Tag Archives: Permanent Residence

Dual Intention: FC in Jewell Reinforces That it is More than a Buzzword

Dual Intent

Introduction

As many of you might know, our Firm recently won an important Federal Court case relating to dual intent, a much maligned but rarely addressed legal concept in our Immigration and Refugee Protection Act (“IRPA”).

I want to discuss a few of the principles of the case, but equally important walk through some of the lessons I learned through this case, my first start-to-finish Judicial Review as an Articling Student.

Dual Intention Is Not Dead

Prior to this case, I remember quite clearly several discussions between lawyers on the Canada Bar Association’s Canadian Immigration Email Listserv, asking the question:

Is Dual Intention Dead?

I think Justice O’Reilly, who it is to be noted has allowed judicial review in quite a few of the recent cases he has heard, came out with an emphatic “no” in his recently released decision in Jewell v. Canada (Minister of Public Safety and Emergency Preparedness) 2015 FC 1046. 

To recap, Mr. Jewell was an American-Citizen who had a Canadian-born girlfriend. There were text messages on his phone that were recovered by CBSA Officer through a cellphone search that made the Officer believe Mr. Jewell had established permanent residency in Canada without having obtained permanent resident status purportedly contrary to s.20(1)(a) of IRPA. The Officer and Minister’s Delegate, in their interviews of Mr. Jewell, looked at his pattern of travel over a two week period, and determined that it was consistent with a Canadian permanent resident, commuting to the U.S. for work, resetting his temporary status through his frequent trips. The terminology they used (although not specifically cited in the decision) was that Mr. Jewell was “abusing the privilege of his six-month visitor visa exemption.”

As soon as the case came through the door, something smelled fishy to me. How can any an officer determine over a two week period whether someone had established permanent residence? Why was the physical residence in Canada a trigger point? Aren’t there arguably many temporary residents in Canada (students, workers, visitors alike) who live in Canada and have houses here. We early on isolated, dual intent as the battleground in this case.

From a litigation standpoint, one of the more interesting parts of this case came, after leave was granted, when we learned that a recent dual intent case had been dismissed by the Federal Court in Barua v Canada (Minister of Public Safety and Emergency Preparedness), 2015 FC 172. In Barua, the Federal Court completely dismissed the applicant’s dual intent argument concluding that Mr. Barua had several attempts to establish his dual intent and simply did not not demonstrate that he would leave when required. I remember when preparing our further memorandum that there would be no way Barua would not be cited by DOJ (Minister’s counsel) and made the conscious decision that we would approach and address that case preemptively.

However, an the case carefully I realized there were several factual nuances. Mr. Barua had previously arrived in Canada under false pretenses of having a work permit, but no real job opportunity at the time. He also was counselled several times to apply for permanent residency and ultimately told Officer’s he could not leave and would not leave Canada.

What initially was going to be a dagger blow, turned out to be a blessing in disguise. We were able to clearly draw a line in the sand between the cases DOJ were relying on – all individuals who had long-term patterns, non-compliance, and multiple opportunities to establish their dual intention and Mr. Jewell, who really was not offered even one opportunity to state his dual intention or have his dual intention adequately assessed.

Justice O’Reilly’s decision in our case is a short one. In fact, he managed to summarize in four paragraphs what 20 pages of our Final Memorandum emphasized. I wanted to present those four key paragraphs, as they are quite important to my assessment of the implications of this case:

III.             Was the delegate’s decision unreasonable?

[11]           The Minister submits that the exclusion order was reasonable because Mr Jewella dmitted his intention to reside in Canada permanently. Further, Mr Jewell was behaving as a permanent resident of Canada by commuting from BC to Washington.

[12]           I disagree with the Minister’s position. In my view, the delegate failed to assess Mr. Jewell’s dual intention to be a temporary resident at present, and to become a permanent resident later.

[13]           IRPA provides that foreign nationals may hold the intention to become permanent residents without being precluded from becoming temporary residents if they show they will leave Canada at the end of their authorized period of residence (s 22(2)). If they cannot do so, an exclusion order will be considered reasonable (Barua v Canada (Minister of Public Safety and Emergency Preparedness), 2015 FC 172 at para 22; Sibomana v Canada (Minister of Citizenship and Immigration), 2012 FC 853 at paras 27-28).

