Serious Foreign Criminals Act”). Bill C-60 will: Make it easier and faster to remove certain foreign nationals and permanent residents who are inadmissible to Canada for serious criminality. Make all foreign nationals and certain permanent residents ineligible for a record suspension. Allow the Correctional Service of Canada to inform registered victims of crime of the date and destination of criminals released from immigration detention; and Make it easier for Canada to transfer criminals without their consent to serve their sentence in their home country. A more detailed breakdown of the provisions is as follows:
Consequences of Recent Changes to Live-in Caregiver Program
The following article appeared in the January edition of The Canadian Immigrant. At the end of the article I have reproduced two Access to Information Act which confirm the great reduction in the program.
Government of Canada Commits to Initiating Removal Against 875 Refugees Per Year
The following is an article that I wrote for the May edition of The Canadian Immigrant. ————————————————- In January 2014, the Canada Border Services Agency (CBSA) released Operational Bulletin: PRG-2013-59, which states that the CBSA has committed to referring a minimum of 875 refugee vacation or cessation cases per year to the Refugee Protection Division (RPD). News of this bulletin, and the apparent resolve of CBSA to reach its quota, puts many in the refugee community at risk. It is important that all refugees who became permanent residents, and refugees who are not yet permanent residents, understand its implications. Vacating versus cessation The “vacating” of refugee status occurs when the RPD determines that a refugee claim was successful as a result of the claimant misrepresenting or withholding material facts. A person whose refugee status is vacated loses both their permanent resident status and their protected person status. In contrast to vacating, “cessation” of a refugee’s status can occur without fraud, which is why it has attracted criticism. The RPD may determine that a person’s refugee status has ceased if: the person has voluntarily re-availed himself or herself of the protection of their country of nationality the person has voluntarily reacquired … Read More
Where the Conservative Party of Canada Stands on Immigration (2011 and 2015)
On October 19, 2015, Canada will have a federal election. There are three political parties that may form government. One of them is the Conservative Party of Canada. The Conservative Party of Canada has made the following election promises regarding immigration: Continue to make the immigration system faster, flexible, and more responsive to the needs of Canada’s economy. Continue to be a world leader in refugee protection. Increase the intake of applications for the parents and grandparents sponsorship program, as the backlog and processing times continue to decrease. Provide increased funding to Citizenship and Immigration Canada to clear the citizenship backlog over a two-year period. Comments I previously wrote in Policy Options on how the Conservative Party of Canada completely overhauled Canada’s immigration system. Looking at their 2015 platform, I guess they’re done. Below you can find their 2011 commitments, for comparison’s sake.
Where the New Democratic Party Stands on Immigration (2015 and 2011)
On October 19, 2015, Canada will have a federal election. There are three political parties that may form government. One of them is the New Democratic Party. The New Democratic Party has made the following election promises regarding immigration: Remove the cap on parent and grandparent sponsorships imposed by the Conservatives. Reduce wait times by increasing resources to reduce the huge backlogs in processing applications. Put greater priority on family reunification, especially the reunion of children with their parents. Fully restore the Interim Federal Health Care Program for refugees, as ordered by the Federal Court. Reverse the what the NDP calls discriminatory changes to refugee determination and ensure that every refugee claimant receives a fair and unbiased hearing. Make the visitor visa system more transparent and accountable, including by creating an appeal process. Create an ombudsperson for the Department of Citizenship and Immigration to investigate complaints and monitor human rights. In consultation with communities, provinces and territories, introduce a comprehensive action plan to foster immigration to Francophone minority communities across the country. Resettle 10,000 Syrian refugees in Canada by the end of this year. Welcome 9,000 Syrian refugees per year starting in 2016. Create a Syrian Refugee Coordinator to expedite and coordinate the … Read More
Certified Question on Removal Orders for Permanent Resident Visa Holders at the Port of Entry
On March 17, 2015, Justice Montigny in Ismail v. Canada (Citizenship and Immigration), 2015 FC 338 (“Ismail“), certified the following question: For the purposes of determining its jurisdiction to hear an appeal pursuant to subsection 63(2) of the IRPA, shall the validity of the permanent resident visa be assessed by the IAD at the time of arrival in Canada or at the time the exclusion order is made?