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May 15, 2016

Canadian Immigration Law Blog

On Illegal “Ghost Immigration Consultants”: An Ethical Crisis that Needs to Be Urgently Addressed

Beyond the well-documented issues of Vancouver’s real estate industry, I have come to realize that there is also a major ethical crisis in the immigration industry. As a society, we are turning a complete blind eye to the swarm of highly unethical, untrained, unqualified, and ultimately illegal practitioners purporting and holding out themselves to be immigration professionals.

Mainstream media and large regulatory and government institutions, eager to paint foreign investment as the blanket source of evil, have largely missed an opportunity to take a harder look at those who are taking the money from new immigrants.

The painful truth is that the who are doing so in an unethical way and providing unethical advice are the individuals and companies who happen to be Canadian registered, Canadian licensed, and Canadian incorporated. Ultimately, in the eyes of the new immigrants caught in the middle, they are also deemed to be Canadian sanctioned by virtue of being allowed to operate freely and with no oversight.

As many of these companies also operate with large international client recruitment mechanisms, these are also the “first impressions” we are providing potential immigrants to Canada – one that we cannot let stand any further if we want to maintain the high values we put in Canadian business and professional ethics..

Specifically in immigration, I would estimate that there are hundreds of individuals and practitioners providing unlicensed (i.e. not lawyers or licensed consultants) providing immigration law services without the correct qualifications.

Often times the storefront signs are not in English, the English version of the websites containing stock and photo-shopped images of nothingness, and the entire staff of employees blissfully unaware of the illegal machine they are feeding into. Often times, when things do unravel, the employees become the innocent victims treated as scapegoats by their pocket-stuffing bosses.

Potential clients are drawn by false advertisements promising 98% success rates, quick and expedient services provided in their language. They are enticed as they are then offered a spot in a “reputable” designated educational institute unaware that the ghost consultant has established a deal with said institutional to receive money from the student’s registration. The potential clients sign up eagerly as they are provided with “guaranteed jobs” with companies that operate as no more than a shell and employer of no one and do-er of nothing good for the Canadian economy. They are provided job offers and LMIAs that often sneak through the eyes of government eyes often not trained to catch the subtleties of the well-thought out scheme.

Too often, immigrants invest hundreds of thousands of dollars for businesses to purchase for immigration when they are not even eligible to qualify or even count that amount as an eligible investment.

Even more disgusting, are those immigrants that are actively coerced into getting into non-bona fide marriages for immigration purposes or even making ludicrous refugee claims on the basis of persecution they never faced. Worse enough, the client signs off on it, painfully unaware of what is even submitted in their application. When CBSA comes knocking on the door, it is the immigrant that gets removed from Canada.

Beyond just the immigration context, the treatment innocent employees face in these companies is just as egregious. Often times, they are paid illegal wages, not provided proper employment contracts, and even monitored at work to ensure nothing ever leaks. As someone who has spoken to individuals who have worked in the industry and attempted to fix cases of individuals who have been screwed over, I have seen this all. It breaks my heart each time. As a province, we have employment standards legislation for a reason and the fact that companies can operate with no knowledge of even the baseline requirements, is shocking.

As a society, what we have done by not regulating these practitioners is we have imported and sanctioned the very worst of the business practices from abroad as practices that are acceptable in Canada. Ironically, even in countries such as China, now this level of corruption and fraud at a local level is not tolerated and in fact would result in serious prison time if committed. Here it goes largely unmonitored and the penalties far too low to act as any deterrent to profit. Most investigations by regulatory bodies take far too long to conduct, if conducted at all.

There is in fact a possible solution, but one that requires internal reflection from regulatory bodies and a commitment to spending money to ensure the well-being of vulnerable immigrants are protected. Without diversity at the top of the organization or even among employees of the organization, the underground ethnic economy will always be one step ahead of the regulators that seek to punish and discourage.

For example, with respect to one of my proposed solutions, I am unaware of any proactive efforts taken by Immigration, Refugee and Citizenship Canada, Canada Border Services Agency, or any provincial law/consultant bodies to actually create a task force of diverse, multi-lingual stakeholders to investigate, or at the very least, educate businesses on what is right and what is wrong. I am also unaware of any government sponsored actions to work with government’s abroad to regulate international delivery of Canadian services.

Doing so, in my mind, requires these bodies to coordinate with each other and with the majority of business and practitioners that are doing it right to figure out a better way to address this crisis. If this type of think tank/advisory group was created, I would be the first to sign up. I believe that much in creating an immigration system that is ethical and fair above all else.

If not, these fraudulent companies can continue to get away with confidentially sending their contracts in a third language, hide the fact that an entire firm is piggy backing off one consultant’s ID number without their knowledge, and ultimately keep duping clients into spending thousands of dollars only to put their future immigration at risk.

Personally, I have been toiling with speaking out on this topic for awhile now. I really wanted to write this article in Mandarin for a local ethnic newspaper. However, each of these newspapers themselves are filled with advertisements for the very companies that are carrying on these business practices. I doubt they would want to publish this piece.

It is just my hope, that someone – be it in Government or in the Law Society of British Columbia realizes that this problem is more than just a problem taking place within an ethnic economy, but is hurting everyone.

It is hurting the immigration system. it is hurting the reputation of good, honest, and often times naturally imperfect immigrants to this country. It creates stereotypes based on race that infuses its way into the perceptions larger society. Ultimately, it hurts our commitment to abiding and living by the rule of law, where no one individual can dictate the rules of the game without the scrutiny of the populous.

It is time to shutdown the fraudulent ghost immigration consultants and stop them from ruining innocent, immigrant lives.

May 10, 2016

Canadian Immigration Law Blog

Previous Unauthorized Work and the Application of Regulation 200(3) IRPR at the Port of Entry

Mock Fact Scenario

An Applicant shows up to the Port-of-Entry (after a quick trip to the Untied States) applying for a new work permit or attempting to enter on the basis of an existing work permit. During their secondary examination by Canada Border Services Agency (“CBSA”), it is uncovered that the Applicant may have been working in a different occupation (NOC) and a different location than they were authorized to under their previous work permit. Less than six months have passed since the latest infraction.

One of the issues that has been boggling down CBSA is how to handle such an applicant.

Introduction

We have to view this issue in the context of recent Federal Court cases, specifically Gupta v. Canada (Minister of Public Safety and Emergency Preparedness) 2015 FC 1086 and Yang v. Canada (Minister of Public Safety and Emergency Preparedness) 2014 FC 363] that have been highly critical of CBSA’s issuance of exclusion orders pursuant to R.228(1)(c)(iii) for non compliance of s.20(1)(b) of the Immigration and Refugee Protections Act and R.8 of the Immigration and Refugee Protections Regulations (“IRPR”).

To cut a complicated topic short (as it is a whole separate blog topic), the Federal Court has found that the CBSA has acted unreasonably in issuing exclusion orders for past non-compliance where applicants hold existing work permits or are making new work permit applications and are found not be “working without first obtaining a work permit” as per R.8. In Gupta, the Justice Locke found that CBSA’s equation of an individual who was ignoring the conditions of his permit to an individual who did not obtain a work permit before first working essentially read in requirements that were not in the provision.

Additional challenges to CBSA’s position on this are posed by the fact that IRCC’s own guidance per Enforcement Manual 2, Chapter 11 suggests that work non-compliance ends upon an individual leaving Canada and that a work permit is not listed under the R. 52 list of required documents for temporary resident applicants.

The motivating factor for CBSA to issue these types of exclusion orders pursuant to R.228(1)(c)(iii) is that they are specified removal orders, meaning they do not have to be referred to the Immigration Division and can be carried out at the Port-of-Entry on a same-day basis. Arguably, although case law has cautiously tip-toed around stating this, the exclusion order is outside the jurisdiction of the Port-of-Entry.

Given the above, the logical step would be for CBSA to find a way to not issue the work permit and deny entry in lieu of issuing an exclusion order. There is some legislative authority to support this possible position (with important nuances) as this article will discuss.

Authority to make a POE Application

Let’s begin by taking a step back to explore how the individual made it to the Port-of-Entry in the first place. The Applicant is making a work permit application at the Port-of-Entry taking advantage of provision R. 198(1) of IRPR, which allows an individual to apply for a work permit at the Port-of-Entry upon entry into Canada if they are visa-exempt or by virtue of leaving Canada for the United States and re-entering within the validity period of their initial study or work permits or within the period of validity for their stay as temporary resident in Canada. This regime is also where the commonly used, but often misunderstood phrase “flag-poling” derives its practical value.

The relevant legislative provisions are:

Application on entry

198 (1) Subject to subsection (2), a foreign national may apply for a work permit when entering Canada if the foreign national is exempt under Division 5 of Part 9 from the requirement to obtain a temporary resident visa.

190 (1) A foreign national is exempt from the requirement to obtain a temporary resident visa if they

…………….

(3) A foreign national is exempt from the requirement to obtain a temporary resident visa if they are seeking to enter and remain in Canada solely

(f) to re-enter Canada following a visit solely to the United States or St. Pierre and Miquelon, if they

(i) held a study permit or a work permit that was issued before they left Canada on such a visit or were authorized to enter and remain in Canada as a temporary resident, and

(ii) return to Canada by the end of the period initially authorized for their stay or any extension to it;

Can CBSA Refuse to Issue an Applicant a Work Permit for Past Non-Compliance with Study/Work Permit Conditions?

The relevant legislation states (emphasis added):

200 (1) Subject to subsections (2) and (3) — and, in respect of a foreign national who makes an application for a work permit before entering Canada, subject to section 87.3 of the Act — an officer shall issue a work permit to a foreign national if, following an examination, it is established that

………..

(3) An officer shall not issue a work permit to a foreign national if

(a) there are reasonable grounds to believe that the foreign national is unable to perform the work sought;

(b) in the case of a foreign national who intends to work in the Province of Quebec and does not hold a Certificat d’acceptation du Québec, a determination under section 203 is required and the laws of that Province require that the foreign national hold a Certificat d’acceptation du Québec;

(c) the work that the foreign national intends to perform is likely to adversely affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute;

(d) the foreign national seeks to enter Canada as a live-in caregiver and the foreign national does not meet the requirements of section 112;

(e) the foreign national has engaged in unauthorized study or work in Canada or has failed to comply with a condition of a previous permit or authorization unless

(i) a period of six months has elapsed since the cessation of the unauthorized work or study or failure to comply with a condition,

(ii) the study or work was unauthorized by reason only that the foreign national did not comply with conditions imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c);

(iii) section 206 applies to them; or

(iv) the foreign national was subsequently issued a temporary resident permit under subsection 24(1) of the Act;

The above rule is often coined the “six-month bar” on applying for a work permit, but the important sub-section to look at is (ii).

R. 185(a), (b)(i) to (iii) and paragraph 185(c) state as follows (emphasis added):

Specific conditions

185 An officer may impose, vary or cancel the following specific conditions on a temporary resident:

(a) the period authorized for their stay;

(b) the work that they are permitted to engage in, or are prohibited from engaging in, in Canada, including

(i) the type of work,

(ii) the employer,

(iii) the location of the work,

(iv) the times and periods of the work, and

(v) in the case of a member of a crew, the period within which they must join the means of transportation;

(c) the studies that they are permitted to engage in, or are prohibited from engaging in, in Canada, including

(i) the type of studies or course,

(ii) the educational institution,

(iii) the location of the studies, and

(iv) the times and periods of the studies;

Note also, that there is a sister companion provision for a “six-month bar on issuing a study permit”

Failure to comply with conditions

221 Despite Division 2, a study permit shall not be issued to a foreign national who has engaged in unauthorized work or study in Canada or who has failed to comply with a condition of a permit unless

(a) a period of six months has elapsed since the cessation of the unauthorized work or study or failure to comply with a condition;

(b) the work or study was unauthorized by reason only that the foreign national did not comply with conditions imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c); or

(c) the foreign national was subsequently issued a temporary resident permit under subsection 24(1) of the Act.

