One of the leading cases on procedural fairness is Charkaoui v Canada (Minister of Citizenship and Immigration), 2007 SCC 9. There, the Supreme Court of Canada stated:
Last but not least, a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case. This right is well established in immigration law. The question is whether the procedures “provide an adequate opportunity for [an affected person] to state his case and know the case he has to meet” (Singh, at p. 213). Similarly, in Suresh, the Court held that a person facing deportation to torture under s. 53(1)(b) of the former Immigration Act, R.S.C. 1985, c. I-2, must “[n]ot only . . . be informed of the case to be met . . . [but] also be given an opportunity to challenge the information of the Minister where issues as to its validity arise” (para. 123).
In Therrien v Canada (Attorney General), 2017 FCA 14, the Federal Court of Appeal stated that the the required specificity of the notice provided an affected person is to be determined in light of all of the circumstances including consideration of whether the affected person was in a position to meaningfully respond. Where an interested person is misinformed about the issues, including the statutory provisions in issue, a Court may conclude the interested person was unaware of the case to be met.
In Lv v. Canada (Citizenship and Immigration), stated:
the issue is not so much whether the decision was “correct”, but rather whether, taking into account the particular context and circumstances at issue, the process followed by the decision-maker was fair and offered to the affected parties a right to be heard and the opportunity to know and respond to the case against them.Read more ›
Immigration, Refugees and Citizenship Canada’s (“IRCC”) International Mobility Program contains Labour Market Impact Assessment (“LMIA”) exemption code C-11, titled Canadian interests – Significant benefit – Entrepreneurs/self-employed candidates seeking to operate a business. The exemption falls under Regulation 205(a) of the Immigration and Refugee Protection Regulations.
According to the IRCC website, the eligibility requirement can be divided into those who seek permanent residence and those who don’t.
For those who seek permanent residence, an applicant must:
- be an actual or potential provincial nominee undertaking business activities or be a Quebec-destined entrepreneur or self-employed person issued a Quebec Selection Certificate (a “CSQ”); and
- have a letter of support from the province or territory (this letter of support should count towards evidence that their admission to Canada to operate a business may create significant economic, social or cultural benefit to Canada) or a request from the Ministère de l’Immigration, de la Diversité et de l’Inclusion (MIDI) requesting early entry.
For those who do not seek permanent residence, an applicant must:
- demonstrate that their admission to Canada to operate their business would generate significant economic, social or cultural benefits or opportunities for Canadian citizens or permanent residents. Benefits to Canadian clients of a self-employed worker may be considered in this case, particularly if the worker is providing a unique service.;
- satisfy an officer that they have the ability and willingness to leave Canada at the end of the temporary period authorized; and
- will have the incentive to depart Canada when their work is complete or the business closes.
Some of the factors in determining whether there will be a significant benefit include:
- Is the work likely to create a viable business that will benefit Canadian or permanent resident workers or provide economic stimulus?
Several Federal Court of Canada decisions affirm that a visa officer’s assessment of humanitarian & compassionate considerations will be unreasonable if the officer assesses hardship on the basis that a foreign national will reside in a country other than their country of citizenship.
In Hermann v. Canada (Citizenship and Immigration), 2014 FC 266, Justice Zinn stated:
I have very serious doubt that in making an H&C assessment an officer can assess hardship on the premise that the applicant relocate to a country other than his country of nationality, regardless of any mobility agreements between countries. If an applicant is in Canada without authorization and is to be removed, Canada cannot remove him to a country other than his country of nationality. Why then should Canada consider any other country when examining hardship to the applicant in a H&C application?
In Abdullah v. Canada (Citizenship and Immigration), 2019 FC 954, Justice McAffie stated:
This Court has held that assessing an H&C application with reference to a country where the applicant has no legal status is an error that renders a decision unreasonable. In Joe (Litigation guardian of) v Canada (Citizenship and Immigration), 2009 FC 116 [Joe], the minor applicant was a citizen of New Zealand, although she had resided in China with her parents, who were Chinese citizens, before coming to Canada. In assessing the H&C application, the immigration officer concluded that the applicant was a Chinese citizen and assessed the hardship that would be faced by her returning to China.
