• CBSA National Security Screening

    Last Updated on July 21, 2021 by Steven Meurrens

    According to its website, the Canada Border Services Agency (“CBSA“) screens all visitors, immigrants and refugee claimants to keep Canada safe and secure. Inadmissible persons such as criminals or persons considered security risks are not allowed to enter or remain in Canada. The following PDF contains a detailed breakdown of how this works and efforts to reduce backlogs. National Security Screening Numbers
  • No Expectation on Applicants to ATIP

    Last Updated on July 18, 2021 by Steven Meurrens

    Garcia Balarezo v. Canada (Citizenship and Immigration) is an interesting case which stands for the principle that it is unreasonable for IRCC to expect applicants to submit ATIP requests to learn the internal status of their file and what submissions they might need to make. The Court noted:

    The officer recognized that both the May 2012 and June 2015 work permits were issued by IRCC in error. However, the officer asserted that Ms. Garcia’s May 2012 and October 2012 work permits “had clear notes on them that PA [principal applicant] was not part of the LC program.” This appears to have been very important in the officer’s thinking, as they repeated the point both in responding to one of Ms. Garcia’s submissions, and again in their conclusion, stating:

    The errors made on CIC’s part (including issuing first work permit with med instructions to work in childcare field and adding the incorrect remarks to clients third work permit in 2015) have been taken into consideration and there is still insufficient evidence of H&C grounds to warrant exemptions. PA’s rep stated that PA and her employers were aware of Section 112 of the Immigration and Refugee Protection Regulations and were aware that the initial work permit had to be assessed and issued from outside of Canada and that an immigration medical needed to be completed in order to be eligible to apply for permanent residence. PA could have inquired through the Call Centre as PA’s first 2 work permits had very clear notes on them that PA was not part of the LC program.

    [Emphasis added.]

    The “very clear notes” in question were not, however, notes visible on the face of the work permits issued to Ms. Garcia or in any other document sent to Ms. Garcia. Rather, as is clear from the February 19 GCMS Notes, they were “hidden notes” that were available only to IRCC in their own system:

    When she was issued the document and medical forms from within Canada, client should have questioned why. If client did question it and did not receive an answer, there was opportunity again to contact the Call Centre for clarification. […] The first two work permits that client was issued clearly indicates in hidden notes that client was not part of the LC program.

    [Emphasis added.]

    The officer’s conclusion was thus that when Ms. Garcia applied for and received her first work permit, despite there being no indication that she was not in the LCP, she should have been sufficiently curious about not receiving the expected instruction to leave the country that she should have made inquiries of IRCC. Upon making such inquiries, IRCC would then have advised her of the “hidden notes” saying that IRCC considered her not to be in the program. Certainly if Ms. Garcia had made such inquiries and been told this, this might have cleared matters up in 2012. However, in my view, despite the onus that is on applicants to ensure that they meet program requirements, it was unreasonable for the officer to have effectively required Ms. Garcia to proactively find out the source of errors made by IRCC, and to substantially discount this as an H&C factor in consequence.

    In this regard, there was apparently sufficient uncertainty within IRCC regarding Ms. Garcia’s status that her 2015 work permit expressly stated that she was in the LCP and was eligible for permanent residence after completing employment requirements. Although this statement did not appear until 2015, it was reasonable for Ms. Garcia to rely on it as she worked for a further year in Canada on the continued understanding that she was a part of the LCP. This would appear to be a strong positive factor in Ms. Garcia’s H&C application.

    However, rather than underscoring the impact of this statement, the officer appeared to take it as further grounds on which to blame Ms. Garcia for her conduct. In the January 15 GCMS Notes, the officer relied on the general reference in the remark to see the IRCC website “for details,” noting that despite IRCC expressly stating she was in the program, if Ms. Garcia had “referred to the website she would have realized that she did not meet all of the eligibility requirements.” In the February 19 GCMS Notes, the officer went further, concluding that even after receiving a direct statement from IRCC confirming she was in the LCP, it was “presumptuous of the client to assume she was part of the program and this was another opportunity for client to check the website regarding being eligible” [emphasis added].

