Where an applicant submits a complete application, but an immigration officer nonetheless has concerns regarding the merits of it, the immigration officer will often provide a fairness letter to the applicant. This requirement has arisen from Federal Court of Canada jurisprudence which provides that the duty of procedural fairness can require that an applicant be given an opportunity to respond to a decision maker’s concerns when those concerns go beyond simply whether the legislation or related requirements are met on the face of the application. When, for example, the applicant may be unaware of the existence or the basis of the concern, procedural fairness may require prior notice of the concern before a decision is made so that the applicant has an opportunity to try to disabuse the officer of the concern. As the Court noted in Kaur v. Canada (Citizenship and Immigration), 2020 FC 809, this is the case for both temporary and permanent residency applications. In Asanova v. Canada (Citizenship and Immigration), 2020 FC 1173, the Court stated: Even so, at a minimum procedural fairness requires that an applicant for a visa have an opportunity to participate meaningfully in the application process. Consequently, the duty of procedural fairness can require … Read More
Responsibility for Missed E-mail Communication
Who bears the risks when e-mail notices are sent by a visa officer but are not received by the applicant’s agent?
Employment Reference Letters and Immigration
Most Canadian economic immigration programs require that applicants have qualifying work experience. In order to demonstrate that past and current positions qualify, applicants are required to provide references letters from their employers. Such reference letters must state the position title, duration, duties and wage. Prospective immigrants who are obtaining reference letters should understand how officers determine whether specific employment experience meets program eligibility requirements, why reference letters are needed and how immigration officers will assess them. Relying on the NOC system In determining whether work experience is qualifying, Immigration, Refugees and Citizenship Canada (IRCC) relies on the Government of Canada’s national occupational classification (or NOC) system. In the federal skilled worker class, for example, applicants need to have within the 10 years before they apply at least one year of full-time work experience, or the equivalent of part-time work, in their primary occupation that is listed on the NOC website as being skilled. In the Canadian experience class, meanwhile, applicants need to show that they have acquired in Canada, within the three years before the date on which they apply for permanent residence, at least one year of full-time work experience in one or more occupations that are listed on … Read More
Immigrating to Canada from Iran
The following are approval statistics for numerous immigration programs for Iranian nationals. Country Conditions The following PDF contains internal IRCC training materials on country conditions in Iran, including how to read bank statements. Risk Training
The Minimum Necessary Income and Family Class Sponsorships
One of the requirements to being a sponsor in both the Family Class and the Spouse or Common-Law Partner in Canada Class is that the sponsor must on the day that the application is submitted and until the application is assessed have a minimum necessary income. For most types of family sponsorships, the income must be equal to the minimum necessary income, which is statutorily defined as being equal to Statistics Canada Low Income Cutoff (“LICO“). The current LICO requirements are as follows: Size of Family Unit Minimum necessary income 1 person (the sponsor) $24,949 2 persons $31,061 3 persons $38,185 4 persons $46,362 5 persons $52,583 6 persons $59,304 7 persons $66,027 More than 7 persons, for each additional person, add $6,628 For sponsors seeking to sponsor their parents and/or grandparents, the income must be equal to the minimum necessary income plus 30% for each of the three consecutive taxation years immediately preceding the date of filing of the sponsorship application. The current requirements are as follows: Total number of persons you would be responsible for Minimum income required for the 3 taxation years right before the date of your application 2018 2017 2016 2 persons $40,379 $39,813 $39,371 3 … Read More
Court Certifies Question on Judicial Review of 117(9)(d) Refusals
The Federal Court (the “Court“) in Habtenkiel v. Canada (Citizenship and Immigration), has certified a question that if answered in the affirmative would seem to pretty much shut the door on humanitarian & compassionate (“H&C“) appeals of s. 117(9)(d) refusals. The certified question is: In light of sections 72(2)(a), 63(1) and 65 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and the case of Somodi v. Canada (Minister of Citizenship and Immigration), 2009 FCA 288 (CanLII), [2010] 4 F.C.R. 26 (F.C.A.), where the applicant has made a family class sponsorship application and requested humanitarian and compassionate considerations within the application, is the applicant precluded from seeking judicial review by the Federal Court before exhausting their right of appeal to the Immigration Appeal Division where the right of appeal is limited pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227? That question is long and confusing, but lets break it down.
Understanding Judicial Review
When a visa application has been refused and an applicant is convinced that the decision is unreasonable then it may be advisable to file an Application for Leave to Commence Judicial Review with the Federal Court of Canada (the “Federal Court” or the “Court”). The Federal Court has the jurisdiction to review the decisions of visa officers. The Court will determine whether an immigration officer committed any reviewable errors that should result in the decision being set aside. Reviewable errors include errors of fact, law, or breaches of procedural fairness. If an applicant succeeds in Federal Court, then the Court will order that the immigration officer’s decision be set aside, and typically that the application be reconsidered by a different officer. Usually, a successful judicial review will ultimately result in a positive decision from the second visa officer. However, this is not always the case. Furthermore, as the Federal Court of Appeal determined in Lee v. Canada (Minister of Citizenship and Immigration) 2004 FCA 143, there is no obligation on the second immigration officer to specifically refer to the order of the Court in the judicial review and provide reasons as to how and why the second decision differs from the … Read More
Addressing IRPR r. 117(9)(d)
Regulation 117(9)(d) of the Immigration and Refugee Protection Regulations provides that a foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined. An exception exists where the foreign national was not examined because an immigration officer determined that they did not need to be. Regulation 117(9)(d) typically arises where a person immigrates to Canada, does not disclose that they are either married or have children, and then attempt to sponsor for immigration the people that they did not disclose. The Charter If one has a regulation 117(9)(d) refusal and wishes to make a Charter challenge, they should know that the Federal Court of Appeal has already held that the law is constitutional. In de Guzman v. Canada (Minister of Citizenship and Immigration), [2006] 3 FCR 655, 2005 FCA 436, Ms. de Guzman’s counsel argued that by preventing her from sponsoring her children, and keeping her apart from them, regulation 117(9)(d) deprived her of the Charter’s right to liberty because it … Read More
Addressing Newfoundland Nurses
On December 15, 2011 the Supreme Court of Canada (“Supreme Court“) issues its decision in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 (“Newfounland Nurses“). In Newfoundland Nurses, the Supreme Court essentially abolished “adequacy of reasons” as a stand-alone ground for judicial review. Rather, the Supreme Court stated that an officer’s reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. The Supreme Court further stated that (citations removed for ease of reading): Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion. In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. The fact that there may be an alternative interpretation of the agreement to that provided by … Read More
Borderlines Podcast #101 – Cancelling Mexican eTAs, Pepa and Anti-Semitism
Deanna and Steven discuss the partial visa reimposition on Mexican nationals, the cancellation of Mexican eTAs, IRCC procedures for cancelling visas in general and the Supreme Court granting leave in Pepa. We also answer a listener question, which is whether Canadian visa officials should screen prospective immigrants for antisemitism. Misrepresentation Issues The following is an exchange between myself and the Immigration Representative e-mails about whether Mexican nationals whose eTAs were cancelled need to disclose this in future applications.