[14]           The evidence before the delegate did not show that Mr Jewell intended to become a permanent resident of Canada without abiding by the applicable rules. At best, the evidence was ambiguous. Further, there is no evidence that Mr Jewell would refuse to leave Canada, or that he would fail to observe any other legal requirements.

[15]           Therefore, in my view, the delegate’s decision did not represent a defensible outcome based on the facts and the law. It was unreasonable.

Implications

While arguably that this case is too fact dependent and the reasoning too short to be considered a strong precedent, I think Jewell does bear some weight for future temporary residents trying to come to Canada with an eye to permanent residency.

From having looked at the case law, Jewell is one of the first decisions that really tackles this issues for an individual who does not yet have an application in processing. Prior to Jewell dual intention was commonly considered only available for those who had access to a readily available permanent residence option or more often had a sponsorship application in process and wanted a Temporary Resident Visa to visit in the interim.

With Jewell, I can see more challenges to cases where evidence such as cellphone records or bag searches turn up evidence which suggests lives are being packed in preparation for immigration. The case suggests it is not enough to simply look at private text messages between couples saying “I am moving to Canada” or look at whether an individual is shipping his household furniture to Canada.

Jewell suggests that at the very least a dual intention analysis needs to be carried out by the Officer. I would assume that such a process should be done pursuant to CIC’s explicit instructions on the issue. Importantly, as stated in the instructions:

Officers are reminded to use their own judgment and the flexibility afforded to them by A22(2) when making decisions in cases with a dual intent aspect. CAIPS/FOSS/GCMS notes should clearly demonstrate the officer’s reasoning when assessing a case.

In Mr. Jewell’s case, while there  may have been some assessment of where he lived and what he had been texting to his girlfriend, there was ultimately no assessment of dual intention or if Jewell would leave Canada and abide by the rules and regulations.

Possible Mitigation Strategy

I do not see “dual intention” being a magic incantation that an individual can simply recite at the Port of Entry. An individual who’s travel history clearly demonstrates that they have no intention and/or means to establish legal permanent resident status but are still trying to come in as long-term repeat temporary residents (i.e. through frequent flagpoles) will increase their risk of having their dual intention requests denied.

On this note, obtaining a visitor record may assist in establishing dual intention and facilitating entry (particularly for cross-border couples).

A Day One Problem: Post-Graduate Work Permit to Permanent Resident

In December 2014, my colleague Steve Meurrens predicted that the introduction of Express Entry would have a devastating effect on the ability of international students to obtain Permanent Resident status in Canada (see: http://canadianimmigrant.ca/slider/are-options-for-international-students-to-immigrate-permanently-narrowing).

It seems like Steve’s epiphanies have come true. Just this past month I have received no less than 5 inquiries from individuals on the last year of Post-Graduate Work Permits (PGWP) asking about how they can obtain Permanent Resident status.

The challenges are quite clear. Time spent working on PGWPs, while earning some Canadian experience points, do not earn any extra points that appear necessary to obtain an Invitation to Apply. Individuals with PGWPs will have to not only meet the requirements of the Canadian Experience Class or Federal Skilled Worker Programs (at least 1 year of NOC 0, A, B experience), but also likely need either a Provincial Nomination or a Labour Market Impact Assessment.

The Labour Market Impact Assessment, which used to allow for advertising breaks for Employers hiring PGWP holders, now requires a $1000 application fee in addition to the 1 in 4 likelihood of a compliance review. Such burdens are heavy for Canadian employers to bare, particularly when the international graduate is likely entering only a mid-level NOC B position. Furthermore, the advertising exemptions have been removed and Canadian Employers must demonstrate that the PGWP holder is more suitable than Canadian candidates who have many more years of relevant experience and often times higher educational credentials. It is also hard, to make a business case, to pay someone with little experience a prevailing wage that reflects a skilled labour market generally with more experience and demanding hire wages.

One of the biggest problems facing PGWP holders is actually on the front end. Many recent graduates are unable to obtain positions right out of university that are NOC 0, A, B. Many start in NOC C, D positions (often unaware) that there is a requirement to obtain a promotion in order to qualify for Express Entry. Couple this with the fact that options for Entry-Level/Semi-Skilled (EE/SS) workers to obtain Permanent Residence (at least in B.C.) is limited to the currently-closed B.C. Provincial Nomination Program for EE/SS workers.

