Jandu v. Canada (Citizenship and Immigration), 2022 FC 1787, was a decision where the Federal Court quashed several visa refusals and misrepresentation findings for truck drivers. The case raised several interesting issues, including the roles of Service Canada and IRCC in assessing genuineness, and what documentation visa officers can reasonably expect work permit applicants to provide. Rafeena Rashid and Jelena Urosevic were counsel for the refused truck drivers. Borderlines · #82 – Jandu v. Canada, the top work permit Federal Court case of 2022 3:00 The facts of Janndu 11:00 Conflicts when representing employers and employees. 13:00 The lack of communication between Service Canada and IRCC when it comes to work permit applications. 20:00 Assessing genuineness. 23:00 Unreasonable documentation requests. 28:00 Lessons from the case for future work permit applications. 37:00 The distinction between a lack of genuineness and a finding of misrepresentation. 54:00 What is the line between misrepresentation and lack of genuineness?
Applied Using the Wrong Form
In Zelmanovitz v. Canada (Citizenship and Immigration), 2023 FC 597, Justice Norris stated: I am satisfied that the officer’s decision is unreasonable. The determinative issue is the officer’s refusal to facilitate the processing of the work permit application as an out-of-Canada application. As part of her request for reconsideration, the applicant had corrected her earlier error and submitted the proper form for someone applying for a work permit from outside Canada. She also provided a detailed explanation (supported by a statutory declaration) for how she had come to make her earlier error and why she was now submitting the correct application form within the context of a request for reconsideration. On review, the respondent was unable to point to any legislation, regulation or policy to support the officer’s statement that the application ““as submitted cannot be considered as an out of Canada application.”” Importantly, and contrary to what the officer appears to have thought, it was impossible for the applicant to correct her earlier error by submitting a new application. Given that she was now outside the timeframe to apply for a post-graduate work permit because of how long IRCC had taken to deal with the application as originally submitted, … Read More
The Transit Without Visa Program and the China Transit Trial Program
In order to improve the competitiveness of Canadian airports, the Canadian government has programs so that people who are transiting to Canada to get to the United States do not need to apply for temporary resident visas. The Transit Without Visa Program The Transit Without Visa Program (“TWOV Program”) allows certain foreign nationals with valid United States visas, traveling to and from the United States, to transit through Canada without having to first obtain a Canadian visa. Qualifying nationalities include Indonesia, Thailand, Philippines, China and Taiwan. The TWOV Program operates at both Vancouver International Airport and Toronto’s Pearson International Airport. The program only applies to nationals of Indonesia, the Philippines, Taiwan, and Thailand. In order to be eligible to travel under the TWOV Program, nationals of these countries must: be in possession of a valid visa issued by the United States; be in possession of a valid passport issued by the authorities of a participating country; hold a confirmed onward ticket for a connecting flight that departs Canada immediately (foreign nationals transiting Canada under the TWOV Program may not seek entry to Canada as temporary residents); arrive in Canada on an eligible airline; and transit through either Vancouver International Airport … Read More
Electronic Travel Authorizations
On August 1, 2015, the Government of Canada launched the Electronic Travel Authorization (“eTA”) program. The program is similar to the United States of America’s Electronic System for Travel Authorization. Implementation of the eTA program allows Canada to pre-screen eTA-required travellers to ensure that they are admissible to Canada. Since March 15, 2016, most foreign nationals who are exempt from the requirement to obtain a Temporary Resident Visa (“TRV“) to enter Canada are required to obtain an eTA before they travel to Canada by air. A list of countries and territories whose citizens need an eTA to travel to Canada can be found here. It is not possible that residents of these countries can simply purchase tickets and board planes to travel to Canada. Rather, an individual will be unable to board a commercial airline to Canada unless the airline first confirms that the individual possesses an eTA through the Canada Border Services Agency’s Interactive Advance Passenger Information system. Americans are exempted from the requirement to obtain an eTA. Other exemptions include: The Queen and the British Royal family; Air crew members and air crew members transiting through Canada; Transit Without Visa: Indonesia, Thailand and Philippines; China Transit Program: Beijing, … Read More
What is Unauthorized Work
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 … Read More
Juveinile Offenders and Canadian Immigration
