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.
Chaudan v. British Columbia (Ministry of Jobs, Tourism and Skills Training), 2016 BCSC 2142
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.
Raturi v. British Columbia, 2017 BCSC 9
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 about: Judicial Reviews of BC PNP Decisions »
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
» Read more about: Self Employment and the Canadian Experience Class »
Read more ›The word “continuously” appears in several immigration requirements. It is not often not defined, and its interpretation has largely been left to immigration officers and the courts.
Definitions
Black’s Law Dictionary defines the word “continuously” to mean:
Uninterruptedly; in unbroken sequence; without intermission or cessation; without intervening time; with continuity or continuation.”
The Oxford English Dictionary defines the word “continuously” as being:
“in a continuous manner; uninterruptedly, without a break”.
The Canadian Oxford Dictionary defines “continuous” as meaning “unbroken, uninterrupted.”
Webster’s Third New International Dictionary defines “continuously” as being “in a continuous manner” and “continuous” as “characterized by uninterrupted extension in time or sequence.”
Dependent Child Jurisprudence
Much of the jurisprudence on the matter involves the definition of “dependent child” before the Conservative Government of Canada changes in 2014.
Previously, a “dependent child” was defined as:
“dependent child”, in respect of a parent, means a child who
(a) has one of the following relationships with the parent, namely,
(i) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent, or
(ii) is the adopted child of the parent; and
(b) is in one of the following situations of dependency, namely,
(i) is less than 22 years of age and not a spouse or common-law partner,
(ii) has depended substantially on the financial support of the parent since before the age of 22 — or if the child became a spouse or common-law partner before the age of 22, since becoming a spouse or common-law partner — and,
» Read more about: Was not Continuously Engaged »
Read more ›When Visa Officers Contradict the Immigration Website
Towards the end of 2016 the Canadian government made many changes to Canada’s immigration programs. The parents and grandparents sponsorship program went from being first-come, first-serve to a lottery system, arranged employment through a Labour Market Impact Assessment went from guaranteeing someone an invitation to apply for Canadian permanent residency to only being a factor slightly more significant than the newly introduced factor of Canadian post-secondary education, and Canada lifted the visa requirement against Mexican nationals.
The rate of change will continue to be fast in 2017. Already, the government has announced that it will lift the visa requirement against Brazil, Bulgaria, and Romania, that it would introduce a work permit program for highly skilled foreign workers, that having relatives in Canada will increase one’s chances of being issued an invitation to apply for permanent residency, and that Canada will ratify the Comprehensive Economic Trade Agreement between Canada and the European Union, which will make it easier for Europeans to work in Canada.
At the same time that the rate of the pace of changes is increasing, the Canadian government has also expanded the number of ways in which it publicizes these announcements. Many have been introduced through legislative amendments. Others are simply posted on the Immigration, Refugees and Citizenship Canada (“IRCC”) website, where changes and updates are frequently posted as Program Delivery Updates, Operational Bulletins, Notices, and the IRCC website’s ever growing Help Section. Often times, there is no formal announcement of a change. Rather, a page on the IRCC website is simply updated.
Given the simultaneous increase in the number of changes and the increase in the ways in which these changes are disseminated to the public, it is perhaps not surprising that on occasion visa officers make decisions which contradict the IRCC website.
» Read more about: When Visa Officers Contradict the Immigration Website »
Read more ›Borderlines Episode #11 – Dean Sossin on the tension between ensuring political oversight without politicising officer decision making.
Lorne Sossin is the Dean of Osgoode Hall Law School. Prior to his appointment, he was a Professor with the Faculty of Law at the University of Toronto. Dean Sossin also serves on the Boards of the National Judicial Institute and the Law Commission of Ontario. He has also acted as Research Director for the Law Society of Upper Canada’s Task Force on the Independence of the Bar.
We discuss three topics. The first is the oversight of CBSA and immigration officers in Canada. How do we ensure that there is political oversight and accountability without politicising the day to day operations and decisions of individual officers? The second topic is a discussion of Charter rights and Charter values in the immigration context. Finally, we discuss whether it is OK that in Canada individual immigration officers can create an apply their own standards of the law.
A review of what we discussed is as follows:
00:00 – Introduction
00:51 – Steve Meurrens says what one of his favorite things about law school is.
01:14 – Overview of topics
02:55 – The role of federalism in police oversight.
06:30 – Is criminal law local or is it national?
09:09 – What are the mechanisms which limit executive oversight and police accountability in Canada and how can this be balanced for the need to avoid political interference in day-to-day police activity. Who decides on the operational day to day activities of police?
13:30 – Can a cabinet minister issue an edict directing police not to arrest people? For example, the Trudeau government wants to legalize marijuana, so can they just issue an edict stating that arrests should stop.
Read more ›In Gabriel v. Canada (Citizenship and Immigration), the officer stated:
Unfortunately, the regulations are silent regarding medical conditions of dependent children and determining their eligibility as dependents. Since there is no mention of [ ] medical condition exceptions Michael is not considered a dependent. While I empathize with Michael and his mother I am not satisfied that an exception should be made in this case. The decision to remove Michael from the application stands.
The Federal Court noted that this amounted to fettering discretion, stating that:
In my view the Decision shows that the Officer believed that, because the Regulations did not mention the possibility of an exception from the requirement for continuous study for students who became ill, she could not give Michael the benefit of such an exception and include him in Rose’s application for permanent residence as a dependent child notwithstanding the Absence.