SOR/2004-167, s. 62.

Going back to our initial fact pattern, the six-month bar does not apply to our individual because they were non-compliant only by virtue of having worked for the wrong employer or in a different occupation as per their work permit.

Given even work beyond authorized stay is covered, the only real application of the six-month bar appears to be where an individual does not hold a work permit and works without authorization or does not hold a study permit and pursues unauthorized study.

Possible CBSA Options

I can see three possible scenarios that CBSA can take in handling these “previous non-compliance cases”:

Refusal of the work permit application and denial of entry due to non-genuineness of job offer or discrepancies with the Offer of Employment pursuant to R. 200(1)(c)(ii.1) IRPR, or denial of entry on basis that Applicant will not leave when required pursuant to R. 200(1)(b) IRPR.
Referral to Immigration Division on s.40(1)(a) misrepresentation by way of R.229(1)(h) IRPR – this has harsh consequences but has legal teeth.
Allowing entry but flagging for inland investigation for s.41(a) IRPA non-compliance by way of R. 229(1)(n) – least cost effective, but likely strongest for legal basis.

Due to the lack of jurisprudence, however, it will interesting to see how these referrals (and subsequent exclusions) hold up in Federal Court. Does the fact that an Applicant was previously not abiding by the requirements of his/her work permit affect the genuineness of the future job offer? Is there enough of a legal basis that past non-compliance, even though not report-able, can be used to establish that an individual will not leave Canada when required?

Many […]

Apr 28, 2016

Canadian Immigration Law Blog

‘Actively Pursuing Studies’ – Possible Port of Entry Issues

As I mentioned in a post written in September 2015, the requirement that a study permit holder “actively pursue studies” in Canada while holding their study permit creates major challenges.

When I first wrote my post in 2015, I imagined that exclusion orders issued pursuant to Immigration and Refugee Protections Act s.29(2) + s.41(a) would occur mostly in the context of in-land investigations. I imagined these would be situations where Designated Learning Institutions (“DLIs”) when required to update CIC (now “IRCC”) via the student compliance portal would trigger Canada Border Services Agency (“CBSA”) to investigate. Other than that I thought that international students would otherwise be brought to the attention of CBSA by external means (i.e. police-reporting, working without authorizations, etc.), where studying without authorization would be an add-on to existing concerns.

My understanding now is that with IRCC’s International Student Program (“ISP”) student compliance delivery instructions still pending final publication for sometime later this year, the main trigger of these investigations are actually reports to CBSA or initiated by CBSA themselves.

It may come to a surprise to some individuals, but CBSA often is not provided instruction on how to interpret IRCC rule/policy changes, but rather, like myself as a practitioner or a client, have to react to them by developing their own positions. These positions, as admitted by CBSA, are not always perfect and often can lead to inconsistent application. That turns into the legal grey area that often gets clients in trouble.

Yesterday, I attended a talk where CBSA program directors talked about the recent Port of Entry issues they have noticed. This talks reconfirmed (my fear) that the ‘actively-pursuing studies’ requirement has been interpreted by CBSA quite broadly and that this requirement has created challenges for international students. I had been hearing similar issues from in the international student community, but this talk reaffirmed them.

Travelling during “Regular School Term”

When a student is ‘actively-pursuing studies’ they are expected to be in class when there is class. Full stop. Inevitably, trips taken during class will happen. Things happen back in the home country, emergency trips to see loved ones, health and financial issues, or even the occasional mid-term getaway. We could all use the occasional break, right?

Well, the challenge is, that without program delivery instructions set by IRCC as to how discretion is to be exercised, there is a huge risk to an individual who leaves Canada during the regularly scheduled school term and tries to gain re-entry into Canada.

As a colleague of mine correctly pointed out, there are also challenges with the way the legislation is being interpreted right now in sense that a plain-letter interpretation of the law suggests that the law does not apply while an individual is abroad with a study permit. However, I now understand that the study permit holder does not need to be in Canada and not studying but arguably can be in their home country and holding a study permit, not studying and still fall into the requirement to actively-pursue studies.

Conditions — study permit holder

220.1 (1) The holder of a study permit in Canada is subject to the following conditions:

(a) they shall enroll at a designated learning institution and remain enrolled at a designated learning institution until they complete their studies; and

(b) they shall actively pursue their course or program of study.

CBSA’s recommendation, and one I would fully adopt for students is that they need to bring with them adequate documentation when they leave Canada in the middle of the school term. I would go a step further and suggest that this is true ot just a student’s own school term – which may or may not correlate to when a majority of students are expected to be in school.

One of the examples that CBSA provided of a “possible flag”, was an international student attempting to arrive in Canada mid-way through September. This is of course, premised on the fact that the designated-learning institution operates on a Fall/Winter semester school year. In fact many DLIs go according to different schedules, particularly those that offer continuous courses over summer but provide options for students to take authorized breaks.

Proving your Breaks

Students would be wise to have (among other relevant documentation):

a school calendar;
school policies relating to educational breaks/gaps;
a letter of permission from the school authorizing the late return/trip abroad; amd
proof that the student performed the activity/task that they were authorized to miss school for.

They should also be prepared to answer questions in secondary examination, if referred. Particularly, where a student’s first language is not English, the international student should know how to ask for interpreter and/or answer basic questions about there whereabouts and activities while abroad. Answers provided incorrectly or, worse yet, with misleading intentions may result in further immigration consequences such as misrepresentation.

Students would also be wise to ensure they are compliant with other customs policies. Often times another violation, i.e. failing to declare goods upon entry, will trigger a referral to secondary which will itself trigger a non-compliance with study permit conditions finding.

Consequences of Exclusion

As alluded to earlier, a student, if upon examination is determined not to be a student who is ‘actively pursuing studies’ could be issued an exclusion order on the spot and removed from Canada. Anecdotally, I have heard individuals who have been removed the day of their attempted entry and asked to buy a ticket to board a plane home.

From a procedural fairness perspective, it is my hope that CBSA adopts a policy that will require them to continue the investigation inland. I say this because my understanding of procedural fairness requires that an applicant is provided a meaningful opportunity to respond.

Without a full investigation of the school’s policies, of attendance records, and giving the student a chance to defend themselves in the event a designated learning institution says otherwise, I don’t think the opportunity to respond can be provided. A few hour examination is simply not enough.

Conclusion

Until IRCC comes up with clear policies communicated with CBSA Border Services Officers that apply the law, travelling during school time without a valid reason and valid evidence is in my perspective, playing Russian roulette .

Apr 24, 2016

Canadian Immigration Law Blog

Why Canada Should Create a Social Capital Investor Immigration Program for Student-Aged Entrepreneurs.

For as much scrutiny as Canada’s Federal Investor Immigration Program (“FIIP”) has come under, perhaps we have overlooked the real potential that encouraged investor immigrants can bring to Canada.

Contrary to the position taken by Candice Malcolm in her piece “Canada is subsidizing foreign millionaires”I would place just as much, if not more, of the blame for the failure of Canada to realize foreign investor immigrant funds on Canadian institutions rather than the foreign investor.

As my Firm’s Partner Ryan Rosenberg wrote in 2010, in his piece titled “The Truth Behind the Federal Immigrant Investor Program”, that the economic benefits of the investment simply were not flowing through to the government and instead being realized by banks and consultants/representatives.

While I acknowledge the well-documented tax issues showing that Investor Immigrants are not paying their share, at a certain point we also have to see this as a failure in our tax system to properly assess taxes rather than in Investor Immigrants failing to pay the appropriate amount. For example, there is a Canada-China Income Tax Treaty that prevents double taxation and drastically reduces the taxable income owing to the Canadian government. We also have a poor understanding of the Chinese tax system works and virtually no control over the transfer of foreign wealth through financial institutions. If investors are able to income split and send funds to Canada through their children, I don’t know if we can solely blame the foreign investor where the Canadian legal loopholes exist.

To me, a greater problem is why we haven’t been able to create an investor immigration program that funds social capital in the way that investor immigration has the potential to do.

Right now, there seems to be a divide between the passive investment (i.e. Quebec Investor Immigration Program and Immigrant Investor Venture Capital Program) and active management/entrepreneurship (i.e. the start-up visa program). The challenge with these programs is that they are either too passive, to the point the investments stop making economic sense or they are to active, where they become dependent on third parties rather than the applicant themselves.

Rather than utilizing investor funds to fund businesses, arguing crowding-out private equity, why not use investor funds to support charities and non-profits in Canada while instilling Canadian values in wealthy immigrants. Better yet, why not offer the opportunity for investor immigrants to fund access to justice initiatives and even refugee/immigration initiatives themselves, thus alleviating the burden on the Canadian taxpayer.

Instead, we have created an immigration system that utilizes temporary residence – via student permits as the only pathway to permanent residences. Ten-year multiple entry visas, allowing a visitor to enter Canada for six months at a time, quite repeatedly, are being used in lieu of permanent residence options and still offer the ability to live quite permanently in Canada with little detriment most of the time.

On that note, I think we particularly need to re-think the international student angle. I fully appreciate that one international student can fund four domestic students, and that a large majority of international students are bona fide. However, requiring them to come to Canada with large amounts of funds to prove their eligibility, meanwhile spending government funding to ensure students are enrolled in designated learning institutions and “actively pursuing studies” is problematic.

Such a model, necessarily limits opportunities for students from low-income/third-world countries, as well as those who may have more entrepreneurial interests in Canada.

Meanwhile, it leads to the creation and registration of several designated learning institutes that frankly have a best-interest in maximizing their tuition intake with very little care as to the student’s long-term well-being in Canada.

Many of these programs are not transparent in whether they offer post-graduate work permits and ultimately students end up enrolling in programs with little value in the labour market to find out they have no options after three years in Canada. It is not a surprise that, in the absence of proper education and resources, lambos, ferraris, and high fashion fill the void.

My questions is this: why not merge student immigration and entrepreneurship together? Assuming the money is coming from a reputable source (i.e. not the source of fraud) and that the money does not pass through too many hands (i.e. regulation on maximum commission/legal fees realizable), is there are anything wrong with allowing a student to earn their permanent resident status in Canada by funding jobs and opportunities for underserved non-profit/charities in Canada?

I would argue no.

Possible Model for a Social Entrepreneurship Investor Immigration Program

I have envisioned a possible model. It is a draft of course, and I am sure not perfect, but hear me out:

Eligible non-profits/charities in Canada would apply to the Government of Canada at the beginning of the Calendar year for a designated investor from the Social Entrepreneurship Investor Immigration Program. These non-profits/charities would be screened in advance to ensure they are bipartisan in nature and would have to have a non-arm’s length relationship with the potential investor. This would ensure the non-profit/charity would not be a vehicle and not a created corporation for immigration purposes.

The designated investor, outside of a large investment amount ($800,000-$2,000,000) would have low entry requirements, consisting of basic English skills and pre-cleared fundst. The investor would however, have to pledge to achieve a minimum CLB score by the end of the three-year program (let’s set it at 6 to be realistic and fair).

Applicants would then be given a choice of non-profits/charities that they could make their minimum investment in. The ultimate investment would not be limited to a certain cause but would ultimately be decided upon by the organization’s Board. Additionally, the young enterpreneur/investor immigrant would be required to take on an active “directorship” role with the charity/non-profit that they invested in. They would be limited in the number of shares they could take, but be granted voting power depending on the bylaws of the organization..