    In my view, it is unreasonable to find an immigration applicant “presumptuous” for relying on the accuracy of statements being made by IRCC with respect to their case. This Court has previously recognized the unreasonableness of imposing a duty on an applicant to check the website and regulations to ensure that statements on a work permit are accurate: Sanie v Canada (Citizenship and Immigration), 2019 FC 189 at para 15.

  • Language Requirements and Work Permits

    Last Updated on July 14, 2021 by Steven Meurrens

    Regulation 200(3)(a) of the Immigration and Refugee Protection Regulations 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. An issue that is becomming increasingly common is whether someone has sufficient language ability to perform the work sought. In Singh v. CAnada (Citizenship and Immigration), 2021 FC 638 Justice Bell set aside the refusal of a work permit application for a truck driver.  There, an officer wrote “I have concerns regarding the applicant’s English language skills which are also listed as a requirement for the position on the LMO. While the applicant has an overall band score of 5.5. on the IELTS, I note that he only received a score of 4.5 in reading and a 5 in speaking. Although the LMIA does not explicitly state a minimum required IELTS score for this position, I note that the British Council classifies students at this band level as being a “Limited user [whose] basic competence is limited to familiar situations. [They] frequently show problems in understanding and expression. [They] are not able to use complex language.” Justice Bell determined that relying solely on the IELTS description was improper. He wrote:

    The visa officer does not mention the Canadian Language Benchmark, the prospective employer’s declared language requirement (level 4 of the Canadian Language Benchmark), nor does he or she mention the fact that the prospective employer qualified Mr. Singh’s language skills as excellent. Finally, I note that the British Council referred to students’ abilities. It clearly did not refer to an adult’s language abilities in his or her own trade or calling.

    I am of the view the visa officer fixated on Mr. Singh’s IELTS test results and British Council comparisons. He failed to consider the very real and probative evidence before him. That evidence included; i. the employer’s language requirements; ii. the employer’s assessment of language ability; iii. the Canadian Language Benchmark. iv. the fact no minimum IELTS result was required; and, v. the detailed comparison between the IELTS and the CLB provided by the employer.

  • Temporary Resident Visa Statistics

    Last Updated on June 30, 2021 by Steven Meurrens

    A Temporary Resident Visa (“TRV”) is a document issued by Immigration, Refugees and Citizenship Canada (“IRCC”) which shows that the person has met the requirements for admission to Canada as a temporary resident.  It is typically a counterfoil that is placed in a person’s passport. Statistics From 2011-2021 (February) the temporary resident visa approval rates based on country of citizenship were as follows: TRV Approval Rates
  • Significant Benefit Work Permits (After June 25, 2021 Update)

    Last Updated on June 29, 2021 by Steven Meurrens

    On June 25, 2021 Immigration, Refugees and Citizenship Canada (“IRCC“) updated its C-10 Significant Benefit work permit program. The previous information can be found here on my blog.  The new material on the IRCC website can be found here. (more…)
  • Permanent Residence Approvals by Visa Office

    Last Updated on June 27, 2021 by Steven Meurrens

    In 2019 the approval rates for permanent residence applications processed overseas was as follows. 2019 overseas
  • Misrepresentation When the Information Is Readily Available to a Visa Officer

    Last updated on July 25th, 2021

    Last Updated on July 25, 2021 by Steven Meurrens

    Section 40 of the Immigration and Refugee Protection Act provides that a permanent resident or foreign national is inadmissible to Canada for directly or indirectly misrepresenting or withholding a material fact relating to a relevant matter that induces or could induce an error in the administration of Canada’s immigration laws.

