On July 31, 2018 Canada is imposing new biometric requirements on individuals wishing to visit Canada. Biometrics refers to the taking of fingerprints and a photograph. Biometrics collection is being expanded to include all persons (with certain exemptions) applying for temporary or permanent residence, including all those applying for a temporary or permanent resident visa or status, work permit, study permit, or temporary resident permit. The Government of Canada is also introducing systematic fingerprint verification for all biometrically enrolled travellers at Canada’s major airports and expand fingerprint verification capacity at additional ports of entry. Finally, Canada will enhance biometric information sharing between Canada and the United States and introduce biometric information sharing with other the Migration 5 partners, which are Australia, the United Kingdom and New Zealand. The change is part of a worldwide trend. More than 70 countries worldwide have implemented or are planning to implement biometrics in their immigration and border programs, including allies such as the United States, the United Kingdom, Australia, New Zealand and the European Union. Who is Required to Provide Biometrics Since 2013, citizens of 29 visa-required countries and one territory have been required to provide biometrics. Biometrics have also been collected from overseas refugee … Read More
Do Cruise Ship Employees Need Work Permits?
Regulation 186(s) of Canada’s Immigration and Refugee Protection Regulations (the “Regulations“) regulates when crew members are permitted to work in Canada without first obtaining a work permit. The Regulations state: R186(s). A foreign national may work in Canada without a work permit as a member of a crew who is employed by a foreign company aboard a means of transportation that (i) is foreign-owned and not registered in Canada, and (ii) is engaged primarily in international transportation Immigration, Refugees and Citizenship Canada (“IRCC“) has published helpful guidance as to how this Regulation is to be interpreted (the “Guidelines“). What is a Member of a Crew As per the Guidelines, on a cruise ship, crew members include: licensed officers: master, first officer, chief officer or chief mate, first engineer or chief engineer, and subordinate officers and engineers; non-licensed crew: ordinary seamen, able-bodied seamen, bosun (deck crew foreman), engine- room crew (oilers and fitters), and kitchen and mess-room staff (cooks, stewards and messmen); and the hotel manager, cruise director, purser, medical staff, managers and staff of the ship’s bars, restaurants, boutiques and casino, as well as house-cleaning staff and entertainers. Crew members do not include: supernumeraries: spouses, children and other dependants of crew … Read More
Certified Questions and the Federal Court of Appeal
The Federal Court of Canada has the ability to review the decisions of administrative tribunals, including decision makers with Immigration, Refugees and Citizenship Canada and the Canada Border Services Agency. Most people familiar with judicial systems know that decisions of lower courts can be appealed to higher courts. However, section 74(d) of Canada’s Immigration and Refugee Protection Act and s. 22.2(d) of the Citizenship Act provide that an appeal to the Federal Court of Appeal may only be made if a Federal Court judge, when rendering judgement, the judge certifies that a serious question of general importance is involved and states the question. It is important to note that once a judge certifies a question an appeal to the Federal Court of Canada is not limited to the question that the judge certified. In Kanthasamy v. Canada (Citizenship and Immigration), the Supreme Court stated that (citations removed): Once an appeal has been brought to this Court by way of certified question, this Court must deal with the certified question and all other issues that might affect the validity of the judgment under appeal. The certification of a question “is the trigger by which an appeal is justified” and, once triggered, the appeal concerns … Read More
Law Cans Episode 6 – Office of the Children v. Baldev (International Child Abduction) with Ari Wormeli
Office of the Children’s Lawyer v. Balev is a 2018 Supreme Court of Canada decision in which the Supreme Court had to determine what the test should be for determining where to return a child under the Convention on the Civil Aspects of International Child Abduction (the Hague Convention). Ari Wormeli is a lawyer at YLAW Group, a prominent Vancouver family law firm. We discuss the Supreme Court decision, and Ari discusses what it is like being a family law lawyer, what he thinks is the number one indicator of whether a marriage will end in divorce and whether he has ever felt threatened by an opposing party. 1:00 – The facts of the case. A couple is married in Ontario. They move to Germany in 2001 where their two children are born. They struggle with school in Germany so the father gave his time‑limited consent for the children to move to Canada with the mother for the 2013‑14 school year. The children attended school in Ontario where they resided with the mother and their grandparents. Because he suspected that the mother would not return the children to Germany at the end of the school year, the father purported to … Read More
IRCC Application Refusal – Example of Internal Reasons for Study Permit Refusal
In a previous blog post I wrote about how IRCC’s internal reasons for refusal are often much more detailed than what is in the refusal letters that IRCC sends to refused applicants. The recent case of Aguilar v. Canada (Citizenship and Immigration), 2016 FC 947 illustrates this. There, the refusal letter stated: The checklist reasons for refusal further added that the reasons for refusal were “employment prospects of country of residence” and “current employment situation.” The internal reasons for refusal, which could only be obtained through filing an Access to Information Act request or going to Federal Court were much more detailed, and stated that: As you can see, it would be impossible for people who did not have the internal reasons to fully understand why their application was refused. It is for this reason that people with refusals should always seek to obtain the full reasons for refusal before re-applying.
