The Federal Court decision in Calderon Garcia v. Canada (Citizenship and Immigration), 2012 FC 412 sets out the legal principles regarding a delay in claiming asylum. It states:
The Applicants assert that the Board erred in rejecting their claim based solely on the delay in claiming and a lack of supporting documentation. However, this position is not supported by the Board’s decision or related jurisprudence.
Delay in making a refugee claim “is not a decisive factor in itself” but it is a “relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant” (Huerta v Canada (Minister of Employment and Immigration) (1993), 157 NR 225,  FCJ no 271 (CA)). It is reasonable to expect that the Applicants would make a claim at the first possible opportunity (see Jeune v Canada (Minister of Citizenship and Immigration), 2009 FC 835,  FCJ no 965 at para 15).
Recent jurisprudence also suggests that while the delay itself is not determinative, it “may, in the right circumstances, constitute sufficient grounds upon which to dismiss a claim” (Duarte v Canada (Minister of Citizenship and Immigration), 2003 FC 988,  FCJ no 1259 at para 14). Absent a satisfactory explanation for the delay, it “can be fatal to such claim, even where the credibility of an applicant’s claims has not otherwise been challenged” (Velez v Canada (Minister of Citizenship and Immigration), 2010 FC 923,  FCJ no 1138 at para 28).
While the Board implied that the nineteen month delay in this instance would be fatal to the claims, it proceeded to raise several other issues associated with the Applicants’ credibility, notably evasive testimony and the lack of corroborating documents. It is evident from the remainder of the decision that the delay was a significant factor,Read more ›
The Temporary Foreign Worker Manual states the following about working conditions.Read more ›
Regulation 200(3)(a) provides that an officer shall not issue a work permit to a foreign national if there are reasonable grounds to believe that the foreign national is unable to perform the work sought.
In jurisprudence on applications for skilled worker class permits it has also been held that if the officer has concerns about the veracity of documents, procedural fairness demands that the officer make further inquires. However, an officer is generally not under a duty to inform a skilled worker class permit applicant about his concerns when they arise directly from the requirements of the legislation or regulations. As the Federal Court of Canada noted in Li v. Canada (Citizenship and Immigration), 2012 FC 484, the same applies in work permit applications.
As the court held in Kumar v. Canada (Citizenship and Immigration), 2020 FC 935, because of the legislative requirement that officers not issue work permits to foreign nationals if they believe that the foreign national is unable to perform the work sought, then even if Immigration, Refugees and Citizenship Canada’s online checklist does not specifically require documents such as diplomas, academic transcripts, or certificates of English proficiency, an officer can refuse an application if they are not provided when requested by an officer.
On the specific issue of language proficiency, officers can expect more than an English language application and cover letter to verify an applicant’s ability to speak and write in English, where there are reasonable grounds to believe that such language skills are necessary to perform the work sought.Read more ›
Section 203(3)(f) of the Immigration and Refugee Protection Regulations states an assessment provided by the Department of Employment and Social Development (“ESDC”) with respect to the whether the entry of a foreign national is unlikely to have a positive or neutral effect on the labour market in Canada shall be based, in part, on whether the employment of the foreign national is likely to adversely affect the settlement of any labour dispute in progress of the employment of any person involved in the dispute.
ESDC policy is short on this matter, and states that employers should not use the Temporary Foreign Worker Program to circumvent a legal work stoppage or to influence the outcome of a labour dispute.
A labour dispute is defined as occuring when the parties to a collective agreement have reached an impasse in their efforts to enter into, renew or revise a collective agreement and require the intervention of a third party (e.g., government labour officials) to resolve the differences.
It does not include all grievances between a union and employer.
Labour disputes, which often arise during collective agreement/contract negotiation between an employer and a union, may include: work stoppage, strikes, refusal to work, picketing, lockouts, etc. They also arise in situations that are in reaction to working to conditions dictated by legislation such as refusal to perform duties when employees feel that their security might be jeopardized, or different views on issues related to labour standards such as overtime, wages and holidays.