    The general consequence of misrepresenting is a five-year ban from entering Canada. An issue that often arises is where an applicant mistates or omits information in their visa application, but the information is readily available to a visa officer. Koo v. Canada  Koo v. Canada (Minister of Citizenship and Immigration), 2008 FC 931 is the most frequently cited case on this issue.  There, an applicant failed to disclose that he had previously applied for permanent residence, and that the application had been refused.  Justice Montigny stated that:

    I shall now turn to the alleged misrepresentation with respect to the applicant’s previous application for permanent residence. The error occurred when the applicant checked off the “yes” box to the question whether he had “previously sought refugee status in Canada or applied for a Canadian immigrant or permanent resident visa or visitor or temporary resident visa”, but checked off the “no” box to the following question as to whether he had been refused such a status. The applicant has stated that this was an oversight on both the part of himself and his former representative and was in no way intentional. Further, when the applicant was asked at interview about whether he had previously submitted any immigration applications, the CAIPS notes reflect that he advised the officer that he had previously submitted an application for permanent residence in Canada, which was refused in 1995.

    Not only do the CAIPS notes indicate that the existence of the applicant’s previous application for permanent residence was known to Citizenship and Immigration despite the applicant’s change of name, but they also demonstrate that the applicant had previously disclosed his 1995 application for permanent residence when applying for a work permit. The applicant’s previous disclosure supports the applicant’s claim that he misread the question on the application form and inadvertently ticked off the wrong box.

    Application

    In Ali v. Canada (Citizenship and Immigration), 2021 FC 579, Justice Southcott, applying Koo set aside a misrepresentation finding in which an applicant had disclosed a United States visa refusal and that he had been ordered to leave the United States but had not disclosed two subsequent visa refusals. He wrote:

    Perhaps there are steps or procedures that would have been followed if the visa officer had known about the visa waiver refusals in addition to the other information disclosed by the Applicant. However, the Decision provides no explanation of what those procedures would be or any analysis of that question.

    A similar principle arises in Alves v. Canada (Citizenship and Immigration), 2021 FC 716.  There, an applicant disclosed her most recent United States visa refusal, but not the removal from the United States that had occurred some years prior. In finding that this did not constitute misrepresentation, Justice Manson stated: 

    Further, it is unclear how the Officer came to the conclusion that the misrepresentation was material. Notably, whether the misrepresentation was sufficiently important to affect the process, foreclosing or averting further inquiries (Oloumi at para 25; Li v Canada (Immigration, Refugees and Citizenship), 2018 FC 87 at para 13). The Applicant answered “yes” to the single background declaration question, which asks whether the Applicant has adverse immigration history and disclosed her most recent refusal from the United States, which is connected to the 2015 events in question. It appears in such a case that the disclosure in question prompted the appropriate inquiries, as anticipated by the Applicant. The evidence does not justify the Officer’s finding that the misrepresentation was material in this case.

  • Residency Obligation Appeals

    Last Updated on June 24, 2021 by Steven Meurrens

    Section 28 of the Immigration and Refugee Protection Act states:

    Residency obligation

    (28)(1) A permanent resident must comply with a residency obligation with respect to every five-year period.

    Application

    (2) The following provisions govern the residency obligation under subsection (1):

      • (a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are

        • (i) physically present in Canada,

        • (ii) outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent,

        • (iii) outside Canada employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province,

        • (iv) outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, or

        • (v) referred to in regulations providing for other means of compliance;

      • (b) it is sufficient for a permanent resident to demonstrate at examination

        • (i) if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident;

        • (ii) if they have been a permanent resident for five years or more, that they have met the residency obligation in respect of the five-year period immediately before the examination; and

      • (c) a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination.

    The Applicable Five Year Period In Metallo v. Canada (Citizenship and Immigration), 2021 FC 575, Justice McHaffie stated:

    In Rastgou v Canada (Public Safety and Emergency Preparedness), the IAD was faced with the same situation that arose in Mr. Metallo’s case. Mr. Rastgou had applied for a new permanent resident card from within Canada and a section 44 report was prepared almost a year later. In considering whether H&C factors favoured Mr. Rastgou, the IAD had to consider whether his residency shortfall should be calculated based on the five-year period preceding the application, or the five-year period preceding the report: Rastgou at paras 3, 9–12. As in Mr. Metallo’s case, the officer identified both windows in their notes: Rastgou at para 13.