Canada’s Youth Criminal Justice Act, SC 2002, c 1 defines a young offender as being someone who is 12 years of age or older, but under 18. Convictions under the Youth Criminal Justice Act Section 36 of the Immigration and Refugee Protection Act regulates when a foreign national or permanent resident can be inadmissible for criminality. Section 36(3)(e)provides that: (e) inadmissibility under subsections (1) and (2) may not be based on an offence (i) designated as a contravention under the Contraventions Act, (ii) for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or (iii) for which the permanent resident or foreign national received a youth sentence under the Youth Criminal Justice Act. It is important to note that unlike in some jurisdictions, juvenile offenders in Canada are not transferred to adult court. Instead, the Youth Criminal Justice Act established a process whereby the youth court first determines whether or not the young person is guilty of the offence and then, under certain circumstances, the youth court may impose an adult sentence. If a youth in Canada receives an adult sentence, then they can be inadmissible to Canada … Read More
Spousal Sponsorship Appeals
The spousal sponsorship appeal process at the Immigration Appeal Division (“IAD“) in Canada is a legal process that allows individuals who have had their spousal sponsorship application refused by Immigration, Refugees and Citizenship Canada (“IRCC“) to appeal the decision. The appeal process provides an opportunity for individuals to present their case to an independent body and have their case reviewed by a member of the IAD. Process The spousal sponsorship appeal process begins with the individual filing an appeal with the IAD within 30 days of receiving the refusal letter from IRCC. The appeal must be in writing and provide reasons why the refusal was incorrect. The individual must also pay a fee to file the appeal. Once the appeal has been filed, the IAD will provide a hearing date. The hearing will be conducted by a member of the IAD, who is an independent decision-maker. The hearing is an opportunity for the individual to present evidence, provide testimony, and argue their case. Prior to the hearing, the individual and their sponsor must provide all relevant documents and evidence to the IAD and to IRCC. This includes any new evidence or information that was not included in the initial spousal … Read More
Borderlines Podcast #81 – Artificial Intelligence and Differential Decision Outcome Concerns, with Sean Rehaag
Sean Rehaag is an Associate Professor at Osgoode Hall Law School, the Director of the Centre for Refugee Studies and the Director of the Refugee Law Laboratory. Today we discuss his use of GPT to conduct legal research, artificial intelligence and decision making, differential results in Federal Court and Immigration and Refugee Board decisions, and how to identify if differential outcomes are actually a problem or significant. 2:00 Using GPT to conduct research. 14:00 Issues with unreported decisions or decisions lacking precedential value. Do all decisions need to have precedential value given that it results in inconsistent jurisprudence? 19:00 AI making decisions vs. AI helping to write decisions. 22:00 Bias in decision making in LGBT claims around physical appearance. 28:00 AI leading to uniformity in decision making. 38:00 The receptiveness of the Federal Court to research into judicial decision making. 42:00 Forum shopping as a result of judicial research. 46:00 Should AI play a role in helping judges write decisions. 52:00 Baker as an example of transparency in decision making. 54:00 Is it possible to tell if AI is starting to render unintended decisions? 1:05 Trauma in refugee decision making. 1:14 How do you decide if differential results are problematic? … Read More
Borderlines Podcast #80 – AMA with Raj Sharma on Processing Delays, Mandamus and Bulk Approvals to Clear Backlogs
Raj Sharma is an immigration lawyer in Calgary. He can be found on Twitter at @immlawyercanada Topics: 1:30 – Addressing divergent case law 15:30 – Globe and Mail story about waiving TRV eligibility requirements to clear backlogs 23:00 – Chat GTP replacing lawyers and visa officers 31:00 – Processing delays 36:00 – Mandamus 42:00 – Open work permits for spouses of Canadians 56:00 – C-10 work permits and Express Entry 57:00 – A world in which GCMS notes are provided instead of refusal letters 1:00 – Is the practice of immigration law getting less fun?
Borderlines Podcast #79 – Recapping 2022 and Predictions for 2023 in Canadian Immigration Law, with Tamara Mosher Kuczer
Tamara Mosher Kuczer is the Founder & Principal Lawyer of Lighthouse Immigration Law Professional Corporation. She can be found on Twitter @ttrrmk. 5:00 How would you summarize 2022 for Canadian immigration? 13:23 Favorite development in Canadian immigration law 25:00 Least favorite development in Canadian immigration 39:15 Favorite Federal Court decision 52:00 What should people watch the most in 2023 56:00 What might happen this year that people might not be expecting? 1:04 What will happen with the Self-Employed Class and Start-Up Visa Program? 1:09 Will Express Entry take under 6 months again and will there be a draw in the Parent & Grandparent Program? 1:12 Predictions for citizenship and abolishing PR Cards.