Section 3(f) of Canada’s Immigration and Refugee Protection Act states that Canadian immigration law is to be construed and applied in a manner which complies with international human rights instruments to which Canada is a signatory. In de Guzman v. Canada (Minister of Citizenship and Immigration), the Federal Court of Appeal articulated the following principles for what this means: While previously international conventions to which Canada was party to did not give rise to rights and duties enforceable in Canadian courts, this is no longer the case. The values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. Canadian immigration law does not incorporate into it “international human rights instruments to which Canada is signatory” but merely directs that the law be construed and applies in a manner that complies with them. The words “shall be construed and applied in a manner that complies with” are mandatory and appear to direct courts to give the international human rights instruments in question more than persuasive or contextual significance in the interpretation of the Canadian immigration legislation. Canadian immigration law must only be construed and applied in a manner that complies with international law where Canada has … Read More
10 Pieces of Advice Before Entering First Year
Half way through my second year of law school I drafted a list of 10 pieces of advice that I would give to anyone entering their first year. I passed this list on to between 5-10 people, and everyone seemed to appreciate it. After not having thought about the list for a few years someone who had heard of it recently asked me for a copy. It took me a fair bit of time searching through old Facebook messages to find it. I accordingly decided to publish the list here so that if I was ever asked again I could easily find my recommendations rather then spend time during a sunny Sunday looking for it. Remarkably, while I have updated the rationale behind each suggestion, my recommendations for people entering first year law remain the same now as they did when I was a second year law student. So here they are. 1) You Control How Intense Law School Is First year law school is intense. There are typically mandatory year long courses, most of which are graded almost exclusively on a final exam. You will be surrounded by some of the smartest people that you have ever met and will (depending on … Read More
Withdrawing and Reinstating IRB Proceedings
Sections 5 and 6 of the Immigration Division Rules, SOR/2002-229 state: Withdrawing a Request by the Minister for an Admissibility Hearing Abuse of process 5 (1) Withdrawal of a request for an admissibility hearing is an abuse of process if withdrawal would likely have a negative effect on the integrity of the Division. If no substantive evidence has been accepted in the proceedings, withdrawal of a request is not an abuse of process. Withdrawal if no evidence has been accepted (2) If no substantive evidence has been accepted in the proceedings, the Minister may withdraw a request by notifying the Division orally at a proceeding or in writing. If the Minister notifies in writing, the Minister must provide a copy of the notice to the other party. Withdrawal if evidence has been accepted (3) If substantive evidence has been accepted in the proceedings, the Minister must make a written application to the Division in order to withdraw a request. Reinstating a Request by the Minister for an Admissibility Hearing Application for reinstatement of withdrawn request 6 (1) The Minister may make a written application to the Division to reinstate a request for an admissibility hearing that was withdrawn. Factors (2) … Read More
Borderlines #15 – Gordon Maynard on New Can Consulting and the Biggest Immigration Fraud in Vancouver History
Xun (Sunny) Wang was a ghost consultant who is estimated to have made $10 million by filing fraudulent immigration applications for clients of his two firms, New Can Consulting and Well Long Enterprises. Mr. Wang, who is currently serving an eight year jail sentence, and his staff, apparently put fake passport stamps in peoples’ passports in order to lie about having spent sufficient time in Canada to qualify for various immigration programs. The Canada Border Services Agency is now endeavouring through what the Department is calling Project New Can to remove over 1,500 former clients of his for having committed misrepresentation to obtain Canadian permanent residency and/or maintain it. All of the lawyers involved in this podcast have and are representing some of his clients in these removal proceedings. Gordon Maynard is a Vancouver based lawyer who practices exclusively in Canadian immigration law. He is a past Chair of the Canadian Bar Association’s Immigration Section. Topics 1:39 – Gordon provides an overview of the timeline involved in Sunny Wang’s alleged fraud. 7:50 – What constitutes misrepresentation in Canadian immigration applications? 10:30 – We discuss some of the mechanics of what Sunny Wang is alleged to have done. 12:00 – Many New Can clients are saying that … Read More
Service Canada Officers Fettering Discretion
As I have previously written in this blog, there is an increasing number of judicial review applications being filed against Labour Market Impact Assessment (“LMIA”) refusals. There is also accordingly a growing jurisprudence on what constitutes the “fettering of discretion” in a LMIA assessment. Those who have experience submitting LMIA applications will know that this is not surprising. Paturel International Company v. Canada (Employment and Social Development), 2016 FC 541 (“Paturel“) In Paturel, an officer with the Department of Employment and Social Development (“ESDC“) refused an LMIA application simply because the employer’s job offer did not have a wage that met or exceeded the median wage on ESDC’s Working in Canada website. The Federal Court stated that: While the officer has broad discretion to rely on the data that he considered to be most representative of the prevailing wage in the region, I find that the officer’s sole reliance on EI data amounted to a fettering of his discretion. Justice O’Reilly went on to note that: Canadian immigration legislation does not stipulate that a failure to meet the prevailing wage, alone, would be sufficient to defeat an employer’s application; and Because the employer had provided evidence that the Working in Canada website … Read More
Inconsistent Applications
There is a slowly developing caselaw on the consequences of inconsistent applications. In Singh v. Canada, Justice Barnes determined that an officer could not refuse a permanent resident visa because the officer thought that a study permit had been improperly issued.