    The Minister in Rastgou argued the earlier five-year period should apply. At the same time, the Minister said the officer identified both windows because the applicant would be found to comply with section 28 if they met the residency requirement in the later five-year period preceding the section 44 report. The IAD felt this supported a finding that the later window applied: Rastgou at para 16.

    The IAD in Rastgou contrasted the situation of those applying from within Canada with that of someone applying for a permanent resident travel document overseas: Rastgou at paras 17–19. In such cases, compliance with the residency obligation is assessed based on the five-year period preceding the application: see, e.g., Amorocho-Diaz v Canada (Citizenship and Immigration), 2009 CanLII 76301 (CA IRB) at para 16, quoting Overseas Processing Manual 10 (OP-10: Permanent Residency Status Determination). Using the date of application when an applicant is outside Canada prevents them from being disadvantaged by any delay in the assessment of the application: Amorocho-Diaz at para 16. This approach can be seen in the factual descriptions of such determinations reviewed by this Court: Tantoush v Canada (Citizenship and Immigration), 2014 FC 245 at para 16; Behl v Canada (Citizenship and Immigration), 2018 FC 1255 at paras 7–8; Sanchez Rebaza v Canada (Immigration, Refugees and Citizenship), 2019 FC 509 at paras 9–10.

    The IAD concluded that using the date on which the review was conducted and the report issued was consistent with the language of subparagraph 28(2)(b)(ii) of the IRPA, the language of subsection 62(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227, and the Minister’s position on compliance with section 28: Rastgou at paras 16–21. It therefore concluded the applicable five-year period was the five-year period preceding the section 44 report, noting this is “consistent with the approach taken by other panels and Minister’s counsel in similar types of appeals”: Rastgou at para 22, citing Gilbert v Canada (Public Safety and Emergency Preparedness), 2017 CanLII 77079 (CA IRB) and Razaghi v Canada (Public Safety and Emergency Preparedness), 2012 CanLII 99644 (CA IRB).

    In addition to the Gilbert and Razaghi cases, a number of decisions of this Court show the IAD using the date of the section 44 report as the relevant date for the five-year period where the applicant is in Canada. In Parikh, the five-year period examined ended on the date of the section 44 report, although the applicant entered Canada and was interviewed five months earlier: Parikh v Canada (Public Safety and Emergency Preparedness), 2019 FC 13 at paras 8, 14, aff’g 2015 CanLII 92733 (CA IRB). While the applicable period was not in dispute, Justice Pentney described the five-year period ending on the date of the section 44 report as the “correct period”: Parikh at para 14. Similarly, in Li the applicant entered Canada and was examined in April 2016, but the applicable five-year period ended on the date of the section 44 report in May 2016: Li v Canada (Citizenship and Immigration), 2018 FC 187 at para 10, aff’g 2017 CanLII 63732 (CA IRB) at para 5 and fn 4. In Huang, the period examined was again the five years prior to the determination, rather than the five years prior to the applicant’s application for a permanent resident travel document: Huang v Canada (Citizenship and Immigration), 2020 FC 327 at paras 4, 6, aff’g 2019 CanLII 30481 (CA IRB).

    The IAD in the current case, however, adopted the contrary approach by considering only the five-year period ending on the date of the application. The IAD identified this as being the five-year period prior to the examination (or control). While the IAD clearly turned its mind to the question of the applicable “examination,” it gave no explanation why the triggering “examination” was the date of application rather than the date on which the section 44 report was prepared. While Rastgou and the other cases referred to above may not be enough to constitute “established internal authority,” they include considered opinions of IAD members on the precise issue and appear to reflect at least a longstanding practice, requiring some justification for departure: Vavilov at para 131.