Justice Maurice E. Lagacé found that the applicant did not have legal status in China and that the officer therefore erred in basing his decision on China as the country of reference rather than New Zealand.Read more ›
According to its website, the Canada Border Services Agency (“CBSA“) screens all visitors, immigrants and refugee claimants to keep Canada safe and secure. Inadmissible persons such as criminals or persons considered security risks are not allowed to enter or remain in Canada.
The following PDF contains a detailed breakdown of how this works and efforts to reduce backlogs.Read more ›
Garcia Balarezo v. Canada (Citizenship and Immigration) is an interesting case which stands for the principle that it is unreasonable for IRCC to expect applicants to submit ATIP requests to learn the internal status of their file and what submissions they might need to make. The Court noted:
The officer recognized that both the May 2012 and June 2015 work permits were issued by IRCC in error. However, the officer asserted that Ms. Garcia’s May 2012 and October 2012 work permits “had clear notes on them that PA [principal applicant] was not part of the LC program.” This appears to have been very important in the officer’s thinking, as they repeated the point both in responding to one of Ms. Garcia’s submissions, and again in their conclusion, stating:
The errors made on CIC’s part (including issuing first work permit with med instructions to work in childcare field and adding the incorrect remarks to clients third work permit in 2015) have been taken into consideration and there is still insufficient evidence of H&C grounds to warrant exemptions. PA’s rep stated that PA and her employers were aware of Section 112 of the Immigration and Refugee Protection Regulations and were aware that the initial work permit had to be assessed and issued from outside of Canada and that an immigration medical needed to be completed in order to be eligible to apply for permanent residence. PA could have inquired through the Call Centre as PA’s first 2 work permits had very clear notes on them that PA was not part of the LC program.
The “very clear notes” in question were not, however, notes visible on the face of the work permits issued to Ms. Garcia or in any other document sent to Ms.Read more ›
Regulation 200(3)(a) of the Immigration and Refugee Protection Regulations provides that an officer shall not issue a work permit to a foreign national if there are reasonable grounds to believe that the foreign national is unable to perform the work sought.
An issue that is becomming increasingly common is whether someone has sufficient language ability to perform the work sought.
In Singh v. CAnada (Citizenship and Immigration), 2021 FC 638 Justice Bell set aside the refusal of a work permit application for a truck driver. There, an officer wrote “I have concerns regarding the applicant’s English language skills which are also listed as a requirement for the position on the LMO. While the applicant has an overall band score of 5.5. on the IELTS, I note that he only received a score of 4.5 in reading and a 5 in speaking. Although the LMIA does not explicitly state a minimum required IELTS score for this position, I note that the British Council classifies students at this band level as being a “Limited user [whose] basic competence is limited to familiar situations. [They] frequently show problems in understanding and expression. [They] are not able to use complex language.”
Justice Bell determined that relying solely on the IELTS description was improper. He wrote:
The visa officer does not mention the Canadian Language Benchmark, the prospective employer’s declared language requirement (level 4 of the Canadian Language Benchmark), nor does he or she mention the fact that the prospective employer qualified Mr. Singh’s language skills as excellent. Finally, I note that the British Council referred to students’ abilities. It clearly did not refer to an adult’s language abilities in his or her own trade or calling.
…Read more ›
A Temporary Resident Visa (“TRV”) is a document issued by Immigration, Refugees and Citizenship Canada (“IRCC”) which shows that the person has met the requirements for admission to Canada as a temporary resident. It is typically a counterfoil that is placed in a person’s passport.
From 2011-2021 (February) the temporary resident visa approval rates based on country of citizenship were as follows:Read more ›
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
- Business and Entrepreneur Immigrantion
- Citizenship Applications and Revocations
- Family Class (Spousal Sponsorships, Parents & Grandparents)
- Humanitarian and Compassionate
- Immigration and Refugee Board
- Immigration Consultants
- Immigration Trends
- Judicial Reviews
- Labour Market Impact Assessments
- Maintaining Permanent Residency
- Provincial Nominee Programs
- Skilled Immigration (Express Entry, CEC, FSWC, Etc.)
- Study Permits
- Tax and Trusts
- Temporary Resident Visas
- Work Permits