In March 2017 the Government of Canada created several programs to encourage immigration to Eastern Canada through the Atlantic Immigration Pilot Program (the “AIPP“). The AIPP consists of the following three immigration programs. Atlantic High-skilled Program (“AHSP“) Atlantic Intermediate-skilled Program (“AISP“) Atlantic International Graduate Program (“AIGP“) In 2017 a maximum of 2,000 applications will be accepted, unless Immigration, Refugees and Citizenship Canada (“IRCC“) decides to increase the cap. Within the 2,000 cap, a maximum of 646 applications will be processed for people destined for New Brunswick, 792 applications applications will be submitted for people intending to live in Nova Scotia, 442 applications for Newfoundland and Labrador, and 120 applications for Prince Edward Island will be accepted for processing. The main attractiveness of the program compared to federal immigration programs appears to be lower language requirements and the ability of people working in National Occupational Classification (“NOC“) C to participate. Provincial Endorsements In each of the programs listed above, applicants must receive provincial endorsement. Provinces can only endorse individuals in support of applications for permanent residence made through the paper-based (non-Express Entry) process.Atlantic High-skilled Program. The PEI designation process is described in detail here. The Newfoundland designation process is described in detail here. The New … Read More
eTA Regulations Amended
On April 13, 2017 the Government of Canada introduced several regulatory amendments to the Electronic Travel Authorization (“eTA”) regime. The changes to the eTA program came into effect on May 3, 2017. Before reading about the changes, those who are unfamiliar with the eTA should read my previous posts on this topic titled ETA Regulations Announced and Electronic Travel Authorizations. In brief, the eTA is an electronic document requirement for visa-exempt air travellers to Canada, excluding citizens of the United States. Travellers who are visa-exempt must apply online for an eTA by providing basic biographical, passport and personal information. An automated system then compares this information against immigration and enforcement databases to determine if the traveller is admissible to Canada. The vast majority of applications are approved automatically, with a small percentage referred to an officer for review. It is similar to ESTA in the United States. Brazil, Bulgaria and Romania Effective immediately, citizens of Brazil, Bulgaria, and Romania no longer need to apply for temporary resident visas to visit Canada and can instead apply for eTAs if they have held a temporary resident visa at any time during the 10-year period immediately preceding the day on which they make their application or hold a … Read More
Canadian Immigration Law and International Law
Section 3(f) of Canada’s Immigration and Refugee Protection Act states that Canadian immigration law is to be construed and applied in a manner which complies with international human rights instruments to which Canada is a signatory. In de Guzman v. Canada (Minister of Citizenship and Immigration), the Federal Court of Appeal articulated the following principles for what this means: While previously international conventions to which Canada was party to did not give rise to rights and duties enforceable in Canadian courts, this is no longer the case. The values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. Canadian immigration law does not incorporate into it “international human rights instruments to which Canada is signatory” but merely directs that the law be construed and applies in a manner that complies with them. The words “shall be construed and applied in a manner that complies with” are mandatory and appear to direct courts to give the international human rights instruments in question more than persuasive or contextual significance in the interpretation of the Canadian immigration legislation. Canadian immigration law must only be construed and applied in a manner that complies with international law where Canada has … Read More
10 Pieces of Advice Before Entering First Year
Half way through my second year of law school I drafted a list of 10 pieces of advice that I would give to anyone entering their first year. I passed this list on to between 5-10 people, and everyone seemed to appreciate it. After not having thought about the list for a few years someone who had heard of it recently asked me for a copy. It took me a fair bit of time searching through old Facebook messages to find it. I accordingly decided to publish the list here so that if I was ever asked again I could easily find my recommendations rather then spend time during a sunny Sunday looking for it. Remarkably, while I have updated the rationale behind each suggestion, my recommendations for people entering first year law remain the same now as they did when I was a second year law student. So here they are. 1) You Control How Intense Law School Is First year law school is intense. There are typically mandatory year long courses, most of which are graded almost exclusively on a final exam. You will be surrounded by some of the smartest people that you have ever met and will (depending on … Read More
Strict Interpretation of Compliance in the Foreign Worker Program
[The following article appeared in the May edition of The Canadian Immigrant. I have slightly modified it for this blog post.] Back in 2013, Canada’s temporary foreign worker program was rocked by well–publicized stories of abuse. As a result, the Government of Canada introduced a comprehensive compliance regime for employers of foreign workers, and promised to ban companies from being able to hire temporary migrants for two years if they breached the new conditions. In 2015, Canada’s Immigration and Refugee Protection Regulations were further amended to introduce an administrative monetary penalty regime, which would also fine employers for non-compliance. The number of Canadian employers who have either been banned or fined for non-compliance is currently quite small, although both Immigration, Refugees and Citizenship Canada (IRCC) and the Department of Employment and Social Development (ESDC), the two main government agencies that manage Canada’s foreign worker programs, have indicated that the number is likely to grow in the near future, especially considering new funding announced with Budget 2017 to better protect vulnerable workers and to encourage employers to do more to hire Canadians first. On March 23, 2017, the Federal Court of Canada released its first publicized decision on an ESDC decision to … Read More
