Anyone who presents themselves at a Canadian port of entry is making an application to enter Canada. As such, that person is subject to an examination by an officer. The purpose of such an examination is to determine whether or not the person can enter Canada as a visitor, student or foreign worker, and also to determine whether the individual is inadmissible to Canada. Canadian immigration legislation requires that a person who is under examination must answer truthfully all questions put to them and also produce all relevant documents and information that an officer requires. An officer during an examination can also compel a person to appear at a later date for further questioning. When an Examination Ends The examination of a person who seeks to enter Canada ends only when: a determination is made that the person has a right to enter Canada, or is authorized to enter Canada as a temporary resident or permanent resident, the person is authorized to leave the port of entry at which the examination takes place and the person actually leaves the port of entry; if the person is an in-transit passenger, the person departs from Canada; the person is authorized to withdraw their … Read More
Law Cans Episode 1 – Douez v. Facebook (Forum Selection Clauses) with Chris Rhone
Minors in Immigration Detention
On November 6, 2017 Ralph Goodale, Canada’s Public Safety Minister, issued a Ministerial Direction to the Canada Border Services Agency (“CBSA”) titled Minors in Canada’s Immigration Detention System (the “Ministerial Direction”), as part of its National Immigration Detention Framework (the “NIDF”). The Ministerial Direction notes that: Canada’s immigration detention program is based on the principle that detention shall be used only as a last resort, in limited circumstances and only after appropriate alternatives to detention (“ATDs”) are considered and determined to be unsuitable or unavailable; The well-being of children, family unity and the use of ATDs shall be core tenets underpinning policy direction, in accordance with the expectations and values of Canadians; The best interests of a child shall be a primary consideration to be assessed against other primary and mandatory factors in legislation; That Canada has the objective to stop the detention or housing minors and family separation, except in extremely limited circumstances; That Canada will ensure that the detention or housing of a minor or the separation of a minor from his/her detained parent(s) or guardian(s) is for the shortest time possible; and That Canada will never place minors in segregation or segregate them. Prior to the NIDF and … Read More
Summary of November 1 Changes to BC PNP Guide
On November 1, 2017 the British Columbia Provincial Nomination Program (the “BC PNP”) clarified and/or modified several aspects of its programs. Skilled Immigration The more significant revisions that applicants and practitioners should be aware of are: The International Graduates and International Post-Graduate programs have long excluded graduates from distance education programs from being eligible. As well, a person’s education has not been eligible for Skills Immigration Registration System (“SIRS”) ranking points if it was obtained through distance education. The BC PNP has now defined “distance education.” It means “a program of study in which the majority of credits earned by the student toward the completion of a program were earned by completing online courses. The BC PNP has removed the requirement that candidates meet the employment requirements for offered positions, as per the National Occupational Classification (“NOC”) website. However, the BC PNP may still refer to the NOC website to determine the minimum qualifications for an occupation. Previously, an applicant could not have an ownership/equity take of more than 10% in the B.C. company that is offering employment. The BC PNP has changed this requirement to state that an applicant and his/her pouse cannot have a combined ownership/equity … Read More
Getting Permanent Residency as an Owner or Self-Employed Person
The following is an article that I wrote for The Canadian Immigrant. It is generally understood that small businesses are the bedrock of the Canadian economy. The entrepreneurs who start them are often considered the lifeblood of the Canadian economy. Unfortunately, it can be difficult for foreign worker entrepreneurs in Canada to use their Canadian business experience to qualify for economic immigration programs. Prospective immigrants who are self-employed or run small businesses in Canada, or want to, need to understand the immigration consequences of doing so in order to properly structure and time the establishment of their companies. Self-employment and immigrating Many of Canada’s economic immigration programs restrict or penalize Canadian self-employment. For example, one of the basic eligibility requirements of Canada’s largest economic immigration program, the Canadian experience class, is that applicants have at least 12 months of skilled work experience within three years of applying to immigrate. It specifically excludes self-employment from being eligible experience. In the Express Entry application intake management system, prospective immigrants to Canada are ranked against each other. People can get points for a variety of factors, and points for Canadian work experience can be especially valuable. However, any experience that was gained through … Read More