Read more ›
Regulation 203(3)(b) of the Immigration and Refugee Protection Regulations (the “IRPR“) states:
(3) An assessment provided by the Department of Employment and Social Development with respect to the matters referred to in paragraph (1)(b) shall, unless the employment of the foreign national is unlikely to have a positive or neutral effect on the labour market in Canada as a result of the application of subsection (1.01), be based on the following factors:
(b) whether the employment of the foreign national will or is likely to result in the development or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents;
The Temporary Foreign Worker Manual states that the following principles should guide the assessment of whether the employment of a foreign national will or is likely to result in direct job creation or job retention for Canadian citizens or permanent residents.
First, an officer conducting an analyis of a Labour Market Impact Assessment (an “LMIA”) application should reflect a reasonable and balanced approach ensuring that officers do not base their decision solely on the outcome of one of the seven labour market factors. An employer can receive a positive LMIA even if this factor is assessed to be negative and an employer can receive a negative LMIA even if this factor is assessed to be positive.
Second, for Owner Operator LMIAs, assessing if the entry of a foreign national will result in the development or transfer of skills and knowledge is essential.
Third, the following questions will help guide the assessment of this factor:
- How will the staffing of this position lead to the transfer of skills and knowledge?
- What is the skills or knowledge being transferred or developed?
Last updated on February 28th, 2021
While the assessment of the bona fides of a marriage has long been a requirement in Canada’s family reunification programs, it has traditionally not been a significant factor in temporary residence applications. This has recently changed, especially for those submitting applications to Canadian visa posts in India, and at the start of 2020 there were numerous Federal Court of Canada decisions involving refusals of open spousal work permit applications because of concerns over the genuineness of marriages. Many applicants were also barred from entering Canada for five years due to misrepresentation.
Eligibility for Open Spousal Work Permits
According to the Temporary Foreign Worker Guidelines, a dependent spouse or common-law partner is eligible to apply for an open work permit if the principal applicant:
- holds a work permit that is valid for a period of at least 6 months, or, if working in a work permit exempt position presents evidence that they will be working for a minimum of 6 months;
- is employed in an occupation that falls within National Occupational Classification (NOC) skill type 0 (management occupations) or skill level A or B; and
- physically resides or plans to physically reside in Canada while working.
The principal foreign worker may be employed part-time for the spouse or common-law partner to qualify. Although there is not a standard minimum of hours required, officers have to be satisfied the foreign worker’s employment will be sufficient to financially support themselves and their family members while they are in Canada.
As discussed below, the increase in misrepresentation findings in open spousal work permit applications has been a deliberate Immigration, Refugees and Citizenship Canada (“IRCC”) policy choice.Read more ›
Canada’s Department of Employment and Social Development Canada (“ESDC“) administers the Temporary Foreign Worker Program (the “TFWP“). This is the program through which employers can obtain Labour Market Impact Assessments (“LMIAs“).
The following is a partial reproduction of the TFWP Manual (an internal document) regarding who the employer is for the purpose of administering the TFWP.
Who is the Employer
ESDC policy states that an employer is an entity (e.g. person, business, corporation or organization) that makes an offer of employment to one or more foreign nationals who provide labour in return for compensation for a specified period of time. The employer is generally the entity that hires, controls working condititions and remunerates the foreign national.
For the purpose of the Temporary Foreign Worker Program, charachteristics of the relationship, such as control and remuneration, including statutory benefits (e.g. CPP and EI) will be reviewed to determine when an employer – employee relationship exists. The total relationship will be examined and assessed, bearing in mind that no one factor is determinative and there is an extensive list of factors that may be examined.
In cases where two or more entities are determined to share employer responsibilities by the Department, a group of employers may make an offer of employment to a foreign national. The roles and responsibilities of each party must be clear and defined at the time of application.
