On April 16, 2015, the Supreme Court of Canada announced that it was reserving its decision in Jeyakannan Kanthasamy v. Minister of Citizenship and Immigration (“Kanthasamy”). When it is released, Kanthasamy may be the most significant immigration decision since Baker v. Canada (Minister of Citizenship and Immigration). As noted in the Appellant’s factum, the issue that the Supreme Court of Canada will be addressing is: What is the scope of the humanitarian & compassionate discretion in s. 25 of the Immigration and Refugee Protection Act: is it limited to cases of “unusual and undeserved, or disproportionate hardship”, reserved for exceptional cases, and restricted by requiring that the hardship be ‘personalized’ or that the person’s establishment be greater than what would ordinarily be expected? As any immigration practitioner can confirm, if the Supreme Court of Canada broadens the current restrictive interpretation of humanitarian & compassionate considerations under s. 25 of the Immigration and Refugee Protection Act (“IRPA“) it would cause a monumental shift in the processing of immigration applications. The Federal Court of Appeal Decision In Kanthasamy v. Canada (Citizenship and Immigration), 2013 FC 802, the Federal Court certified the following question of general importance. What is the nature of the risk, if any, to be assessed with respect to humanitarian … Read More
DCO Refugee Claimants and Access to the RAD [Updated – January 5, 2016]
The Federal Court in Y.Z. and the Canadian Association of Refugee Lawyers v. The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, 2015 FC 892 (“Y.Z.“) has certified the following two questions: Does paragraph 110(2)(d.1) of the Immigration and Refugee Protection Act (“IRPA“) comply with subsection 15(1) of the Charter? If not, is paragraph 110(2)(d.1) of the IRPA a reasonable limit on Charter rights that is prescribed by law and can be demonstrably justified under section 1 of the Charter? The Court also announced that effective immediately refugee claimants from designated countries of origin can access the Refugee Appeal Division (the “RAD“).
Business Expertise Consultants and Fettering Discretion
In the increasingly growing area of Labour Market Impact Assessment judicial review the question of whether officers are fettering their discretion by overly relying on operational guidelines is arising. To me a more interesting question is whether officers being told that they cannot make decisions without first consulting Business Expertise Consultants is more interesting. Consider the situation below, as obtained through an Access to Information Act request. It is clear that in this case the officer wanted to approve the Transition Plan exemption request. However, the Business Expertise Consultant recommended that the officer refrain from doing so. In the fettering of discretion scenario, the following questions need to be asked: If a program officer went against the recommendation of a Team Leader and a Business Expertise Consultant, what would be the consequences? If program officers are administrative tribunals who are purportedly experts in the administration of their home statute, then why do they need to defer to Business Expertise Consultants and Team Leaders? How often do program officers ignore the recommendations of Team Leaders and Business Expertise Consultants? What other areas in an LMIA application do program officers have to rely on Team Leaders and Business Expertise Consultants for?
Administrative Monetary Penalty Regime Coming to Foreign Worker Program
On July 1, 2015, the Government of Canada published regulations in the Canada Gazette that introduce an Administrative Monetary Penalty (“AMP“) regime into the Temporary Foreign Worker Program (“TFWP“) and the International Mobility Program (“IMP“). Both Citizenship and Immigration Canada (“CIC“) and the Ministry of Employment and Social Development (“ESDC“) will administer the AMP. In addition, the regulations will replace the exiting two-year ban period for employer non-compliance with 1, 2, 5, 10 year, and permanent bans. The amendments will take effect on December 1, 2015. The Administrative Monetary Penalty Regime Under the new AMP regime, employer non-compliance will be divided into three types of violations. Type A violations will include where an employer: is unable to demonstrate that any information that it provided in respect of a work permit application was accurate during a period of six years beginning on the first day of the foreign national’s employment; did not retain document(s) that relates to employer compliance with cited conditions during a period of six years, beginning on the first day of the foreign national’s employment did not have sufficient resources to pay a live-in caregiver(s); could not demonstrate that any information that it provided for a Labour Market Impact Assessment (“LMIA“) application was … Read More
Application refused? What CIC states in refusal letters is not the whole story
The following article appeared in the July edition of The Canadian Immigrant.
