One of the most complicated topics in immigration law is determining when procedural fairness will require an immigration officer who is assessing an application to seek clarification in the form of a fairness letter or interview. As the Supreme Court of Canada noted in Baker v. Canada (Minister of Citizenship and Immigration) the the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case. When a visa officer does not rely on third party extrinsic evidence to make a decision it can often appear unclear when exactly it is necessary for an officer to afford an applicant an interview or a right to respond to the officer’s concerns. However, there will be a right to respond under certain circumstances. Requirement to Provide Complete Applications Visa officers do not have any legal responsibility to advise applicants of incomplete or inadequate applications. In Kaur v. Canada (Citizenship and Immigration), 2010 FC 758, for example, the Federal Court dismissed a judicial review application of a visa officer’s refusal of an applicant under the Federal Skilled Worker Program. A visa officer determined that the application was deficient as it failed to include required information regarding … Read More
Differential Treatment for People from Africa
An unfortunate reality of Canada’s immigration system is that one’s country of citizenship can impact the likelihood of success in a visa application. When it comes to visitor visas, study permits and work permits certain source countries consistently have higher approval rates than others. The approval rate for people from Africa has been consistently lower than other regions for years. In October 2021 Immigration, Refugees and Citizenship Canada (“IRCC”) published a report titled “IRCC Anti-Racism Employee Focus Groups.” IRCC employees in the report stated what many already suspected, which is that applications from Africans are often treated with more scrutiny than elsewhere. Statistics The statistics for Africans submitting temporary residence applications are mostly abysmal. This is especially the case for Africa’s largest country, Nigeria. For example, from January – June 2020 the study permit approval rate for the top ten source countries of applicants to Canada was, in alphabetical order, Bangladesh (27%), Colombia (66%), India (51%), Iran (30%), Japan (97%), Korea (95%), Nigeria (12%), People’s Republic of China (64%), Philippines (57%), Vietnam (56%). For some of Africa’s other large source countries of applicants the rates were 18% for Ethiopia, 26% for Kenya, 20% for the Congo, and 54% for South … Read More
Business Visitor or Work Permit Required?
The Business Visitor category facilitates the entry of a broad range of individuals who intend to enter Canada to engage in business or trade activities without entering the Canadian labour market. Business Visitors do not need work permits, pursuant to section 186(a) of Canada’s Immigration and Refugee Protection Regulations (“IRPR“), which states that: No permit required 186. A foreign national may work in Canada without a work permit (a) as a business visitor to Canada within the meaning of section 187; IRPR s. 187, meanwhile, states that: Business visitors 187. (1) For the purposes of paragraph 186(a), a business visitor to Canada is a foreign national who is described in subsection (2) or who seeks to engage in international business activities in Canada without directly entering the Canadian labour market. Specific cases (2) The following foreign nationals are business visitors: (a) foreign nationals purchasing Canadian goods or services for a foreign business or government, or receiving training or familiarization in respect of such goods or services; (b) foreign nationals receiving or giving training within a Canadian parent or subsidiary of the corporation that employs them outside Canada, if any production of goods or services that results from the training is incidental; and (c) … Read More
Do I need a Work Permit?
The issue of whether a foreign national needs a work permit is often confusing. In January 2012, I wrote the following article for The Canadian Immigrant. Do I Require a Work Permit In October, the Vancouver Sun ran a story about an employer who was convicted of misrepresentation. The individual had told his employees to falsely tell border officials that the employees were enteringCanadafor pleasure, as opposed to working briefly at a festival in Whistler. Presumably the employer’s objective in having his employees say this was to avoid having to apply for work permits. There is no question that lying to border officials constitutes misrepresentation. What is ironic about the employer’s situation is that from what I could tell (based on the Vancouver Sun article) his employees could have been honest about their intentions to work at the festival and still not required work permits. The reason is simple: Canada’s immigration laws are clear that not all work requires a work permit. What is Work? Before getting into examples of work that do not require a work permit, it is necessary to review what work does. The concept of work for immigration purposes is broader than many people realize. “Work” … Read More
Religious and Charitable Workers
There are generally two types of religious workers who seek entry to Canada to work. The first are clergy (which includes Buddhist monks, Sikh granthis, rabbis, priests, preachers, pastors, etc.) whose employment in Canada will consist mainly of preaching doctrine, presiding at religious functions, or providing spiritual counselling. The second are religious workers (which includes nuns, monks and field workers). Work Without a Work Permit Section 186(l) of the Immigration and Refugee Protection Regulations (“IRPR“) provides that such people may work in Canada without a work permit. IRPR r. 186(l) states: 186. A foreign national may work in Canada without a work permit (l) as a person who is responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties are to preach doctrine, perform functions related to gatherings of the congregation or group or provide spiritual counselling; Generally, applicants applying to work in Canada without a work permit under IRPR r. 186(l) need to demonstrate that they have a genuine offer of employment from the religious denomination that seeks to employ them, that the organization employing them can provide for their care and support, and that they are able to minister to a congregation under the auspices of … Read More
The Reciprocal Employment LMIA Exemption
Regulation 205(b) of the Immigration and Refugee Protection Regulations provides that a work permit may be issued to a foreign national without the employer needing to first obtain a Labour Market Impact Assessment if the the employment of the foreign national in Canada would create or maintain reciprocal employment of Canadian citizens or permanent residents of Canada in other countries. Some obvious examples of where such work permits are frequently issued include in sports leagues such as the National Hockey League, Major League Baseball, as well as the Canada World Youth exchange. International Experience Canada, including its most popular program – the Working Holiday Program – also falls under this Labour Market Impact Assessment, as do reciprocal employment arrangements in academia. What is less commonly known, however, is that multinational corporations can also take advantage of this Labour Market Impact Assessment exemption. To qualify, the employer must demonstrate that reciprocity exists. This can be demonstrated by a work contract (if it provides evidence of reciprocity), a Human Resources Global Mobility Policy that demonstrates a balance of bilateral flow, and/or other documents that show that Canadian foreign workers benefit from the ability to travel abroad within the company. As the IRCC website states regarding C-20 … Read More
Delays in Claiming Asylum
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, [1993] 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, [2009] 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, [2003] FCJ no 1259 at … Read More
LMIA Working Conditions
The Temporary Foreign Worker Manual states the following about working conditions.
LMIAs and Labour Disputes
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 … Read More
LMIAs – The Skills Transfer Factor
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 … Read More