John McCallum – The Good, the Bad, and the Ugly
(As published in Policy Options) On January 10, 2017, Prime Minister Justin Trudeau appointed Ahmed Hussen as the minister of immigration, refugees and citizenship. Hussen replaced John McCallum, who had been the minister since November 4, 2015. This is the third time that I am weighing the good, the bad and the ugly about a Canadian immigration minister. It is in some ways the most difficult time, given that McCallum’s tenure was so short. My first assessment of an immigration minister was about Jason Kenney, who remains Canada’s longest-serving immigration minister, having held the role for 1,719 days. His successor, Chris Alexander, whom I also wrote about, led Canada’s immigration department for 826 days. John McCallum was Canada’s immigration minister for only 433 days. To some extent, the busy nature of McCallum’s tenure made up for its short duration. He was the first immigration minister in Trudeau’s Liberal majority government, which assumed power after an election campaign in which refugee and citizenship issues were prominent. Because McCallum had also been the Liberal immigration critic during Canada’s previous Conservative government, and had also served as a cabinet minister in previous Liberal governments, he was able to hit the ground running in … Read More
How many Judicial Reviews?
One of the confusing aspects of a judicial review practice is determining how many applications are needed. In Chambers v. Canada (Citizenship and Immigration), for example, the applicant filed one judicial review to seek review of i) an immigration Officer’s decision to prepare a report pursuant to subsection 44(1) of the Immigration and Refugee Protection Act (the “IRPA“) to the Minister of Public Safety and Emergency Preparedness’ delegate, (ii) the decision of the Minister’s delegate pursuant subsection 44(2) of the IRPA to refer the applicant, to an admissibility hearing before the Immigration Division of the Immigration and Refugee Board, and (iii) the decision of the Immigration and Refugee Board to order the applicant’s removal from Canada. The Department of Justice argued that this was improper. However, Justice Bell disagreed, writing that: The Applicant counters that this same issue was raised in Clare v Minister of Citizenship and Immigration, 2016 FC 545, [2016] FCJ no 513 [Clare]. In Clare, O’Reilly, J. disagreed with the Minister’s contention. He concluded that, “[w]hile it was open to Mr. Clare to seek judicial review of those other decisions, it was not necessary to do so in order to challenge the [Immigration Division’s] decision on admissibility”. While O’Reilly, J. acknowledged … Read More
The Alberta Immigration Nominee Program (Last updated January 16, 2017)
The Alberta Immigrant Nominee Program (“AINP“) currently has three streams. Employer Driven Stream Strategic Recruitment Stream Self-Employed Farmer Stream Employer Driven Stream The AINP Employer-Driven Stream is for: Alberta Employers who want to retain a foreign worker on a permanent, full-time basis where there is a challenge finding Albertans/Canadians to fill the position; and Foreign workers with a permanent, full-time job offer from an Alberta Employer who intend to live and work in Alberta permanently. It includes the following substreams: Skilled Worker Category International Graduates Category Semi-Skilled Worker Category Please note that individuals in the following circumstances are not eligible under the Strategic Recruitment Stream: Refugee claimants, or individuals involved in a federal appeal or removal process; Live-in caregivers currently living in Canada; Temporary foreign workers working and residing in a province other than Alberta; and International students studying in Canada and doing co-op work placements or internships as part of their study program Skilled Worker Category In order to be eligible under the Skilled Worker Category, the employer must: Be incorporated or registered as a business in Alberta by or under an act of the legislature of a province or the Parliament of Canada and operating as a business … Read More
Self Employment and the Canadian Experience Class
Big decision. The Federal Court has ruled that owning the majority of shares in a company and being president can count as self-employment. http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/214532/index.do