ESDC Refuses LMIA where no English Speaking Canadians Applied
A few weeks ago we received through an Access to Information Act request several copies of internal policy guidance. I’ve reproduced what I found to be the most surprising one below. The fact that employers are needing to recruit foreign workers because the permanent residents and/or Canadian citizens who are applying don’t speak either English or French is rather troubling, to say the least.
Bill C-690: The Live-in Caregiver Access, Respect and Employment Act
On June 11, 2015, John McCallum, the Member of Parliament for Markham — Unionville, and a member of the Liberal caucus, introduced Bill C-690, An Act to amend the Immigration and Refugee Protection Act (live-in caregiver). Its short form is the Live-in Caregiver Access, Respect and Employment Act. Considering how close Mr. McCallum introduced Bill C-690 prior to the upcoming federal election, Bill C-690’s provisions will presumably form part of the Liberal Party of Canada‘s election platform. Bill C-690 is short, and its substantive portion would introduce a new s. 32(d.11) into the Immigration and Refugee Protection Act (“IRPA”) so that s. 32 of IRPA would read: Regulations 32. The regulations may provide for any matter relating to the application of sections 27 to 31, may define, for the purposes of this Act, the terms used in those sections, and may include provisions respecting (d) the conditions that must or may be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals, including conditions respecting work or study; (d.1) the conditions that must or may be imposed, individually or by class, on individuals and entities — including employers and educational institutions — in respect of permanent residents and foreign nationals, or that must or may be … Read More
Revocation and Statelessness after Budlakoti
Some of the more controversial sections of Bill C-24, The Strengthening Canadian Citizenship Act (“Bill C-24”), are its revocation provisions. Bill C-24 will create a new s. 10(2) of the Citizenship Act which will state that: Revocation by Minister — convictions relating to national security (2) The Minister may revoke a person’s citizenship if the person, before or after the coming into force of this subsection and while the person was a citizen,(a) was convicted under section 47 of the Criminal Code of treason and sentenced to imprisonment for life or was convicted of high treason under that section; (b) was convicted of a terrorism offence as defined in section 2 of the Criminal Code — or an offence outside Canada that, if committed in Canada, would constitute a terrorism offence as defined in that section — and sentenced to at least five years of imprisonment; (c) was convicted of an offence under any of sections 73 to 76 of the National Defence Act and sentenced to imprisonment for life because the person acted traitorously; (d) was convicted of an offence under section 78 of the National Defence Act and sentenced to imprisonment for life; (e) was convicted of an offence under section 130 of the National Defence Act in respect of … Read More
Bill S-7 – The Zero Tolerance for barbaric Cultural Practices Act
On November 5, 2014, the Leader of the Government in the Senate introduced Bill S-7, An Act to amend the Immigration and Refugee Protection Act, the Civil Marriage Act and the Criminal Code and to make consequential amendments to other Acts, otherwise known as the Zero Tolerance for Barbaric Cultural Practices Act (“Bill S-7“). Bill S-7 has mainly received media attention because of its arguably inflammatory title. The actual significant impacts for prospective immigrants and practitioners are: Current Proposed Practising polygamy does not result in a foreign national or permanent resident being inadmissible to Canada. A permanent resident or a foreign national is inadmissible on grounds of practising polygamy if they are or will be practising polygamy with a person who is or will be physically present in Canada at the same time as the permanent resident or foreign national. Marriage requires the free and enlightened consent of two persons to be the spouse of each other. No person who is under the age of 16 years may contract marriage. There will be a new offence that everyone who celebrates, aids or participates in a marriage rite or ceremony knowing that one of the persons being married is marrying against … Read More
New LMIA Exemption – Repair Personnel
On May 21, 2015, Citizenship and Immigration Canada (“CIC”) introduced a new Labour Market Impact Assessment (“LMIA”) exemption for individuals who are coming to Canada to repair industrial or commercial equipment that is no longer under warranty or covered by an after-sales or lease agreement. The LMIA exemption code is C13.