Category: Uncategorized

In a previous Perspectives article I criticized the Liberal Government of Canada’s decision to establish a rigid intake procedure that returned applications in Canada’s family reunification programs for incompleteness. While doing so enabled the government to boast about overall processing times that were technically reduced, for many the consequences were actually lengthier separations and loss of status in Canada.

At the same time, I recognized that it was understandable that the Liberals adopted this strict intake system.  I wrote:

Given that processing times are easily measured, it is understandable that the government wants to reduce them. Indeed, it is hard to go a few days without reading a media story about a family upset with how long their immigration application is taking. Perhaps in exchange for immigration stakeholders not complaining to the media every time processing times increase, Canada’s immigration department could stop applying such a strict approach to accepting an application into processing.

It is of course understandable that applicants and their family members who are directly impacted by Canada’s immigration system would emotionally express frustration.  It can also be a useful strategy to obtain results, as media pressure can sometimes persuade Canadian immigration officials to take certain actions.

However, the level of condensation often hurled at individual officers, and Canada’s immigration bureaucracy as a whole, is extremely counter productive.  It also does not reflect well on those partaking in the condescension.  Indeed, one sometimes gets the impression that immigration representatives (as just one example) who typically manage offices of less than ten people think that they could do a better job of managing Canada’s immigration programs than career civil servants.

The Sheer Scale of Canadian Immigration 

Let’s start with what should be obvious. 

 » Read more about: Seeing the Forest Through the Weeds – Canada’s Immigration System Works  »

Canadian immigration law provides circuses with several ways to access foreign talent.

First, many circus employees will qualify for work permit exemptions under r. 186(g) of the Immigration and Refugee Protection Regulations.  As the Immigration, Refugees and Citizenship Canada website states:

Foreign, travelling circus performers should, in most cases, meet the requirements of paragraph R186(g), as they are usually coming for a time-limited engagement and are not in an employment relationship with a Canadian organization.

The IRCC website goes on to state the following for Canadian circuses:

In cases where the employer is Canadian, there is entry into the Canadian labour market, so [a Labour Market Impact Assessment] is usually required.

Some exceptions may apply to Canadian-based circuses, such as Cirque du Soleil, that can demonstrate the significant social, cultural or economic benefit they provide to Canada. In these cases, foreign circus performers, choreographers, artistic directors and others (that is, staff who are essential to the creative and artistic processes) who are working for a Canadian-based circus may be authorized to enter Canada, under the significant benefit exemption.

Circuses wishing to benefit from this exemption should be able to demonstrate that their shows are international in nature (for example, in presentation or because they tour outside Canada) and contribute to the ongoing, positive, international reputation of Canadian circuses. These circuses should also be able to demonstrate that their reputation as a circus depends on their recruitment of foreign circus performers, choreographers artistic directors and others (that is, staff who are essential to the creative and artistic processes) to maintain a high level of artistic and international prestige.

Artistic Staff

As noted above, the Immigration, Refugees and Citizenship Canada guidelines state that a circus employee qualifies for a C10 work permit if:

• the circus is Canadian-based;

 » Read more about: Work Permits for Circus Workers  »

Generally, to be eligible for a study permit, a potential student must:

• Present a letter of acceptance from the educational institution where she intends to study. This school must be a Designated Learning Institution;

• Be able to both pay the tuition fees of the program as well as be able to financially support themselves and any accompanying financial members. Depending on the person’s country of origin, they may be required to take out a GIC with a designated Canadian bank;

• Be able to cover the cost of transportation to and from Canada;

• Pass any medical examinations;

• Possibly show proof of health insurance;

• Demonstrate that they are a bona fide student and that they will leave Canada at the end of the period authorized by their stay. .

Not every student needs a study permit. Exempt students include:

• Persons seeking to study for a short-term program (unless they wish to work on campus).

• Minor students in Canada.

Students from India and China should be aware of the possibility of them participating in the Student Partnership Program.  This program allows for expedited applications for students that will be attending a school that is a member of the Association of Canadian Community Colleges.