As part of their investment, they would have to commit to the funding for X number of full-time Canadian positions within the non-profit/charity within three year commitment. This would be done by signing a performance agreement – monitored by the relevant provincial/federal regulating body. They would also be required to proactively report on their attendance and volunteer hours committed at monthly board meetings and receive references from the non-profit/charity on a quarterly basis explaining their contribution to the non-profit/charity.

Meanwhile, the applicants would be given both work and study permits and strongly encouraged to pursue full-time studies in addition to their participation in actively serving the non-profit/charity.

At the end of the program, the applicant would have to demonstrate that they were able to maintain the X number of full-time positions at the non-profit/charity and explain their role in serving as a director.

Should the non-profit/charity close, the applicant would have the ability to transfer to another one in the pool. However, this would be contingent on the fact the applicant did not themselves cause the non-profit/charity to shut-down by breach of their agreement.

Should the applicant fall short, they can either be refused entry, extended in time to demonstrate a greater commitment, or provided options for them to transfer into further study/work on a temporary basis.

Teaching Canadian Values Through Volunteering on a Board

I think volunteering on a Board of a non-profit/charity is the absolute best way to learn about Canadian values and be engaged to the societal challenges currently facing our country. It creates buy-in, commitment, and even helps address the challenges investor immigrants face in finding jobs or opportunities later on.

Ultimately, I know the major challenge with my proposal will be ensuring this program does not become open to fraud, particularly where we know younger entrepreneurs (I would target this program at 19-27 years olds) may be taken advantage of. I think this is where government, by ensuring the funds are properly sourced and ensuring the non-profit/charities are reputable in reporting (much like for a government grant) these concerns can be alleviated.

What are your thoughts? Would you agree with such a program?

Apr 19, 2016

Canadian Immigration Law Blog

Deadlines and Timelines – A Case for Starting the Immigration Process Early

I am often asked by my friends/clients what I would look for if I was choosing an immigration lawyer for my own private matter. What important considerations would I make?

I think my first advice to those individuals would be to start the process early. There really never is “too early”, but there is certainly late and way too late.

Refusals = All about the Statutory Deadlines.

Particularly for an individual who has recently received an immigration refusal, there may be strict deadlines in which to act. For example, for a judicial review of a decision made inside Canada, you must file your Application for Leave and Judicial Review (“ALJR”) within 15 days of receiving your refusal. Outside of Canada, this can done within 60 days.

Even in the context of reconsideration, one of the guiding principles of Immigration, Refugee and Citizenship Canada is that the time between the decision made and your request for reconsideration is a factor in the officer deciding whether to reconsider a decision. I would argue that you have a much better chance seeking reconsideration if it has been days since a refusal rather than weeks or months.

A similar situation exists in Appeals (particularly of residency decisions), where there are strict deadlines to file an appeal and navigate your way back to Canada. A simple day calculation issue can lead to you being without options or severely diminishing your chances of being successful.

Transitioning to Permanent Residence = All About the Timelines.

Moving to the broader immigration planning context, I am always impressed and expressly tell clients that see me when they are still midway through their undergraduate studies that they are doing a very smart thing.

Undergraduates, particularly those preparing for permanent residence in Canada, have a lot of considerations which start even as they pick their major. An international student should be considering timelines for whether they want to pursue graduate studies, when they want to pursue a post-graduate work permit, how they want to accumulate foreign work experience in support of permanent residency, and ultimately how to be competitive for either one of Canada’s economic immigration programs or a Provincial Nominee Program.

Leaving this too late (i.e. on the last year of a PGWP) often creates challenges as there is a time factor barring them from even obtaining the minimum work experience required for future work or obtaining an LMIA that could support their permanent residency.

I Used to Not Believe in Consultations.

Prior to starting work in immigration, I used to think consultations were just a cash grab by representatives hoping to make a quick buck without a long term commitment. Then, I wrote this piece.

Pursuing immigration without a consultation is simply akin to pursuing surgery without meeting the surgeon to go over your surgery needs and whether the hospital/facility is even suitable for your type of work.

As a lawyer, my goal is not to take your money but to secure your end result. If there is no end result in sight, it would be unethical for your to take your money. Simultaneously, I like to present options for a client to be more involved in choosing how they want to proceed. Immigration is ultimately a collaborative process that requires that trust and attention to detail.

Patience and Persistence is a Value.

A benefit that I notice a lot of young lawyers bring to the table, particularly those with emerging practices, is that we put a lot of heart into each of our clients and their cases. Your problems really do become my problems as I step into your shoes as an honourary family member/colleague.

A lot of immigration is in the details. Simply giving a pile of papers to your representative and saying ‘take care of it’ is unfortunately not going to work. Refusals these days are generated not only from the meeting of certain statutory requirements for immigration but often from miscommunication. Missed timelines, deadlines, and last minute panicking. I often will tell my clients to go back and review a document one more time, not because it saves time on my end, but ultimately you know your own facts best and you know your own narratives best.

My applications, particularly the challenging refusals, go through weeks of intensive scrutiny because there are holes and traps at every corner of Canadian immigration law, regulation, and policy. It is my job to point them out, and our job to work through them together.

Apr 16, 2016

Canadian Immigration Law Blog

Balancing Expedient Processing and a Second Chance for Potential Economic Immigrants to Canada

With Immigration, Refugee and Citizenship Canada’s (“IRCC”) 2016 Level’s Plan as mandated by the Government of Canada, one of the challenges I am beginning to see is IRCC’s struggle in balancing expediency with the need for leniency in the event of honest mistake.

With the economic immigration target having decreased by 25,600, an Express Entry system that will continue inviting individuals, and a government committed to reducing the backlog of existing inventory, a fear logically emerges. This fear is that in the interest of processing more applications, reducing the processing times, while fitting within a rigid target system, more applications begin to be refused.

In the past few months, I have had an increase of applicants come to see me for refusals for what I would deem mistakes that should have been given a second chance. These are issues that could have been resolved by giving the Applicant an opportunity to correct an honest omission or produce supporting documents.

Many of these refusals come from either applicants who did not receive a letter advising them of a minor deficiency or received a letter that did not make clear what the concerns were and therefore provided a deficient response. I have also seen procedural fairness letters that contain language diverting from usual program requirements, creating higher standards and leading to uncertainty felt by applicants.

I am reminded on this anonymous quote:

“Don’t punish the one in front of you, for the mistakes made by the one behind you.”

Without sacrificing expediency, I think that it needs to be a priority of the immigration system to give applicant’s a reasonable chance to correct minor or commonly-occurring/foreseeable mistakes, particularly where the IRCC’s own instructions are not the clearest.

Additional consideration should be provided to individuals have been in waiting for multiple years on a decision, where other family members are impacted, where there is a reasonable chance that administrative error or honest mistake occurred.

In the context of a visitor visa or a study permit, I understand where this may not be possible and where the Applicant can arguably reapply.

However, particularly in the context of programs such as the old Canadian Experience Class/Federal Skilled Worker or Provincial Nominee programs, where programs may no longer exist in their current form, greater procedural fairness should be provided.

Creating Greater Mechanisms for Reconsideration

On that note of reconsideration, I would suggest that greater flexibility be provided in creating a process for reconsideration where the applicant may have no other options and where the mistake may be one of simply giving the applicant “a second chance” at responding to a procedural fairness letter – perhaps triggering them to find counsel to better respond to IRCC’s original concern.

Of course, this must be balanced with the fact that applicants should be submitting a complete application and that there should be no expectation that providing a second chance is the norm. However, where the Applicant is self-represented, clearly of limited knowledge and financial resources, it is interest in the access of justice to increase the procedural fairness provided. I would not disagree with the fact this should be viewed on a case by case basis.

Particularly with Express Entry and other online-based applications, where accidents happen at a greater frequency than on paper, often times due to the layout of the online application process, some consideration should be made into creating a mechanism (including a grace-period) for corrections.

Conclusion

I want to conclude with several closing paragraphs from Justice Phelan’s decision in Lim v. Canada (Citizenship and Immigration), 2016 FC 217 (CanLII) speaking to IRCC’s reconsideration/re-opening process

C.               Re-Opening

[21]         It is also necessary to address this second issue. The Official, having learned that the Applicant had not received the April 13, 2015 letter, refused to re-open the citizenship application. The sole grounds for the decision is that the Official does not re-open except for administrative error by departmental officials including, presumably, errors of this Official.

[22]         Given the Court’s finding that the letter was not sent as it should have been, this was the very type of administrative error that the Official cited.

[23]         More importantly, the cited grounds to exercise discretion to re-open were arbitrary and unreasonable. The only basis upon which a case would be re-opened is if the department deemed themselves to be in error. That ground takes no account of other factors such as Acts of God, unforeseen circumstances and matters beyond anyone’s control. It is a self-serving and ludicrous basis from which to reject a re-opening request and is hence arbitrary.

[24]         It is an unreasonable basis because it lacks reality, common sense and fairness. As put to counsel, the Respondent would not re-open even if it knew that the letter was destroyed in a fire in the department’s offices because officials had not set the fire. It is a breathtakingly unreasonable position.

[25]         The refusal to re-open decision must be quashed.

A quote to end – “Thus, flexibility, as displayed by water, is a sign of life. Rigidity, its opposite, is an indicator of death.” – Anthony Lawlor

Apr 7, 2016

Canadian Immigration Law Blog

How I Would Spend 24-Hours in Vancouver #CBAIMM16

Four hundred and ninety of my colleagues and friends from across Canada will be descending on Vancouver in a matter of hours to participate in the CBA’s National Immigration Law Conference (hashtag: #CBAIMM16).

I am assuming many of you will be busy Thursday to Saturday in the Downtown core attending all the great events and workshop planned for us. In the event that you are staying an extra day or two, I want to give you my ideal 24-hours in Vancouver.

First off the assumptions (we have to go legal on this one):

(1) You don’t own a car and will not be leaving Vancouver city-proper .

* I note that the Cities of Burnaby and Richmond are only minutes away and Richmond is actually where the airport is;

*I note that Surrey, Coquitlam, and North Van have some ridiculously good Indian, Korean, and Persian food respectively. Tasty Indian Bistro is one of the few Indian places I would actually eat at that are not my auntie’s house.

*I note that all the best skiing/hiking is in North Vancouver (30 minutes), Garibaldi (50 minutes) and Whistler (1.5 hrs) away. Grouse Mountain is also great if you want a great panoramic view of the city.

(2) You don’t wish to spend your day at any shopping malls.

*I note for those who want to go shopping, the aforementioned Burnaby is home to Metrotown and Richmond has the McArthurGlen Vancouver Designer Outlet both of which are are on SkyTrain/Canada lines.

(3) You are leaving all the fine-dining for the Gala and just want some good ethnic food at a reasonably cheap price.

I will keep some of the finer establishments off this list (they are good, no doubt).

Also, I am not getting paid to represent any of these companies (and not liable if you don’t agree!)

