Section 7 of the Canadian Charter of Rights and Freedoms (the “Charter“) provides that: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. There have been several Supreme Court of Canada (the “Supreme Court“) and Federal Court of Appeal decisions involving s. 7 of the Charter and Canadian immigration law.
COVID-19 and Students
As the summer nears to an end, students will be preparing for the start of the school year. They will be double checking that they have the most recent version of Zoom on their computers, and possibly upgrading their home internet. COVID-19 has impacted everyone, and international students have especially been left wondering what their academic future in Canada holds. Immigration, Refugees and Citizenship Canada has in response to COVID-19 implemented several public policies that international students should know. Most of them can be found on the IRCC website here: https://www.canada.ca/en/immigration-refugees-citizenship/services/coronavirus-covid19/visitors-foreign-workers-students.html; and here https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/service-delivery/coronavirus/temporary-residence/study-permit.html Prospective and current international students should check the above webpagse daily. The date that they were last modified can be found at the bottom. Unfortunately, IRCC updates its COVID-19 policies through stealth editing, so it may be advisable to save the webpage to PDF to track changes. Here are some of the key measures. Restrictions on Travelling to Canada As of July 15, 2020 international students who have a valid study permit, or were approved for a study permit on or before March 18, 2020, can travel to Canada for a non-discretionary purpose. In determining whether a student’s travel to Canada is non-discretionary, the Canada Border … Read More
Vacating Refugee Status
Section 109 of the Immigration and Refugee Protection Act provides that the Refugee Protection Division (the “RPD“) may vacate a decision to allow a claim for refugee protection if it determines that the decision was obtained through misrepresentation. Specifically, it states: Vacation of refugee protection 109 (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. Rejection of application (2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection. Allowance of application (3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified. The approach to an application to vacate a decision granting refugee status involves two steps: First, the RPD must find that the decision granting refugee protection was obtained as a result of a direct or indirect misrepresentation, or a withholding of material facts relating to a … Read More
Environmental Overview – Abu Dhabi
The following is a summary of the Environmental Overview of the immigration functions at the Canadian Embassy in Abu Dhabi (the “Environmental Overview”). The Environmental Overview was prepared as part of the Citizenship and Immigration Canada 2015-2016 planning exercise, and is current as of March 2015. Environment The Canadian High Embassy in Abu Dhabi (“CIC Abu Dhabi”) provides visa services to residents of Yemen and the six Gulf Cooperation Council (“GCC”) countries: Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates. Due to continued unrest in Yemen, this office has not been able to conduct an area trip there since spring of 2010. We are unable to predict when we will be able to resume travel. This has created a large inventory of cases in Yemen, primarily refugees. Serving temporary resident applications from Yemen presents a challenge in itself. Yemeni citizens cannot easily travel outside the country, and they must provide biometrics. Getting documents in and out is also difficult because some couriers have suspended their services in Yemen. Area trips to Saudi Arabia are subject to all restrictions applicable to that country, such as that women must have their heads covered and must be accompanied by a man in all public places. Quality Assurance CIC Abu Dhabi shares … Read More
The Other Side of COVID-19
Canada is currently in the middle of the COVID-19 pandemic. Its borders are closed to discretionary travel. Immigration, Refugees and Citizenship Canada has suspended the processing of most temporary residence applications. The Canada Border Services Agency has put a pause on removing people from Canada. Civil servants are largely working from home. The Royal Bank of Canada is forecasting that 170,000 fewer people will become immigrants than what was planned pre-COVID-19. At the same time, many provinces have begun reopening their economies. The Orders in Council closing the Canada – US border and Canada’s airports to international travel are supposed to expire on June 21 and June 30 respectively, although they may be extended. The question that many are asking is what comes next for Canada’s immigration system. Backlogs While the processing of most temporary residence applications has been suspended during COVID-19 the ability of foreign nationals to submit them has continued. The implication is obvious. When COVID-19 ends there will be a massive backlog of applications. Significant processing delays should be expected. The systemic delays will not be limited to the ability of visa officers to process applications. The collection of biometrics at Service Canada and most Visa Application … Read More
Agriculture LMIAs
The Department of Employment and Social Development’s (“ESDC“) Primary Agricultural Stream allows employers to hire temporary foreign workers (“TFWs“) for a maximum period of 24 months when Canadians and permanent residents are not available. The program was created to reduce differences between the Seasonal Agricultural Workers Program (“SAWP“) and the regular Labour Market Impact Assessment (“LMIA“) stream. Overview of LMIAs Under the Temporary Foreign Worker Program ESDC reviews LMIA applications to assess the likely impact that foreign workers will have on the Canadian labour market. Immigration, Refugees and Citizenship Canada then generally processes work permit applicaitons submitted by foreign nationals who want to work in Canada. IRCC ensures that program requirements are met, and assesses the admissibility of applicants. The Canada Border Services Agency (“CBSA”) examines foreign nationals at the time of entry and determines whether they may enter Canada. Agricultural LMIAs The Primary Agricultural Stream applies to TFWs entering Canada from any country. Information can be found on the ESDC website here: http://www.esdc.gc.ca/en/foreign_workers/hire/agricultural/overview.page In brief, Primary Agriculture is defined as work duties that must: be performed within the boundaries of a farm, nursery or greenhouse involve at least one activity, such as: operation of agricultural machinery, boarding, care, breeding, sanitation or … Read More
LMIAs for Concession Booth Owner Operators
The Department of Employment and Social Development Canada has special Labour Market Impact Assessment rules for concession booth operators. As per the Guidelines, concession both operators, within the specific context of major touring productions / shows (eg. Disney on ICe, Monster Jam, Ringling Brothers) are classified as National Occupational Classification 0621 – Retail Trade Managers. Concession booth operators are responsible for planning, organizing, directing, controlling and evaluating the operations of establishments selling merchandise. For concession booth owners / operators / managers working in conjunction with major touring productions / shows, the foreign workers own and operate concession booths as sub-contractors of the production company. They: are trained in specific contractual standards on a range of topics, e.g. product knowledge, sales techniques, security; and may be required to purchase minimum quotas of licensed products. At these events, concession sales represent a signficant revenue stream which supports the viability of the main production / show. LMIAs The ESDC guidelines state that officers must base their assessment on whether the employer has made, or has agreed to make, reasonable efforts to hire or train Canadian citizens or permanent residents. LMIA applications for concession both owners / operators associated with major touring productions such … 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
Open Spousal Work Permits and Marriage Genuineness
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 … Read More
Low Salaries and the Canadian Experience Class
Many applicants often ask whether low salaries can result in Canadian Experience Class refusals. Qin v. Canada The leading case on the issue of whether low salaries can result in Canadian Experience Class (“CEC“) refusals is Qin v. Canada (Citizenship and Immigration Canada), 2013 FCA 263. There, the Federal Court certified a question regarding whether immigration officers can consider a position’s prevailing wage rate when determining whether an applicant meets the requirements of the CEC. Neither the Immigration and Refugee Protection Regulations (the “Regulations“) nor the Immigration, Refugees and Citizenship Canada Processing Manuals state that officers should consider salary when assessing whether an applicant has the requisite experience in a skilled position for the CEC. Section 87.1 of the Regulations simply require an officer to evaluate whether a candidate has experience in an eligible occupation. On this point, Madam Justice Gleason wrote that: In evaluating whether or not an applicant’s experience falls within a permissible [occupation], an officer is required to understand the nature of the work performed and the degree of complexity of the tasks undertaken, to determine whether or not they fall within the duties listed in the relevant [occupation]. The requisite analysis necessitates much more than a rote comparison of … Read More