Approval Rates

The following chart obtained through an Access to Information request shows the CIC approval rate for study permit applications based on certain countries of origin from 2009 – 2013.

When to Apply

Most people have to apply for study permits outside of Canada.  There are exceptions to this, however, including those who already hold study permits,

 » Read more about: Applying for a Study Permit  »

From 2008 – 2013, Jason Kenney, currently the Leader of Alberta’s United Conservative Party, then a Member of Parliament with the Conservative Party of Canada, served as Canada’s Minister of Citizenship and Immigration.  During his time as the head of Canada’s immigration department, Minister Kenney implemented many comprehensive reforms to Canadian immigration law, most of which remain in place today.  He also reached out to visible minority communities across Canada, and in an interview with the Globe and Mail noted that immigrants often reflect conservative ideals, stating that “you observe how these new Canadians live their lives. They are the personification of Margaret Thatcher’s aspirational class. They’re all about a massive work ethic.”

Unfortunately, the political parties which bear the conservative banner have either abandoned, or seem close to abandoning, this embrace of immigration.  From a political standpoint, it is not difficult to see why this is occurring.  At the federal level, supporters of the Conservative Party of Canada appear to have a greater discomfort with visible minorities than supporters of other political parties. According to a 2017 EKOS survey, in response to the question “forgetting about the overall number of immigrants coming to Canada, of those who come would you say there are too few, too many or the right amount of visible minorities,” 64% of Conservative Party of Canada supporters said “too many.”  This was more than double the next highest political party whose supporters had the same answer, which was the Greens at 31%.

In many ways, what is transpiring in Canada’s centre-right parties mirrors what is happening to centre-right movements across the Western world, where traditional conservatism is being, or risks being, superceded by ethnic nationalism and populism.

This is depressing.

Canadian immigration legislation and policies reflect conservative values. 

 » Read more about: The Conservative Case for Confidence in Canada’s Immigration System  »

In addition to the defence of duress, discussed elsewhere on this blog here, the Federal Court of Canada in Canada (Public Safety and Emergency Preparedness) v. Aly has determined that the defence of duress can apply to negate an inadmissibility finding for criminality.

The defence of necessity requires proof that:

• there exists a clear and imminent peril;
• there is no reasonable legal alternative available to disobeying the law; and
• there is proportionality between the harm inflicted and the harm avoided.

As the Supreme Court of Canada noted in R v. Latimer, the requirement for “clear and imminent peril” means that:

[D]isaster must be imminent, or harm unavoidable and near. It is not enough that the peril is foreseeable or likely; it must be on the verge of transpiring and virtually certain to occur. In Perka, Dickson J. expressed the requirement of imminent peril at p. 251: “At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable”. The Perka case, at p. 251, also offers the rationale for this requirement of immediate peril: “The requirement . . . tests whether it was indeed unavoidable for the actor to act at all”. Where the situation of peril clearly should have been foreseen and avoided, an accused person cannot reasonably claim any immediate peril.

In short, an individual must believe he faces imminent peril and that he has no legal alternative to his illegal action. Further, his belief must be reasonable given his personal and situational circumstances.

In Aly, for example,

 » Read more about: The Defense of Necessity and Inadmissibility  »

The Department of Employment and Social Development Canada (“ESDC”) has very strict procedures for returning incomplete Labour Market Impact Assessment (“LMIA”) applications.

All applications are reviewed for completeness. A “complete” application means that the employer has used the appropriate form and an acceptable version, and:

• filled out all fields in all the necessary forms;
• included all the documents that are requested;
• signed all the forms, where required; and
• provided the payment form for the processing fee (where applicable).

If an application is missing information, an officer will determine if the missing element can be obtained quickly and call the employer to obtain the information.  Applications that would have been eligible for priority processing but for the missing information are placed in regular processing, even if the information can be obtained quickly.

If the application is missing information that is not easy to obtain, then the application will be deemed incomplete. Although ESDC officers will typically shred or delete an incomplete LMIA, officers will enter reasons for why the application was incomplete in the employer’s system file notes.

The following information from the ESDC Wiki expands on what is written above.

 » Read more about: Return of Incomplete LMIA Applications  »