IRCC Complaints About Immigration Consultants
In June 2017 I wrote an article for Policy Options about how I believed that while the existence of the immigration consultant profession in Canada promoted access to justice reforms were needed to strengthen the weeding out of some unethical behaviour. One of the things that I recommended was that Immigration, Refugees and Citizenship Canada (“IRCC”) temporarily have the power to refuse to process applications submitted by people represented by consultants whom IRCC has previously determined to be unscrupulous, and that IRCC should also be allowed to levy fines against unscrupulous representatives in certain circumstances. I recently received the results of an Access to Information Act request where the requester asked to see copies of all complaints sent by IRCC to provincial law societies and the Immigration Consultants of Canada Regulatory Council (the “ICCRC”), the body which regulates immigration consulants. The results, which were over 13o pages, were astonishing for several reasons. First, I have previously suspected despite general perception to the contrary that the number of complaints filed against immigration consultants was probably the same as against lawyers. However, I seem to have been wrong. Based on the Access to Information Act results, it appears that IRCC has never filed a complaint … Read More
Undisclosed Criminal Records and Criminal Rehabilitation
A difficult situation that some prospective immigrants who are already inside Canada face is that they have a criminal record that they have not previously disclosed to Canadian immigration officials. What is often especially unfortunate in such situations is that the criminal conviction can be really old, but the instances where someone failed to disclose their conviction to Canadian immigration officials more recent. Having successfully represented several individuals in such situations obtain permanent residency, there are several legal principles that I think anyone in such a situation needs to understand. 1. An individual who has a foreign criminal record can apply to Canadian immigration officials for a determination that they are rehabilitated if it has been more than five years since the sentence was completed. Rehabilitation assessments are forward-looking. The test is whether a person is likely to commit criminal conduct. Officers must consider both positive an neutral factors relevant to the application. 2. An individual not disclosing a criminal record to Canadian immigration authorities can be treated as a negative factor in a rehabilitation assessment. The Federal Court has in several cases (such as Tejada v. Canada) held that an individual’s past dealings with Canadian immigration authorities is a relevant … Read More
Immigration Detainees Granted Access to Habeas Corpus
On October 20, 2015, the Court of Appeal for Ontario (the “ONCA”) released its decision in Chaudhary v. Canada (Public Safety and Emergency Preparedness) (“Chaudhary”). The ONCA has ruled that the immigration detention review system provided for in the Immigration and Refugee Protection Act (“IRPA”) does not provide an effective forum for detainees to challenge their continued detention. Effective immediately, detainees will be able to apply to the Ontario Superior Court of Justice for habeas corpus to challenge their continued detentions. Habeas Corpus Habeas Corpus, latin for “you shall have the body,” is a recourse in law whereby a detained individual can apply to a court for a determination on whether their detention or imprisonment is unlawful. If the court rules that the detaining entity is acting beyond its authority, then it must release the detainee. Habeas Corpus is commonly regarded as a cornerstone of liberty. It is enshrined by s. 10(c) of the Canadian Charter of Rights and freedoms, which provides that “everyone has the right on arrest or detention to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. Under what is known as the … Read More
Returning to Canada After Previously Overstaying
It is not uncommon for people who have previously overstayed in Canada to wish to return. Many people worry that it will not be possible to do so. However, regardless of whether one previously overstayed but left Canada before Canadian immigration authorities discovered the overstay, or even if one was ordered to leave Canada, it is certainly possible and common that a Canadian visa office abroad will approve a visa to allow that person to return to Canada, despite the previous non-compliance. The following is a reference letter that an applicant used in the case AlOmari v. Canada (Citizenship and Immigration). It is as a good example of the level of detail that should go into such a letter, and can serve as a useful reference for others. In November 2015, I made the mistake of not renewing my study permit because I was not able to complete my flight training during the unstable weather conditions of the fall and winter seasons. This bad decision and judgment call is what led me to overstaying. I could not leave until July 11, 2016 because I was required to remain with my wife and sisters who were actively studying. As outlined in the … Read More