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 ›
Last updated on March 3rd, 2019
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:
Total number of persons you would be responsible for
Minimum income required for the 3 taxation years right before the date of your application
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 Assessments 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 ›
(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 ›
The Alberta Immigrant Nominee Program (“AINP“) currently has three streams.
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:
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 that has an established production capability, plant or place of business in Alberta;
- Provide a job offer to the Candidate for permanent, full-time employment in a skilled occupation;
- Provide a job offer to the Candidate that meets Alberta’s employment and wage standards and does not conflict with existing collective bargaining agreements;
The Honourable Alan S. Diner is a judge with the Federal Court of Canada. Prior to his appointment, Justice Diner headed Baker & McKenzie LLP’s immigration practice. He was also involved with managing the establishment and implementation of Ontario’s Provincial Nominee Program for the Ministry of Citizenship and Immigration.
We are grateful to Justice Diner for the time that he took in preparing for this podcast about tips and best practices in appearing before the Federal Court of Canada, including in providing a customised powerpoint, which can be found on our website at http://www.borderlines.ca. As Justice Diner notes, many of the tips and strategies contained in this episode are applicable beyond judicial review, and will be beneficial to anyone preparing written submissions or making oral presentations.
A review of what we discussed is as follows:
1:18 – Justice Diner describes his history going from being an immigrant in Canada to leading a corporate immigration law practice to becoming a judge with the Federal Court of Canada.
14:30 – We discuss how the practice of immigration law is changing as larger firms and global accounting firms enter the practice area.
18:30 – Justice Diner provides his first three tips to lawyers appearing in Federal Court, which are to treat everyone with respect, to prepare your case and arguments properly, and to respect timelines.
23:10 – Peter asks Justice Diner whether immigration representatives should consider preparing visa applications with possible litigation in mind and how long judicial review applicant records should be.
28:00 – How many arguments should someone make in a judicial review application? If one thinks that an immigration officer made 10 mistakes, should the lawyer in a judicial review application list all 10?Read more ›
Last updated on May 17th, 2019
Where 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), there is no obligation on the second immigration to specifically refer to the order of the Court and provide reasons as to how and why the second decision differs from the first.
In deciding whether to submit a judicial review application it is important to note that the Federal Court will not review or accept new evidence, but, rather, determine if an officer made an error based on the information that was before them.
As well, pursuant to the Federal Court of Appeal decision in Maple Lodge Farms Ltd. v Canada (Food Inspection Agency), 2017 FCA 45, even where a visa officer or tribunal makes a mistake a judicial review may still not succeed if ordering a redetermination would be an exercise in futility.Read more ›
As of writing, there have now been two published judicial reviews of British Columbia Provincial Nomination Program (“BC PNP“) refusals. In each case the judicial review was dismissed.
While both cases were very fact specific, some of the key passages were as follows.
This case essentially stands for the proposition that officers can look beyond an offer of employment to determine whether a proposed job offer meets BC PNP program requirements. Justice Bowden wrote:
In determining whether an applicant met the criterion of PNP, if a decision maker relied only upon a future offer of employment, that might well be unreasonable. Not only would that ignore the factor of past employment over a nine month period but also an offer of employment in the future is not an assurance that the criterion will be met.
In this case Madam Justice E.A. Arnold-Bailey provided a useful summary of existing jurisprudence on provincial nomination judicial reviews. She wrote:
Moving from more general statements of principle to specific cases more closely aligned to the present case, I note that among the cases referred to by the Respondent are Jiang and Baba. Both these cases deal with provincial nominee programs in other provinces, Manitoba and New Brunswick respectively. In neither case was the denied applicant successful.
Jiang was an appeal from an order of the application judge refusing to quash a decision of the Manitoba Provincial Nominee Program for Business (the “Program”). The appellant,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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