On June 23, we wrote about how on June 20, 2014, Citizenship and Immigration Canada (“CIC”) and the Ministry of Economic and Social Development Canada (“ESDC”) announced significant reforms to the Temporary Foreign Worker Program (“TFWP”). One of the changes was: Refusing Low-Skilled Applications in Areas of High Unemployment in Some Occupations ESDC will refuse to process certain LMIA applications in the Accommodation, Food Services and Retail Trade sectors. Specifically, ESDC will not process LMIA applications for employers if they meet all of the following criteria: the employer is applying for an LMIA in a Statistics Canada economic region with an annual unemployment rate over 6%; the employer is seeking an LMIA in a specific occupation identified under North American Industry Classification System as Accommodations & Food Service or Retail Sales; and the employer is seeking an LMIA in an occupation in one of the following occupations: Food Counter Attendants, Kitchen Helpers and Related Occupations ; Light Duty Cleaners ; Cashiers; Grocery Clerks and Store Shelf Stockers; Construction Trades Helpers and Labourers; Landscaping and Grounds Maintenance Labourers; Other Attendants in Accommodation and Travel; Janitors, Caretakers and Building Superintendents; Specialized Cleaners; and Security Guards and Related Occupations. In today’s post, I wish to … Read More
The Canada-European Union: Comprehensive Economic and Trade Agreement
On September 26, 2014, Canada and the European Uniona agreed to adopt the The Canada-European Union: Comprehensive Economic and Trade Agreement (“CETA“), with the goal at the time being that the agreement will take effect in 2016. While that ultimately did not happen, on October 30, 2016, Canada and the European Union signed a final version of the agreement. Chapter 10 of CETA provides for the facilitation of the temporary entry of business persons. The European Union’s commitments are the most ambitious that the region has ever negotiated in a free trade agreement. For Canada, the CETA’s temporary contain similar ideas to those contained in the North American Free Trade Agreement (“NAFTA“), although there are very significant differences. CETA is significant from a Canadian immigration perspective because prospective foreign workers who are eligible for work permits under CETA do not require Labour Market Impact Assessments (“LMIAs“). Any Canadian businesses seeking to hire United States or Mexican nationals will typically begin by determining whether their prospective employees are eligible for work permits under NAFTA. When CETA takes affect, the same will be true for Canadian employers hiring citizens from the European Union.
Court Certifies Numerous Questions in Dismissal of Skilled Worker Class Action [Updated – Federal Court of Appeal Dismisses Appeal]
In Tabingo c. Canada (Citizenship and Immigration), 2013 FC 377, the Federal Court (the “Court“) certified three questions when it dismissed the class action lawsuit launched by people whose permanent residence applications were terminated by Bill C-38, the Jobs Growth and Long-term Prosperity Act (“Bill C-38“). Bill C-38 introduced a new s. 87.4(1) (“Section 87.4(1)“)to the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA“) ,which terminated Federal Skilled Worker Class applications made before February 27, 2008 unless an officer had made a selection decision before March 29, 2012. Section 87.4(1) reads: 87.4 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class. (2) Subsection (1) does not apply to an application in respect of which a superior court has made a final determination unless the determination is made on or after March 29, 2012. (3) The fact that an application is terminated under subsection (1) does not constitute a decision … Read More
Proposed Changes to Temporary Foreign Worker Program Compliance
On September 24, 2014, the Ministry of Economic and Social Development Canada (“ESDC“) posted on its website a discussion paper titled “Regulatory proposals to enhance the Temporary Foreign Worker Program and International Mobility Program compliance framework.” ESDC appears to recognize that the existing legal authority to ban a non-compliant employer for two years and revoke associated Labour Market Impact Assessments (“LMIA“) may be too severe in some circumstances and not severe enough in other cases. As such, the Government of Canada is proposing to introduce some compliance activities that are preventative and educational in nature, and others where the penalty for non-compliance is more severe. Specifically, ESDC is proposing to expand the range of bans from two years to include one, five, and ten year bans. As will be seen below, however, there appears to be alot more “stick” than “carrot” in ESDC’s approach.
