Many lawyers when they meet with clients often review rejected applications and/or appeals where it is obvious that the individual’s previous representative was incompetent. The examples of incompetence range from missed deadlines to ignorance of the law. Some specific examples include: former counsel being told by an Immigration Appeal Division member to “sit down” because they were incompetent; an immigration consultant not knowing the difference between a “conviction” and a “dismissal”; an immigration consultant stating that the “prevailing wage = the wage paid to Canadians at the employer’s company”; and a lawyer filing late because “deadlines are policy, not statute.” While the previous representative’s incompetence may serve as a ground for relief in a judicial review, cases based on incompetence and/or negligence of previous counsel are exceptionally difficult. The Federal Court’s March 7, 2014, Procedural Protocol on arguing incompetence of counsel only make these cases more challenging. The Law on Incompetence of Counsel As the Supreme Court of Canada stated in R v. GDB for incompetence/negligence of previous counsel/representative to count as a ground for judicial review, it must be established that (1) previous counsel’s acts or omissions constituted incompetence and (2) that a miscarriage of justice resulted from the incompetence. The Federal … Read More
C-11 Work Permits
Immigration, Refugees and Citizenship Canada’s (“IRCC”) International Mobility Program contains Labour Market Impact Assessment (“LMIA”) exemption code C-11, titled Canadian interests – Significant benefit – Entrepreneurs/self-employed candidates seeking to operate a business. The exemption falls under Regulation 205(a) of the Immigration and Refugee Protection Regulations. According to the IRCC website, the eligibility requirement can be divided into those who seek permanent residence and those who don’t. For those who seek permanent residence, an applicant must: be an actual or potential provincial nominee undertaking business activities or be a Quebec-destined entrepreneur or self-employed person issued a Quebec Selection Certificate (a “CSQ”); and have a letter of support from the province or territory (this letter of support should count towards evidence that their admission to Canada to operate a business may create significant economic, social or cultural benefit to Canada) or a request from the Ministère de l’Immigration, de la Diversité et de l’Inclusion (MIDI) requesting early entry. For those who do not seek permanent residence, an applicant must: demonstrate that their admission to Canada to operate their business would generate significant economic, social or cultural benefits or opportunities for Canadian citizens or permanent residents. Benefits to Canadian clients of a self-employed worker may … Read More
Canada’s Interpretation of Article 1F(b) of the 1951 Refugee Convention
Article 1F(b) of the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (the “1951 Refugee Convention“) states that the provisions of this 1951 Refugee Convention shall not apply to any person with respect to whom there are serious reasons for considering that they have committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee. Section 98 of Canada’s Immigration and Refugee Protection Act (“IRPA” or the “Act“) incorporates Article 1F(b) of the 1951 Refugee Convention into Canadian immigration law. What is the Purpose of Article 1F(b)? Does Is it Restricted to Fugitives? If a Person is Rehabilitated Can They Still be Excluded from Refugee Protection? In Febles v. Canada (Citizenship and Immigration Canada), 2014 SCC 68 (“Febles“), the Supreme Court of Canada (the “Supreme Court“) addressed the issue of whether the application of Article 1F(b) of the 1951 Refugee Convention is simply a matter of looking at the seriousness of a crime when it was committed, or whether it requires consideration of other matters, including, for example, whether a refugee claimant is a fugitive and/or whether an individual is rehabilitated. The Supreme Court found that the purpose of Article 1F(b) … Read More
Duress and Inadmissibility to Canada
The Supreme Court of Canada has “clarified” the elements of the duress defence. The defence is important because it can affect admissibility. For example, in Guerra Diaz v. Canada (Citizenship and Immigration), 2013 FC 88, the Federal Court of Court determined that the Immigration and Refugee Board improperly applied the test of whether duress applied, and ordered a new hearing by a different member. Duress and Inadmissibility It is basically trite law that where there is duress, then a person does not have the mens rea do either commit a crime or be a member in a group that renders the individual inadmissible to Canada. In Jalloh v. Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 317, the Federal Court stated that: In my view, it is preferable to consider the evidence of membership along with the evidence of coercion in determining whether there are reasonable grounds to believe the person genuinely was a member of the group. One way of looking at this issue is to regard evidence of duress as defeating the mens rea of membership (Thiyagarajah v Canada (Minister of Citizenship and Immigration), 2011 FC 339). Accordingly, evidence relating to duress must be considered along with the evidence relating to … Read More
Borderlines Podcast #216 – Inside IRCC: Answers to Representatives’ Emails #1
Steven Meurrens and Deanna Okun-Nachoff review several responses from IRCC’s Immigration Representatives’ Mailbox, where immigration representatives ask questions about how Canadian immigration law and various immigration programs are interpreted and applied. This correspondence was obtained through an Access to Information Act request. Topics discussed include: (1) whether rental assistance counts as social assistance for sponsorships; (2) study permit requirements for children of protected persons; (3) maintained status and “rolling” extension applications; (4) whether marriages count for immigration purposes if the commissionaire is joining remotely; (5) criminal rehabilitation applications and concurrent filings; (6) adding newborn children after COPRs are issued; (7) travelling to Canada by land with an expired PR Card; (8) whether C11 entrepreneur work permits count toward Express Entry; (9) foreign work experience performed remotely from inside Canada; (10) Express Entry NOC code refusals and category-based selection issues; (11) non-accompanying spouses and CRS score maximization; (12) proof of settlement funds in foreign currencies; and (13) PR portal travel complications and eCOPRs. We also answer a live listener question about ATIPs and CBSA.
Mandamus Orders
A mandamus order is a judicial command to a government body to do, or forbear from, doing a specific act which it is obligated in law to do. The Federal Court’s decision in Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159, is one of the most cited case in the immigration context for setting forth the test for when a mandamus order will be given. There, Justice Snider stated: The equitable remedy of mandamus lies to compel the performance of a public legal duty that a public authority refuses or neglects to carry out when called upon to do so. Mandamus can be used to control procedural delays (Blencoe v. British Columbia (Human Rights Commission) [2000] 2 S.C.R. 307 at para. 149). The test for mandamus is set out in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.), aff’d [1994] 3 S.C.R. 1100 (and, more recently, discussed in the immigration context in Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189 (T.D.), aff’d [2003] F.C.J. No. 813, 2003 FCA 233,). The eight factors are: (i) There must be a public legal duty to act; (ii) The duty must be owed to the Applicants; (iii) … Read More
CBSA National Security Screening
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. Here is a PDF containing more information. And more, with a breakdown by country.
Labour Market Impact Assessments – The Genuiness and Actively Engaged Factors
Section 203(1)(a) of the Immigration and Refugee Protection Regulations (“IRPR“) requires Service Canada to only issue a positive Labour Market Impact Assessment (“LMIA“) when it is satisfied that an employer’s job offer is genuine. The IRPR lists several specific factors which Service Canada officers must consider in a genuineness analysis. The Genuineness Factor In addition to regulation 203(1)(a) of the IRPR, regulation 200(5) of IRPR provides that: Genuineness of job offer (5) A determination of whether an offer of employment is genuine shall be based on the following factors: (a) whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made, unless the offer is made for employment as a live-in caregiver; (b) whether the offer is consistent with the reasonable employment needs of the employer; (c) whether the terms of the offer are terms that the employer is reasonably able to fulfil; and (d) the past compliance of the employer, or any person who recruited the foreign national for the employer, with the federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work. … Read More
Responsibility for Missed E-mail Communication
Who bears the risks when e-mail notices are sent by a visa officer but are not received by the applicant’s agent?