» Read more about: Fettering Discretion »
Read more ›In a recent Borderlines episode, Garth Barriere, Eric Purtzki, Peter Edelmann and I discussed the constitutionality of laws that are retroactive or retrospective. This episode can be found here:
A link to this episode’s synopsis can be found here.
The following post provides a more detailed written summary of retroactive and retrospective legislation in the immigration context.
» Read more about: Retrospective Legislation »
Read more ›Parent & Grandparent Sponsorship Program to be a Lottery in 2017
On December 14, 2016 the Government of Canada announced that it would be changing the application process in Immigration, Refugees and Citizenship Canada’s (“IRCC“) Parent & Grandparent Sponsorship Program (the “PGP“).
For the past several years IRCC’s PGP has been capped at between 5,000 and 10,000 applicants. Applications were treated on a first-come, first-served basis. The PGP would typically open in early January, and the cap would be reached in under 48 hours. This caused most applicants to scramble to submit applications early in the new year.
The process in 2017 will more resemble a lottery system.
Between January 3 and February 2, 2017, Canadian citizens and permanent residents who want to apply as sponsors must first complete an online form on the IRCC website indicating their intention to IRCC that they wish to sponsor their parents and/or grandparents for immigration.
The online form will be available for 30 days, from noon Eastern Standard Time (EST) on January 3, 2017, to noon EST on February 2, 2017.
The form will ask basic questions about the sponsor, including biographical and contact information. Once the information is successfully submitted through IRCC’s online form, the individual will get a confirmation number.
At the end of the 30 days, IRCC will randomly choose 10 000 people and ask them to complete full applications to the PGP.
Those who were invited to apply will have 90 days to submit their complete application to IRCC
The 2017 PGWP application kit and guide will be available on IRCC’s website on January 9, 2017.
More information about the Government of Canada’s announcement can be found here.
Please contact us if you have any questions or concerns about these changes.
» Read more about: Parent & Grandparent Sponsorship Program to be a Lottery in 2017 »
Read more ›Borderlines Episode 10 – The Least You Need to Know About Bill C-51, Bill C-22, and National Security Reform, with Professor Kent Roach
On the 10th podcast episode, Professor Kent Roach joins Peter Edelmann, Deanna Okun-Achoff and Steven Meurrens to discuss national security law in Canada.
Kent Roach is a Professor of Law and the Prichard-Wilson Chair of Law and Public Policy at the University of Toronto. He is a Member of the Order of Canada and is considered to be one of the foremost experts on national security legislation in Canada.
Kent begins by providing an overview of national security law in Canada, starting with the MacDonald Commission and the October Crisis of 1970, the formation of the Canadian Security and Intelligence Service, the Air India bombing, the Arar Inquiry, 9/11, and Bill C-51.
He then summarises the roles of CSIS, the Communication Security Establishment, the Royal Canadian Mounted Police, and the Canada Border Services Agency.
Finally, Kent provides an in depth analysis of several controversial elements of Bill C-51, and the current Liberal Government of Canada’s response.
His book, False Security The Radicalization of Canadian Anti-terrorism, can be found here.
The paper that he authored which he references throughout the podcast, Righting Security: A Contextual and Critical Analysis and Response to Canada’s 2016 National Security Green Paper, can be found here. Its abstract reads:
This article responds to the Canadian government’s 2016 consultation on national security law and policy. It outlines a series of concerns, both with laws enacted in 2015 (and especially bill C-51) and some interpretations of C-51 and other laws in the consultation documents. It urges the need for a systematic and contextual understanding of the many issues raised in the consultation. For example, information sharing and increased investigative powers should not be discussed without attention to inadequate review and accountability structures.
Read more ›Canada Lifts Visa Requirement Against Mexico; Bulgaria, Romania, Brazil Soon to Follow
On December 1, 2016, the Government of Canada lifted the requirement that Mexican nationals obtain a temporary resident visa (a “TRV”) prior to travelling to Canada.
As with all TRV exempt travellers, excluding Americans, Mexican nationals are still required to obtain an Electronic Travel Authorisation (an “ETA”) prior to boarding aircraft to travel to Canada.
The Government of Canada has also committed to gradually expanding eTA eligibility in 2017 to citizens of Bulgaria, Romania, and Brazil.
Electronic Travel Authorisation
The eTA is a new electronic document requirement for visa-exempt air travellers to Canada, excluding citizens of the United States. Travellers apply online for an eTA by providing basic biographical, passport and personal information, and includes questions about their health, criminal history, and travel history.
An automated system then compares this information against immigration and enforcement databases to determine if the traveller is admissible to Canada. The vast majority of applications are approved automatically, with a small percentage referred to an officer for review. Typical reasons for a further review include a previous denial of admission to Canada, a criminal record, or a pending permanent residence application.
The cost to apply for an eTA is $7.00. Applicants must have a valid passport, credit card, and e-mail address.
An eTA is only required for travel to Canada by air. It is not required for travel to Canada by land or sea.
Mexican citizens who already have a valid TRV do not need to apply for an eTA while their TRV is valid.
Future Visa Lifting for Brazil, Romania, and Bulgaria
The Government of Canada has also committed to expanding eTA eligibility to travellers from Brazil, Bulgaria and Romania.
Starting on May 1,
Read more ›Social Media
DISCLAIMER
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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