My Ideal 24 Hours in Vancouver

Wake up reasonably not hungover and walk down to Stanley Park. Visit the Vancouver Aquarium for a few hours to look at the otters and whales and exhibits. Also keeps the kids happy if you have them along this time!
Walk along the seawall until you hit Kitsilano (you have to cross the bridge!). Walk a little further to visit my second favourite cup of coffee in this city, Arbutus Coffee (My first is Arti at Viva Java but he doesn’t work Sundays, and it is in Richmond – breaks rules). Ask for a dirty chai to revitalize you after your long walk.
Hop a bus (B-Line is fastest) to the University of British Columbia. Check out in my opinion one of the most beautiful campuses in the world. Don’t miss the Nitobe Japanese Gardens and the Chan Centre!
Hop back on the 99-bus and take it Commercial Drive aka “the Drive.” Don’t eat too much, but sample some of Vancouver’s most interesting and diverse fair. The pizza is really good (both fast food and sit-down/Neopolitan). One of my favourite Japanese sushi spots in the city, Tatsu is located on the Drive.
Make your way into Chinatown Vancouver. While it may look rough around the edges, the alleyways and streets have a history as long as the city itself. Dr. Sun-Yat Sen Vancouver Chinese Garden (closes 4:30pm on Sundays) is particularly beautiful. Alternatively, Granville Island is a great afternoon spot particularly for those with more artsy interests.
Dinner at Pink Elephant Thai or Hai Phong. These restaurants are my two consistents in the city. Pink Elephant Thai has a killer Duck Red Curry and Soft-Shell Crab Pad Thai (do them ‘Thai Spicy” for extra kick) and Hai Phong has amazing pho.
End the night up at a nice lounge in Downtown Vancouver. I won’t post links, but there are a ton of great ones close to the Granville Strip and in Gastown, all within walking distance. Each vibe is a bit different – some more ‘hipster’ than others.

Honourable Mentions

88 Supermarket for groceries – I can get lost hours here wandering the aisles;
Dim Sum at Kirin, Wings and Squid at Phnom Penh , Ramen at the Ramen Butcher – sorry for all the food related recommendations;
Kit’s Beach and 4th Avenue – Rain or Shine is my favourite ice-cream joint in the city right now.
Kerrisdale – good for strolling
Main Street – Little India
Breaking the rules a little but…. I love The Reflections Lounge at the Hotel Georgia for a nice (but expensive) drink.

Vancouverites let me know if I have missed anything!!

Welcome to Vancouver colleagues and friends 🙂

Apr 3, 2016

Expressly Challenging: A Numerical Analysis and Three Takeaways from IRCC’s 2015 Express Entry Report

On April 1, 2016, Immigration, Refugee and Citizenship Canada (“IRCC”) released it’s Express Entry Year-End Report tracking the progress of its economic immigration management system, Express Entry, since its inception in 1 January 2015.

Acknowledging the program’s growing pains throughout the report, overall IRCC seems to insist that Express Entry has met its objectives so far. In the report, IRCC writes:

Express Entry was designed with three main objectives in mind: 1) flexibility in selection and application management, 2) responsiveness to labour market and regional needs and 3) speed in application processing. Although there have been adjustments to the system during its first year and policy concerns expressed by stakeholders, Express Entry has met its expectations.

This report, Express Entry Year-End Report (EN) is filled with very informative statistics as to how Express Entry has been operating so far.

In my mind there are (at least) three important takeaways that I will explore in this post:

#1 – English/French Language and Canadian Temporary Residency appear to be major assets for Express Entry

Currently, official language skills make their way into economic immigration in several ways.

First, as a baseline requirement, an individual who wishes to qualify for the Federal Skilled Worker program needs CLB 7+. Scores lower than this would make the applicant ineligible for assessment on the initial points grid. For the Canadian Experience Class. there is also a requirement that the Applicant meet the language requirements of CLB 5+ for NOC B and CLB 7+ fpr NOC 0, A positions.

As provided by IRCC:

If an applicant has work experience in both NOC 0, A or NOC B occupations, the applicant must satisfy the officer that they meet the minimum language proficiency threshold for the skill type/level in which they have obtained most (i.e., more than half) of their qualifying work experience [R87.1(2)(e)].

Once in Express Entry, language factors itself in up to 410 of the available 600 points (360 for most candidates). Those without strong language scores will inevitably be stuck in a Comprehensive Ranking Score (“CRS”) range currently not being invited to Apply for Permanent Residency.

The report seems to concur with this theory. Looking at the top 10 source countries of citizenship for Express Entry, one can adduce that English/French language skills poke its way into the selection process.

The report listed the top 10 countries of citizenship for those who receive Invitations to Apply (“ITA”) allowing them to apply for permanent residency via an electronic Application for Permanent Residency (“eAPR”). You will note that 8 of the 10 countries listed have English or French as an official language.

Countries of residence also appear to follow a similar trend, with the added fact that a large majority of those successful in obtaining an ITA reside in Canada. These are individuals who can we deduce have first come to Canada, likely as temporary resident workers or students.

I do wonder what percentage of these stats are skewed by the use of authorized representative portals but nonetheless it still suggests a key trend that language and Canadian residence matter.

Perhaps, the above stats change the way we as practitioners may want to advise those without Canadian temporary residency/work experience. Rather than suggesting that the client “do another language test and increase their scores”, there may be some benefit to crafting a short-term strategy (based on work or study) that could potentially lead to eligibility under the Canadian Experience Class. The added benefit is such a strategy would likely increase their possibility of obtaining a Labour Market Impact Assessment (“LMIA”) based offer of arranged employment or a Provincial Nomination.

You can also see this reflected in the fact that final decision processing for Canadian Experience Class is 1.3 months faster than for Federal Skilled Worker presumably due to the scrutiny required with overseas-based qualify work experience.

#2 – Applications are being bounced more than refused and at a higher rate than one would expect

As I discussed in an earlier post commenting on the trends I was seeing with Express Entry incompleteness/refusals, the problem of bounced applications is a major barrier to applicants.

Express Entry applications can be bounced for a variety of factors. Some of the common ones are:

Missing police certificates or certificates not yet received (very prevalent due to change in rule requiring police certificates for countries resided in cumulatively for 6 months or more and well-documented FBI police certificate delays);
Insufficient letters of reference (often times challenge in getting references for old jobs or where old employers refuse to provide adequate letters);
Failure in properly uploading complete documentation; and
A11.2 findings where an applicant has had a birthday, a new child, forgotten/failed to submit a document or new evidence that has now decreased their points etc.

This is just to name a few.

The 2015 report seems to confirm that bounced applications are a big problem for Express Entry;

If we go back to our overall chart for final processing, we see that out of the 16,491 applications finalized, 14,058 were approved and 2,433 were refused. On the surface, this statistic does not look bad and accounts for a ratio of about 5.78 Approvals to 1 Refusal.

However, if we look at this other statistic from earlier in the report, the situation looks much more bleak.

This statistic tell us that out of the 37,424 applicants (21,562 applications received), 15,246 are in progress and 14, 058 have been approved. Doing simple math, we are left with 22, 178 applicants received of which only 16,491 were finalized as approvals/refusals. From this, we can deduce the bounce/incompleteness rate to be somewhere in the neighbourhood of ([22,178-16491]/22,178) or 25.64%.

The consequences of a system where 1 out of 4 eAPR applicants are not even making it to a final decision (some perhaps through abandonment) are staggering. It means the system is not as intuitive as it can be and there is much room for improvement. It also means that Applicants may need more legal advice than they are currently seeking out for Express Entry.

#3 – The Backlog from Pre-Express Entry Continues to Exist and Eat Up Cap Space

If we return to the Conservative Government’s 2015 immigration levels plan, we can see how much of that space appears to have been made up of Express Entry.

In 2015, the projections were:

Assuming, just the low for now the projection was for 68,000 economic applicants to be granted permanent residency.

We know the actual number of 2015 Express Entry Approvals were 14, 058.

There are two possible conclusions from this. Either a majority of processing (79%) is still occurring on backlogged Canadian Experience Class/Federal Skilled Worker files from before January 1, 2015 or the Government has grossly missed its economic immigration targets for 2015.

In 2016, it now seems somewhat more understandable that the Liberal Government would reduce its target to 58,400 by 25,600. Perhaps Express Entry is indeed a system where promising less and delivering more may be the best strategy.

Conclusion

Many applicants and their representatives around Canada have been expressing their frustration with Express Entry. It appears that those frustrations are understandable. The old, the non-English speaking, even the slightly imperfect applicant is subject to either a low score or a bounced application.

With even lower projections in 2016 and no sense that the scores will be raised to unattainable thresholds, the only logical consequence is more refusals and bounced applications.

Applicants through Express Entry may want to think of pursuing dual intent (concurrent permanent and temporary) options or seek assessment under a provincial nomination program while Express Entry figures itself out. One of the strategies IRCC should employ, in addition to further educating applicants, is a secondary review/reconsideration mechanism.

Counsel for these Applicants should also be reviewing refusals more closely. Several of my colleagues have seen their Judicial Review practice increase quite significantly and many of these refusals/incompleteness findings are being overturned prior to the case ever reaching the Courts.

Mar 27, 2016

Canadian Immigration Law Blog

Is Canadian Immigration Overemphasing the Financial Sufficiency of International Students? – Policy Discussion

Based on StatsCan numbers, in 2015/2016, International Students to Canada pay on average $21,932 a year in tuition fees, compared to $6,191 a year paid by their domestic colleagues. I have heard in some circles, the talk of a “1 international student pays for 4 domestic students” a ratio that appears to be close to met based on these recent figures.

In order for an international student to even be determined to be financially sufficient for a study permit they must be able to cover the cost of first year tuition, the cost of housing, personal expenses, and transportation to and from Canada. They must also show that they have some potential plan in place to pay the remainder of the amount.

Accompanying spouses/dependents add additional monetary requirements to this calculation. Furthermore, different visa posts also carry different requirements ranging from being able to show the finances in a bank draft, a letter of financial support, and even prepaying tuition.

As shown by the ATIP results below from a (then Citizenship and Immigration Canada, now Immigration, Refugee and Citizenship Canada or “IRCC”), and likely still in effect – amounts proposed to be earned through work by the applicant or accompanied spouse is not to be taken into account in the calculation.

If we look at just the baseline number as provided by IRCC”s program delivery guides on study permit financial sufficiency we find a very troubling fact.

Financial Sufficiency

In order to have sufficient financial resources, the international student student must be able to pay the cost of first year tuition (let’s put it at the average of $21k).

They must also pay the cost of living expenses, which IRCC has tagged at:

Student base: $10,000 for twelve-month period, prorated at $833 per month, plus cost of tuition.
Spouse/common-law partner/ first family member base-$4,000 for twelve-month period prorated at $333 per month.
Dependent child/subsequent family member base-$3,000 for twelve-month period per dependent child of any age, prorated at $255 per month.

This does not, from my understand, include rent – which itself in several cities can add up to about $20,000 to 24,000 a year.

Total, a single student would be expected to have $51k (21 + 10 + 20) in currently available, liquid funds in order to study in Canada for one year.

Whether these requirements are actually strictly enforced at overseas visa offices is a question that must be looked into further. Yet, I question whether requiring $51k from an international student (currently close to the annualized living wage amount ($20.68/hr) for a family of four from Vancouver) is setting an unrealistically high barrier to Canadian education. Is it also in so doing creating unintended policy consequences?

With that amount required, it is both not a surprise that those who can afford to study in cities such as Vancouver must be supported by their parents, who themselves must by extension be financially well-off. While such a link has not yet been drawn, I would argue that international students factor prominently into the discussion of foreign ownership in the city of Vancouver, a link that has been overlooked due to the often complex arrangement in which houses are bought and rented, and statistics gathered and tracked.

I also think that the high financial requirements for study permit holders and the deisre of several international students to come into Canada at all costs (think IRCC’s 7% of high risk students), have led several Designated Learning Institutions to shift their primary focus away from ensuring that international students are “actively-pursuing studies.”

Spots in these institutions are filled by those who can pay and those who can arrange (third-party, unlicensed agencies) rather than by merit. Often times these students either fail their courses or end up being removed/leaving Canada, their pathway to any future marred by their poor grades and lack of a concrete study plan.

All this to say, I think if we make entry into Canada’s international student population more merit-based, more based on a required comprehensive study plan, we can encourage candidates that will be better permanent residents and whom Canada can invest in to gain long-term benefits.