DUIs to Become Serious Criminality
On June 21, 2018 Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts (“Bill C-46”) received Royal Assent. Bill C-46 is the companion legislation to Bill C-45, The Cannabis Act, which essentially legalized the possession of regulated marijuana for personal use in Canada. Bill C-46 reforms the transportation related offences in Canada’s Criminal Code including drinking and driving, dangerous driving, fleeing the scene of an accident, refusing to give a breathalyzer, fleeing the police and operating a vehicle while prohibited from doing so. Bill C-46 repeals all existing Criminal Code provisions regarding these offences and replaces them with offences that have slightly different wording and new maximum sentences. The changes in Bill C-46 will come into force 180 days after Royal Assent, which is December 21, 2018. On that day, as a result of the changes, many individuals who could previously travel to or stay in Canada will become inadmissible for serious criminality. People who could previously enter Canada will now instead be denied entry. Permanent residents who commit any of the above actions could be deported. While the Liberal government has indicated that it is aware that these harsh consequences … Read More
Summary of June 26 Changes to BC PNP Guide
On June 26, 2018 the British Columbia Provincial Nomination Program (the “BC PNP”) clarified and/or modified several aspects of its programs. Skilled Immigration The more significant revisions that applicants and practitioners should be aware of are: Previously, applicants to the BC PNP – Skilled Worker programs, and their spouses, could not have a combined ownership / equity stake of more than 10% in the British Columbia company that was offering them employment. Now, they cannot have held more than 10% ownership in the five pear period preceding the application and throughout the BC PNP application process. Applicants to the BC PNP Tech Pilot must now qualify under 1 out of 29 eligible occupations. The job offer must be at least one year in duration, and there must be at least 120 calendar days remaining on the job offer at the time of the application. The BC PNP previously would not nominate individuals if they were not lawfully admitted in their country of current residence. This requirement has been removed. Post nomination the BC PNP no longer wishes for employers to notify them of any promotions, and instead wants to be notified of demotions. The BC PNP has changed the wording … Read More
Law Cans Episode 5 – West Fraser Mills Ltd. v. British Columbia (Standard of Review) with Robert Danay
West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal)is a 2018 Supreme Court of Canada decision in which the Supreme Court had to determine whether it should overturn the WCAT’s decision to expand the duty of employers to ensure that their operations are planned and conducted in accordance with safe work practices to owners. The case provides a useful context to explore the topic of “standard of review,” which is extremely divisive in Canadian jurisprudence. Robert Danay is a lawyer with Canada’s Department of Justice who has a passion for this topic, and has researched every Supreme Court of Canada decision on the issue going back twenty years. He can be found on Twitter at @RobertDanay. 3:10 – An overview of the facts. 6:00 – What got Robert Denay into administrative law and an interest in the “standard of review.” 10:00 – What is an administrative tribunal? 11:30 – What is judicial review? 12:10 – What is standard of review? 16:50 – In the reasonableness standard, who determines what is reasonable? 18:10 – What is the trend in standard of review jurisprudence in terms of the amount of deference that should be shown to administrative tribunals? 22:30 – … Read More
Changes to Canada’s Excessive Demand Policy
On June 1, 2018 Canada’s Minister of Immigration, Refugees and Citizenship Canada implemented a Temporary Public Policy Regarding Excessive Demand on Health and Social Services (the “Public Policy”). Canada’s Immigration and Refugee Protection Act states that a foreign national is inadmissible to Canada on health grounds if their health condition might reasonably be expected to cause excessive demand on health or social services. The Law Health services are defined as any health services for which the majority of the funds are contributed by governments, including the services of family physicians, medical specialists, nurses, chiropractors and physiotherapists, laboratory services and the supply of pharmaceutical or hospital care. Social services means any social service, such as home care, specialized residence and residential services, special education services, social and vocational rehabilitation services, personal support services and the provision of devices related to those services (a) that are intended to assist a person in functioning physically, emotionally, socially, psychologically or vocationally and (b) for which the majority of the funding, including funding that provides direct or indirect financial support to an assisted person, is contributed by governments, either directly or through publicly-funded agencies. Finally, excessive demand means a demand on health services or social services for which the anticipated … Read More
Promotions Can Impact a Temporary Worker’s Immigration Prospects
A Canadian business is employing a foreign worker. They want to promote them or give them a raise. What could be wrong with that? Quite a few things, as it turns out. There are certain immigration requirements that all employers and foreign worker employees should know before a promotion or raise. Employer compliance in temporary worker program For the employer, the risk of a promotion or raise is that it could run them afoul of the Temporary Foreign Worker Program and/or the International Mobility Program. Unless the foreign worker is on an open work permit that contains no restrictions of employment, all employers need to abide by the information that they provided to Immigration, Refugees and Citizenship Canada (IRCC) as part of the work permit process. In cases where an employer has promoted the foreign worker or otherwise changed their duties, the foreign worker must receive a new work permit before the change is implemented. While the IRCC website specifically cites the examples of a manager being promoted to a director and a technician being promoted to an engineer, all promotions require a new work permit if the promotion results in the employee’s National Occupational Classification code changing. Whether a … Read More