Subsections 87.1(2)(b) and (c) of the Immigration and Refugee Protection Regulations set out the job duties that applicants must perform in order to meet the requirements of having experience in an eligible NOC.
Subsection 87.1(2)(b) provides that an applicant must have performed the “actions described in the lead statement for the occupation as set out [in the NOC]”, while subsection 87.1(2)(c) provides that an applicant also must have performed a “substantial number of the main duties of the occupation as set out in the NOC, including all of the essential duties.”
In Benoit v. Canada (Citizenship and Immigration), 2013 FC 185, the Court allowed the appeal where an officer rejected an application because the applicant did not perform two of the eight main duties for NOC 6211. The Court stated:
The officer was therefore required to determine if Ms. Benoit “performed a substantial number of the main duties.” However, the officer’s decision as disclosed by the CAIPS notes is merely the following: “Duties listed in job letter do not match duties in NOC description; ordering and scheduling is done by manager with PA’s assistance.” “Ordering” and “scheduling” are no more than mere components of the main duties listed in NOC 6211. Thus, it is not clear if the officer at any point turned his or her mind to the real question, which was whether – on the whole – the duties were a substantial match.
Another case worth noting is Ye v. Canada (Citizenship and Immigration Canada), 2012 FC 652. There, an officer refused an application under NOC 6221 because the officer felt that NOC 6421 was more appropriate. The officer did this not withstanding that NOC 6221 contained the following example titles “technical support specialist”,Read more ›
Section 44 of the Immigration and Refugee Protection Act states:
Preparation of report
44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.
Referral or removal order
(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.
(3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order.
Read more ›
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 was inaccurate, it was unreasonable for the officer to nonetheless rely on it and to ignore the additional information.
Seven Valleys Transportation Inc. v. Canada (Employment and Social Development), 2017 FC 195 (“Seven Valleys“)
In Seven Valleys, an ESDC officer refused an LMIA application solely because the employer advertised with a job requirement that an internal ESDC Wiki deemed excessive,Read more ›
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)
More than 7 persons, for each additional person, add
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:
Federal Income Table for Parents and Grandparents Sponsorship
Size of Family Unit
If more than 7 persons, for each additional person, add
Canadians seeking to sponsor their spouses or common-law partners do not need to have a minimum necessary income.
Excluded from these amounts include, amongst other things, any amounts paid to the sponsor under the Employment Insurance Act, other than special benefits.
Looking Beyond the Notices of Assessment
Visa officers must accept Canada Revenue Agency Notices of Assessment as proof of income when a sponsorship application is filed.Read more ›
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.Read more ›
Section 35 of the Immigration and Refugee Protection Act (the “IRPA“) provides that:
Human or international rights violations
35 (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for
(a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
(b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act; or
(c) being a person, other than a permanent resident, whose entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a country against which Canada has imposed or has agreed to impose sanctions in concert with that organization or association.
In order for Immigration, Refugees and Citizenship Canada (“IRCC“) to establish that someone is inadmissible to Canada for human or international rights violations, the standard of proof required is more than a flimsy suspicion, but less than the civil test of balance of probabilities. It is much lower threshold than the criminal standard of “beyond a reasonable doubt”.
Pursuant to the Federal Court decision in Andeel v. Canada (Minister of Citizenship and Immigration), it is also necessary for officers to explicitly state why an action constitutes a crime against humanity according to international law,Read more ›
Sharalyn Jordan is an Assistant Professor in the Faculty of Education at Simon Fraser University. She works with with community agencies that support LGBTQ and refugee mental health as they develop and assess their counselling practices and programs.
In this episode we discuss how to overcome systemic barriers in LGBTQ asylum claims. Much of this episode is dedicated to establishing how LGBTQ asylum claimants must prove their sexual identity during their refugee claim. How does someone from a country where being gay is illegal and who has been a closeted homosexual for their entire life prove that they are gay? What do Immigration and Refugee Board members expect? How can counsel assist? Finally, we discuss whether LGBTQ asylum claimants should even be required to prove their sexual orientation as part of their asylum claim.
1:13 – Sharalyn provides an overview of the history of how Canada’s immigration and refugee system has restricted the ability of LGBT people to relocate to Canada.
5:12 – Canada’s immigration and refugee system often requires that people prove their sexual orientation. How can LGBT people prove their orientation?
20:00 – Are there circumstances in which an Immigration and Refugee Board member can reject a person’s claimed identity?
34:30 – What degree of membership in a LGBT community is required or the norm for an LGBT refugee claimant?
36:40 – What is the standard of persecution in the LGBT context?
44:10 – What changes does Sharalyn think need to be made to Canada’s refugee system?
53:30 – Steven expresses concerns with the idea of not questioning one’s identity, and has his concerns answered.
Post Show Notes
After listening to this episode one might want to see examples of decisions where the Refugee Protection Division engaged in reasoning that was not sensitive to LGBT issues.Read more ›
(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 implementing his mandate. Nonetheless, the comparative lack of material to write about was noticeable as I prepared this article.
John McCallum’s biggest accomplishment as Canada’s immigration minister, and the one that he will definitely be most remembered for, was presiding over the resettlement of over 39,000 Syrian refugees in Canada. Given the numerous significant challenges associated with such a grand endeavour, it is doubtful that someone without McCallum’s previous cabinet experience would have been able to achieve what he did in such a short period.Read more ›
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,  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 that in some cases applicants had challenged multiple decisions through separate applications, he did not interpret them as “requiring applicants to do so in order to challenge the ID’s decision on admissibility”.
Mr. Chambers contends this issue has already been disposed of by the judge who granted leave. I agree. Leave was granted on the application as filed, without any limitation. The question is therefore moot. However, by way of obiter, I would state that I agree with the approach adopted by O’Reilly,Read more ›
Efrat Arbel is Assistant Professor at the Allard School of Law at the University of British Columbia. She is an executive member of the Canadian Association of Refugee Lawyers. A list of Dr. Arbel’s recent publications can be found here.
During this podcast we talk about three areas that Dr. Arbel has recently focused her research on. These include the distinction between physical borders and legal borders in the refugee context, how interdiction works, and the Safe Third Country Agreement.
The Safe Third Country Agreement between Canada and the United States requires that persons seeking refugee protection must make a claim in the first country they arrive in unless they qualify for an exception to the Agreement. In other words, an asylum seeker who wishes to seek refugee status in Canada will typically be denied the ability to do so if they attempt to enter Canada by land from the United States.
This episode was recorded before President Trump’s recent Executive Order imposed a moratorium on asylum claims in the United States. President Trump’s decision has only intensified and magnified many of the issues that Dr. Arbel discusses in this podcast.
1:43 – Dr. Arbel explains different concepts of what a country’s border is, and the distinction between the physical border and the legal border.
4:10 – We discuss the Canada Border Services Agency’s multiple border strategy, the role of Canada Border Services Agency liaison officers, and interdiction.
16:15 – We briefly summarize Canada’s new Electronic Travel Authorisation.
19:00 – Dr. Arbel provides an overview of global refugee flows.Read more ›
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
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