Another barrier right now, is that students are encouraged in their study permit applications to prove they are a “temporary resident” and will “leave at the end of their authorized stay.” Perhaps our model should be switched to requiring students to demonstrate lower finances, but a higher desire to come to Canada for more than just a short-term purpose. Perhaps, we should ask international students to declare up-front whether they intend to stay for a short-term and return to studies in their home country, or if not, plan an educational strategy to become a permanent resident.

I think the Labour Market Impact Assessment “Transition Plan” provides a model that I would like to see implemented for international students. We can do this with corresponding policies that make it easier for international students to eventually become permanent residents, as this government has promised. I can even forsee a student who has followed through their Educational Transition Plan being awarded extra-points when they are applying for Express Entry down the road.

A lot of options, but one barrier remains requiring the student to be wealthy. I never had those finances growing up, and in fact, to generalize, those of my colleagues who were most successful in university came from quite middle-class households, where the family income for a family of four was around 50k. While times of changed, I think if we are more flexible with funding arrangements, we can attract more working class individuals and families who through Canadian education can transition become our future Canadian citizens.

Mar 20, 2016

Not-So Hidden Prejudice: Visa-Office Specific Document Requirements and Chinese Applicants

Canada’s historic mistreatment of Chinese migrants through immigration policy and law, though under-appreciated, cannot be understated.

It began with the introduction of the Chinese Head Tax in 1885. This led to the Government to carve out the Chinese Exclusion Act of 1923. It was not until 1967, that race and ethnic origin were removed as a valid consideration of inadmissibility in 1967. However, even after this date – spouses of Chinese applicants faced greater scrutiny and heavier requirements.

One would assume that in 2016, any government-endorsed effort (asides from the visa requirements that a nation is legally able to set out), that treats individuals of one nationality different than individuas of another may evoke some concern.

I have ALWAYS denied that institutional-supported discrimination exists in Canadian immigration. Have I seen one off cases? I have certainly read my fair share of visa officer decision and member decisions that could have been much more culturally sensitive. In many of these cases, competent counsel took their cases to appeal and judicial review and won on those grounds. Rare wrongs that mostly were righted at the end of the day.

Even, in the face of the May 2015 debacle where “uneducated” Chinese students in relationships with Canadian sponsors were revealed as a triggering characteristic for bad-faith/marriages of convenience, I somewhat accepted the then government’s response/defense. If there was a heavy incident of fraud among Chinese applicants, having an internal guide to try and shutdown the fraud can be somewhat justifiable in the circumstances.

As well-documented, the current Liberal government is focused on “sunny ways.” Many of us can feel the many rays of light that this has brought – be it through increasing family class sponsorship numbers or ending several court interventions relating to immigrant rights.

However, there are still some dark undertones in the system, recently updated and reviewed, that in my opinion still exist.

Specifically, I think these elements project Chinese applicants in a negative light, reinforce negative stereotypes, and ultimately should be amended or eliminated in an effort to re-enforce the government’s commitments to the Charter and equality.

Example 1: Visa Office Requirements China v. Western Europe

As a bit of a juxtaposition, I want to put up the Visa Office specific checklists for two visa posts – the London Visa Office and Beijing, Shanghai, Hong Kong China (Chinese) offices for study permit applicants. These form the basis of supplemental documentation required by the Visa Office to make a decision on a particular application.

Here is the one for London Visa Office:

In the event the picture is too small, the additional documents are made up of only a ‘proof of employment or current studies’, ‘evidence of previous studies and travel’, and proof of income. For purpose of study, only a CV and any additional documents showing why you want to study is required.

Let’s move now to the Chinese Offices

The preamble…..

Before we begin, a preamble. Unlike for London, for China we see immediately that Immigration is concerned about complete, truthful and accurate materials and failure to do so could lead to fraud.

I have no qualms about this particular warning. I think the integrity of our system needs to be protected above all else.

However, I do not think it makes sense to include this only on the Chinese form and not the form for other countries. Perhaps, China statistically has higher incidents of fraud than other countries. This is certainly something that needs to be addressed – and must be through greater regulation of those who are providing immigration advice. However, to slap a misrepresentation warning on one group because of a perceived reputation of that group is the definition, in my mind of, the word ‘prejudice.’ Imagine, if the goverment’s checklist warned all Middle Eastern study permit applicants that it was against the rules of immigration to be a member of a terrorist organization. The effect is the same here.

After this preamble, in my opinion more questionable content:

For an applicant apply through the London Visa Office, there is no requirement for the disclosure of information relating to the applicant’s mother and father. As this application does not age discriminate, even a 30-year old applicant must provide information about his/her father and mother in order to meet this requirement.

From my perspective, this is a view of an Asian ‘student’ as being an individual low on self-reliance and self-independence – inexplicably tied to their family rather than to self. Again, I have no qualms with requiring each family member to fill out a form – but should this not be a global requirement for visa offices?

Next, a study plan. Note that is much more detailed than the one for London. Finally, you have a list of notarized documents, for college, senior high school, and including all transcripts. From a cost perspective, notarized documents with certified translations can run up to 400-600 RMB (equivalent to CDN 100-150) per document. Easily making the immigration process an additionally CDN $1000 more expensive.

For applicants who have not already visited Canada or the United States on a valid visa, the document requirements are even higher.

We see again, a concern with not only the Applicant’s employment put the employment of the parents and any financial support. The details required to be divulged are quite detailed.

In fact, the checklist gets detailed to the point of requiring that if an applicant’s parents must provide details about their business registration.

In my opinion, if you make this a requirement for one, it should be for all. Furthermore, I would suggest that the students that you genuinely want in Canada are those who may not be able to shell out CDN $1000 for transcripts, whose parents aren’t necessarily bankrolling their education or running businesses, and who wish to study here on their own merit. None of this is contemplated, within the supplementary form. This creates several challenges, particularly where you have a potential student applicant who may not be under the care, auspice, or even favour of their parents in trying to pursue Canadian education.

Example 2: Warning Message – Application to Sponsor a Family Member Outside Canada (China v. Western Europe)

Beyond the study permit context, there is also a similar type message for Canadian/PR spouses sponsoring their loved ones from abroad.

Here is the beginning of the guide to Western Europe:

Here is the beginning of the guide to China:

Other than the fact that the 2-years for misrep should actually say 5-years (as of the January 2016 date that it was last update), I have serious concerns with the implication of warning one group but not another.

As this is a guide for both sponsors and applicants, as a future sponsor of an applicant from China, I feel like I am beginning purposely pointed out as a potential for fraud simply based on the nationality of my future spouse.

To compare, I did a spot check on other guides. This same warning does not exist for India, Japan, or even Africa. However, it does exist for the Middle East and Central Asia applicants:

Indeed, it you want to read into a little more the box is even bolder in font for Middle East and Central Asia warning of misrepresentations. Accident or not, it is clear and obvious that the visa office requirements, and by extension the Canadian immigration system, is not treating all applicants similarly.

More Evidence – More Problems

Perhaps a defense that may be raised to the hierarchy of ‘distrust’ argument, is that India’s guide does not discuss fraud, even with it’s pre-existing reputation. If it is indeed, right now, the decision of individual visa offices to choose the content on their office-specific forms, I would argue that more harmonization is desperately needed.

In my opinion, a fair and just immigration system treats applicants and potential applicants as fairly and equally as possible without pre-conceived notions as to who they may be and what they may do, without evidence.

Warning an applicant from a particular country or region without warning another is a preconceived notion.

The fact is these requirements, directly affect results as well. I have seen more than one refusal decision where an female applicant from China was called “young” and “mobile”, leading to the conclusion she would not leave after the end of her intended stay – a requirement for temporary residents.

Furthermore, the documents themselves pose major privacy and even evidentiary issues. The more evidence an applicant provides in an immigration context, inevitably the more scrutiny they will face in so-doing. From an applicant’s perspective, the more they are being scrutinized, the more they will think that there is a distrust of them.

Additionally, the document quality standards in most countries pale in comparison to the Canadian standards. In many countries and particular poorer/less affluent regions, translations into English/French are not accurate and prohibitively expensive.

Fraud needs to be combatted, but at the same time it needs to be done in a way that equal, just, fair, and upholds the value of our Charter – one that does not discriminate by nationality.

Mar 15, 2016

Canadian Immigration Law Blog

What To Do About 20,000 High Risk International Students? – Government Policy Making and it’s Important Implications

Based on the most recent publicly-available figures, as of 31 December 2014, there were somewhere in the neighbourhood of 336,502 international students with valid permit in Canada (see: November 2015, IRCC Presentation).

From an internal policy document obtained through Access to Information (“ATIP”), we know that prior to the national launch of the Designated Learning Institution (“DLI”) Compliance Reporting Portal on (“DLI Portal”) on 15 April 2015, Citizenship and Immigration Canada (now “IRCC”) estimated that there were 20,000 students identified as high risk. These were classified as students that were labelled as unknown/no record, no longer enrolled, and academic suspension.

What this mean mathematically, is that around 6% of all study permit holders in Canada were considered high risk as of April 2015.

What-to-do-about-High-Risk-International-Students

Glossary of Definitions – International Students

Please see below pdf extract from the same ATIP laying out a glossary of definitions for international students:

Glossary-of-Definitions-International-Students

As a side note: Interestingly, enough the definition for “full-time” student only requires a student to be registered in 60% or more of the program’s full course load during an academic session with 60% of the course load requiring the student’s physical attendance at the Learning Institution in Canada. It is surprising the specific nature of these definitions is not provided by IRCC on their program delivery guide (see: here)

What to do with High Risk Students?

In this heavily redacted portion of the ATIP (including 56 pages altogether excluded on the basis that it is information the Government intends to publish shortly), we get a picture of the challenges Government faces when coming up with policy to monitor high-risk students.

The first option proposed (Option 1), appears to be compliance reporting specifically for those high risk students – reviewing GCMS for non-compliant cases and contacting those students to update their enrollment status through MyCIC to provide information that they are enrolled in a Designated Learning Institution (“DLI”).

The proposed ideas was that this would be done before the procedural fairness letter is issued and the case referred, simultaneously reducing the workload for the International Student Program team. Several potential “Cons” were indicated – that direct contact info for the students may not available, that this effort would duplicate the issuance of a procedural fairness letter, and that mass emails may be filtered out by spam blockers.

Option 2 was likely redacted by the ATIP.

Option 3 is also redacted, but can be deduced as sending out a mass procedural fairness letter to all students not registered at. What is interesting to deduce from this, is IRCC’s acknowledgment that the current process may not provide a fair opportunity to respond and that this would be one of the “Pros” of the process. One of the “Cons” identified is that mass-procedural fairness letters could not be sent out and that each Regional Office or Case Management Branch (“CMB”)would have to assess and send out individual procedural fairness letters. Another interesting aspect mentioned was that this process may go through the services of an immigration representative, which appears to circumvent the intention to go directly to the student to verify.

Option 4 is also redacted by the ATIP. However, we can somewhat deduce that this option involves contacting the DLIs with a list of students who would then self-report to Regional offices or CMB. The “Pros” of this option would that it would limit the procedural fairness letters and emails, with one of the corresponding Con that the Regional offices and CMB would receive large volume of records.

It is a little unclear from the pages that follow, but it appears that either Option 1 (again without knowledge of Option 2 is) was selected. However, as we have yet to see a clear policy manual or program delivery update on this, one can assume it is still pending release by the Government.

Canada Border Services Agency (“CBSA”) – Coordination Needed

The discussion of procedural fairness and the need to contact the student or the representative prior to looking into non-compliance raises an interesting issue.

Currently, several of the one-year exclusion orders issued by Canada Border Services Agency Minister’s Delegates – pursuant to s.29(2) of the Immigration and Refugee Protection Act.