The Importance of Employer Communication Re: PGWP Status

One of the challenges is that many employees are hesitant to get into the conversation with their employers about their immigration status for fear of job security and other issues. However, this conversation needs to happen and ideally happen at the front end. Unless, it is in an Applicant’s plan to return to their home country following work on a PGWP, continue further studies, or pursue another guaranteed NOC 0, A,B vacancy within two years, not discussing immigration status with an employer can be disastrous. Currently, Canada’s economic immigration programs are all employer driven. If you are to obtain permanent residence in the future an Employer needs to be there to support you – write you a confirmation of employment, make recruitment efforts, provide your paystubs and their own tax/corporate information. Most importantly, they have to put their neck on the line in representations to Citizenship and Immigration Canada (CIC) and Employment and Social Development Canada (ESDC).

Your pathway to permanent residence starts on Day 1. Your employment contract or at the very least, your unofficial understanding with the employer needs to involve your ability to be promoted to a NOC 0, A, B position so you can get at least 1 year of skilled-work experience.

You can check the skill level of your position using the NOC matrix available online. Note that the BC PNP uses the 2011 NOC Matrix (here), which ESDC uses the 2006 NOC Matrix (here) Make sure, however, to obtain proper advice as to the wording of your job duties. Several positions, particularly those designated by Canadian employers who are unfamiliar with the NOC or your requirements to have skilled employment, may inadvertently hire you to a purported “skilled position,” while giving you job duties more akin to a lower-skilled worker.  For example, one may assume that an administrative assistant (http://www5.hrsdc.gc.ca/NOC/English/NOC/2011/Profile.aspx?val=1&val1=1241) and an office support worker (http://www5.hrsdc.gc.ca/NOC/English/NOC/2011/ProfileQuickSearch.aspx?val=1&val1=1411)  would both be considered under the same NOC Code given the similar nature of their duties, but an administrative assistant is a NOC B position (thus qualifying for Express Entry) while an Office Support Worker isn’t (NOC C low skilled position).

It is furthermore important to broach your Canadian employer because of the number of hybrid positions that are subject to classification under lower NOCs by ESDC. A great example of this is in the banking industry where a Customer Service Representative is a NOC C position (http://www23.statcan.gc.ca/imdb/p3VD.pl?Function=getVD&TVD=122372&CVD=122376&CPV=6551&CST=01012011&CLV=4&MLV=4) but a Financial Service Representation is a NOC B position (http://www5.hrsdc.gc.ca/NOC/English/NOC/2011/Profile.aspx?val=6&val1=6235).

There is arguably a ton of overlap between the two positions and a ton of Customer Service Representatives I know who are gaining in seniority begin to take on some of the responsibilities of Financial Service Representatives. Complicating things, I know some banks call their Customer Service Representatives, Financial Service Representatives.

Another complicated matter are individuals who take on hybrid Account Manager (NOC B) and CSR (NOC C) roles. For immigration purposes, these type of positions will be under heavy scrutiny.

Know your Provincial Nomination Programs

Until the non-Express Entry British Columbia – International Graduates Program is announced in the beginning of July, the Express Entry version is a very good option for applicants (http://www.welcomebc.ca/Immigrate/About-the-BC-PNP/Express-Entry-British-Columbia/Express-Entry-British-Columbia-International-Gradu.aspx). Again, one of the challenges is the Applicant has to meet the basic requirements for one of three economic programs – which will require one year of NOC 0, A, B, either prior to coming to Canada and while holding a PGWP. As the International Graduates program requires you to apply within two years of completing your education program, this essentially gives you a two year window to get the requisite experience (assuming you don’t have it).

The International Graduates program is nice because there is no need for previous experience. The Applicant must only demonstrate that they have the means to support yourself and your dependents. For the Skilled Worker program, there is the requirement of several years of work experience, which is usually assumed to be two or more, creating a major time crunch for transitioning from a PGWP.

Regardless, it is important to keep up with the rapidly changing PNP program offerings. For example, on July 1st the BC PNP is reopening several programs, which I forsee may create more options for graduates of particular programs in professions that B.C. views in high demand (possibly LNG, Tech, and Medical fields).

I hope this article provided some insight into the challenges. As always contact me if you have any questions!