For the purpose of the Temporary Foreign Worker Program, in cases where a self-employed individual wishes to enter Canada to establish or purchase a business and be involved in its day-to-day operations, the business plan or contract to purchases shares in a business should be evaluated as the job offer. Ownership of shares does not guarantee that a foreign national would qualify as an owner-operator.Read more ›
Canada’s Immigration and Refugee Protection Act states that a foreign national may not work or study in Canada unless authorized to do so.
The Immigration and Refugee Protection Regulations define work as “an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market.”
Wages and Commission
Wages includes salary or wages paid by an employer to an employee, remuneration or commission received for fulfilling a service contract, or any other situation where a foreign national receives payment for performing a service. It is clear that an individual who receives payment for services would be working under Canadian immigration law.
Activities that Compete Directly
The IRCC Guidelines states that for unpaid work officers must consider whether there is entry into the labour market. The two relevant factors that officers are to assess are:
- Will they be doing an activity that a Canadian or permanent resident should really have an opportunity to do?
- Will they be engaging in a business activity that is competitive in the marketplace?
The IRCC Guidelines further states that the following are examples of activities that constitute work.
- a foreign technician coming to repair a machine, or otherwise fulfill a contract, even when they will not be paid directly by the Canadian company for whom they are doing the work;
- self-employment, which could constitute a competitive economic activity such as opening a dry- cleaning shop or fast-food franchise. (A self-employed person may also be considered to be working if they receive a commission or payment for services);
- unpaid employment undertaken for the purpose of obtaining work experience,
Prospective temporary foreign workers in addition to deciding which work permit program they will apply to also need to decide how they will apply for their work permit. There are generally two options. The first is to apply either online or at a Visa Application Center to Immigration, Refugees and Citizenship Canada (“IRCC”) and wait for it to be approved before travelling to Canada. The second is to submit the application to the Canada Border Services Agency (“CBSA”) when entering Canada. There are advantages and disadvantages to each approach.
The Initial Work Permit
Foreign nationals who need a temporary resident visa to visit Canada must submit their work permit applications either online or at a Visa Application Center before they travel to Canada. However, those who do not require a temporary resident visa to visit Canada can apply in person at a port of entry. There are many advantages to applying at a port of entry, and it is typically the preferred approach. First, while IRCC’s work permit processing times range from two weeks to several months, the CBSA will process work permits on the spot. Second, many applicants prefer interacting face to face and speaking with the person who is adjudicating their application. While IRCC will often simply refuse a work permit application because of missing or vague information, the CBSA will essentially interview the person to fill in the gaps.
There are, of course, disadvantages to applying for a work permit in person at a port of entry. First, some people simply do not interview well, especially if English or French is not their first language. Second, if CBSA refuses the work permit application, the person will likely be told that they have to go back to their country of origin, and be denied entry to Canada.Read more ›
Section 207.1 of the Immigration and Refugee Protection Regulations (the “IRPR”) states that (modified for ease of reading):
207.1 (1) A work permit may be issued under section 200 to a foreign national in Canada if there are reasonable grounds to believe that the foreign national is experiencing or is at risk of experiencing abuse in the context of their employment in Canada and if they
(a) hold a work permit; or
(b) previously held a work permit, have applied for a renewal of that permit and are authorized to work in Canada under implied status.
Family member of vulnerable worker
(2) A work permit may be issued to a foreign national in Canada who is a family member of a person described in paragraph (1)(a) or (b).
In other words, temporary foreign workers in Canada who are experiencing, or have experienced abuse, can apply for open work permits. People who have engaged in unauthorized work or have not complied with employment conditions are not excluded from the program.
The objectives of IRPR r. 207.1 are to:
- provide migrant workers who are experiencing abuse, or who are at risk of abuse, with a distinct means to leave their employer;
- mitigate the risk of migrant workers in Canada who are leaving their job and working irregularly (that is, without authorization) as a result of abusive situations
- facilitate the participation of migrant workers who are experiencing abuse, or who are at risk of abuse, in any relevant inspection of their former employer, recruiter or both; and
- help migrant workers in assisting authorities, if required (noting that this is not required for the issuance of the open work permit),
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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