As the legislation currently stands, R. 228(v) sets out that for this type of non-compliance, the Minister’s Delegate, upon determining the report was properly referred, must issue a specified removal order – by way of a one-year exclusion order.

Where this becomes challenging is in the context of a detained international student – who in a 10-15 minute Minister’s Delegate Review and usually without the ability to access their own educational records, must try and convince the Minister’s Delegate not to issue an exclusion order. The “procedural fairness” as contemplated by the IRCC’s policy options – giving the student a chance to provide proof of compliance is nearly impossible in this circumstance.

Furthermore, the basis of the evidence, presumably attendance records provided by the DLIs are themselves difficult to classify as “neutral.” I have seen more than one case where DLIs were eager to cooperate with CBSA to have problem-students removed, themselves eager to keep a clean record for their business.

Cracking down on Educational Consultants/Non-Compliant DLIs

Another thing that the DLI compliance regime is mum on, and in my opinion, needs to take a more than serious look at is the number of DLIs and “ghost consultants” that are themselves not compliant with the International Student Program.

One of the more common schemes, involves a third-party educational consultant/ghost consultant who does not charge for the “immigration services” but assists the student in obtaining a student permit for a DLI that they receive a back-end payment from. Educational consulting is an important industry, but arguably needs to be regulated by the Province in much the same way that other professionals such as Immigration Consultants and Lawyers are.

These services are having detrimental effects on international students in that, because they are not licensed nor trained to provide immigration services, their applications usually contain a litany of mistakes and often misrepresentations.

Currently a misrepresentation and non-compliance added together, under R. 229(3)(b), can be the grounds for deportation order if so pursued by CBSA.

Furthermore, many of the DLIs themselves do not have clear policies on non-attendance. Attendance records are not accurately kept or taken, often provided to CBSA retrospectively.

Solution – Provide International Students an Opportunity to Respond/and or a Warning Letter

Ideally IRCC’s new policy will be a collaborative effort enforcement arms like CBSA to ensure that procedural fairness is provided in the context of student’s non-compliant with their study permit conditions.

The requirement that students must actively pursue studies and remain enrolled in a DLI is a laudable one – abuse of the International Student Program is too frequent, taking resources and spots from future Canadian permanent residents and citizens who need Canadian studies as a launching pad.

At the same time, however, with a policy that is very paternalistic and unforgiving in design – procedural fairness elements must be implemented.

In my perspective, releasing detained clients (on conditions, if necessary) and providing them 30 days to respond is a baseline requirement. I also think, that in several cases, a warning letter may be more appropriate. Students may have communication issues with their DLIs, personal events may have impacted an international student’s studies. These are all valid considerations currently not being considered by the current compliance regime.

Mar 8, 2016

Canadian Immigration Law Blog

Immigration, Refugee and Citizenship Canada (“IRCC”) Releases Their 2016 Immigration Levels Plan

In what can be considered the equivalent to the immigration law version of draft lottery day, the IRCC has released it’s projected numbers of permanent resident applications processed in 2016.

The report/background begins by laying out how this year’s targets differs from last year’s targets:

Economic Immigration Targets

One of the first things you notice is that the targets reflect a lowering of the the total of proposed economic immigrants from 181,300 to 160,600.

The proposed 2015 (last year’s) Levels Plans for Economic Immigration were this:

The 2016 (this year’s) Level’s Plan proposes the following with respect to Economic Immigration.

Interesting, where the major drop appears to be is in the Express Entry- eligible categories of Federal Skilled Worker + Canadian Experience Class, amalgamated in the 2016 levels plan as Federal Economic – High Skilled.

The drop in numbers there is at around 25,600, a sizable amount. What this may mean (although not inherent in the numbers), is there is still a large backlog to be processed of existing Express Entry and old Canadian Experience Class/Federal Skilled Worker inventory.

What I suspect this will mean for Comprehensive Ranking Scores is that they will not dip below 400 threshold in this year. Again, when the program was created, it was estimated that it would decrease to somewhere in the 300’s which has yet to occur.

Family Immigration Targets

The second thing you notice is a corresponding increase in the number of family class applicants, the source of which will become clear.

The 2015 (last year’s) targets were as follows:

The 2016 (this year’s) targets are this:

It is interesting, that with the debate on whether the Parent and Grandparent Class should continue to exist or be replaced by 10-year multiple-entry, the proposed intake stays the same (and as only 10,000 were processed last year) will ultimately increase.

The increase in Spouses, Partners, and Children is welcome, but for many the real crux of the issue – the lack of short-term options for sponsored spouses and the length of processing times, don’t appear to be answered by having an increased number of processed applications. Those solution will have to come from other means and policy instruments.

Humanitarian Immigration Targets

What is perhaps most interesting is the way humanitarian levels have been reclassified and expanded since 2015’s Levels Plan.

2015

2016

However, doing the path it really amounts to a significant increase in the number of Resettled Refugees. Protected Persons and Dependents do not change. Neither is their any significant change – other than to public policy exemptions and a minor decrease to “Humanitarian and Other”.

In light of the Kanthasamy v. Canada (Citizenship and Immigration) 2015 SCC 61 decision, it will interesting to see how decreasing the non-refugee inputs will affect long-term wait-times in an already backlogged H&C category.

Targeted Acceptance vs. Actual Admittance

Do keep in mind that these reflect targets rather than actual numbers. It will be interesting to see later on how close the Government was last year and will be this year in meeting those targets. This information may not come out (for 2015) until a year from now, similar to how Table 7 of the 2016 Annual Report Plan lays out the numbers of permanent residents admitted in 2014.

Of course, this takes into account individuals that may take several years to obtain permanent residency so I don’t know if there’s an accurate way to determine if the targets for a specific year were indeed met.

I think we’re all eager to see how this plan plays out in practice!

Mar 5, 2016

Canadian Immigration Law Blog

Proposed Solution for IRCC – Move Response to Further Information Requests to a Portal-Based System

Recently, I have dealt with several files where the issues were entirely a matter of technology and administrative challenges, rather than substance. In the cases that come to mind, refusals/litigation could have been avoided with what in my mind is a simple solution – moving the Response to Further Information Request system to an online form/upload/portal based system.

Currently, when Immigration Refugee and Citizenship Canada (“IRCC”) request further information, most of the time this takes the form of a letter or email sent to the email address on file, usually the Applicants or their Representatives. Often times it is unclear what file the request or confirmation is referring to due to a lack of identifying features on the usually generic IRCC letters.

Upon receipt, applicants are given a set amount of time to respond. Many times it is not made clear where to respond. Other times it specifies it should be done by email.

The email response process comes with its’ fair share of inherent challenges. In fact, earlier this year, as one of their first Operational Bulletins since taking over power, IRCC set to clarify the process by which email communication with clients is to take place. OB265A is accessible here.

Asides from the issues listed in the Bulletin, there are often several other issues. For one, it is quite common that Requests for Further Information, particularly in the context of a file with a long immigration history such changes in email address and representative’s email, go to the wrong address. It is quite embarrassing for both client and old/new representative, when the email goes to the old representative instead of the new, particularly where the client may no longer be on good terms with the old representative. I have heard of several cases of delay on the part of old representatives in passing on information to the client, in some cases leading to refusals.

Second, the process of uploading attachments to emails bound for IRCC inboxes is unclear. I personally, set myself a 5MB limit for attachments, after which I will try to send a separate email. However, it is entirely unclear what IRCC’s inbox limits are and whether the documents are received in good condition. Just think about the number of times we receive corrupted files in our own day-to-day emailing.

Third, IRCC (particular I found internal visa offices) asides from automatic replies, rarely confirms delivery of further submissions sent by emails. Particularly where further clarification or extension is being sought, this leads to a long “wait and see” approach that generates a lot of unnecessary stress for all parties.

Possible Solution – Utilizing a Secure Online Form/Portal for Submission

From my understanding of IRCC’s online application systems, there are already mechanisms in place for requests for further information to occur online. Of course, this is complicated in a paper-based PR process – again, an issue I think in itself will need to be revisited. However, it makes sense to me that a portal – similar to that used for online TRV/study/work permit applications exist so that applicants can have peace of mind that their uploads have been properly uploaded and their documents properly received. This has the added benefit of being able to require a digital signature of the Applicant, to verify that all the documents are true – adding a potential barrier against A40 Misrepresentation.

What are your thoughts on possible solutions here? Do you agree that moving things digitally would promote greater procedural fairness? What do we do about several countries where access to technology/the internet is not up to par?

Feb 26, 2016

Canadian Immigration Law Blog

Social Media Blackout – In Memory of My Late Father

Dear Readers:

Without delving into too much detail (my father was quite a private man and would not want it) I unfortunately lost my father earlier this week after his battle with a horrible disease. I am grateful that he is no longer suffering.

My father was a huge advocate of being a self-less, quiet, hard worker. He was the yes man, the go-to-person for everyone in his social circle and family. He never wanted the awards, the acclamation, the publicity. He was an important man beyond the results of a Google search. One of the things, he constantly told me was to be less public and more private and humble in my work.

To honour his memory, I will take a two week break from social media – including this blog, my disabled Twitter and Facebook accounts. I know these are tools of my trade and it may lead to a few less readers/referrals in the interim but it is my way to honour the man.

I ask all of you to stay patient and spend the extra time you would have spent reading my writing to spend time with an aging, sick family friend or loved one.

Dad: I will make you proud. You are the reason I am here, you are my driving force. I apologize for not spending enough time with you in the last few years. But no regrets, I will carry on your legacy of hard work and perseverance.

With love,

Will

Feb 18, 2016

Canadian Immigration Law Blog

Checking LMIA’s List Twice – Practice Tool via ATIP

The nature of an Labour Market Impact Assessment (“LMIA”), am often hundred pages application, requires an accuracy superior to all other immigration applications. For many successful practices, including my own firm’s much attention is spent on ensuring every last page is accounted for and every last required information is filled out.

The consequences of submitting an incomplete application can be more than a hassle. Documentation may no longer be on file and as a result there could be challenges.

Employment and Skills Development Canada (“ESDC”) has internal policies relating to the Handling of Incomplete Paper-Based Applications. if the missing information is a minor element which can be obtained easily, the policy is for ESDC to contact the employer to remedy the situation. However, because of that incompleteness it is ESDC Policy (as of 21 August 2015) to immediately put it into regular processing. This could be very crucial for a Client/Employer who was expecting 10-day expedited processing and is dependent on one for an Employee/Contractor’s work permit

Many of you may have seen a letter such as this, information the Employer that the application has been deemed incomplete and has been subsequently shredded.

I figure, since we have access to it, that this may serve (in the interim, and as the law changes as it inevitably will) to be a good checklist for anybody prior to submitting to ensure they have included all the required documents and filled out all the appropriate forms.

20160218164515948

Please note that the above document was obtained independently through Access to Privacy and Information. In sharing this document, I am not liable for its contents nor do I represent ESDC.

Feb 18, 2016

An Invitation Letter to My Foreign National Spouse: A Fictional Short Piece

This letter has been translated into English for purposes of clarity. Assume it is in the third language of your loved one.

Dear My Foreign National Spouse:

I am writing this letter to invite you to come visit me in Canada. I was going to just private message you or video you as usual, but I know we need to create a paper trail for our Sponsorship Application later on. Sigh, they probably won’t believe our love because our different cultural backgrounds and ethnic backgrounds and the fact I am just an ordinary Canadian. I am merely an ordinary Canadian and product of hard-working immigrant parents.

Anyways, apparently immigration loves these types of “love letters” in addition to diamond rings and fancy weddings. By the way, sorry I could not deliver on the latter two items for you.