Withdrawing and Reinstating IRB Proceedings
Sections 5 and 6 of the Immigration Division Rules, SOR/2002-229 state: Withdrawing a Request by the Minister for an Admissibility Hearing Abuse of process 5 (1) Withdrawal of a request for an admissibility hearing is an abuse of process if withdrawal would likely have a negative effect on the integrity of the Division. If no substantive evidence has been accepted in the proceedings, withdrawal of a request is not an abuse of process. Withdrawal if no evidence has been accepted (2) If no substantive evidence has been accepted in the proceedings, the Minister may withdraw a request by notifying the Division orally at a proceeding or in writing. If the Minister notifies in writing, the Minister must provide a copy of the notice to the other party. Withdrawal if evidence has been accepted (3) If substantive evidence has been accepted in the proceedings, the Minister must make a written application to the Division in order to withdraw a request. Reinstating a Request by the Minister for an Admissibility Hearing Application for reinstatement of withdrawn request 6 (1) The Minister may make a written application to the Division to reinstate a request for an admissibility hearing that was withdrawn. Factors (2) … Read More
Borderlines #15 – Gordon Maynard on New Can Consulting and the Biggest Immigration Fraud in Vancouver History
Xun (Sunny) Wang was a ghost consultant who is estimated to have made $10 million by filing fraudulent immigration applications for clients of his two firms, New Can Consulting and Well Long Enterprises. Mr. Wang, who is currently serving an eight year jail sentence, and his staff, apparently put fake passport stamps in peoples’ passports in order to lie about having spent sufficient time in Canada to qualify for various immigration programs. The Canada Border Services Agency is now endeavouring through what the Department is calling Project New Can to remove over 1,500 former clients of his for having committed misrepresentation to obtain Canadian permanent residency and/or maintain it. All of the lawyers involved in this podcast have and are representing some of his clients in these removal proceedings. Gordon Maynard is a Vancouver based lawyer who practices exclusively in Canadian immigration law. He is a past Chair of the Canadian Bar Association’s Immigration Section. Topics 1:39 – Gordon provides an overview of the timeline involved in Sunny Wang’s alleged fraud. 7:50 – What constitutes misrepresentation in Canadian immigration applications? 10:30 – We discuss some of the mechanics of what Sunny Wang is alleged to have done. 12:00 – Many New Can clients are saying that … Read More
LMIA Cap on Low Wage Employees
Canada’s Temporary Foreign Worker Program (the “TFWP“) allows employers to bring foreign workers to Canada to temporarily fill jobs for which qualified Canadians are not available. After the program became increasingly controversial in 2012-13, the Department of Employment and Social Development Canada (“ESDC“) on June 20, 2014 imposed a cap limiting the proportion of low-wage foreign workers that businesses can employ. How the Cap Works Employers with a company-wide business size of 10 or more employees are subject to the cap. The cap percentage is determined for each individual worksite location and is based on paid positions and total hours worked at that worksite. Employers that are new to the TFWP or returning employers who did not have any foreign workers on staff on June 20, 2014 are capped at 10% low-wage foreign workers for each work location. The cap, implemented on June 20, 2014, was phased in to provide employers time to transition to a Canadian workforce which means that they are limited to a: 20 percent cap on the number of foreign workers in low-wage positions, or the employer’s established estimated cap (whichever is lower), if the employer hired a TFW in a low-wage position prior to June 20, 2014; or 10 … Read More
Establishing that Someone is a Refugee
Section 96 of Canada’s Immigration and Refugee Protection Act (the “IRPA) defines a refugee as being a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries. A refugee also includes though who do not have a country of nationality, but who are outside of their country of former habitual residence, and, because of the same fear, are unwilling to return to that country. Refugee law is very complicated, and components of it are the subject of numerous blog posts on this website. In this post, I hope to cover some of the major jurisprudence involving the interpretation of IRPA s. 96. Past Persecution vs. A Future Fear It is important to understand that refugees need to have a forward looking fear of returning to their country of origin. The existence of past persecution will not create a rebuttal presumption that someone have a reasonable objective or subjective fear of persecution. In Fernandopulle v. Canada (Minister of Citizenship … Read More
Service Canada Officers Fettering Discretion
As I have previously written in this blog, there is an increasing number of judicial review applications being filed against Labour Market Impact Assessment (“LMIA”) refusals. There is also accordingly a growing jurisprudence on what constitutes the “fettering of discretion” in a LMIA assessment. Those who have experience submitting LMIA applications will know that this is not surprising. Paturel International Company v. Canada (Employment and Social Development), 2016 FC 541 (“Paturel“) In Paturel, an officer with the Department of Employment and Social Development (“ESDC“) refused an LMIA application simply because the employer’s job offer did not have a wage that met or exceeded the median wage on ESDC’s Working in Canada website. The Federal Court stated that: While the officer has broad discretion to rely on the data that he considered to be most representative of the prevailing wage in the region, I find that the officer’s sole reliance on EI data amounted to a fettering of his discretion. Justice O’Reilly went on to note that: Canadian immigration legislation does not stipulate that a failure to meet the prevailing wage, alone, would be sufficient to defeat an employer’s application; and Because the employer had provided evidence that the Working in Canada website … Read More