  • Work Permit for Hong Kong Nationals

    Last Updated on June 9, 2021 by Steven Meurrens

    In 2021 Immigration, Refugees and Citizenship Canada introduced facilitative measures to provide open work permits to residents of Hong Kong. The following individuals are eligible:
    • residents of Hong Kong as defined in the Immigration and Refugee Protection Regulations, regardless of place of physical residence.  The IRPR defines residency as those who hold a passport issued by Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China or the United Kingdom to a British National Overseas (a “BNO”), as a person born, naturalized or registered in Hong Kong;
    • immediate and extended family members of Canadian citizens, persons registered under the Indian Act, Canadian permanent residents or protected persons living in Hong Kong regardless of nationality; and
    • immediate family members of Hong Kong residents who will be working or studying in Canada.

    Work Permits

    As of February 8, 2021, foreign nationals who hold either a HKSAR or BNO passport are eligible to apply for an open work permit under a 2-year temporary resident public policy. Applicants can be residing in Canada or overseas at the time of application. Foreign nationals are not eligible to apply for an open work permit under this public policy at a port of entry. Work permit applications must be submitted online. Eligible spouses or common-law partners, as well as dependent children, can also apply for a study or work permit, as appropriate. Applicants must hold either a:
    • degree (for example, bachelor, master, doctorate) from a post-secondary DLI in Canada or an equivalent educational credential earned abroad,
    • post-secondary diploma from a post-secondary DLI in Canada or the equivalent credential from an overseas institution along with an educational credential assessment (ECA) report from an agency approved by IRCC to confirm Canadian equivalency. The program of study must be at least 2 years in duration; or
    • a graduate or post-graduate credential.
    The educational credential must have been obtained in the 5 years immediately preceding application submission. For degrees issued overseas, officers may request an ECA report. For graduate or post-graduate studies, the applicant must hold a
    • graduate or post-graduate credential (for example, graduate or post-graduate diploma) from a DLI in Canada or
    • an equivalent educational credential from an overseas institution along with an educational credential assessment (ECA) report from an agency approved by IRCC to confirm Canadian equivalency
    The graduate or post-graduate program of study must be at least 1 year in duration, and the completion of a post-secondary degree or diploma must be a program prerequisite. The post-graduate credential must have been obtained in the 5 years immediately preceding application submission. The prerequisite post-secondary degree or diploma must have been obtained in the 5 years immediately preceding the start of the post-graduate program. For example, if the applicant started their post-graduate studies in fall 2019, then their post-secondary degree or diploma must have been obtained between fall 2014 and summer 2019.
  • Borderlines Podcast #54 – Building the Law Career that You Want, with Dennis McCrea

    Last Updated on June 2, 2021 by Steven Meurrens

    Dennis McCrea was the founder of McCrea Immigration Law. He started practicing immigration law in 1974, and was one of the original members of Vancouver’s immigration bar. In this episode we discuss how to build an immigration practice, how the practice of immigration law has evolved, avoiding burnout and more.
    3:00 – How lawyers use to interact with visa officers.
    6:00 – The formation of the immigration bar.
    11:30 –  Thoughts on whether it is possible to have both a corporate immigration practice and a refugee or enforcement practice.
    15:30– Did the practice of immigration law become more or less fun over time?
    18:00 – What kept Dennis motivated when it came to practicing immigration law?
    22:30 – What type of cases did Dennis enjoy the most?
    26:00 – What are some tools that lawyers can use to prevent burnout?
    41:00 – Did the practice of immigration law vary depending on which political party were in power?
    42:00 – How to retire.
    45:00 – How can junior lawyers who are trying to build a practice have time for hobbies?
    48:00 – How Steven and Deanna got into immigration.
    58:00 – Growing a firm.
    1:03:00 – Should you article at an immigration law firm.
    1:06:00 – Being too specialized.
    1:13:00 – What percent of Dennis’s practice was immigration processing, firm management and enforcement?
    1:16:30 – Thoughts on consultants.
    1:19:00 – Are decisions getting better or worse? Are boilerplate refusals becoming more or less common?