You see, you and I were married earlier this year but unfortunately due to visa issues you have not been able to see me since then. I understand your visa was rejected three times in a row since then because they assume you will not leave Canada at the end of your authorized stay. I told then a millions times that you would, but they don’t trust my word – apparently my being Canadian, having been born here, and having studied here all my life means nothing to my country’s visa office located in your country. Apparently they believe you want to flee your home country because of the socioeconomic problems and go underground in order to be with me.

Honey, you know I need you here. I know you graduated from a great university with an MBA and that your entire family is in your home country. However, you know the situation. If I leave my job and join you, I may be able to get a work permit next week but I would not be able to practice in my field. I would have no income. You would be an unemployed new graduate. Plus, I want to raise our family here. Canada should be our home. My parents are getting old and sick too and they need me to stay here. I beg you to sacrifice for me.

I know you are worried about our future together. Last time I visited you, you told me that this long distance could not go on for another year. I know that with each passing day, your family is putting pressure on you to end our marriage. They cannot understand why you would want to go to a country that will not even grant you access to come visit or meet my parents. I know both of our parents have different religious beliefs and probably won’t even write supporting letters for us or hold a wedding for us. I think we may just have to have to get eloped somewhere. None of my friends have the financial capacity nor time to fly out to meet you. I hope Canadian immigration can understand this situation. There’s a freaking recession right now. Sorry again, about that (lack of) a diamond ring.

I promise I will sponsor you – but not for immigration purposes of course. I also know we will have to wait at least a year and a half maybe up to three years for you to get permanent resident status in Canada. That reminds me, I hope nothing gets lost in the mail during our sponsorship process. I heard from a friend their application has been stuck in limbo for four years because they can’t reach some one at the visa office and get them this police certificate for a country they visited when they were 18 for six months. Another one of my friend’s application was refused downright. Apparently her partner in the visa office interview that there were a hundred people at their reception when there were actually two hundred and because she couldn’t remember which auntie introduced them. How can one panic and forget things so easily?

Sorry for being so negative, maybe I have just been listening to too many horror stories recently. I am sure we will be okay.v Let’s say this fourth visa application is successful and you can come visit me. Just think of all the possibilities we wil have together in Canada. When I am working my fourteen-hour day, you can stay home to cook and clean. You can self-study English or take a short course, but not a degree program because you will need a study permit for that and no school will take you with your level of English. If I get off work early enough, we may even be able to go for a walk in the park for an hour so you can get some fresh air.

Once you are a permanent resident, remember because we were only recently married we have conditions to live together under the same roof. If you have no job and a parent becomes sick, either you come back in a few months or I will have to quit my job. By the way, do not ever think of disobeying me or leaving me, because I will call immigration and I will have you deported. Tough luck love.

You will be able to work or study in two (or was it three?) years I promise. It won’t matter that you have little on your resume since graduation. I am sure I can cover your tuition to study, in addition to our rent, and food and expenses.

Okay honey, it is getting late now. I will sleep alone again tonight. Honestly, I am so jealous of the Canadian families that can spend time together. We have missed each other’s birthdays and the last several holidays. I always see politicians on TV saying that with new changes it will be quicker and that I can sponsor you sooner. I am not sure any of them have ever spent more than a few weeks apart from their loved ones, and probably only by choice when they need some time apart on their so called recreational trips. Writing letters to you and racking up my cellphone bill face-timing you is now my only recreational activity.

I hold out hope though that if I continue working hard and making a little bit of money we can set up a decent life in Canada. The economy will get better. We will pay off the bank loan that I will need to get to support us for the next few years.

Worst case. I mean worse case. I promise I can sacrifice for you too. Canada won’t care if I am a brain drain and that I give up my profession ambitions to go to a country I have never spent more than a semester abroad in. Right?

Canada can never fully feel like my home, even though it has always been my home, without you here.

Sincerely,

Your Canadian Spouse

Feb 16, 2016

Canadian Immigration Law Blog

Mehfooz v. MCI 2016 FC 165 – Lessons for Companies Supporting TFWs/PR Applicants

Justice Henry Brown’s decision in Ali Mehfooz v. The Minister of Citizenship and Immigration 2015 FC 165 is a very important reminder to employers of foreign workers as to the level of scrutiny a company supporting a TFW/PR Applicant will receive.

The Facts

In Mehfooz, the Applicant applied for the Canadian Experience Class (“CEC”) category on the basis that he had worked 1,952 hours for Today Employment and HR Ltd. as an Account Manager Sales. The Applicant claimed that work at Today HR qualified him as a Corporate Sales manager, as defined by NOC 0601.

CIC (as it then was called) requested more information from the Applicant about Today HR and the Applicant’s working hours. The Applicant included information about Today HR demonstrating the firm had 308 employees, revenue of 1.2 million in 2013, and that the Applicant had worked the hours claimed.

CIC looked up the Dun & Bradstreet [D&B] database and found that the search was “inconclusive” referring the case to the Anti-Fraud Unit. A follow-up procedural fairness letter was sent expressing “serious concerns” with the application and the Officer’s concerns that the requisite experience was not actually performed by the Applicant. Several documents related to the company were requested including the company’s tax and banking material and an organizational chart listing all employees and positions where the Applicant worked.

The Applicant apparently responded to the letter with an explanation letter claiming that they had experienced website problems due to domain expiry, an organizational chart, and marketing pamphlet materials.

The Officer refused the Applicant’s PR Application.

The Decision

In finding that the decision to refuse the Applicant’s PR Application did not breach procedural fairness and was reasonable, Judge Brown emphasized that ample opportunity was provided to the Applicant to respond to the credibility concerns. He noted that the Applicant should have reasonably anticipated that such information would be consulted and that it was publicly available. Specific reference to the D&B database was not found to be procedurally unfair, as the inconclusive results were not relied upon.

On the reasonableness front, Judge Brown found it was not enough for the job description submitted to simply reproduce NOC requirements and that it was reasonable for the Officer to conclude the evidence submitted was insufficient.

I found that the following line was most instructive and prescriptive to companies going through the process of hiring a TFW or supporting a PR Applicant:

“[23] It was also reasonable to expect Today HR to have a functional website and to find that its organizational structure was confusing. Officers are entitled to rely on common sense.”

What is common sense? Is this in itself a reasonable term in the context of online evidence?

Building a Business Case for Your Company’s Foreign Workers

Ultimately Mehfooz is a good reminder that whether looking forward (through an LMIA or an Offer of Employment) or retroactively (through an Applicant claiming past experience for a PR Application), a strong business case must exist. A company that does not have its essentials down – proper incorporation, registration, adherence to Canadian taxation, etc. will be looked at carefully. Furthermore, this case is a reminder that the stronger the business case made, with respect to revenue and employee base, the paperwork will be expected to back it up.

A Google Search is Interpreted as Today’s Common Sense

Google (a western, English-based search engine) is still considered the sine qua non of online searches. The fact that results did not come up and the website was not active, led to a negative credibility inference that ultimately was not overcome by the company’s response. I was surprised that the Federal Court’s decision in Chen v. Canada (Minister of Citizenship and Immigration) 2015 FC 771 did not make an appearance in the decision. [See my previous post on bad google searches as extrinsic evidence here]

It is interesting to note that a search of D&B Express does actually yield information about the Brampton-based business. Also, their website is currently running.

I would argue that more judicial scrutiny needs to be placed on the Google search as “common sense” or an accurate indicator of a company’s current information. Indeed, there are several companies offering Search Engine Optimization (“SEO”) strategies that can severely distort the results of a Google search. Results can also often differ depending on search engine used. If you try putting a company name through Google, Yahoo, Bing, and Baidu you will get remarkably different results.

Should All Companies that Hire Foreign Workers Have an Online/Social Media Strategy?

This is probably going a bit far, but I would suggest a small and medium-sized company looking to hire foreign workers or supporting a foreign worker through permanent residency, should do a full audit to ensure their online profile matches their actual business profile matches the information listed in an immigration application.

Do all companies that hire immigrant workers need a corporate website? Does the fact a website is empty of information in English and full of stock images diminish the companies credibility? These are questions that I am sure future case law will slowly carve the answers to.

Feb 12, 2016

Canadian Immigration Law Blog

The Rising Problem of Express Entry Refusals/Incompleteness

Introduction

I posted as early as in March 2015 (when Express Entry was only three months old) as to why I felt Express Entry would create headaches/misrepresentation concerns for applicants.

Almost a year later, it looks like the leeway/grace period in the Express Entry’s electronic management system has officially ended. Express Entry completeness/minimum requirement provisions are being applied very strictly. An unforgiving system, unlike a paper application where it was very common to try and supplement information after the fact or the usual temporary resident system where a pull and resubmit is quite easy, Express Entry doesn’t appear to be too receptive to those type of requests. An electronic-Application for Permanent Residency (e-APR) is a one-shot deal and should be treated with overabundant caution by applicants and practitioners alike.

There are two major triggers for Express Entry failure that fall into the realm of the arguably controllable:

Individuals are being bounced (technically not refused) for providing incomplete documentation and not meeting the R. 10(1)(c) requirement of the Immigration and Refugee Protection Regulations to submit a complete application; and
Individuals are being refused for no longer meeting the minimum requirements based on the self-declared information on their initial Express Entry profile no longer being an adequate reflection of their point score or their qualifications. The authority for this is the Immigration and Refugee Protections Act Sections 11.2 , 10.3(1)(e), and 10.3(1)(h). They are not the most straight-forward sections and require some reading.

Many of the refusal/incompleteness issues come from inherent “shortcomings” with the Express Entry system. First, when a profile is created a score is generated. However, unless an Applicant updates the information in their application the score does not automatically update. Individuals who have birthdays, find new jobs, get new degrees conferred, or even have new family members can find their applications reassessed at the time of their application to find they no longer meet minimum requirements that their initial Invitation to Apply was based on.

Second, when Applicants are provided a personalized checklist at the e-APR stage, the checklist does not often provide complete details of what is required. For example, looking at a checklist of required uploads, it can be easy to assume that only the document named is required without questioning whether that document is a) enough or b) the details of the content required in that document.

Third, so much of the e-APR system is now based on proof of documentation such as medical examinations and police certificates, which themselves are dependent on documentation provided by third parties (other Countries/Doctors, etc.). Many times an individual will have challenges securing those documents and/or have past medical examinations or police certificates near expiry. Most of the times errors are innocent or simply based on poor document handling or time-lining of expiry dates.

Best Mitigation Stratetgy – Read, Review, and Record Everything

Step 1 : Read

Immigration, Refugee and Citizenship Canada (IRCC) has a lot of good, publicly-available, information for applicants. It’s free. You don’t need a lawyer to read them off the screen for you. You want to know this before your consultation with an immigration advisor.

This one of the most important documents for Express Entry, is IRCC’s program delivery instructions for a completeness check: http://www.cic.gc.ca/english/resources/tools/perm/express/intake-complete.asp#document_checklist

A little harder to read, but equally relevant – here are the instructions for IRCC’s review of applications after an e-APR is submitted to ensure they met initial program requirements http://www.cic.gc.ca/english/resources/tools/perm/express/refuse.asp

Step 2: Review

If your Express Entry has been in the pool soaking in the hot tub for awhile, perhaps it is a good idea to check if the information is still accurate. Particularly if something changes in your own profile – you have obtained additional documents, you have found a new job, etc. you should make sure to update immediately.

You also want to review all the information you include before you submit your e-APR. There are specific things you can add to your personalized checklist to help cover gaps/changes and explain deficiencies. You want to make sure you put forward the strongest foot forward at the e-APR stage and review all information to date – is my travel history complete? did I list all my jobs? am I sure I did not stay in a country for longer than six months combined (side note: see new changes announced by IRCC here). This is also, where you may seek the assistance of a legal representative to identify and help you uncover and address those gaps.