The Canada-Korea Free Trade Agreement
On September 22, 2014, Canadian Prime Minister Stephen Harper and South Korean President Park Geun-hye signed the Canada-Korea Free Trade Agreement (“CKFTA“). Chapter 12 of the CKFTA provides for the facilitation of the temporary entry of business persons. The CKFTA Final Agreement Summary notes that South Korea’s commitments are the most ambitious the country has ever negotiated in a free trade agreement. For Canada, the CKFTA’s temporary entry provisions are pretty similar to those contained in the North American Free Trade Agreement (“NAFTA“), although there are differences. The CKFTA is significant from a Canadian immigration perspective because prospective foreign workers who are eligible for work permits under the CKFTA do not require Labour Market Impact Assessments (“LMIA“). Indeed, as the CKFTA Final Agreement Summary states: When it comes to investing and providing services, there is no substitute for being on-site, where clients are located. Investors want to witness their investments, talk to their partners and get a feel for the local environment. Professionals, including architects, management consultants and engineers, need to contact clients on-site in order to fulfil contracts in the South Korean market. Temporary-entry provisions in the Canada-Korea Free Trade Agreement address barriers that business persons face at the border, particularly by … Read More
The ICCRC Disciplinary Process
Two days ago I met with an individual who claimed to have received horrible treatment from two separate immigration consultants in Metro Vancouver. The specific alleged deplorable actions included that: Consultant A refused to give the individual her Visitor Record until she paid him $2,000.00. Consultant A refused to provide her with a BC PNP refusal letter, and to this day has not provided a copy of the refusal letter. Consultant B refused to submit a response to a BC PNP fairness letter without receiving a large payment that was not mentioned in the retainer agreement. Consultant B refused to meet with her once the application was refused. Both of these consultants are licensed consultants and members of the Immigration Consultants of Canada Regulatory Council (“ICCRC“). I recommended that the individual file complaints against both consultants. Unfortunately, my recommendation came with the caveat that to my knowledge the ICCRC has not once yet disciplined a single consultant against whom a complaint was filed.
Standard of Review in Refugee Appeal Division Hearings
On December 15, 2012, the Refugee Appeal Division (the “RAD“) began considering appeals against decisions from the Refugee Projection Division (the “RPD“) to allow or reject refugee claims. According to the Immigration and Refugee Board of Canada’s website, the steps to a RAD appeal are: Once you receive the written reasons for the decision from the Refugee Protection Division, you have 15 days to file a Notice of Appeal. You have 30 days from the day you received your written reasons for the RPD decision to perfect your appeal by filing an Appellants Record. The Minister may choose to intervene at any point in the appeal. The RAD Member makes a decision on your appeal. In most cases, this decision will be provided to you no later than 90 days after you have perfected your appeal, unless an oral hearing is held. Almost immediately there was uncertainty over what the role of the RAD was. The RAD began operating under the assumption that it would review RPD decisions using the reasonableness standard, and its members began stating that the following principles governed its appeals: that deference is owed to RPD findings of fact and questions of mixed law and fact; … Read More
Grounds for Judicial Review – Findings of Fact in a Perverse or Capricious Manner
Section 18.1(4) of the Federal Court Act, RSC 1985, c F-7, states that the grounds for judicial review are: The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. Based its Decision or Order on an Erroneous Finding of Fact in a Perverse or Capricious Manner In Rahal v Canada (Minister of Citizenship and Immigration), 2012 FC 319, Justice Gleason provided the following guidance on interpreting s. 18.1(4): In the seminal case interpreting section 18(1)(d) of the FCA, … Read More
Human Smuggling – A Very Broad Offence
A Canadian citizen helps an undocumented refugee claimant come to Canada without the proper documentation to seek asylum by paying for part of his transportation. A Canadian marries a foreign national, and helps bring her to Canada without going through the proper process. The couple are now staying with the Canadian’s mother, who is providing temporary accommodation while the couple looks for a place to rent. When asked to describe a human smuggler, most people are unlikely to think of the above two scenarios. Rather, they will generally describe organized criminal elements who are paid to transport people across borders. However, in Canada it was unclear until November 2015 if the offence of “human smuggling” encompassed the above two scenarios, when the Supreme Court of Canada issued its decision in R v. Appulonappa, 2015 SCC 59. Background to Appulonappa Appulonappa arose from the October 17 2009 arrival to Vancouver Island of the MV Ocean Lady, which carried 76 undocumented Sri Lankan Tamil asylum seekers to Canada. The Crown charged four individuals with human smuggling pursuant to s. 117 of the Immigration and Refugee Protection Act, S.C. 2001, c 27 (“IRPA”), which states: No person shall knowingly organize, induce, aid or … Read More
Disguised Extradition
Extradition and deportation are two different things. Extradition is the official process whereby one country transfers a suspected or convicted criminal to another country, generally for prosecution. Deportation, on the other hand, is the removal of an individual from a country generally done for the purpose of achieving an immigration objective. In Roncarelli v. Duplessis, [1959] S.C.R. 121, the Supreme Court of Canada (the “SCC”) recognized that it was an abuse of process for a government department to exercise a statutory power for a reason that is unrelated to the purpose for which that power was granted. In the immigration context, it is accordingly an abuse of process for immigration authorities to initiate removal proceedings against an individual to extradite someone. In United States v. Rogan, 2014 BCSC 116 (“Rogan”), Justice Fish summarized the principles of what is known as “disguised extradition” as follows: (Citations and paragraph numbers removed) Deportation and extradition have fundamentally different underlying objectives. Deportation is a discretionary decision made by Canadian immigration authorities aimed at protecting the public good. Extradition, which is initiated by foreign authorities, is aimed at delivering a person sought for prosecution to that foreign authority. A person subject to extradition proceedings has a panoply of constitutionally-enshrined … Read More