Step 3: Record Everything

For an incompleteness under R. 10, you may be lucky and have the information in your profile stay for 60 days as you update it and create a new eligible profile. For refusals, you will likely have your application wiped clean and will have to start from scratch. This can be a huge headache for applicants.

At the very least, you want to have the information you used or submitted in previous applications saved. You don’t want to be in a position where you are justifying a changed answer on the basis of “I don’t remember.” Also, in the event in the near future that a more established reconsideration mechanism (*nudge nudge IRCC*) opens up, you want to be able to have evidence that you made best efforts and that the process itself (rather than your own actions) were the result of refusal.

Lack of Remedies

As mentioned above, IRCC has created few remedies for Express Entry incompleteness/refusal issues.

One of the best proactive remedies is the request for an extension of time and proof that best efforts have been made. Again, this is discretionary and depends on category. See IRCC instructions for more specifics.

Right now, financially speaking for clients it is hard to justify paying X amount of money to judicially review (challenge the administrative decision making process) of an Express Entry refusal when it would only take creating a new profile and the receipt of a new ITA. However, I would suggest that a review of the events leading up to the refusal and a review of one’s current eligibility, CRS score, and family/work situation should occur prior to writing off the judicial review process.

Conclusion

Express Entry was promised as a gateway for Canadian economic immigration, but for many its turned into a locked door. A little diligence and an understanding of the way the system works can go a long way to save you heartache and lost time down the pathway to permanent residency.

Feb 11, 2016

Canadian Immigration Law Blog

Three Useful Canadian Immigration Lessons from the New BC PNP Skills Immigration Guide

Introduction

Now a couple weeks old, the BC PNP’s 2016 offerings for its Skills Immigration Programs have drastically changed the way the bulk of nominations for permanent residence occur in the Province of British Columbia.

Taking lessons from Immigration, Refugee and Citizenship Canada (“IRCC”)’s Express Entry program and following the trend of many provinces towards an electronic application management system, BC PNP has also rolled out it’s own electronic points-based system.

This system requires that the Applicant first create a profile demonstrating they meet requirements. They will be awarded an initial score and then based on their score may automatically be eligible for selection depending on their category of application. Those who do not meet the score requirements for guaranteed invitation can stay in the pool for up to a year and may be issued a nomination if the points total goes down to the score they hold.

I won’t go into the finite details of the program. My colleague, Steven Meurrens has written an excellent post introducing the new program offerings and operation. Please see his post here.

What I want to do in this post is read between the lines a bit to see what current legal issues and policy issues we can extract from the BC PNP’s Skills Immigration and Express Entry BC Program Guide. I believe the guide really, and almost accidentally, susses out some major issues currently affecting those pursuing Canadian immigration options through employment.

For those following at home/work here is a copy of the Program Guide for your viewing pleasure here.

A brief note that I will not be making any normative judgments or criticisms about the BC PNP program in this piece. First, I believe it is much too early to critique something that has not yet been fully tested in operation. Second, I am generally a big fan of the overall concept of using technology to speed up, enhance, and organize the immigration process for applicants. I am a big fan of the BC PNP’s dedication and initiative to eliminating processing times and reducing inventory in several of their previously oversubscribed programs.

So without further ado, here we go:

Lesson 1: BC PNP Provides a Great Guide to Job/Career Planning for Potential Permanent Residents

Through the introduction of bonus points, the BC PNP Skills Immigration process awards additional ten (10) points to those working in jobs considered Top 100 in terms of the BC Labour Market Outlook from 2014-2024. You can read the entire report here.

Below are screenshots of the relevant tables. showing the NOC 0, A, B, and C positions.

This guide would be very useful for an international student or a foreign national near graduation from a B.C. high school to look at possible career paths. For each of these occupations, there may be educational requirements as well, so it is important to corresponding look at the National Occupation Classification code (corresponding to the code in the far right columns of the above chart).

Lesson 2: BC PNP Suggests that Tax/Employer/Employee Issues Will Continue to Be Immigration Barriers

a) Permanent Establishment Definition Creates Possible Exceptions to Full-Time Employee Requirement

One of the requirements for an employer seeking to use the BC PNP program is that the employer must be “permanently established in B.C. as defined by the federal Income Tax Act.”

There is also a softer requirement that the Employer have at least five indeterminate, full-time employees (or full-time equivalents) if the employer is located within Metro Vancouver or at least three indeterminate, full-time employees (or full-time equivalents) in B.C. if they are located outside Metro Vancouver. However, this is discretionary and BC PNP may take into account a compelling business case if the nomination will generate economic benefit to B.C.

The permanent establishment angle is quite interesting and could give way to unique immigration options. Canada Revenue Agency, interpreting S. 400(1) of the Income Tax Act does not actually require that that the company must have a fixed place of business in the province.

In fact, if the corporation caries on business through an employee or agent it could be considered a permanent establishment if the employee or agent either:

“has general authority to contract for the corporation;” or
“has stock of merchandise owned by the corporation from which the employee or agent regularly fills orders received.”

The BC PNP does require that the Employer is:

incorporated or extra-provincially registered or
registered as a limited liability partnership in B.C. or
be an eligible public sector or non-profit employer.

According to the CRA a corporation is deemed to have permanent establishment in B.C., if the place designated in its incorporation documents or bylaw as its head office or registered office is in B.C.

My reading of the above, in addition to the fact there is no parallel requirement that the eligible Employer must be incorporated or must be operational for a certain period of time, is that a new/young start-up company, even unincorporated and without a B.C. operating address, may have options to support a foreign worker’s nomination through BC PNP Skills Immigration.

Given the layer of discretion inherent in the language and BC PNP’s policy, it will be interesting to see how they is used and how BC PNP program officers address this possible pathway to permanent residency.

b) No Contractors and Unexplained Wages

BC PNP establishes several times in the Skills Immigration Guide that only employees qualify for nomination and that independent contractors are not considered indeterminate employees. This could also raise tax issues, as I am aware that recently there has been a hiring practice, particularly in smaller companies/start-ups, to hire what should be employees as contractors instead.

This becomes an issue even prior to creation of the offer of employment to support a potential nomination. BC PNP has also set out in its calculation of the “Minimum Income Requirement” for BC PNP registration that Family Income does not include bonuses, commissions, or profit sharing distributions. Even for those who currently hold valid work permits (many times, post-graduate work permits where there is much flexibility in hiring and wage), applicants must “demonstrate a history of earning the offered wage and a history of meeting minimum income requirements prior to submitting a registration and/or application to the BC PNP. This requirement is even more specific for the Entry level and Semi-Skilled Applicants program – which requires nine full months of evidence (likely through pay stubs).

This will be an important consideration particularly for those applicants who will be relying on international work experience, often times work within a family company, prior to applying to the BC PNP Skills Immigration program. Many times, the arrangements in these companies is very loose, not adequately recorded, and involves some sort of profit/share scenario. Individuals with immigration ambitions through skilled worker programs would be wise to seek legal counsel prior to gaining the requisite work experience used to qualify for BC PNP Skills Immigration.

3. Education, Language (but not Age) are Increasingly Important and Determinative Factors for Permanent Residency

The big change brought in through the new BC Skills Immigration program offerings, independent of the federal requirements already explicit in the Express Entry BC Skills Immigration programs. is that there are now language requirements for NOC B, C, D, positions and that Language now represents 30 out of the 200 possible points on the scoring system for all applicants.

My understanding that for NOC 0 and A occupations, there is no hard requirement to submit language tests but that failure to do so would cost the applicant 30 points. Furthermore, there is an added discretionary risk – both at the pre-nomination level and also at the PR Application level that an Officer (either BC PNP or IRCC) may determine an individual without requisite English skills could not perform the requirements job. Language, for all intents and purposes, is now acting as an important hurdle that several applicants will have to jump.

Second, education is becoming scrutinized more carefully. Federally, the government has been implementing several efforts relating to compliance – particularly in the field of individuals who are not actively pursuing studies while holding a study permit (now a ground for removal from Canada).

Provincially, you can see the BC PNP suggest that education, particularly diplomas and certificates that qualify one for the International Graduates stream, will be scrutinized more carefully.

They write in their guide:

The bold emphasizes that only public post-secondary institutions support a nomination through the International Graduates program though there are hundred eligible DLIs (mostly private) that support study permits.

Below are a list of the 21 public post-secondary institutions that could support International Graduates and I would suggest simultaneously would be very popular for students immigrating to Canada with permanent resident ambitions:

(Source: http://www.aved.gov.bc.ca/datawarehouse/documents/headcount.pdf)

Conclusion

The BC PNP Skills Immigration program guide, more than just a document providing information, really represents a window into the challenges and barriers all potential temporary and economic immigrants to Canada are facing. Issues such as hire-ability, employment, tax, language, and education all play a prominent role in the BC PNP Skills Immigration program and will continue to for most provincial and federal economic immigration programs down the road.

Feb 5, 2016

Don’t Shoot the Airline Company- CBSA’s IAPI is the other side of the eTA

There is no doubt that Canada’s electronic Travel Authorization (“eTA”) regime, set to go into full legal effect a little over a month from now, will be disruptive to the process of travelling to Canada.

As I have covered in an earlier blog on the topic, the eTA will create several consequences for those seeking entry by air into Canada. Some of the expected follow out could include permanent residents being trapped outside Canada with expired cards, Canadian dual citizens lacking proper documentation unable to fly home, and foreign nationals being unable to board planes to Canada. It will also have spillovers to those seeking to enter by land via private vehicle. One immigration lawyer suggested jokingly that a local U.S. land border was likely to get very busy due to the number of individuals forced to drive across in private vehicle in order to return to Canada. Individuals who drive by private vehicle are not under a requirement to produce a valid PR card upon entry.

This all begs a question. How will the eTA be enforced from the other side – by airlines companies? To look more closely we need to study Canada Border Services Agency (“CBSA”) Interactive Advanced Passenger Information (“IAPI”) system and the increased role airline companies now play as the front line to screen out individuals flying to Canada with improper/expired documents.

IAPI

Prior to the eTA, individuals with expired permanent resident cards has several options. One of them (for individuals who did hold travel documents), was to present a visa-exempt passport in order to get past airlines and hop the plane. Upon arrival they would then attempt to enter Canada on the basis of the expired PR card and a confirmation of permanent residence. For many passengers this worked. Very little was done to keep the individual off the plane and little was enquired of the passenger’s immigration status.

IAPI changes that by requiring that “pre-departure traveller and flight data to be submitted by commercial air carriers prior to an international flight’s departure for Canada.”

For all international flights for Canada, CBSA will both require the advanced passenger information and ultimately issue a board/no-board message for each passenger. This means that prior to the flight, CBSA will no whether an individual is required to have a valid travel document (eTA or visa), is a permanent resident, or a Citizen. They will also be able to track if the individual is subject to a removal order or an Authority for Negative Discretion (“AND”).

The technical nature of the IAPI system is at first glance very confusing and complex. I expect that the airline companies that already have state of the art IT will likely try and figure out internal systems to facilitate the provision of passenger information to CBSA.

Exit Controls Coming Soon.

The next major development will be the implementation of exit controls, which to my best estimate will occur sometime in early-mid 2017. From my review of CBSA briefing material for airline companies, much of the technical infrastructure is in place for this already. Once exit controls get rolled out, I think we can see integration with both PR and Canadian passports as well allowing the CBSA to better track and record the entries and exits of all air and land border.

For more information about the eTA, IAPI, and how it may affect your travel plans feel free to email me at will.tao@larlee.com

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